' SHABBIR AHMED, J.---On conflict of decisions between two Benches of this Court, necessitated the formation of Full Bench for disposal of above titled petitions containing similar facts and law involving admissions in Sindh Medical College, in order to resolve the controversy.
2. The conflict decision emanates in the following background: ' Constitutional Petition No.1764 of 2002 (Feroz Shah and others v. Principal SMC and others) (2) C.P.
No.1746 of 2002 (Haroon Anwar and others v. Principal SMC and others), (3) C.P. No.1887 of 2002 (Haseeb Arisari v. Principal Sindh Medical College and others) pertaining to admission in Medical College were dismissed on 25-2-2003 by a Division Bench comprising of our learned brothers S.A.
Sarwana (now retired) and Muhammad Mujeebullah Siddiqui, JJ., by common judgment, inter alia, on the grounds that the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan does not decide the disputed question of facts, which involve recording of evidence. Whereas another Division Bench comprising of our learned brother Sarmad Jalal Osmani and Rehmat Hussain Jaferi, JJ., allowed the following petitions:-- ' C.P. No.160 of 2003 (Muhammad Ayaz and others v. Principal SMC and others), C.P. No.364 of 2003 (Salma Gul and others v. The Principal Sindh Medical College and others), C.Ps. Nos.367 of 2003 (Miss Uzma Farid v. Principal Sindh Medical College and others) 385 of 2003 (Zeeshan Alam Khan v.
Principal Sindh Medical College and others) and 397 of 2003 (Miss Noreen Ehsan and others v.
Principal Sindh Medical College and others) involving admission in Medical College by common judgment dated 27-3-2003 with the following observations/directions:--
(a) The petitioners would be allowed to sit in the Final Year MBBS Professional Examinations which are due to commence from . 31st March, 2003 and shall be over on 20th April, 2003.
(b) So far as their admission to Sindh Medical College is concerned,which is the bone of contention between the parties, the matter shall be thoroughly investigated by the concerned Authority, .Which shall hear the petitioners on 21-4-2003. However, the petitioners shall deposit copies of the documents on which they rely to establish the bona fide of their admission with the Principal Sindh Medical College, Karachi by tomorrow viz., 28-3-2003 till 3-00 p.m.
(c) Upon hearing of the petitioners on the aforementioned date, the concerned authorities shall be free to pass an order based on the record as well as arguments addressed at the time of hearing in accordance with the law.
(d) The order passed could be subject to the order which shall be passed ultimately by the concerned authorities.
3. It is pertinent to mention that in all petitions (disposed of and pending disposal) notice dated 23- 1-2003 issued by the office of the Principal and Chairman, Academic Council Sindh Medical College Karachi were/are impugned, the contents thereof are as follows:-- "As per list received from the Member, Governor Inspection Team III for verification that the following students have been identified to have got admitted on bogus/fake documents. Any student who have any valid admission letter and fee receipt should submit to the undersigned within 7 days otherwise their admission will be cancelled as per Prospectus Rule 1987, Rule 3 of Admission Sr. No.22 Page. 17 Till verification, their examination forms will not be accepted. "The names of the persons were given in the list."
' The names of the petitioners are included in notice impugned amongst the students, who were required to submit the documents to establish their admission.
4. The questions involved in the above petitions are almost common. It is, therefore, considered proper to deal with and disposed them of by this common judgment.
' Petitioners in above petitions have invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan for the following reliefs, except in C.P.
No.606/03:-- A(i) Declare that the notice dated 23-1-2003 is illegal, without jurisdiction and has been issued with mala fide intention and it has no legal effect.
(ii) Direct the respondents to provide Examination Porm for the year2003 and allow the petitioners to sit in the said Examination with all regular facilities.
(iii) Any other relief/reliefs this Hon'ble Court deems fit and proper under the circumstances of the case. B. The brief in C.P. No.D-606 of 2003 are in the following terms:--
(i) Declare that the notice issued to the petitioner dated 5-5-2003 by the respondent No.1 requiring her to produce PRC, Domicile Certificate, Matriculation Certificate, Intermediate Certificate with marks sheet and Admission of her letter of Principal Sindh Medical College, Karachi illegal, unlawful and of no legal effect.
(ii) Direct the respondents to accept the Equivalence Certificate of the petitioner, her Grades Certificate issued from her School in United States and take into consideration her American Passport, coupled with Visa fixed by the Embassy of Pakistan and not to insist on production of PRC, Matriculation Certificate, Intermediate Certificate, Marks sheet.
(iii) Direct the respondents to conduct and allow the petitioner to appear in the viva voce examination of the final year MBBS and if upon success be conferred with the Degree of MBBS.
(iv) Grant any other relief.
5. The facts are common in all petitions. However, the petitions can be categorized with reference to admissions claimed against (i) Merit seat, (ii) Reserved seat on (a) C.M. Quota and on (b)
Foreign Students' seat.
' All petitions pertain to admission against merit seats except Petition No.606 of 2003 (Salma Gul v.
PSMC and others), Academic Sessions 1997-1998, against reserved seat (Foreign Student), C.P.
No.241 of 2003 (Hasan Dhari v. Government of Sindh and others) Academic Sessions 1996-97 and C.P. No.188 of 2003 (Khatija Khan v. Government of Sindh) Academic Sessions 1997-98 on C.M.
Quota.
