Tassaduq Hussain Jilani, J.--Petitioner having done his A-level (his grades were equivalent to 935 marks out of 1100 as determined by the Inter Board Committee of Chairman) applied for admission in the first year MBBS for the session 2002-03 for Medical Colleges in Punjab. In terms of the merit list prepared, he could not get admission on the general seats. His application for admission against seats reserved for foreign students on self-finance basis was allowed and ever since his admission he is a regular student of King Edward Medical College, Lahore. The prospectus of the Medical Colleges in Punjab for the year in question stipulated that the applicants seeking admission on self-finance basis will be required to contribute to the college endowment fund at a rate" depending on the college, where a student is granted admission. A student admitted in KEMC Lahore was required to pay a contribution of US$ 10,000/- per annum in addition to the normal fee till graduation. Students under the said scheme where required to pay for the first year through pay order of US$ 10,000/- and for the remaining four years a bank guarantee worth US$ 40,000/- was also required to be furnished. Students admitted in Medical College at Multan & Rawalpindi were to pay US$ 7000/- per annum whereas for students allowed admission in Medical College at Bahawalpur US$5000/- per annum was the prescribed contribution.
2. Through this petition the petitioner has challenged the afore-referred conditions of payment of endowment fund on the ground that it is excessive, is not proportionate to the money spent on a medical student by the State, is discriminatory as the local students admitted on self-finance scheme pay only Rs, 2,50,000/- a year and even the requirement of US$ 10,000/- from foreign students of Pakistan origin is not uniform in all the Medical Colleges of the Punjab as in other colleges the foreign students have to pay much less. In the comments/written reply submitted by the Principal of King Edward Medical College/Chairman of the Admission Board, the stand taken is that the admission of foreign students is made by the Economic Affairs Division in Islamabad which invites the application, processes them and makes nomination against the reserved seats in the Medical Colleges of the country. Since petitioner had low merit he could not be admitted on the general seats, that on petitioner's own request he was admitted against the seats reserved for foreign students on self-finance basis, that he was fully aware of the conditionalities attached to such an admission and having accepted those .terms petitioner cannot challenge the same through a Constitutional petition.
3. In support of this petition, learned counsel for the petitioner made following submissions:-
(1) That right to education is one of the fundamental rights under the Constitution and the act of the respondent authorities in imposing an endowment fund condition to the tune of US$ 10.000/- tantamount to putting a clog on the said fundamental right.
(ii) That the impugned endowment fund is not proportionate to the expenses entail by the State on a medical student in a year, that the Government spent only one hundred thousand (Rs, 1,00,000/-) per medical student in a year and to charge a foreign student is sum of US $ 10,000/- which is equivalent to about six hundred thousand (Rs, 6,00,000/-) is excessive and exhorted.
(iii) That the local students under the self-finance scheme have to pay only Rs, 2,50,000/- as against the foreign students like the petitioner, who have to pay US $ 10,000/-. This disparity is violative of the equality clause of the Constitution of the Islamic Republic of Pakistan 1973 and, therefore, cannot be sustained. In support of the submissions made learned counsel relied on Miss Mohini Jain v. State of Karnataka and others (AIR 1992 SC 1858).
4. Learned Additional Advocate General opposed the petition and defended the impugned levy in endowment fund. He contended that having .accepted the terms and condition of admission in writing petitioner is estopped to challenge the levy of endowment fund after a year of having been admitted. He explained that every fundamental right is to be regulated by law. If the law maker has created classes amongst students at the time of admission no exception can be taken to it as the students having similar background in a class are being treated alive.
5. We have heard the learned counsel for the parties and have been given anxious consideration to the submissions made.
6. Para 24 of the comments submitted on behalf of the Ministry of Finance are to the following effect: "There are two components of PTAP programme one for the friendly countries and the other for foreign nationals of Pakistan Origin. Nomination against seats reserved for friendly countries are invited through diplomatic chancel conveying them the conditions specified for this component, whereas applications for the seats reserved for foreign nationals of Pakistan Origin are invited through advertisement clearly indicating the prescribed terms & conditions. The admission notice referred by the petitioner was meant for the seats reserved for foreign nationals of Pak Origin under PTAP/SFS. It is reiterated that no relaxation was made in case of any foreign student of Pak Origin.
