' DR. SAJID QURESHI, J.---Brief facts are that the petitioner is a student of premedical and has cleared her FSC examination in pre-medical by scoring 847 marks out of 1100 marks from FG College for Women F-7/2 Islamabad. The petitioner applied for admission at the Shifa College of Medicine in Islamabad/respondent No,1 and after fulfilling all the requirements of the admission, the petitioner was required to take an entry test and she scored 47.16% in the said entry test.
Thereafter, the candidates were required to appear for an interview. The final selection of the candidates was made after the interview; the name of the selected candidates were displayed and some 129 candidates were declared successful. The petitioner's name was not on the list but allegedly the name of students, who had scored less marks were included in the final list. The petitioner approached the respondent for redressal of her grievance, but of no avail. The petitioner contends discrimination and victimization and hence she approaches this Court for redressal of her grievances.
2. The learned counsel for the petitioner argued most vehemently that this writ is amenable against the respondents because respondent No,1 (PM & DC) is regulated and constituted by the Federal Government under the Pakistan Medical and Dental Council (PM & DC), Ordinance, 1962.
The medical education in Pakistan is controlled by the PM & DC which laid down minimum standard of basic and higher qualification in medicine and dentistry. The learned counsel for the petitioner further argued that the petitioner has scored very good marks which enable her to be given admission for M.B.B.S. Course for the year 2008. The learned counsel stated that the petitioner has obtained 76% in the Medical Colleges Admission Test (MCAT) for Session 200809, which was held on 14th September, 2008 under the auspices of University of Health Sciences, Lahore. Along with this, the petitioner is also a Hifz-e-Quran from Noor-ul-Huddah International School, Islamabad. The learned counsel contended thai upon examination of the prospective and on the web site of the Shifa College of Medicine, the requirements for admission are in three fold, namely
(a) Academic (b) Shifa entrance test and (c) Interviews. In very clear terms all applicants are required to take the Shifa Entrance Test which is administered at the college premises in Islamabad, but there is an alternate option, which is, the college will accept SAT-II in Biology, Chemistry and Physics and in very clear terms it is stated that without the entrance test an application will remain incomplete and will not be processed for admission. On this point he elaborated that certain number of candidates were granted admission without fulfilling this requirement of an entrance test which has affected the rights of the petitioner. Further, the learned counsel pointed out that number of candidates were selected who held less percentages than the petitioner and he gave several examples; in serial No,4, ID No,22, Mr. Zahid Muhammad Saeed, (32.03%), serial No,16 ID 118, Syed Muhammad Imad-ud-Din (46.76%), serial No,24 I.D. No,174, Yasmeen Muhammad (36.49%), serial No,25 ID No,176, Samina Khizar (46.35%), serial No,41 ID 279, Sameen Binte Huzaifa (46.49%), serial No,49 ID No,368 Shifa Umar (44.49%), serial No,53 ID No,385 Emmal Asjad Cheema (40.81%), serial No,64, ID No,501 Sara Mohsin (41.62%), serial No,82 ID No,646 Osama Farhat Khan (38.24%), serial No,85 ID No,706, Fahad Rafiq (40.95%), serial No, 105 I.D. No,948, Warda Zulfiqar (46.76%) and serial No,113 I.D. No,1067 Ahmad Hassaan (35%). All possessed less percentage than the petitioner who obtained 47.16%. The learned counsel also disclosed that the respondent No,1 had requested for "Donation" from the candidates and in some verbal terms during the preliminary meetings, it was stated that unless a "Donation" is given, admission will not be granted. He also argued that he was aware of some students who on basis of "Donation" and non fulfilling of the entrance test requirement had been granted admission. Finally, the learned counsel prayed that there have been discriminatory actions by the respondent No,1 which should be declared void and illegal and that based on this discrimination, the admission of the petitioner in the said medical college should be granted as her legal and factual right.
3. The learned counsel for the respondent No,1 stated that the said college is a private medical institution affiliated with Baria University and is sponsored by the Shifa Foundation which is a not for profit, welfare organization. It is not a "person" within Article 199 of the Constitution and therefore not amenable to writ jurisdiction and that this petition is not maintainable. He relied on PLD 2007 Lahore 568 (Anoosha Shaigan v. LUMS), 2000 SCM R 928 (Muhammad Ahmad Toor v. Federation of Pakistan), PLD 1975 SC 244 Salah-ud-Din v. Frontier Sugar Mills, 1993 M LD 1362 Qamar-ul-Islam v.