6. The petitions can also be divided into two grounds with reference to criteria for admission on merits (i) based on adjusted marks obtained in Intermediate Examination, (ii) Entry Test. It would not be out of place to mention that till Academic Sessions 1997-98, the admissions were based on adjusted marks obtained by candidate in Inter Examination, whereas w.e.f. Academic Session 1998- 99, Entry test is the basis of admissions on merits.
' In order to facilitate consideration of questions involve in these petitions, it would be proper to deal with C.P. No.D-161 of 2000 and the conclusion arrived on the basis of contentions raised on either side will be applied to all petitioners and it might suffice explaining factual background to refer the facts which emerged from these petitions.
' The petitioners claimed to be admitted by the competent Authority after complying with due procedure for admission under the Admission Rule and they also claimed to have paid the fees and they were issued Identity Cards. They also claimed that they have attended their classes regularly, paid tuition fees, other charges, including Examination Fee, acquired Admit Cards as well as Enrolment Card, appeared in test and examinations every year without any gap. It was surprising and shocking news to them when they came to know on 25-1-2003 that a notice dated 23-1-2003 has been displayed on notice board, whereby the petitioners approached the Principal, who asked the petitioners to submit relevant papers, first admission letter and fee receipt but the petitioners submitted Admit Card of every year and fee receipts available to them but the Principal did not accept the same and insisted for original admission letter, which is only available with the respondent. It was also pleaded that they went for their Examination Form for ensuing examination but they were disallowed to sit in the examination without assigning any reason. Thus the College administration are bent upon to cancel the admission of the petitioners which will ruin their career without their fault. Thus they are being deprived of their right to appear in the examination. A show- cause notice dated 23-1-2003 is without jurisdiction, based on mala fide intention and only to save their skin for their irregularity. The petitioners claimed to be regular students and were never objected nor show-cause notice has been issued individually. They were not informed about the enquiry conducted by the Governor's Inspection Team, which is not competent to act as such under the law, neither the Respondent No.1 is competent to take final decision of cancellation of the admission of the petitioners.
7. Reserved Seat C.M. QUOTA (i) C.P. No.241 of 2003, Hassan Dahri v. Government of Sindh and others.
(ii) C.P. No.188 of 2003, Khatija Khan v. Government of Sindh and others.
' Petitioner in above petitions have claimed that they were admitted in academic year 1996-97 and 1997-98 on Chief Minister Quota respectively. In support of the plea, petitioner Hasan Dahri has filed (Annexure-B), Letter No.PA/DS/Admn/CM/97 322, dated 22-1-1997addressed to the Secretary, Government of Sindh, Health Department with captioned: Request for admission in Medical College, whereby the application of the petitioner was forwarded with minutes "Pl. Admit". Second letter of Health Department, Government of Sindh dated 25-1-1997 (annexure-C) addressed to the Principal Sindh Medical College with captioned "Admission in Medical Colleges against the seat reserved for the nomination of Chief Minister for consideration during the session 1997. It says that "The Chief Minister has approved the name of Gul Hasan son of Juma Khan for admission in the first year MBBS against the above category in the college, if not previously admitted on self- financing basis". He has also annexed photocopy of Marks sheet of Intermediate Examination of Hyderabad Board of the year 1995 with 723 marks (B-Grade) (Annexure-A) date of enrolment 26- 11-1998. The petitioner Hassan Dahri claims his admission against Chief Minister Quota pertaining to Sessions 1996-97. The admission on Chief Minister Quota pertaining to the said year was subject of C.P. No.1641 of 1997 (Sazia Nabi Khan v. Principal and Chairman Board and others) wherein the list of candidates admitted on Chief Minister Quota in different Medical Institutions including Sindh Medical College was placed on record. We have examined the list pertaining to Sindh Medical College. There were 79 students admitted on Chief Minister Quota in Sindh Medical College name of petitioner Hasan Dahri does not appear in the said list. Whereas Petitioner Khatija has filed a letter NO.SOIME/3/98 of Government of Sindh Health Department Letter dated 9-3-1998 addressed to the Principal, Sindh Medical College, (Annexure-P-1) subject: Admission in Medical College against the seat reserved for nomination by the Chief Minister for special consideration during the session 1997-98, the contents whereof are that the Chief Minister Sindh has approved the name of.
Khatija, daughter of Rafiq Ahmed for admission in the 1st Year MBBS against the above category in your college, if not previously admitted on self-financing basis. She has also filed office order dated 29th Sept. 1998 (annexure-P-4) asking her to deposit college fee, dues within seven days.
9. Reserved Seat (Foreign students) (C.P. No.D-606 of 2003, Salma Gul v. Principal S.M.C. And others).
' Petitioner Salma Gul in support of her claim with regard to the admission against reserved seat has filed letter dated 19-6-1998, issued from the office of Principal and Chairman Academic Council Sindh Medical College with title: Admission of 1st Year MBBS Class 1997-98 in Sindh Medical College against the seat reserved for Foreign national under Technical Assistance Program. With reference to (i) Ministry of Economic Affairs Division, Government of Pakistan Islamabad. Letter No.2(SMC)OTA-II/97, dated 17-2-1998 (ii) University Karachi Letter RIy-20-A/98 dated 6-6-1998 intimating her the grant of provisionaladmission at her risk and cost in 1st year MBBS in Sessions 1997-98 with conditions mentioned therein.
' In addition to above, the petitioners in support of their plea have filed documents, inter alia, photocopies of receipt of fee, mark sheet from 1st professional to IIIrd year professional, Enrolment Card, Admit Cards, Identity Cards etc.
