' CH. SHAHID SAEED, J.--- Through this single judgment, we intend to dispose of Writ Petitions Nos.22713 of 2011, 23187 of 2011, 22099 of 2011 and 21305/2011 as in all these writ petitions, the weightage criteria set by Pakistan Medical and Dental Council (PMDC) for entry test for admission in M.B.B.S./medical colleges has been challenged.
2. C.Ms. No,3734, 3735, 3788,3790, 3884, 3885, 3891, 3907, 3914, 3932, 3933, 3934, 3935, 3936, 3937, 3938, 3939, 3940, 3941, 3943, 3957, 3966 and 3971 of 2011 by various students/candidates under Order I, Rule 10, C.P.C. For impleading them as party in these cases are allowed,
3. Learned counsel for the petitioners contends that section 33(2) of Pakistan Medical and Dental Council Ordinance, 1962 only allows PMDC to prescribe conditions for the admission, but this word conditions has wrongly been stretched to 'merit' which is an excessive regulation; that there is no provision that the PMDC will make any regulation regarding admissions to colleges and that merit cannot be treated like that of a policy as the policy is always framed to facilitate but not to hinder anyone from his lawful right. Further argues that in order to deprive the children of the poor people from admission in the public sector medical colleges, the entry test has been introduced whereby the candidates are allowed 10% marks for matriculation, 40% marks for F.Sc. (pre-medical) and 50 % for entry test; that the duration of entry test is just 150 minutes meaning thereby 12 years education is equal to, entry test which is illogical and untenable; that the entry test is nothing but to award the rich and influenced person and deprive the poor; that due to introduction of the entry tests, more than four academies have been opened just in Lahore City which charge fee ranging from Rs,25,000/- to Rs,30,000/- per month per candidate studying therein which is not affordable to a common man; that there is a common complaint from the candidates that the procedure for examination of checking and compilation of the result of entry test is not transparent and the candidates having links with politicians and bureaucrats are given undue advantage during the test; that the entry test procedure and criteria has been announced suddenly which is unexpected to the candidates and they were also unaware about the same when they appeared in the matriculation examination, so no rule or regulation, whatsoever, can be promulgated retrospectively; that under the law, every child of the country deserves for equal opportunity in all the spheres of life including that of education; that the weightage set for admission to medical colleges is illogical and has been prepared without applying judicious mind; that the entry test is violative to Articles 9, 18, 25, 25-A, 27 of the Constitution of Islamic Republic of Pakistan, 1973; that the negative marking in MCAT is illegal and unlawful; that the privilege class of the society can afford high fee of Rs,38 lacs per child in the private medical colleges but not the common man; that the entry test is like that of an additional qualification which cannot be considered equivalent to the basic qualification of matriculation and F.Sc. So entry test 'should be abolished and if it remains in field, it should be given much less-marks than that being given presently or previously; that the entry test policy is illegal being retrospective in nature; that the present students should be subjected to previous policy. Learned counsel pra that the weightage set for admission in medical colleges be set aside and the writ petitions be allowed as prayed for.
4. Learned counsel for University- of Health Sciences (UHS) argues that under Article 139 of the Constitution of Islamic Republic of Pakistan, 1973, the provincial government is empowered to frame rules to conduct its business; that the Health Department on the behalf of the Government of the Punjab makes regulations regarding admissions in medical colleges; that all the writ petitioners have appeared in the entry tests without any objection meaning thereby that they admitted to the policy and weightage set for admission to medical colleges, as such, they are now estopped by their own conduct to file these writ petitions; that as per judgment of this Court passed in Writ Petition No,15512 of 2010, dated 6-9-2010, upheld by the Hon'ble Supreme Court of Pakistan on 11-10-2010 in C.P.L.A. No,1720-L of 2010, the regulations framed by Pakistan Medical and Dental Council are binding upon all the medical and dental colleges throughout Pakistan and the Province of Punjab has no exception; that the formula prepared by Pakistan Medical and Dental Council in 2003 has been adopted this year by Provinces of Punjab; that previously, the Pakistan Medical and Dental Council has allowed the provincial governments to set their own admission criteria; that the weightage formula was duly advertised in the media well before time and also placed on the webpage of the UHS; that there is no violation of rules, regulations or law on the part of the UHS; that the entry tests are conducted impartially and all the students are being treated at par in accordance with the merit position calculated with predefined formula, uniformly and fairly and without any discrimination; that the syllabus for entry test is same as that of the F.Sc. And there is no reason that a candidate having good marks in F.Sc. By fair means will not clear the entry test, however, the seats available are much less than the demand, therefore, competition is very tough; that the public sector medical colleges are subsidized heavily by the government while the private colleges have to bear all the expenses themselves, therefore, comparison of fee of a private college with that in public sector is unreasonable and just departure from the ground realities; that the children of even remote areas have performed well in the entry test and none except few who could not perform well in the entry test have called into question the credibility of the entry tests; that by virtue of passing F.Sc., none has the vested right of admission to medical colleges; that there is no violation of law or regulations on the part of the UHS; that the disputed questions of facts cannot be decided by this Court in its summary jurisdiction, rather the civil courts are meant for decision in such like cases after recording oral as well as documentary evidence of the parties, therefore, the writ petitions having no force merit dismissal.
