Syed Shabbar Raza Rizvi, J.--We propose to decide these two Writ Petition No, 5327/04 (Mst. Syeda Shazia Irshad Bukhari vs. Government of the Punjab, etc.) and W.P. No, 19778/04 (Mst. Ummay Ammara vs. Principal, Fatima Jinnah Medical College etc.) by a single order as same questions of law and fact are involved in these two writ petitions.
2. The learned counsel for the petitioner in Writ Petition No, 5327/04 has prayed that action of the respondents regarding fee/charges from the students admitted in medical colleges, Punjab on self-defence basis may be declared illegal, unconstitutional, unfair, unjustified arbitrary, without jurisdiction and without lawful authority. It is further requested that fee level in Government Medical Colleges may be brought down or at least to a reasonable extent within reach of a common man.
3. The petitioner is a student of MBBS 1st year in Nishtar Medical College, Multan. The petitioner had scored 816 marks in FSc pre-medical. She appeared in entry test for admission in medical college and obtained 881 marks. The petitioner could get her admission on the basis of self-finance scheme for which she had to pay Rs, 2,50,000/- for first year. The course of MBBS is of five years, therefore, in total, the petitioner will have to pay Rs, 12,50,000/-. After paying for hostel, books, lab and other miscellaneous expenses, the expenses are likely to rise upto Rs, 18 lacs.
4. The learned counsel submits that regular students, admitted on the basis of merit policy have to pay Rs 10,000/- per annum, thus the students who are admitted on merit will have to pay total Rs, 50,000/- for five years.
5. The learned counsel submits that same Teachers/Professors are pasting education to students admitted on merit and on students admitted on self-finance basis. The students of both categories avail similar facilities like Lab facilities, Library facilities/clinical training, etc.
6. The scheme of self-finance is helpful for students coming from rich families but it has closed the doors of medical education on poor students, therefore, the scheme of self-finance in the above perspective is unreasonable and repugnant to fundamental rights of equality.
7. The petitioner in Writ Petition No, 19778/04 was selected in the first year MBBS in Services Institute of Medical Sciences, Lahore on the basis of self-finance scheme for the Session 2003-04. The petitioner deposited total fee for the Session Rs, 2,69,000/-, including Rs, 19,000/- for security. That Respondent No, 2 called petitioner on 9.12.2002 in the Department of Physiology at 9 a.m. at Birdwood Road for registration of roll numbers. The Respondent No, 2 shifted petitioner to the Fatima Jinnah Medial College, Lahore:vide letter dated 8.1.2004, hence now the petitioner is student of 2nd year in Fatima Jinnah Medical College/Sir Ganga Ram Hospital, Lahore. Respondent No, 1 has directed petitioner to deposit an amount of Rs, 2,50,000/- as a fee for the Session 2004-05, failing which petitioner would not be allowed to attend the classes. The petitioner contends that total expenses of five years course of MBBS cost her about Rs, 18 Lacs. The other facts and grounds to file this petition are also similar like above in context of Writ Petition No, 5327/04.
8. Prospectuses are provided to the intending students in advance. These prospectuses contain rules for admission in the above two categories i,e, admissions on merit and admissions on self- finance scheme basis, therefore, all students who apply for admissions under the above two categories or classes, they do it after knowing the rules in advance. Therefore, by their express conduct they bound themselves to abide by rules provided in the prospectus.
9. A law, rule or a custom having force of law, under Article 8, can be declared by this Court void, provided such law, rule or custom is inconsistent or is in contravention of fundamental rights guaranteed under the Constitution. In our Constitution, fundamental rights are provided in Chapter 1 of Part-II of the Constitution. The list of fundamental rights does not include expressly right to acquire medical education free of cost, etc. However, in Chapter 2 of Part-I of the Constitution, a list of principles of policy is provided. Article 37 provides that the State shall; (2) promote, with special care, educational and economic interest of backward classes or area; (b) remove illiteracy and provide free and compulsory secondary education within minimum possible period; and (c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit. But these principles of policy are not enforceable by the Courts, though, under Article 29 of the Constitution it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those principles insofar as they relate to the functions Of the organ or authority. However, Article 29 also provides that as far as the observance of any particular principle of policy is concerned, it may be dependent upon resources being available for the purpose.
