' SH. AHMAD FAROOQ, J.---This order shall dispose of the instant I.C.A. As well as I.C.A. No,739 of 2009, W.P. No,19749 of 2009, W.P. No,23882 of 2009, W.P. No,8274 of 2009, W.P. No,8283 of 2009, W.P.
No,8305 of 2009, W.P. No,8376 of 2009, W.P. No,5737 of 2009, W.P. No,5592 of 2009, W.P. No,4702 of 2009, W.P. No,4862 of 2009, W.P. No,18 of 2010, W.P. No,11519 of 2010, W.P. No,23928 2009, W.P. No,16790 of 2010, W.P. No,13192 of 2010 and W.P. No,21271 of 2010, as the subject-matter in all of them is identical and the controversy between the . Parties is, primarily, regarding the applicability of the notification, dated 3-7-2008, upon the students, who got admission on Self finance Scheme in the Medical Colleges of Punjab, prior to Session 2008-2009.
2. Brief facts, necessary for the adjudication of the lis in hand, are that 380 students were admitted in M.B.B.S. Course in different Government Medical Colleges of Punjab on Self Finance Scheme, starting from Session 2003-2004 upto 2007-2008, and they were supposed to pay additional fee of Rs,2,50,000, per anum, in addition to regular fee. The petitioners contended that most of them belonged to lower middle class and they were forced to get admission under the Self-Finance Scheme. They further contended that in case, the seats, reserved for Self Finance Scheme, were added to the total seats, allocated upon merit, they would have got admission on open merit on normal fee. Thereafter, the Government of Punjab, vide notification dated 3-7-2008, abolished the Self-Finance Scheme in the Medical Colleges of Punjab, from Session 2008-2009, However, according to Para No,4 of the said notification, the students, already admitted under Self Finance Scheme (having lower merit than open merit), were directed to continue their education according to the original terms and conditions for admission, prescribed under the Self-Finance Scheme.
3. After issuance of the aforesaid notification, the appellants in the present Intra Court Appeal as well as ICA No,739 of 2009 tiled Writ Petitions Nos.15961 of 2009 and 15889 of 2009, respectively, before this Court, wherein, they prayed for issuance of a direction to the respondents to convert the status of the appellants/petitioners from self finance to normal fee basis. The said writ petitions were dismissed by the learned Single Judge in Chamber, vide orders dated 21-8-2009 and 20-8- 2009, which are under challenge before this Court in the instant Intra Court Appeal as well as ICA No,739 of 2009. Learned counsel for the appellants/petitioners apprised this Court that various writ petitions on the same subject-matter are also pending at the Principal Seat, Multan Bench and Bahawalpur Bench of this Court, whereupon, this Court referred the matter to the Hon'ble Chief Justice, vide order dated 29-3-2010. The Hon'ble Chief Justice was pleased to fix all the writ petitions along with the instant Intra Court Appeal before this Court. The grievance of the petitioners/appellants in the instant Appeal as well as ICA No,739 of 2009 and connected writ petitions is that the Self-Finance Scheme, being illegal and unconstitutional, they be charged only normal regular fee and the orders requiring them to deposit fee on Self-Finance Scheme basis, alter the issuance of Notification, dated 3-7-2008, be declared illegal and without any justification.
4. The respondents controverted the contentions, raised by the petitioners/appellants, on the plea that they themselves opted for the Self-Finance Scheme out of their own free will on the undertaking that during their studies or till the completion of their education in the respective Medical Institutions, they shall pay the Self-Finance Fee. They asserted that the abolition of Self- Finance Scheme is prospective in nature and could not be applied with retrospective effect. They clarified that the petitioners/appellants were not eligible on open merit and they cannot be considered at par with the students; who got admission on open merit. They asserted that many candidates, who had scored more marks percentage as compared to the present petitioners/appellants, could not get admission in the Medical Institutions, as they could not afford to pay the fee of the Self-Finance Scheme. They also contended that granting exemption to the present petitioners/appellants to pay the Self-Finance Fee, would amount to doing injustice to the other candidates, who could not opt for Self-Finance Scheme.
