SH. AZMAT SAEED, J.---Through this judgment we propose to dispose of Writ Petitions Nos. 15532, 17339, 17768, 17769, 18063 and 15808 of 2010 filed on behalf of various students aspiring for admissions in the Medical Colleges to call in question the holding/conducting of Entry Test by respondents Nos. 1 and 3.
It is the case of the petitioners that they have passed or have appeared in the F.Sc. Or equivalent examination, and are desirous of pursuing the career in medicine for which purpose they need to take Entry Test. It is being contended on behalf of the petitioners that inter alia the qualifications for eligibility to participate in the said Entry Test is to be determined by the Pakistan Medical and Dental Council (PMDC) respondent No, 4 which is a Statutory Regulatory Authority authorized in this behalf. It is submitted that at various points of time in the exercise of statutory powers conferred under the parent statute i,e,, Pakistan Medical and Dental Council Ordinance, 1962, various rules and regulations have been framed and decisions taken, and by virtue of law, respondents Nos. 1 and 3 are bound by the same.
In the year, 2010 holding of the Entry Test has been advertised by respondents Nos. 1 and 3 setting forth, inter alia, the eligibility criteria for participation and passing the said Entry Test a sine qua non for determination of merit for admissions in the medical Colleges. It is the case of the petitioners that the said criterion, as is apparent from the advertisement issued in this behalf dated 17-6-2010 is illegal. It is being canvassed on behalf of the petitioners that under the Regulations/Rules as framed and enforced by the PMDC only those candidates who have passed the F.Sc. Or equivalent examination are eligible to sit for the aforesaid Entrance Test. While the test as advertised and conducted, the students who have only taken the examination and not passed the same too were permitted to sit for the said Test. It is also the grievance of the petitioners that it has been prescribed by the PMDC that any candidate obtaining 60% marks in F.Sc. Or equivalent examination, would be eligible to participate for the Entry Test, however, for the Entry Test in dispute, the minimum qualification in this behalf has been raised to 65%. It is also contended on behalf of the petitioners that in terms of Rules and Regulations as framed by the PMDC, no person can be failed in the Entry Test, and the marks obtained shall be factored into the preset formula for determining inter-se merit of the candidates, while in the Entry Test held by respondents Nos. 1 and 3 it has been notified that any person obtaining less than 60% marks in the Entry Test shall deem to be failed. In the above context, it is contended on behalf of the petitioners that the Entry Test in dispute, therefore, stands vitiated and liable to be set aside. It is also contended on behalf of the petitioners that sufficient time was not given to the students/candidates to prepare for the Entry Test which has been conducted immediately after holding of F.Sc examination, but before declaration of its (F.Sc.) result. In support of their assertions, learned counsel have relied upon the judgments reported as PLD 2007 SC 323 PMDC v. Zia-ud-Din Medical University and others and 1995 SCM R 421 Nadir Khan and others v. Khyber Medical College and others.
2. Pursuant to the notice issued by this Court, respondents have entered appearance and filed their respective response/replies to these petitions.
3. It is contended by the learned Additional Advocate-General Punjab on behalf of respondent No, 1 that PMDC regulations/rules as framed are not valid, as no previous sanction of the Federal Government was obtained before framing the same. In the alternative, it was variously argued that PMDC's regulations merely provide a minimum standard of 60% marks in F.Sc and respondent No, 1 is authorized to change and deviate therefrom by increasing the benchmark in this behalf. Said deviation it is contended is permissible and justified in view of the minutes of its 115th meeting of PMDC notified vide letter dated 3-6-2010, which authorizes the Provincial Governments to make arrangements for holding the said Entry Test, hence, no exception can be taken to the Entry Test conducted.
4. The learned counsel appearing for. UHS has also controverted the contentions being raised on behalf of the petitioners and has contended that policy of respondent No, 1 (Government of the Punjab) has been implemented and executed by respondent No, 3 in accordance with law, and therefore, the learned counsel adopted the arguments raised on by the learned Additional Advocate-General Punjab. It was further contended that due to paucity of time and for efficiency, procedural changes have been effected by raising the minimum qualification for eligibility to participate in the Entry Test from 60% to 65% for F.Sc. Adds that the candidates who have taken F.Sc. Examination and their results have not been declared were allowed to participate the Entry Test whereby no prejudice has been caused to any person/candidate as those candidates who fail to obtain the required percentage of merits shall be weeded out. It is further contended that the minimum requirement for passing the Entry Test has been prescribed so as to control and regulate the admissions in the private medical colleges in the Province lest they admit the students who failed in the Entry Test.