ICAP. These case laws showed that private organization or persons, as distinguished from Government and Semi Government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province, simply for the reason that their activities happened to be regulated by laws made by the State. Moving on, the learned counsel stated that the petitioner has failed to state violation of any laws or statutory rules and has given false assertion and misstatements, which render this petition as non-maintainable and also the petitioner has no locus standi. The learned counsel further stated that the Federal Government and the PM & DC exercised their functions within the framework of Pakistan Medical & Dental Council Ordinance, 1962, and the regulations issued by PM & DC under the said Ordinance for the M.B.B.S. Degree are non-statutory in nature. He concedes that the petitioner's score in FSC examination is correct and that the petitioner fulfilled the eligibilitycriteria for applying for admission to the college. As to the point of names stated by the opposing counsel he contended that the list does not show all the candidates who were interviewed and thus, the lists are subsequently updated with other additional candidates. He argued that entry test percentages were incorrectly calculated by the petitioner but conceded that the college does accept score of either MCAT or AP (Advance Placement). The candidates having SAT-II, MCAT or AP scores have the option to submit the scores in lieu of appearing in entrance test. However, he contended that the candidates are free to avail both these options i.e, to submit scores of either SAT-II, MCAT or AP as well as to appear in the entrance test. In such a case, the college accepts only that score that is higher. He clarified the position as follows, that after conducting the interview, a merit list on the basis of Grand Total scores of the candidates is prepared and the Grand Total score is aggregate of the following values:
(i) 10% value assigned to candidate Matric/SSC score.
(ii) 40% value assigned to the candidates FSC/HSSC score.
(iii) 50% value assigned to the candidates score in:--
(a) the entrance test or SAT II, MCAT or AP (whichever is higher in terms of percentages): 40%
(b) Interview oral: 10 %
4. He contended that the petitioner stands at serial number 204 of the merit list, and only the top 129 candidates were successful. The college can admit upto 100 students annually in the M.B.B.S. Program. The learned counsel stated that they have never sought "Donation" from any student and this was just a concocted story made by the petitioner. Quite simply, the candidates have been granted admission because of the more score marks on the Grand Total as compared to the petitioner and conceded that some students mentioned by the petitioner to have scored less in the entrance test have scored more in the Grand Total as compared to petitioner. Some of them had availed the option of relying on their scores of SAT-II which were higher than the scores in the entrance test, therefore there has been no illegal or unlawful act by the respondent No,1 however, when confronted about the score in the MCAT, he simply responded that the University of Health Sciences, Lahore, was not recognized by respondent No,1 and concluded that this Court should not allow the petition.
5. The learned Registrar for the respondent No,2 stated that as to the point of "Donation", they had issued letters to all medical colleges that no college should take "Donation". They were aware that the petitioner applied for admission in Class of 2013 at Shifa College of Medicine, Islamabad, however, she was not selected for admission. The petitioner received an overall merit position of 208 as stated in letter dated 26th Dec, 2008 reference No,BU/2008/333, although in another letter to the PM & DC dated 6 December, 2008 reference No, F.No, PM & DC/2008/305 her position is 204.
There seems to be a discrepancy in the records as to her overall merit position. A number of students appeared in the entrance test and submitted their SAT-II and MCAT scores. When calculating the Grand Weightage, the higher score of the above mentioned tests was taken into consideration several examples were cited e.g. Roll Nos.434, 431, 491, 176 etc. The Law Officer of the respondent No,2 in supporting the Registrar further stated that the college used SAT-II and MCAT scores as an alternate to the entrance test, which is against the PM & DC Rules. The college had announced in its admission rules that SAT-II and MCAT is an alternate option to the test and will be accepted if someone is unable to appear in the test, which is against the PM & DC Rules as entry test by the institution is a mandatory requirement. SAT-II and MCAT scores are just an eligibility factor to appear in the entrance test of the institution and are not an alternate to it. The Shifa College of Medicine has erred unmistakably and has clearly flouted PM & DC rules by granting admission to SAT-II score holders without the institution's entrance Test and in case of a candidate having both SAT-II and entrance exam scores by SAT-II will be taken into preference and thus ignoring the entry test.
6. Arguments heard, documents perused and case law examined.
7. As far as the jurisdiction is concerned, the PM & DC in exercise of its powers conferred by the subsection (1) of section 33 of the Pakistan Medical & Dental Council Ordinance, 1962, the Regulations called Medical & Dental Council Regulations 2007 were established, which were binding on all Medical & Dental Colleges of Pakistan. Therefore respondent No,1 is bound by these regulations and any deviation may be susceptible for any remedial and other measures which can be taken by PM & DC against the said colleges. The 1962 Ordinance, sets out registration of medical practitioners/dentist in order to establish a uniform minimum standard of basic and higher qualification in medical and dentistry. PM & DC along with respondent No,3 have been impleaded as parties to this dispute and hence the writ petition is amenable and maintainable in this case relying on 1992 SCM R 1621 (PM & DC v. Dr. Raza Muhammad Khan), in which it was held that in order for a constitutional petition to be amenable it is necessary to implead Federal Government as a party. The test which must be applied as envisaged in the case PLD 1975 SC 244 (Salah-ud-Din v.