5. Learned counsel for the petitioners/appellants argued that the creation of additional seats on Self-Finance basis was violative of clause (c) of Article 37 of. The Constitution of Islamic Republic of Pakistan, 1973, wherein, it is provided that State shall make technical and professional education generally available and higher education equally accessible to all on the basis of merit. They further submitted that the present petitioners/appellants were forced to get admission on Self- Finance Scheme, as the additional seats were not added to the seats, reserved for open merit, with mala fide intentions. They argued that the Self-Finance Scheme was introduced in flagrant violation of the Articles 4(c) and 8 of the Constitution or Islamic Republic of Pakistan, 1973. They maintained that alter the abolition of the Self Finance Scheme in the Medical Colleges or Punjab, for Session 2008-2009, vide notification dated 3-7-2008, the petitioners/appellants cannot be forced to pay the Self Finance Fee, as it would amount to discrimination. They further argued that the present petitioners/appellants have a constitutional right to be dealt equally with the students, who got admission after the issuance of the impugned notification. Lastly, they argued that the notification, which involves benefit, can operate retrospectively. In support of their arguments, the learned counsel for the petitioners/ appellants have relied upon the cases of Messrs Army Welfare Sugar Mills Ltd. And others v. Federation of Pakistan and others (1992 SCMR 1652), Abdul Farid v.
N.E.D. University of Engineering and Technology, Karachi and another (2001 CLC 347), Abdul Baqi and others v. Muhammad Akram and other (PLD 2003 Supreme Court 163), Anwar-ul-Haq Ahmad v. Secretary Economics Affairs Division, Islamabad and others (PLD 2004 Lahore 771), Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161) and Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others (PLD 2007 Karachi 116)
6. Conversely, the learned Additional Advocate-General, Punjab vehemently opposed the instant Intra Court Appeals as well as Writ Petitions, on the plea that the introduction of the. Self-Finance Scheme as well as its abolition fell within the ambit of Public Policy and 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 an authority. He further submitted dint the open merit and Self Finance Scheme were two different categories and the petitioners/appellants, having lower merit, got admission on Self-Finance Scheme with their own free-will. He maintained that the rules for admission in the above two categories were specifically, provided in the prospectus and the students, who applied for admission on Self Finance Scheme basis, not only had the knowledge of said rules, in advance, but they also bound themselves, by their express conduct, to abide by those rules, He maintained that acquiring medical education free of cost is not expressly included in the fundamental rights, as provided in Chapter-1, Part-II, of the Constitution of Islamic Republic of Pakistan, 1973. Finally, he argued that it is a settled law that no notification/rules/policy can take effect retrospectively. He categorically denied that the petitioners could have been admitted oft open merit, rather, he clarified that there was a considerable difference in the aggregate marks of the candidates, who got admission on merit, as compared to those, who got admission on Self- Finance Scheme basis. Concluding his arguments, the learned Additional Advocate-General, Punjab pointed out that nearly 1400 to 2000 applicants possessing higher merit as compared to the students, who admission under Self-Finance Scheme, were deprived of their chance of getting admission in Medical Colleges, as they could not afford to pay the additional fee of Self-Finance Scheme.
7. Arguments heard. Record perused.
8. At the outset, we would like to point out that open merit seats and seats on Self-Finance basis were two different categories, as evident from the prospectus, for the relevant Session, of King Edward Medical University and Government Medical Colleges in the Punjab. Prospectuses are provided to the intending students in advance and as such, all students, who applied for admission on sell Finance Scheme basis, did it fully knowing the rules. Hence, it cannot be argued that the petitioners were forced to take admission on Self-Finance Scheme under any duress and coercion.
Incidentally, the prospectus also provided that the students shall be bound to abide by the rules and regulations, as laid down in the prospectus. The prospectus clearly mentioned the fee for a student, admitted on Self-Finance Seat, as Rs,2,50,000, per arm, in addition to normal fee, which he was bound to pay every year, till the completion of his MBBS/BDS Course.
9. We do not agree with the argument of the learned counsel for the petitioners that the Self- Finance Scheme was violative of the fundamental rights, enshrined in the Constitution of Islamic Republic of Pakistan, 1973, as equality of the citizens, provided in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, means equal treatment amongst persons, who are equally placed and reasonable classification in terms of equal treatment is legally permissible. In this connection, a reference could be made to the case of I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCMR 1041), wherein, it has been held that Clause (1) of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 does not prohibit the State to treat citizens on the basis of reasonable classification. A classification would be considered reasonable, if it is based on an intelligible differentia, which distinguishes persons or things that are grouped together from those, who have been left out. The conditions, prerequisites for seeking protection of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, have also been discussed in the .Judgments reported in the cases of Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641), Muhammad Ramzan and 3 others v.
Government of Pakistan through Secretary Ministry of Law, justice and Parliamentary Affairs, Pakistan Secretarial, Islamabad and 3 others (2004 YLR 1856), Shehzad Riaz v. Federation of Pakistan through Secretary Cabinet Division and 3 others (2006 YLR 229), Government of the Punjab. Through Chief Secretary, Punjab, Lahore v. Naseer Ahmad Khan through L.Rs, and others (2010 SCMR 431) Taria Aziz-cud-Din and others in re Human Rights cases Nos.8340, 9504-G, 13936- G, 13635-P 14306-G to 143309-G 4.2009 (2010 SCMR 130) and Dr. Mobashir Hassan and others v.