5. The learned counsel for the PMDC has supported the case of the petitioners by contending that the Government of the Punjab respondent No, 1 and UHS respondent No, 3 are bound by law to follow and adhere to the Rules, Regulations and Decisions of the PMDC which is the Statutory Regulatory Authority vested with the exclusive jurisdiction in this behalf. It is further contended that the entry as advertised and conducted is in violation of the said Regulations, inasmuch as, the criterion as to the minimum marks, in the F.Sc, has been deviated from and furthermore the respondents Nos. 1 and 3 have introduced the concept of pass and fail in the Entry Test despite a specific Regulations framed by the PMDC to the effect that no candidate shall be failed in the Entry Test, and only the marks obtained by him will be factored into the formula for determining inter se merit of the candidates. It is further contended that the Regulations in question have been framed under section 33 subsection (2) of the PMDC Ordinance, 1962, which did not require any prior approval or the consent of the Government which consent is limited to regulations/rules framed in exercise of powers conferred under section 33(1) of the Ordinance ibid. In the above backdrop, learned counsel contends that the writ petitions be accepted.
6. The learned Deputy Attorney-General appearing on behalf of respondent No, 2 has also supported the case of the petitioners and contended that respondents Nos. 1 and 3 are bound by the Regulations as framed by PMDC and the Entry Test in-question has been conducted/held in violation thereof.
7. Heard. Record perused. Respondent No,4 has been constituted under the Medical & Dental Council Ordinance, 1962 with its, Powers, Authorities and functions mentioned therein. It is an admitted that the PMDC has framed the Regulations for awarding the degrees in Bachelors of Medicines and Bachelors of Surgery (MBBS) inclusive of conditions for admissions to the Medical Colleges and holding of Entry Tests in connection therewith. It is the said Regulations of May, 2003 which are being relied upon by the petitioners, and in respect whereof, respondents Nos. 1 and 3 are taking up the plea that the same are ineffective in law in the absence of a prior sanction of the Federal Government. It would appropriate to first advert to this aspect of the matter. Respondent No,4 by virtue of section 33 of the Ordinance ibid has been conferred powers to make Regulations.
Section 33(1) of the Ordinance prescribes in this behalf that the Council (PMDC) respondent No, 4 may with the previous sanction of the Federal Government frame Regulations providing for matters mentioned in clauses (a) to (i) thereof. However, subsection (1) of section 33 of the Ordinance provides that notwithstanding anything contained in subsection (1), PMDC may make Regulations to provide for matters mentioned in clauses (a) to (g) of subsection (2). In subsection (2) previous sanction of the Federal Government is conspicuous by its absence. Perusal of the aforesaid provision of law i,e,, section 33 of the Ordinance makes it clear and obvious that Regulations framed pertaining to subjects and matters mentioned in subsection (1) thereof require previous sanction of the Federal Government, while on the other hand the Regulations framed by the PMDC for matters pertaining or providing for subjects mentioned in subsection 2 thereof did not require any previous sanction of the Federal Government. The Regulations in question relied upon by the petitioners pertain to admission in Medical Colleges, examinations and educational facilities etc. The matter in issue clearly pertains to admission in the Medical Colleges and Entry Test in respect thereof. Said subject is squarely covered by section 33(2)(e) which reads as follows:-- "Prescribing the conditions for admissions of courses of training as aforesaid."
In this view of the matter, the contentions of respondents Nos. 1 and 3 that the previous sanction of the Federal Government was required prior to the promulgation of the Regulations in question is wholly misconceived as such Regulations have clearly been framed in the exercise of powers conferred on to respondent No, 4 by section 33(2)(c) and not under section 1 of section 33 of the Ordinance.
8. The status of respondent No, 4 and the Regulations framed thereby came up for adjudication before the honourable Supreme Court inter alia in the judgments reported as PLD 2007 SC 323 PMDC v. Zia ud Din Medical University and others- and 1995 SCM R 421 Nadir Khan and others v.
Khyber Medical College and others, wherein it was held in unequivocal terms that respondent No, 4 PMDC is mandated under the Ordinance of 1962 to frame the Regulations so as to give effect to the objects of the Ordinance of 1962 and to ensure a uniform standard in the Medical and Dental education in the country which must be given effect to in letter and spirit. Said Regulations as framed applied to all the Medical Colleges in Pakistan and the same are finding in nature. Thus, it is settled law that any and all regulations duly framed by the PMDC are binding upon and required to be given effect to by the respondents including the respondents 1 and 3.
9. That the said Regulations of 2003 promulgated by PMDC relied upon by the learned counsel for the petitioners as well as by the Federal Government and the PMDC includes section 11 thereof which pertains to admissions to the Medical Colleges. Relevant excerpt of section 1 pertaining to holding of Entry Test reads as follows:-- SECTION 11
(1) NUMBER OF ANNUAL ADMISSIONS The optimum number of annual admissions in a medical/dental college should be one hundred(100). The maximum teacher and student ratio of 1:5 in clinical subjects and 1-10 in basic subjects must be maintained. The hospital bed and student ratio of 1:5 should also be maintained.