10. At this stage, it is relevant to discuss a Full Bench judgment of this Court reported as Ahmad Abdullah vs. Government of the Punjab PLD 2003 Lah. 752. In the said judgment the Court observed that the fundamental right "to life" needs to be given an expanded meaning and a more dynamic interpretation. The Court further observed that right to life means a sum total of rights which an individual may require to enjoy a dignified existence and a modern age, a dignified existence may not be possible without a certain level of education. In the next para report itself observed that the fundamental rights are not absolute.
11.The Court read right to education in right to life as a fundamental right. But it further observed that the State regulates the right to education in move than one ways. According to the Court, in the above context, the Universities are entrusted with the task of teaching, of laying down curriculum of case course of formulating admission policy prescribing recruitment rules for the teaching staff,. etc. Therefore, even according to the judgment of the Full Bench, the right to education is not expressly provided as one of the fundamental rights enumerated in the Constitution, but it can be drawn from the right to life while giving a broad or explanded interpretation. Similarly, in the same judgment, this Court also held that while sitting in the Constitutional jurisdiction this Court would not like to enter into policy making domain of the State or question the Legislature wisdom. We may point out that in the above Full Bench judgment the subject-matter before the Court was admissions to the Medical Colleges.
12.The learned counsel has relied upon AIR 1992 SC 1858. In the said judgment Article 41 of the Indian Constitution is discussed which is also part of Chapter of Principles of Policies in the Indian Constitution. In the said judgment, the Hon'ble Indian Supreme Court observed that principles of policies should be read into fundamental rights guaranteed under the Indian Constitution. The Hon'ble Court further held that fundamental rights cannot be enjoyed unless the people are provided education. In principle, the findings and observation of the Hon'ble Supreme Court of India are absolutely correct and worth appreciating, however, as we stated above the enforceability of principle of policy under. Constitution of Pakistan depend upon the availability of resources and secondly, the responsibility is on the institution or head of the institution. Therefore, we may say so that the citation referred to by the learned counsel for the petitioners is not fully applicable to the facts and circumstances of the present writ petitions. In this context, it may be pointed out that our Supreme Court has also discussed the scope of enforcement of fundamental rights and principles of policy. The Supreme Court held, "the directive principles of State of the policy are to be regarded as fundamentals to the governance of the State, but they are not enforceable by any Court." (Miss Benazir Bhutto vs. Federation of Pakistan, PLD 1988 SC 416).
13.The learned. counsel has rightly pointed out that present circumstances have made medical education very costly and impossible for intelligent but poor students. No doubt, this is very unfortunate. However, it may also be considered that the impugned scheme has provided opportunity for those students who were unable to get admission on merit but could afford admission under impugned scheme. Therefore, by this scheme more students are becoming doctors to fulfill need of our society. If the impugned scheme has failed to provide opportunity to all kinds of students both rich and poor, alike, at least it is better than not having opportunity at all. It may also be noted that by introducing the impugned scheme two classes of medical students have emerged. First class is of those students who get admission on policy of merit and the second kind of those medical students who get admission on self-finance scheme. It has been held in number of cases by our Superior Courts that 'equal treatment' means equal treatment amongst persons who are equally placed or belong to the same class of people. Therefore, classification in terms of equal treatment is legally permissible. For further guidance we may refer to I.A Sherwani vs. Government of Pakistan, 1991 SCMR 1041 and Dr. Tariq Nawaz vs. Government of Pakistan, 2000 SCMR 1956.
14. It is also a recognized principle of law that Courts do not sit in judgment over a policy of the Government. The impugned scheme was introduced as matter of a public policy. The Courts do not normally interfere or strike down a policy made by the Government unless it is proved mala fide or made in a colourful exercise of authority, etc. In this respect for guidance we may refer to Lt. Col. Farzand Ali and others vs. Province of West Pakistan, PLD 1970 SC 8, Gul Khan vs. Government of Baloctistan, PLD 1989 Quetta 8.
15. After considering the contentions of the learned counsel for the parties and the above case law, we have reached to the conclusion that the impugned scheme may not be considered as an ideal scheme to meet the requirements and desire to provide medical education to all those who desire to join medical profession as doctors, nevertheless, something is better than nothing. We are having more doctors nowadays than what we used to have in the past which is beneficial to the society. Thus, for the above reasons, we dismiss these two Writ Petitions Nos, 5327/04 and No, 19778/04 with this single judgment.