The condition of having studied abroad was introduced exclusively for foreign nationals of Pak Origin to ensure the utilization of seats reserved for genuine foreign nationals of Pakistani Origin who are settled abroad."
7. Although the afore-referred scheme appears to have been framed by Respondent No, 1 but seats against the afore-referred quota and the fee to be charged from students was determined by the respective. Provincial Governments. In Punjab the quantum of fee was conveyed to the Chairman of the Admission Board for Medical Colleges in the Punjab vide the letter dated 3.2.2003 which reads as under: No, SO (ME) 8-91/2003 GOVERNMENT OF THE PUNJAB HEALTH DEPARTMENT Dated Lahore, the 3rd February 2003 To Principal/Chairman, Admission Board, 'King Edward Medical College, Lahore.
Subject: REDUCTION OF SELF-FINANCE RATES FOR FOREIGN STUDENTS IN MEDICAL COLLEGES OF PUNJAB.
Reference your Letter No, 191/KEMC/2002, dated 8, 2002, on the subject noted above.
2. The Competent Authority in the Government of the Punjab on re-consideration of the issue decided as under:--
(i) 50% seats of MBBS (self-finance) for expatriate Pakistanis may be kept floating and the preferred choice of candidates be respected.
(ii) The fee structure for the peripheral colleges like, Multan, Rawalpindi be reduced from US $ 10,000/- to US $ 7,000/- per annum and for Faisalabad and Bahawalpur to US $ 5,000/- per annum.
3. The revised allocation of seats in this category will be as under: Foreign students seat on Self Finance basis SEATS KEMC AMIC FJMC NMC PMC QMC RMC TOTAL Original 4 4 4 4 4 4 28 Revised 2 2 2 2 2 2 14 28 14 Floating seats 14 SEATS de' Montmorency NMC Multan TOTAL College of Dentistry Lahore (Dental Section)
Original (2 each subject to confirmation of EAD)
Revised 1 1 2 4 2 seats floating 2
4. It is hoped that the decision would facilitate optimal utilization of self-finance seats. Further necessary action may kindly be taken accordingly. ADDITIONAL SECRETARY (TACH) HEALTH DEPARTMENT
8. Since the petitioner could not be admitted on general merit, he himself opted to avail the benefit of the self-finance scheme and as per the admission form he agreed to abide by the terms and conditions prescribed in this regard. He, therefore, cannot take exception to the scheme itself.
However, so far as the quantum of fee prescribed is concerned; we note that although there is a uniform fee structure for the students admitted on general merit for local students admitted under self-finance scheme as also for the students admitted under the Pakistan Technical Assistance Programme but the foreign students admitted under the self-finance scheme have been subjected to a varying fee structure depending on the Medical Colleges in which they are admitted. Right to education is a fundamental right and a full Bench of this Court while considering the scope and ambit of article 9 of the Constitutional of the Islamic. Republic of Pakistan 1973 has held that education in modern age is part of the fundamental right of right to life. In Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others (PLD 2003 Lahore 752) at page 791 it was observed as under: "The fundamental right of "right to life" recognized in the entire civilized world and enshrined in Article 9 of our constitution has been given expanded meaning over the years. With the passage of time the role of the State has become more pervasive. Its action, policies and laws affect the individuals in a variety of ways and the Courts have accordingly given a more comprehensive and dynamic interpretation of the fundamental rights including the right to life.
Right to life is no longer considered as merely a right to physical existence or a right not to be deprived of life without due process of law. It means a sum total of rights which an individual in a State may require to enjoy a dignified existence. In modern age a dignified existence may not be possible without a certain level of education and the State has to play a role in ensuring by positive action that the citizens enjoy this right. In Brown v. Board of Education (1953) 98 Law Ed. 873, the US Supreme Court acknowledged this right and held as under:- "Today, education is perhaps the most important function of State and Local Governmentsit is required in the performance of our most basic responsibilities, even service in the Armed Forces, it is the very foundation of good citizenship. Today, it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful and child may reasonably be expected to succeed in life if he is denied the opportunity of an education."