Federation of Pakistan and others (PLD 2010 SC 265). In the instant case, the students, who got admission on Self-Finance Scheme basis had obtained less marks as compared to 'the students, who were admitted against the seats, reserved for open merit, and as such, they were not similarly situated or placed and differential treatment was justified. The following table would prove the difference in the merit position or the candidates, who got admission on open merit, and those, who got admitted on Self-Finance Scheme:-- Merit No. of the student last admitted Session Open Merit Self Finance 2007 - 2008 2006 - 2007 2005 - 2006 2004 - 20051639 1598 1560 14963052 3301 3591 3490
10. The Self-Finance Scheme as well as the impugned notification, dated 3-7-2008, whereby the Self-Finance Scheme has been abolished in the Medical Colleges of Punjab, from Session 2008- 2009, certainly a matter relating to the policy of the Government and 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 the authority. This principle of law was recognized in the judgments reported in Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 Supreme Court 98), Gul Khan v.
Government of Baluchistan through Secretary, Education and 4 others (PLD 1989 Quetta 8), Anwar- ul-Haq Ahmad v. Secretary Economics Affairs Division, Islamabad and others (PLD 2004 Lahore 771) and Imbed Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others (PLD 2007 Karachi 116).
11. The next question to be determined is that whether a notification can operate retrospectively. It is settled law that notification cannot take effect retrospectively. In the impugned notification, dated 3-7-2008, it is clearly mentioned that the Self-Finance Scheme is being abolished in the Medical Colleges of Punjab from Session 2008-2009. In Para No,4 of the said notification, dated 3- 7-2008, it is mentioned as under:- "Students already admitted under Self-Finance Scheme (having lower merit than open merit) shall continue their education according to the original terms and conditions for admission prescribed under Self-Finance Scheme".
' No doubt, the Government of the Punjab through policy decision has abolished Self-Finance Scheme from the Medical Colleges through impugned notification, wherein, by inserting a saving clause, the petitioners/appellants were allowed to continue their studies on the terms and conditions on which they were given admission in the colleges, as such, there is hardly any controversy regarding retrospective or prospective effect of the said notification. Even otherwise, the Government of the Punjab has enhanced the seats in the Medical Colleges and included the seats, reserved for Self-Finance Scheme, for admission on open merit for benefiting more students.
It is also an admitted fact that the petitioner/appellants had got admission under the Self-Finance Scheme prior to the issuance of the notification, as such, they are bound to abide by the. Rules and regulations laid down in the prospectus, issued to them at that time, wherein, they also made a commitment to pay the requisite Self-Finance Fee every year till the completion of their MBBS/BDS Course, as such, they cannot wriggle out their own commitment. In fact, the petitioners/appellants are estopped by their conduct to file a constitutional petition, as they got admission fully knowing well the terms and conditions of their admission, under the Self-Finance Scheme. In this regard, we would like to refer to the cases of Yahya Gulzar v. Province of Punjab through Secretary Health, Government of Punjab, Lahore and 3 others (2001 CLC 9), Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad (2008 SCMR 773) and Anwar-ul-Haq Ahmad v.
Secretary Economics Affairs Division, Islamabad and others (PLD 2007 Lahore 771).
12. The upshot of above discussion is that the impugned notification, dated 3-7-2008, cannot be declared illegal or without jurisdiction. Consequently, the petitioners/appellants are not entitled to take benefit from the said notification, as the same is only applicable to the students, who got admission in the Medical Colleges of Punjab for the Session, starting from 2008-2009. The impugned notification, dated 3-7-2008, cannot be applied retrospectively and the present petitioners/appellants are estopped to file the instant petitions following the principle of estopped and waiver. The learned Single Judge in Chamber has rightly held in the impugned judgment, dated 20-8-2009, that the abolition of Self-Finance Scheme is prospective in nature and the petitioners cannot claim its application with retrospective effect. We are not inclined to interfere with the findings of the learned Single Judge in Chamber, recorded in the impugned judgment, dated 20-8-2009. Consequently, the instant Intra Court Appeals as well as Writ Petitions are dismissed. However, the appellants/petitioners, who are facing genuine financial hardship in the payment of the additional fee of the Self-Finance Scheme, may move applications to the Government of the Punjab for sanctioning of one time grant in aid, and if any, such application is moved, the same shall be considered by the Government of the Punjab on case to case basis, after due verification.