Some of medical colleges are admitting 400 students without consequential facilities. If a medical/dental college has teacher: student ratio and other facilities which allow more than 250 students to be admitted in a year, even then the total annual admissions in that college shall not exceed 250. The medical colleges which have more than 250 admissions shall gradually reduce the number to 250. In private sector medical colleges should not in any case admit more than 100 students.
(2) A STANDARDIZED MEDICAL COLELGE ENTRY TEST Entry test should be conducted by the respective Provincial Government for medical colleges of public sector under the administrative control. The paper shall be computerized. There should not be any pass marks for the entry test. The merit for admission shall be elaborated after adding all marks as given below. The private sector medical colleges should also follow the same criteria for entry test.
Intermediate40% Matric 10% Entry Test 50% The private sector medical colleges like Aga Khan University Medical College, Karachi and Army Medical College, Rawalpindi etc. Shall continue to conduct their own Entry Test.
3. MINUMUM ACADEMIC REQUIREMENTS FOR ENTRY TEST.
PRIORITY 1 The candidate should have passed the Intermediate Science (F.Sc) Examination (Medical Group) securing at least 60% marks in aggregate, unadjusted from a Pakistani university or an equivalent examination of a Board of Secondary Education in Pakistan.
OR Any other examination of a foreign university or examining body which in scope and standard is found equivalent to the Intermediate Science (F.Sc) Examination (Medical Group) of a Pakistani University or Board of Secondary Education.
PRIORITY 2 The candidate should have passed a higher examination of a Pakistani university with Biological Sciences provided he/she has passed the Intermediate Science (F.Sc Examination Medical Group) securing at least 60% marks in aggregate, unadjusted from a Pakistani University or an equivalent examination of a Board of Secondary Education in Pakistan.
(4) Verified Hafiz-e-Qur'an and NCC Training, shall get credit, according to the Government admission policy.
(5) Admission to a medical college including that to reserved seats should be strictly on merit according to the above rules of admission.
(6) No special seats shall be created in medical colleges.
(7) There shall be minimum age limit 17 years and maximum 25 years.
(8) A candidate seeking admission should possess adequate mental and physical health to be able to obtain medical education as prescribed and should be able to practice as a general duty doctor. Necessary steps should be taken by medical colleges to ensure this provision on admission of the student.
10. Perusal of the aforequoted provision reveals firstly that there should not be any pass marks in the Entry Test. The minimum academic requirement to participate in the Entry Test is inter alia 60% marks in aggregate un-adjusted in the Intermediate Sciences (F.Sc) Examinations Medical Group or an equivalent examination from a foreign institution.
11. In the instant case admittedly respondents Nos.1 and 3 have introduced the concept of pass and fail in the Entry Test by postulating that a candidate securing less than 60% marks in the Entry Test would be deemed to have failed the same. Furthermore, the minimum 'academic qualification as prescribed in the Regulations of obtaining 60% aggregate marks in the F.Sc. Has been increased to 65%. The Additional Advocate-General Punjab as well as the learned counsel for the UHS (University of Health Sciences) were asked to explain the authority in law in the exercise whereof the condition for participating in the Entry Test have been varied and the concept pass and fail has been introduced. In response, it was contended on behalf of respondents Nos. 1 and 3 that the Government of the Punjab and the University of Health Sciences (UHS) have not violated the said Regulations, but merely "deviated" therefrom in view of the decision of the PMDC taken in its 115th meeting held on 31-1-2010 communicated to the said respondents Nos.1 and 3 vide letter dated 3- 6-2010. It appears to be the case of the respondents Nos. 1 and 3 that Item No, 1 of the minutes of the meeting, as aforesaid provides that the Punjab Government will make arrangements for holding the Entry. Test for admission in M.B.B.S. It was canvassed by the learned Additional Advocate General that making arrangements for holding the Entry Test confers authority upon the Provincial Government to vary, add or substitute the conditions for participating therein and for introduction of the concept of passing and failing the same. The contentions raised in this behalf by respondents Nos. 1 and 3 are devoid of any merit; By no stretch of the imagination, could the directions for making the "arrangements" for holding of a test confers the authority to determine the eligibility to participate in and set the standards for the Entry Test. The tenor of the minutes of the meeting of the PMDC dated 31-1-2010 and the letter dated 3-6-2010 leaves no room for doubt that the Provincial Government was required to make available the venue for the conduct of examination and provide for support services. There is nothing in the said minutes or the said letter to indicate or even imply that the Provincial Government could prescribe or substitute the conditions or change the modus of determining the result of the Entry Test. Furthermore, even otherwise, the exclusive jurisdiction for the conduct of Entry Test for admission in the medical colleges vests in the PMDC by virtue of Ordinance of 1962 supra and any Regulations framed thereunder in this behalf are binding on all medical colleges as has been held by the honourable Supreme Court in the judgments reported as PLD 2007 SC 323 PMDC v. Zia-ud-Din Medical University and others and 1995 SCM R 421 Nadir Khan and others v. Khyber Medical College and others.