While prescribing different rates for different Medical Colleges in Punjab in the Scheme under consideration, the Provincial Government neither in the letter referred to above (dated 3.2.2003) nor in the comments submitted have given any reason. The same is, therefore, arbitrary and violative of Articles 9 and 25 of the Constitution of the Islamic Republic of Pakistan 1973. Even the Ministry of Economic Affairs Federal Govt. conveyed its dismay to the Govt. of Punjab over the exorbitant rates being charged in the letter dated 6th June 2003. It reads as under: No, 1 (1)FS/03 GOVERNMENT OF PAKISTAN MINISTRY OF ECONOMIC AFFAIRS & STATISTICS (ECONOMIC AFFAIRS DIVISION) Islamabad, the 6th June, 2003 Fax :92-51-9205971 & 9210734 From :Joint Secretary, Tele: :9205327 SUBJECT: ADMISSION OF FOREIGN UNDER PAKISTAN TECHNIC ASSISTANCE PROGRAMME PTAP SELF FINANCIN SCHEME (SFS), Dear Mr. Secretary, The Economic Affairs Division has been arranging the admission of foreign students under Pakistan Technical Asthstance Programme as well as under Self-Financing Scheme (SFS) for the last more than two decades. The main objective of the programme is to earn goodwill of friendly countries.
Through this programme Government is honouring its bilateral commitments with those countries with whom Pakistan enjoys very exceptional friendly relations.
2. Following seats are reserved in the Medical Colleges of Punjab for foreign students excluding 07 seats reserved for Afghan Refugees students under PTAP: KEMC AMIC FJMC PMC NMC RMC QMC TOTAL PTAP seats4 4 20 9 9 9 10 65
3. In the meetings of Joint Ministerial Commissions/Committees friendly countries including Saudi Arabia, Oman Bahrain, Malaysia, Iran, Iraq, U.A.E., and Kuwait etc., have persistently requested for placement of their students in King Edward Medical College, Rawalpindi Medical College, Rawalpindi and Allama Iqbal Medical College, Lahore. As the purpose of Pakistan, Technical Assistance Programme (PTAP) is to promote economic and diplomatic relations with the friendly countries, it is necessary to accede to the request of these countries to accommodates their students in the Colleges of their choice. It is, therefore, requested that the Government of Punjab may kindly re-allocate the available, 65 seats in MBBS in different Colleges as proposed below:-- KEMC AMIC FJMC PMC NMC RMC QMC TOTAL Proposed PTAP Seats10 10 10 8 8 12 7 65
4. You would kindly appreciate that the high fee rates for Self-Financing seats and condition of submitting bank guarantee for remaining four years studies has resulted into low utilization of these seats for the last many years, no doubt the revision of fee rates made by the Health department during last year has improved the utilization of seats under SFS in Punjab. However, it can be improved further by reducing the fee rates to US $ 7,000/- per annum for Medical colleges in Lahore and US $ 5,000/- for Colleges of rest of cities of Punjab and by waving off the condition of bank guarantee as no such condition exist in other Provinces (emphasis as supplied).
9. Right to education is a fundamental right and cannot be subjected to arbitrary conditions or clogs requiring payment of exorbitant fee. If students admitted in Bahawalpur, Multan, Rawalpindi etc. and Lahore under the general merit or under the Pakistan Technical Assistance Programme are paying the uniform fee irrespective of the college, there is no reason why the students admitted under the self-finance scheme at different Medical Colleges in Punjab should be subjected to a different fee structure depending on the college.
10.For what has been discussed above, this petition is allowed. The letter dated 3.2.2003 insofar as it prescribes a different fee structure for foreign students admitted under the self-finance scheme in different Colleges of the Punjab and the condition of furnishing Bank guarantee are set aside.
The respondent authorities may, however, charge those students a uniform rate of US $ 5,000/- per annum for irrespective of the Colleges in which they are admitted. The petition stands disposed of in terms noted above.