10. Respondents on notice filed common comments/reply statement in C.P. No.161 of 2003 narrating therein the procedure for admission in medical Colleges in Sindh based on prospectus that the primary requirement is of Passing of Intermediate Science Group, with not less than 60% marks, Sindh Domicile Certificate and PRC, evidencing that candidate is residing for the last three years in a particular District of Sindh.
' The students of Karachi desirous of admission of Medical Colleges of Karachi had to apply to DMC on prescribed application with required documents and the Selection Board after selection of candidate on merits, had to assign them one of the Medical College for admission on merits basis i.e. D.M.0 or SMC. There is no quota of any students from other Province on reciprocal basis except Punjab.
' The main plea of the respondents was that neither the petitioners had applied for admission nor they were admitted on merits. The documents annexed with the petitions are fabricated documents prepared with 'connivance of College staff. The sum and substance of such plea was that the petitioners were not duly admitted students and they were given first opportunity to establish their admission by production of relevant documents instead of proving their admission they have rushed to the Court.
11. On the request of the learned counsel for the parties we have heard the petitions at Katcha peshi stage for final disposal and the learned counsel have argued the petitions for final disposal of the petitions.
' Mr. Raja Qureshi, learned counsel for the petitioners has argued that the petitions, whereas Mr. Muhammad Aqil, Mr. Muhammad Nawaz and Muhammad Hatif, Advocate, have adopted his arguments. Mr. Muhammad Aqil, while adopting the arguments of Mr. Raja Qureshi, further pointed out that petitioners Hasan and Khatija were admitted against reserved seat on C.M. Quota.
12. During the hearing the petitioners were directed to file statements specifying therein the marks obtained in the Intermediate with year, place of domicile and date of offer and admission, whereas learned Additional Advocate-General was also directed to file statement(Academic Session-wise) number of applications received from desirous candidates, number of selected candidates, seat allocation to SMC and closing mark for admission of each year. Both have filed such statement and also exchanged copy thereof. Even the list of applications received (years-wise) was also produced by learned Additional Advocate-General We have also considered and referred them.
13. First we would like to refer the statement filed on behalf of the petitioners its perusal gives the following picture:- Name of the petitioner with petition numberIntermediate Marks:Domicile/PRC Enrolment issuance dateDate of offer Waheed Ahmed Khan C.P. No.161820 N.-W.F.P 13-7-1999 Not in practice Samiullah C.P.
161709 -do- 2-2-1999 -do- Noshaba Lal Khan C.P. 161720 -do- 6-12-1999 -do- Shafiullah Khan C.P.
No.161727 -do- 27-12-1999 S.M. Fahad C.P. No.161556 Karachi 6-12-1999 Not in practice Jahanzeb C.P.
279584 N.-W.F.P 28-10-1999 -do- Asma Jawed C.P.279761 Karachi 3-1-2000 Aisha Rasheed Awan C.P.279766 -do- 18-12-1999 15-3-1999 Sajjad Ali Shah C.P.279722 N.-W.F.P 27-12-1999 24-3-1999 Asadullah C.P.279807 -do- 27-12-1999 Not in practice Shandana Faiz C.P.279838 -do- 20-2-1999 -do- Sumaira Malik C.P.279675 Islamabad 23-12-1999 -do- Saima Anwar C.P.301606 Karachi 20-2-1999 -do- Waghma Ismail C.P.162708 N.-W.F.P 4-1-2001 M. Afzal Khan C.P.162644 -do- 22-1-2001 Sajjad Ahmed C.P.162 13-1-2000 Amjad Ali C.P.162834 N.-W.F.P 9-1-2001 Yaar Muhammad C.P.162616 Balochistan 2-2-2000 Naila Ehsan C.P.162776 Karachi 2-1-2000 Jawad Ali C.P.162668 -do- 2-1-2000 12-2-2000 Nadia Farooq C.P.162778 -do- 2-1-2000 12-2-2000 M. Raheel C.P.162697 -do- 2-1-2000 25-2-2000 Arnanullah Khan C.P.162697 -do- 2-1-2000 S. Muhammad Zahid C.P.279 N.-W.F.P 25-1-2001 Zaryab Ali Khan C.P.279761 Karachi 2-1-2001 Uzma Zahoor C.P.279686 -do- 13-7-1999 Afsheen Rahman C.P.307780 -do- 2-1-2001 Quratulain Waseem C.P.482701 -do- 21-1-1999 Farrukh Sair C.P.30667 Sindh Not in practice Salma GuI C.P.606825 USA 20-2-1999 -do- Farooq Ahmed C.P.470725 N.-W.F.P 2-1-2001 Breshna Ismail C.P.470780 -do- 2-1-2001 M. Imran C.P.470574 Karachi 22-1-2001 Bushra Zahoor780 N.-W.F.P 9-1-2001 C .P.No. Academic SessionsNo of applications receivedNo. of students successful in SMCClosing marks 1 2 3 4 5 D-241/03 1996-97 995 238 820 D-188/03 D-423/031997-98 1567 220 827 -301/03 -606/03 -473/03 -279/03 -470/03 -279/03 -166/03 -470/031998-99 2531 209 862 -162/03 1999-2000 2755 195 863 -482/03 -183/03 -219/03 -279/03 -307/03 C.P.470 Khatija Khan C.P.188720 Karachi 21-12-1998 29-9-1998 Hasan Dahri C.P.241723 26-11-1998 22-1-1997 Gausia Khan Khandhari C.P.219729 Karachi 2-1-2000 - Aneela Rafi C.P.219 758 Karachi 21-12-1999 - Kiran Fatima C.P.219807 Karachi 6-12-1999 - Fauzia Ashraf C.P.219793 Karachi - -
14. The detailed statement filed by learned Additional Advocate-General showing number of applications received, number of successful candidates for admission in SMC, closing marks, Entry Test, Merit, whether name of petitioners are available in list of applicants who had applied for admission and whether the name of the petitioners are available in finalized list of successful candidates for admission in SMC, whether the Petitioners appeared in Entry Test, its reflection is as follows:-- Entry TestMerit Whether name of petitioners available in application listWhether petitioner name of petitioner available in final list for admission in SMC 6 7 8 9 No merit No. No. No merit Not appeared No. No. Not appeared No. No.