5. Learned counsel for Pakistan Medical and Dental Council (PMDC) contend that the PMDC is a statutory Regulatory Authority vested with the exclusive jurisdiction to recognize medical colleges, their qualifications and training; that the PMDC is empowered to formulate national policy for all Medical Universities and colleges and lay down regulations for this purpose under section 33(2) of the PMDC Ordinance 1962 and the Punjab Government Health Department is bound to follow PMDC rules; that weightage criteria of entry test (Matriculation 10% marks +F.Sc. 40% marks + Entry Test 50% marks) was prepared by the PMDC in 2003 which was never changed and still the same forumula is in vogue; that in previous years, the other provincial governments adopted the same weightage criteria, but the Punjab Government didn't, therefore, the conflict arose; that in its 117th meeting, the PMDC formulated Admission Regulations. 2010, upheld its earlier entry test weightage criteria and made it binding upon all the medical and dental colleges/universities in future, however, it was decided that the criteria previously adopted by the colleges will be accepted; that the Hon'ble apex Court in its judgment dated 11-10-2010 passed in C.P.L.A. No,1720-L/2010 and also in a number of other judgments has held that the PMDC is competent to formulate regulations for all the medical and dental colleges/universities and the Punjab Government and the University of Health Sciences are no exception: that the matter of entry test for admission in medical colleges does not fall within the purview of discrimination, therefore, the writ petitions in hand be dismissed and the Punjab Government be directed to follow the regulations framed by the PMDC.
6. Learned Assistant Advocate-General has adopted the arguments advanced by learned counsel for the University of Health Sciences and Pakistan Medical and Dental Council.
7. Arguments advanced from all corners have been heard and record to the extent made available before us has also been perused with able assistance of learned counsel for the parties.
8. Pakistan Medical and Dental Council (PMDC) was established under Pakistan Medical and Dental Council Ordinance, 1962. The PMDC is a statutory Regulatory Authority vested with the exclusive jurisdiction to recognize medical colleges and their qualifications and training. The registration of medical colleges and the qualification are dealt with under section 11 of the PMDC Ordinance, 1962.
The PMDC is empowered to formulate national policy for all Medical Universities and colleges and lay down regulations for this purpose under section 33(2) of the Ordinance ibid. All the medical colleges/universities throughout Pakistan are bound to abide by the rules and regulations framed by the PMDC.
9. The PMDC in its 99th session held on 29th and 30th April, 2003 formulated weightage criteria for entry test as Matriculation 10%, Intermediate/F.Sc. 40% and Entry Test 50%. The same formula was adopted by all the Provinces of Sindh, Balochistan, Khyber Pakhtunkhwa and the medical colleges/universities running thereunder. However, the Punjab Government Health Department did not follow the said weightage criteria. Instead, they adopted weightage criteria as F.Sc. 70% and Entry Test 30%. The matter with regard to violation of weightage criteria came into the notice of the PMDC, therefore, the PMDC in its 117th meeting dated 8-11-2010 re-considered the weightage criteria of 2003, upheld the same and declared that from the next year admission, the weightage of Entry Test shall be as laid down in the PMDC regulations "Conditions for Admission in MBBS/BDS Courses and conditions for house job Regulations 2010", however, it was decided that whatever weightage has been given to the Entry Test by the Provincial Government/Universities during the previous years that shall remain intact and be accepted by the Council. The Council after its 118th meeting held on 3-4-2011 made it binding upon all the medical colleges and universities throughout Pakistan from session 2011-2012 and onwards.
10. The matter of entry test, though weightage criteria was not challenged therein, also came before this Court in Writ Petition No,15532 of 2010 (announced on 6-9-2010) last year, wherein it was held that the regulations promulgated by PMDC are binding upon the governments and medical institutions, vis-a-vis mechanism for determining the merit of the candidates for admission to medical colleges and these must be adhered to in letter and spirit. The same was challenged before the Hon'ble Supreme Court in Civil Petition No,1720-L of 2010. The Hon'ble apex Court upheld the above finding of the High Court and declared that any departure from the rules and regulations formulated by the PMDC by the Punjab Government and University of Health Sciences was illegal. In view of this matter, the Punjab Government Health Department has decided to adopt the weightage criteria set by the PMDC this year which is under challenge through the instant petitions.
11. Since the Punjab Government Health Department has been adopting the weightage criteria as F.Sc. 70% + Entry Test 30% in the previous years which has been abandoned this year and new formula, i,e, Matriculation 10% + F.Sc. 40% 10 + Entry Test 50% has been adopted on the instructions of the PMDC circulated vide letter dated 6-12-2010, the prayer of the petitioners is that either the entry test be declared against the law, or at least, the criteria for the previous years, i,e, F.Sc. 70% + Entry Test 30%, be adopted for the candidates appearing this year.