Frontier Sugar Mills), is that whether the functions entrusted to the organization or person concerned or functions of the State involving some exercise of sovereign or. Public power whether the control of the organization vest in a substantial manner in the hands of Government. Since this condition is fulfilled, then the person performing such functions in connection with the affairs of the Federation may be regarded as such. The Federal Government and PM & DC exercised their functions within the framework of Pakistan Medical & Dental Council Ordinance, and the regulations issued by PM & DC under the said Ordinance for the M.B.B.S. Degree were notified through SRO 65(KE)/2007 and also duly notified in the Gazette of Pakistan October 25, 2007. The petitioner's grievance is that she had obtained high standard marks and due to some reasons she was not selected in the merit list. There is discrepancy on the marks showed by the petitioner by the marks provided by the respondent No,1 and the lists are both different with some students being omitted and some students being added. The B petitioner's case also affirms that upon examination of the detailed percentages which add up to the Grand Weightage in toto, some students had only obtained Shifa Test Marks, but their SAT-II marks were omitted, were given higher position than her since she had obtained 47:16% in the Shifa Test and her MCAT test was 76%, which was not taken into consideration. If these marks were taken into consideration then she would be at No, 39 on the merit list. The respondent No,1 had omitted to pay any Weightage to the MCAT result. Upon careful scrutiny of the prospectus and the website, there is no information which allows for certain MCAT result and not others. No list of recognized institutions which are allowed to hold that SAT or MCAT test, is given. When confronted with this, the learned 'counsel for respondent No,1 could not reply satisfactorily. Therefore, there was nc justification in not allowing the MCAT result to be considered. This was a grave flaw. Further, PM & DC has placed or record that under their rules, entry test by the institution is a mandatory requirement and, no student can be admitted to the M.B.B.S. Course without passing the entry test by the institution. They pointed out that a number of students appeared in the entrance test and submitted their SAT Il and/or MCAT scores and when calculating the Grand Weightage the higher scores of the above test i.e, SAT-II and MCAT were taken into consideration. They gave some examples. It also appears that respondent No,1 used SAT-II and MCAT scores as an alternate to the entry test which is against their rules. The respondent No,2 also pointed out irregularity and unlawful actions in which they have used SAT-II and MCAT as an alternative option to the test. I B The SAT-II and MCAT scores are just eligibility factors to appear in the entry test of the institution if their scores are not taken into account. The respondent No,1 has erred in law and has clearly violated PM & DC Rules by granting admission to SAT-II score holders without the entrance test. The learned counsel for the respondent No,1 denied that there has been any students who were admitted without the entry test as required by PM & DC, however, when confronted with a written - statement that some eleven students were admitted without the entry test he failed to respond satisfactorily. Again PM & DC pointed out two successful candidates, whose weightages were calculated in a completely mystified manner since both students failed to submit the Matric or O' Level grade and yet were able to manage a grand Weightage of 80.62 and 87.65 respectively. The Ministry of Health, Government of Pakistan should ensure that the mandate of the PM & DC Ordinance, 1962, is given effect in letter and spirit and any violation of these laws are met with C penal consequences as envisaged under the law. Clear violations must be addressed by the Government of Pakistan as well as PM & DC. They are to ensure that such like medical colleges keep to the highest level of standards to ensure that good doctors are produced who should take care of the population and that such like institutions .Do not become more money making factories producing lines of doctors and dentists with no professionalism, quality, ethics or values. Candidates or students should not be penalized, if the institutions are carrying out questionable activities, and if PM & DC fails to register such doctors and dentists in the future, then who is to blame? I can not blame the doctors but blame should be apportioned to the institution who have violated PM & DC Regulations. In my mind these examples show clearly that Regulations of PM & DC were violated; there was a case of discrimination, un uniformity and un equality. As to the point of, in case the writ petition is allowed what would be position regarding the other candidates/students who will be affected by this decision? Which was a point argued by all the counsel. I am guided by order dated 17-11-2006 Civil Appeals Nos.822 and 823 of 2006, Supreme Court of Pakistan (Miss Rabia Nazir v. Government of NWFP), in which it was held that the seat given to the candidates should not disturb the already given seats to other candidates, also in PLD 1981 SC 335 (Munir Ahmad v. Government of Balochistan) same point is held. From examination of the PM & DC Regulations, candidates who have Hifz-e-Quran should get credit and since the petitioner is a Hifz-e-Quran, this credit was not given to her. Again there has been clear discrimination against this candidate and the practices of the respondent No,1 needs to be investigated by PM & DC. It is therefore directed that the petitioner be given a seat for the M.B.B.S. Course with effect from the beginning session/new first year, which started in Dec, 2008 without effecting or disturbing the already admitted candidates; the impugned letters dated 6th December, 2008 and 26th December, 2008 respectively are hereby set aside. The PM & DC is directed to ensure that this candidate is given a place without any delay and without any lame excuses and also they are to investigate the admission process and procedures and further to ensure that the respondent No,1 complies with all rules, regulations and law. In view of the above, this writ petition is allowed. No order as to costs.