15. Before addressing the contention of the learned counsel of the parties, it would be advantageous to refer to the relevant provisions of Sindh Medical College Act, 1987 and Rules framed thereunder for admission in MBBS in Medical Colleges of Sindh: Under the provisions of section 3 of the Act the Provincial Government of Sindh enjoins the Rules Making Powers, to regulate admissions in Medical Colleges in Sindh, inter alia:
(a) with regard to allocation of seats,
(b) form of application for admissions,
(c) conditions for admission, ' In order to regulate the process of admission in MBBS course, the Provincial Government used to issue prospectus with schedule for admission in 1st MBBS courses every year.
' The following were notified Schedules for Admissions in 1st Year MBBS/BDS Class in the Medical Colleges in Sindh for the relevant sessions shown therein.
Process 1996-97 1997-98 1998-99 1999-00 Date of Inviting Applications16-11-1996 10-11-1997 21-12-1998 25-10-1999 Last date of receiving applications;30-11-1996 24-11-1997 2-1-1999 15-11-1999 Display of provisional list of applications:15-12-1996 18-12-1997 9-1-1999 13-12-1999 Objections if any on provisional list ' of personal hearing;21-12-1996 to 23-12-199626-12-1997 to 30-12-199724-1-1999 5-12-1999 Last date for submission of short documents;26-12-1996 5-1-1998 2-2-1999 27-2-1999 Final list of District merit seats to be completed by2-12-1996 12-1-1998 13-2-1999 30-12-1999 Chairman Principals of Colleges meeting to finalize admission of all categories of seats in Health Department; 6-1-1997 19-1-1998 22-2-1999 24-1-2000 Start of classes. 11-1-1997 3-2-1998 22-2-1999 31-1-2000 ' Here we may also refer the Prospectus issued by the Government containing similar Rules for admission for each year, except with certain variance, with regard to alteration of District-wise merit seat by increase or decrease in total seats save entry test has been introduced w.e.f.
Academic Sessions 1998-99 following the guideline given by the apex Court in Hina Jawed v.
Government of N.-W.F.P. And others (1998 SCM R 1469).
' In terms of the prospectus, the seat allocations are of three categories, (I) Merit Seat; (for candidates Domiciled in Sindh).
(2) Reserve Seats:--
(a) Foreign National (Nomination by Economic Affairs DivisionFederal Government) for admission in Medical Colleges at Karachi (including 3 seats for Palestine).
(b) Self financing basis (i) @ US $ 5,000 per student per year for foreign National and Overseas Pakistani (ii) Rs.1,25,000. Per year per student for Local Students.
(c) Federally Administered Tribal Area's, Northern Areas and Azad Kashmir (Nominations by Ministry of Health for admission in Chandka Medical College, Larkana).
(d) Children of Defence Forces Personnel (Nominations by Ministry of Health for admission in Medical Colleges).
(e) Children of Medical Doctors domiciled in the Province of Sindh (Nomintion by Government of Sindh, Health Department).
(f) Afghan Refugees (Nomination Ministry of Health, Federal Government for admission in Sindh Medical College Karachi).
(3) (i) Reciprocal seats for admission in Medical Colleges of Punjab. (ii) Fatima Jinnah Medical College, Lahore.
' Selection against reciprocal seats in Punjab and those in Fatima Jinnah Medical College Lahore shall be made by the Government of Sindh, Health Department on the basis of merit-cum-choice.
' Third part contains rules for admissions which are:
(i) The minimum qualification for a candidate to become eligible for admission to Medical Colleges of Sindh is Intermediate Science (Pre-Medical Group) in "B" Grade of Karachi, Hyderabad, Sukkur or Larkana Board of Higher Secondary Education or any equivalent examination of some other Board/University or body recognized by the University to which the college is affiliated. Candidates obtaining marks less than 60% are not eligible. Even the qualification in B.Sc. (Biological Sciences) in higher division would not be considered unless Intermediate Science (Pre-Medical Group) examination has been passed at least "B" Grade (unadjusted marks).
2. The following candidates shall be eligible for admission in the 1st Year MBBS in Medical College in Sindh for the Academic Sessions 1997-98:
(i) Those who are permanent residents and domiciled in any District of Sindh.
(ii) Those who have passed Intermediate Science (Pre-Medical Group) (Biological Science) Annual Examination or equivalent examination and secured at last 60% marks.
(iii) Those who have passed Intermediate Science (Pre-Medical Group) (Biological Science)
Supplementary Examination or any other equivalent examination whose result has been declared after the closing date of applications of said sessions and before the last date for receiving applications for said session and secured 60% marks as per Board's marks sheet.