12. The Punjab Government cannot encroach upon the domain or jurisdiction of respondent No,4 PMDC conferred by a Statute. The interpretation of the minutes of the meeting of 31-1-2010 and the said letter dated 3-6-2010 as canvassed by the learned Additional Advocate F General Punjab are not only illogical against the letter and spirit of the said minutes and letter but also in direct conflict with the provisions of the Ordinance of 1962 and the dictum of law laid down by the Apex Court in the cases referred to above, and therefore, cannot be accepted.
13. There is yet another aspect of the matter which cannot be ignored. The Entry Tests conducted by the Provincial Governments is valid for all the Provinces as is not only specifically provided in the Regulations, but such all Pakistan universality of the eligibility criteria and the standards of courses is also the scheme and object of the parent statute i,e,, the Ordinance, 1962 as is obvious from the contents of its Preamble and the provision as to its applicability. In the current state of affairs the possibility of a candidate considered to be ineligible or having failed the Entry Test in dispute may be entitled to admission to a Medical College in another Province. Such an anomaly cannot be permitted to exist as it would defeat the very purpose of the law where under the Entry Test has been conducted.
14. That the petitioners in Writ Petition No,18063 of 2010 have taken their 'A Level examination rather than the F.Sc. (Pre Medical). Learned counsel on their behalf have urged that for purposes of determining merit the equivalence marks awarded to them is illegal and unfair. Such equivalence is effected through the Inter Board Committee (IBCC), and the said Committee has not been impleaded as a party, therefore, the grievances of the petitioners cannot be adjudicated upon through the instant lis. It was also contended on behalf of the said petitioners that they are being discriminated against, inasmuch as no credit is being granted to them for being Hafiz-e-Quran and for NCC Training. In this particular context, the learned counsel for the PMDC and respondents Nos. 1 and 2 have categorically stated before this Court that students having passed their A Levels will be given credit for being Hafiz-e-Quran and for undergoing NCC Training subject to satisfaction of the conditions laid down in this behalf by the Regulations.
15. An attempt has also been made to contend on behalf of the petitioners that sufficient time was not given to them for preparation for the Entry Test or to allow the candidates to improve their grades in the F.Sc. So as to enable them to become eligible to participate. A schedule for holding of the Entry Test subject to any cutaway date prescribed by Regulations or decisions of the PMDC is the discretion of respondents Nos.1 and 3, which needs to be exercised fairly and for ensuring that the object of law is achieved. However, micro management in this behalf is not within the domain of this Court while exercising its Constitutional jurisdiction.
16. The upshot of the foregoing appears is that it is the settled law that the Regulations promulgated by PMDC are binding upon respondents No,1 and 3 as well as all other Medical Colleges and as such must be adhered to in letter and spirit as is the law laid down by the Apex Court in the cases referred to above. In the Entry Test in question, persons ineligible were permitted to participate. The eligible candidates who had obtained more than 60% marks in F.Sc. But less than 65% have been excluded. The concept of pass and fail in the Entry Test has been introduced in violation of the Regulations.
A large number of candidates who are admittedly eligible have participated in the Entry Test and have also passed/qualified the same, therefore, we are not inclined to declare the Entry Test invalid as a whole thereby setting at naught the efforts of said students and condemn them to forcibly undertake the same exercise again for no fault of their part. However, the wrong committed must be righted and the law upheld and enforced. In such an eventuality, the candidates who did not obtain minimum 60% marks in the F.Sc. Are held to be ineligible to take part in the Entry Test, and accordingly their names Should be excluded from the merit list. Result of the Entry Test shall be declared without holding whether any particular candidate as passed or failed and the marks obtained in the Entry Test be factored into the preset formula for determining inter se merit of the candidates.
17. By way of Entry Test in dispute the eligible candidates who had obtained more than 60% marks in F.Sc. But less than 65% marks have been excluded and denied the opportunity of participating in the Entry Test. Such aspirants cannot be denied or deprived of their right of taking the Entry Test in order to become eligible for consideration for admission in the Medical Colleges, therefore, the respondents must arrange/conduct another Entry Test enabling all the candidates who are eligible to take the same including the students who have obtained more than 60% marks in F.Sc., and said Entry Test must be conducted as expeditiously as possible, where after, a combined merit list shall be prepared and issued.
18. Writ petitions accepted in terms articulated ibid.