(iv) Those who have passed Intermediate Science (Pre-Medical Group) (Biological Science)
Annual/Supplementary Examination and could not be considered in the last session due to late issuance of domicile or late declaration of result or late issuance of marks Certificate (provided he applied for admission during the last year) may apply provided supported by proper documentation.
(v) Candidates producing equivalent certificate of examination other than Intermediate Boards of Pakistan shall have to produce certificate from the competent authority of having passed the following subjects.
(a) Physics, Chemistry and Biology (two of A level and One at 0 level.
(b) English and Urdu/or any other language at 0 level.
(c) A pass Certificate in Pakistan Studies and Islamiat/Civics from any Intermediate Board of Pakistan for Muslim and non-Muslim as the case may be.
(d) Those candidates having studies course equivalent to Intermediate Science Pre-Medical from any Institution other than Pakistan Board/University, will be eligible and if admitted they will have to pass Urdu/Sindhi, Islamiat/Civics Pakistan Studies before appearing in first Professional Examination of MBBS.
3. All seats in various Districts are open for competition within such District and nobody shall be denied admission on the ground of race, religion, colour, caste or sex.
4. Competition in each District shall take place between candidates of the district. Thus a candidate from District "X" shall not compete with a candidate of District "Y".
8. The Application forms and required documents completed in allrespects shall be submitted to the Principals of the Medical Colleges as follows:-- Colleges Tagged District For submitting Application Forms
(i) Dow Medical College : Candidates domiciled in the Districts of Karachi Division
(ii) Liaquat Medical College Chandka Medical College :Candidates domiciled in the Districts of Hyderabad, Thatta, Badin. Mirpurkhas, Umerkot, Tharparker, Nawahshah, Naushero Feroz and Sanghar.
(iii )Chandka Medical CollegeCandidates domiciled in the Districts of Sukkur, Ghotki, Larkana, Jacobabad.Khairpur, Shikarpur.
' Rule 11. The application for the admission in 1st Years MBBS shall be invited through advertisement in the Press mentioning that last date of receiving such applications. The application received after that date shall not be considered. The application shall be submitted personally against a receipt or applicants for seats for Overseas Pakistani may however, also supply/send by post.
' Rule 12. Applications alongwith the attached copies of required documents shall be submitted in the prescribed printed form and its columns must be filled in correctly. Incomplete forms shall be rejected.
' Rule 15. The provisional list will be displayed at the Selection Centre within 30 days after last date for receiving application and will contain 20% of more names (in order of merit) of the candidates than required number of seats. Objection from the candidates in writing shall be entertained within one week after displaying of Provisional list. No objection shall be entertained thereafter in this respect. This list shall not be considered as final selection list for the purposes of admission.
' Rule 16. The selection of candidates by Selection Board constituted by Government at each Selection Center. Chairman shall preside over the Selection meetings. The decision of the Selection Board shall be final. If considered necessary the Selection Board may call any candidate for interview.
' Rule 17. Mode of working out merit of candidates:--
(a) Merit for admission shall be determined on the total number of marks secured in Inter Science.
(b) The following marks shall be added or deducted from the total marks of the candidates in order to prepare the adjusted merit marks grade-wise for final merit list. This addition or deductionshall not alter the Division/Grade of the candidates and preference be given to the higher grade holder irrespective of the adjusted marks even higher.
(i) Add 20 marks for service rendered under NCC subject to production of Certificate.
(ii) Add 20 marks to Hafiz-e-Quran subject to production of Certificate.
(iii) Dectqct 5 marks if candidates has appeared in second time.
' Under Rule 19 the Chairman of Selection Board or Selection Board shall announce the Selection by displaying the list of candidates, selected by Selection Board, on the notice board of the respective College.
' It is also pertinent to mention that till 1997-98 the Selection criteria for admission against merit seats, was on the basis of adjusted marks secured in Intermediate, whereas Entry Test was introduced from the Session 1998-99 for selection on merit in the following terms:-- (a)Entry test 50% maks (b)Inter- 40% adjusted marks obtained
(c) Matriculation or equivalent10% marks
16. From the above narration of the Rules, a candidate desirous of obtaining admission in one of Medical Colleges of Karachi is required to have the qualifications i.e. Intermediate Science Certificate with not less than 60% marks, secondly he must be domiciled in District of Karachi, Sindh. The applicant had to apply to the Center nominated for receiving such applications i.e. Dow Medical College and there are 3 categories of seats, (1) on merits, District-wise, (2) reserved seats and last (3) reciprocal seats with Medical Colleges of Punjab. There is no quota for CM against Reserve Seats.No admission in a Medical College in Sindh is permissible except in terms of the relevant prospectus, which itself has to be in consonance with the provisions of Act, 1987.
' Selection of candidate for admission by Board, nominated by Government, in accordance with over all merits and display of list on Notice Board of allocation of the selected candidates between DMC and SMC based on seniority in merit and from the Sessions 1998-99. Such candidate has to appear in Entry Test. Based on Biology, Chemistry Physics and English are the requirements of the rule.
17. Learned counsel for the petitioners have raised the following contentions:-- ' That the petitioners were admitted by the competent authority; they have paid admission fees and were allotted enrolment number. They appeared in the examinations, right from 1st professional to third professional, their examination forms were forwarded by the College Principal with certification that the petitioners are bona fide students in the following terms:-- "That the applicant has satisfied by documentary evidence, attended 75% lecture delivered in each subject during the academic year; has attended course of demonstration and practical work in all the subjects and has completed full course prescribed by Karachi University; he/she has attended two test, and done three clinical tutorials and had obtained not less than 25% marks in the tests and clinical tutorial and that attendance of the student at its tutorial has been added to her total attendance. The applicant's conduct has been good in judging from the work of the applicant, there is every possibility of his/her passing the examination."
' He placed a copy of standard examination form to the contend that the above certification, while forwarding the examination form, sufficiently demonstrate that the petitioners forms were forwarded after subjective assessme nt by the Principal that they are validly admitted students.
Secondly all the petitioners have submitted their form for final professional, some have submitted their forms for 3rd professional at the end of the day, they have been asked to submit the documents to establish their admission, which affects the right of the petitioners. Such accrued right cannot be withdrawn under the principal of locus poenitentiae. His further contention was that University has power to cancel the admission of a student and he referred instruction No.17 of the Examination form which is as follows:-- "Notwithstanding the issue of Admit Card the Syndicate shall have right, for any reason which may appear to them sufficient to cancel the admission of any candidate of any examination whether before, during or after the examination."
' This contention has no legs. Reading of clause referred to above clearly indicates that the Examining Body (University of Karachi) can cancel the admission of any candidate to any examination, who has been issued admit card. So for the admission is concerned, the University is only Examining Body, has no concern with the admission in affiliated colleges.
' While elaborating the principle of locus poenitentiae, the learned counsel for the petitioners contentioo was that from the 1st professional to forth professional examination forms were forwarded to the University (Examining Body) with certificate that the candidate has attended lecture, attended course of demonstration and practical work and also passed the examinations thus a right accrued in favour of the petitioners to pursue their study and to appear in examination cannot be withdrawn and to support his contention reference was made to cases of (1) Sheerin Munir v. Government of Punjab (PLD 1990 SC 295), (2) Chairman Selection Committee/Principal King Edward Medical College Lahore v. Wasif Zamir (1997 SCM R 15). In the last cited case the rule laid down by the apex Court is that the principle of locus poenitentiae was although available to the authorities whereby any order which was made by mistake could be undone yet such order could not be interfered or rescinded once it had taken legal effect and created right in favour of an individual.
18. The learned Additional Advocate-General, on the other hand, contended that the principle of locus poenitentiae like the principle of natural justice is principle of equity and once it is established that a decisive step has been validly taken by the authorities/executive functionaries which are untraceable and such right in favour of a person cannot be withdrawn, an exception to provisions of section 21 of General Clauses Act that the authority that has power to make an order has thepower to undo it but the principle will not be applicable if the order/action is based on misrepresentation or fraud. His contention was that the petitioners have failed to demonstrate their valid admission, through a process which starts from submission of application with required documents to the center i.e. College assigned, selection by the Board and their assignment to one of the Colleges of Karachi.
The learned Additional Advocate-General is right in his contentions that the principle of locus poenitentiae cannot be applied in such case where the admission is claimed de facto. Mere on the basis of examination form forwarded with connivance of the staff of the college a vested right cannot be pleaded particularly when the petitioners failed to demonstrate their eligibility for admission from their own statement either they are short of closing marks and or are domiciled in other Province of Sindh.
' The learned Additional Advocate-General while opposing the petitions maintained that the petitioners failed to demonstrate that they were eligible for the admission in ,MBBS course as none of them has filed their marks sheet and domicile and PRC Certificates, claiming admissions against merit seats allocated to Sindh Medical College Karachi. He also pointed out that even the statements filed by them, theirmarks are not equal to the closing marks for admission in the relevant session. His further contention was that the petitioners names do not appear in the list of applicants who have applied for admission in particular sessions nor their names appear in the list of successful candidates and the documents filed in support of the petitions are manipulated one of post-admission period. He contended that it is well-settled that where step taken is based on fraud or misrepresentation cannot be allowed to perpetuate and to support his contention he referred the view taken by a Division Bench of this Court in Shahan Aurangzeb v. Principle Liaquat Medical College (1999 CLC 509) in similar circumstances, the petition was dismissed, wherein the petitioner had obtained admission with manipulated and incorrect marks sheet and the observation made was that the petitioner cannot be allowed to continue his study on the basis of admission obtained on manipulated marks sheet.
' His further contention was that the fact urged by the petitioners is that they were admitted by competent authority has been seriously disputed by the respondents and such matter cannot be brought under the Constitutional jurisdiction to resOlve the factual controversy and he cited the following cases in support of his contentions; (i) Asif Majeed and others v. ADC(C) Lahore (2000 SCM R 998), (ii) Secretary to Government of Punjab v. Ghulam Nabi (PLD 2001 SC 415), (iii) Lahore Cantonment Cooperative Housing Society v. Dr. Nasratullah (PLD 2000 SC 1068). The observation in the first case in the following terms:- "The entire controversy revolve around the question of facts and needed elaborate enquiry including recording of evidence which exercise could not be undertaken under the Constitutional jurisdiction."
19. The petitioners contention is that they were admitted by the competent Authority, their examination forms were forwarded to the University, Examining Body as such they cannot be asked to establish their admission late in the day, whereas the respondent's main contention was that they were not validly admitted students for the M.B.B.S. Professional course. They managed to deposit fee in the college and were also successful in getting their examination forms forwarded.
Mere deposit of fee, forwarding of their forms and appearance in examination will not give them valid admission. The Principal of Sindh Medical College is not authorized to admit the petitioner, as Selection Board constituted by Government is the authority to notify the admitted candidates and the petitioners name do not appear in list of admitted candidates. The petitioners who claim admission in session 1998-99 and subsequent thereto have not pleaded that they appeared in the entry test.
' Learned Addl. Advocate-General raised two fold contention with regard to admission based on CM Quota, firstly that there was no quotaof CM in reserved seats, secondly the documents in support of the claim are disputed by the respondents. He pointed out that a Caretaker C.M. Against the rule, had granted admission by coining his quota. Such admissions were subject to various petitions and Chief Minister Quota was struck down by this Court. In Pardeep Kumar v. Province of Sindh and others (PLD 1998 Kar. 433) this Court had shown its anguish by noticing the admissions on purported quota of the Chief Minister and after notice in terms of rule 8 of Order 1 C.P.C.
Cancelled the admission of the least qualified students in the relevant Medical Colleges in Sindh inducted under so-called Chief Minister Quota and rescinded the order forthwith. He also pointed out that matter of admission against reserved seats came under consideration in Atiya Bibi v.
Federation of Pakistan (2001 SCM R 1161) by the apex Court, the Court declined to approve the reservation of seats for all categories in Medical Colleges and declared the same as illegal and without lawful authority except reservation of seats for disable persons, students domiciled in F.A.T.A. And under developed districts as well as Azad Jammu Kashmir and Northern Areas. Afghan refugees, who have taken school and intermediate education in educational institutions other than those areas and students of foreign countries on reciprocal basis only for certain period. He also pointed out that the petitioners names are not appearing in the list of the applicants who have applied for the admission in the relevant academic session.
' The learned Addl. A.G. Pointed out that entry test is in vogue w.e.f. 1998-99 Academic. Sessions, none of the petitioners claiming admission in the year 1998-99 or thereafter have claimed to have appeared in the entry test as the criteria for the selection was changed from the said academic year, following observation of the Supreme Court in case of Ms. Hina Javed v. Govt. Of N.-W.F.P.
(1998 SCM R 1469) wherein, the plea was taken that the entry test has been superimposed on the result of F.Sc. Examination, which is not permissible under the regulation and if the result of F.Sc.
Which is part of the system are not to be relied upon and discarded then the whole system of examination would be changed instead of providing for entry test which does not fit in the system such plea was repelled by the apex - Court after considering PMDC Regulations report of the Committee appointed by Court and 'the decision from Indian jurisdiction, wherein Constitutionality and legality for rule relating to the introduction test prescribed for admission to graduate and post-graduate Medical course in Medical Colleges were examined by the Supreme Court of India in cases (i) State of U.P. v. Anupam Gupta (AIR 1992 SC 932) (ii) Asif Hameed v. State of J&K (AIR 1989 SC 1899) and (iii) Indu Kant v. State of U.P. (AIR 1993 SC 1225). The necessity of such test was highlighted by the apex Court which is reproduced with advantage as follows:-- "Firstly the standard of education and the method ofexaminations throughout the country has shown downhill slide in recent past. The manner in which Board examinations are conducted and marking on the papers is done have considerably eroded the faith and confidence in the fairness of the process of these examinations. Therefore, refusal by authorities of Medical Colleges to abide solely by the result of these examinations to determine the true merit of a candidate was not totally unjustified. Secondly, keeping in view the prevailing irregularities and unhealthy practices in the Board examinations and to meet the challenges of growing competition for admission in the professional colleges; the introduction of entry test for determining the true merits of the candidates was a welcome step. We may mention here that merits of entry test for admission to higher studies and professional colleges have since been recognized all over the world and it is gradually finding its way in the professional colleges of our country as well....No doubt like all other systems the success of entry test for admission to professional colleges also depends largely on the fairness and transparency of the system and the honesty and dedication of those who are responsible for its enforcement....The credibility for the entry test in doing away of viva voce test completely eliminated the chances of personal discretion and favouritism in awarding the marks to a candidates."
20. On examination of petitioners claim of admission on the touchstone of the statements filed by the petitioner and the respondent, the position is as follows:--
(a) Petition No. D-161/03.---Petitioners Waheed Khan, Samiullah, Noshaba, Saifullah Khan are of N.- W.F.P. Domicile their intermediate marks are short of closing marks for admission in Sindh Medical Colleges (closing marks 827 for 1997-98).
(b) C.P. No.D-279/03.---Petitioners Jehanzeb, Sajjad Ali Shah, Asadullah, Shandana Faiz, Sumeria Baig are not of Sindh Domicile and claimed Domicile of N.-W.F.P. And Islamabad', except Petitioner Asma Javed and Aisha who claimed to be of Sindh Domicile, Karachi, had obtained 606 marks in Intermediate, thus short of 827 marks. Likewise Muhammad Zahid, Zaryab Ali, Uzma Zahoor they claimed admission in Session 1999-2000 and 1997-98 yet they are short of closing marks of that year.
(c) C.P. No.D-301 of 2003.---Petitioner Saima Anwar claimed to be of Sindh Domicile but having 606 marks which is short of closing marks. Petitioner Farrukh Sair has moved an applicationfor joining him as petitioner through his petition was disposed of, however, according to his own statement he is of Sindh domicile and obtained 607 marks in the Intermediate, short of closing marks i.e. 827 marks.
(d) C.P. No. D-162 of 2003.---Petitioner Muhammad Zahid, Zaryab Ali, Uzma Zahoor though claim admission for the Academic Sessions 1990-00, 1997-98 respectively yet they are also short of closing marks for the said sessions.
(e) C.P. No.D-301 of 2003.---Petitioners Waghma Ismail, M. Afzal Khan, Amjad Ali, Yar Muhammad are of N.-W.F.P. Domicile. Amjad All has failed to disclose his marks as well as Domicile. Petitioner Naila Ehsan, Jawad Ali, Nadia Farooq, Raheel Fazil are of Karachi Domicile. They claimed admission in Academic Session 1999-00. None of them claimed marks in Intermediate more than 863 (closing marks) nor claimed to have appeared in the entry test.
(f) C.P. No.D-307 of 03.----Petitioner Afsheen Rehman claims admission from the Sessions 1999-00 and her Intermediate marks, according to her own showing, were 780- far less than the closing marks for the said year nor appeared in the entry test.
(g) C.P.No.D-470 of 2003.---Petitioners Farooq Ahmed, Breshna Ismail, M. Imran and Bushra Zahoor claim admission from the academic years 1998-99, 2000-01, 1999-01 respectively. All are of N.- W.F.P. Domicile, except Bushra Ismail. All are short of closing marks pertaining to the relevant sessions, none has appeared in the entry test.
(h) Petitioners Salma Gul in C.P. No.606 of 2003 claims admission as foreign student in the academic year 1997-98 and she has annexed a letter addressed to her by the Principal and Chairman Academic Council Sindh Medical College dated 19-6-1998 for intimating her that admission in 1st year MBBS 1990-98 under Technical Assistance Program.
(i) Petition No.219 of 2003.---Petitioners Gausia Khandhari, Aneela Rafiq, Kiran Fatima and Fauzia Ashraf, marks of Intermediate Examination are slltirt of closing marks for the relevant academic session.
21 The outcome of above examination is that the petitioners who claim admission against merit seats, their Intermediate marks are short of closing marks of the sessions of admission claimed by them and thepetitioners who have claimed admission in the Academic Sessions 199899 or thereafter, they have not appeared in the entry test. Neither the petitioners name appear in the list of candidates who have applied for admission in the relevant academic sessions nor they are amongst the successful candidates in the list issued by the Selection Board for admission in Sindh Medical College, Karachi.
22. Learned Additional Advocate-General contended that petitioner Salma Gul (C.P. No.606 of 2003) is not one of the applicants for the admission nor she was selected by Selection Board.
Document filed by her in support of the petition intimating her for admission but the signature of the Principal is a false. His further contention was that the admission to foreign nationals, no doubt, is by nomination by Economic Affairs Division Federal Government but the petitioner has failed to produce any document evidencing her nomination by the Economic Affairs Division and even if she was foreign student, she was required to submit application for admission to the Center for admission i.e. Dow Medical College. Her name does not appear in the name of applicants nor selected against the reserved seat against foreign student. Significant and noticeable difference, between the instant petitions and the cited cases, is that in those cases plea was that the admission was obtained by fraud on forged documents, whereas in the instant petitions the admissions are denied.
23. The facts contended by the petitioners with regard to their claims for admissions are seriously disputed by the respondents. Even their eligibility for admission has been disputed. The controversy in entirety revolves around the questions of facts, and needed elaborate enquiry, such exercise could not be undertaken by this Court under its Constitutional jurisdiction under Article 199 of the Constitution.
24. The petitioners have failed to demonstrate their admission in accordance with rules for admission. ;There is no concept of de facto admission by force entry with the connivance of the college staff and their appearance in Examinations.
' It is also well-settled that the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan is discretionary in nature and this Court declines to exercise such jurisdiction in cases where such exercise of jurisdiction will work in aid of injustice or will protect some ill-gotten gain of a party. If reference is required following cases can be cited (i) Zameer Ahmed v. Bushir Ahmed (1998 SCM R 516) (ii) Export Promotion Bureau v. Qaiser Saifullah (1994 SCM R 859) (iii) Province of Punjab v. S.M. Zaheer (PLD 1997 SC 351).
25. The learned counsel for the petitioner last contention was based on obitar dicta of apex Court.
In Miss Rizwana Andleeb v. Principal Chandka Medical College, Larkana, (2003 SCM R 1944), the apex Court while refusing to grant leave to appeal against the judgment in C.P. No.1430/2000 involving admission in the Medical College on bogus documents, following obtar dicta was made:- - "She would be at liberty to move the University or any competent authority for seeking her migration or seeking admission in some other private institution for completion of her medical studies if the concerned institution allowed the same in terms of their rules and regulations."
' The background of above observation was that though the admission was cancelled long back in the year 1995 but she managed to continue her study in the College till she reached in fourth year of MBBS.
' The learned counsel for the petitioners contended that on the basis of above observation, she was allowed to continue in the same college. He urged that if the petitioners are granted Migration to private Medical College, it will save their career.
' The learned Additional Advocate-General has opposed the request for direction for migration on the grounds that petitioners should not be permitted to ripe the fruit of their own wrong and fraud.
If the acts and omission of the petitioners are condoned then the others would also make the same as precedent, which would not be in the interest of the medical institutions. We think the learned Additional Advocate-General is right in his contention, more particularly when the claim of the petitioners are seriously disputed.
Consequent of above discussion, we are of the view that the petitions are not maintainable which are bereft of merits on law and facts, the same are liable to be 'dismissed. Resultantly, the petitions are dismissed with listed application, however with no order as to costs.
27. Before parting writ the judgment, we would like to direct the Provincial Government to modify the Rules with regards to the reserved seats by deleting all quotas under the reserved seats except those approved by the apex Court in Atiya Bibi v. Federation of Pakistan and others (2001 SCM R 1161) revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.