12. There is no divergence on the point that the PMDC is fully empowered to make regulations under section 33(2) of PMDC Ordinance, 1962. The dispute is only to the extent of weightage criteria as to whether the PMDC has the authority to set weightage criteria and if so, whether this criteria is rational. In our considered view, the PMDC is fully empowered to make rules, regulations and even the admission policy for its compliance by all the governments and medical colleges/universities thereunder so as to ensure a uniform system in the country. There were 51 individuals having expertise in their relevant fields who participated in the meeting of the PMDC wherein the weightage criteria in dispute was approved (newly adopted by the Punjab Government Health Department though it was formulated by the PMDC in 2003 and was duly adopted by all the provinces except Punjab). All the said persons belonging to PMDC and medical colleges/universities from all over Pakistan are experts in their respective fields and their know-how about the matter is not disputed. So, the weightage criteria, whatsoever, formulated in the meeting with consensus or even with the majority vote will be deemed accurate and reasonable and in accordance with law. The Hon'ble apex Court has held in a number of cases that the courts should avoid to indulge themselves in policy and management matters which is the domain of the respective department unless some grave illegality has been committed by the department.
13. It has been held by the Hon.Ble Supreme Court in C.P. No,1720-L of 2010 on 11-10-2010 that the governments and medical institutions are bound to implement the regulations of the PMDC and Punjab Government and the University of Health Sciences have no exception. So, the weightage criteria of PMDC, which was formulated in the year 2003 and was in vogue in all the provinces except Punjab, has been adopted by the Punjab government and the University of Health Sciences to make them in line with the decision of the Hon'ble Supreme Court and the regulations of PMDC as well.
14. The contention of learned counsel for the petitioners that the petitioners were not aware at the time when they appeared in their matriculation examination is misconceived as same situation of 'no knowledge' was also faced by those who succeeded in the entry test. The weightage criteria is equal for all the candidates. The syllabus for entry test is same as that of the F.Sc., so the plea of the petitioners, that they were not aware about this weightage when they appeared in Matriculation Examination is untenable. All the students always make their best effort to get best marks in all the examinations, so it is not convincing that if the prevailing policy has been announced at the time when matriculation examinations of the candidates were conducted, this has made some difference in the entry test result of the petitioners. When syllabus for entry test is same as that of F.Sc. For which all the candidates have already made their well preparations at their best, so the entry test weightage criteria, whatsoever, makes no difference and no case of discrimination in any manner is made out. By virtue of the weightage criteria or the entry test, no vested right of any of the petitioners has been infringed. The petitioners have appeared in the Entry Test in terms of the merit/weightage criteria publicized by the competent authority without challenging it and when they could not perform well in the entry test, they filed the instant writ petitions apprehending that they will be ousted on the basis of the entry tests, therefore, they are estopped by their own conduct to challenge the vires of the weightage criteria or merit on the settled principle of estoppel and waiver. Nevertheless, the candidates who could not succeed in the entry test this year still have an opportunity to appear in the next year subject to all conditions promulgated by the PMDC.
15. It is also the contention of the petitioners that the entry test was conducted just after 2/3 days of F.Sc. Result, therefore, the candidates could not prepare well. This Court observes that when syllabus is same as that of F.Sc. Which has been passed by all the candidates after due preparations and also the preparation time is same for all the candidates, so it has no adverse effect on the petitioners specifically. Further, announcement of schedule for some events is the responsibility and function of the relevant departments and competent authorities. The same being falling within the realm of micro management does not fall within the domain of this Court in its constitutional jurisdiction. Reliance is placed on the law laid down in case Aqib Rasheed and three others v. Government of Punjab through Secretary Health and 4 others (PLD 2011 Lahore 1).
16. It has also been agitated that equal opportunities are not available to all the candidates as candidates belonging to rich families can afford to preparatory classes at the high rates of fee, but the others don't. In our view, the regulations framed by the PMDC are neither arbitrary nor discriminatory for the reason that equality should not be in terms of mathematical calculation and exactness. It is well-settled now that the equality is always amongst the equals and it should be between the persons who are placed in the same set of circumstances. The conception of equality before the law does not involve the idea of absolute equality among human beings which is physically impossible. The phrase equal protection of law envisaged in Article 25 of the Constitution means that no person or class of persons would be denied A the same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their live, liberty, property of pursuit of happiness. Persons similarly situated or in similar circumstances are to be treated in the same manner. As such, the principle of equality does not apply mathematically and no discrimination, whatsoever, has been committed by the respondent- departments with the petitioners. We are fortified by the dictums laid down in cases Pakistan Petroleum Workers Union through its General Secretary v. Ministry of Interior through its Secretary, Islamabad and another (1991 CLC 13) and Mubarak Ali Khan and 7 others v. Government of the Punjab through Secretary, Finance Department, Civil Secretariat, Lahore and another (1990 CLC 136).
17. Economic conditions of the country are no secret. The colleges and universities are much less than the requirement. The seats available in the medical colleges are also very much limited as compared to demand. So, it is impossible to accommodate each and every student in the educational institution of his choice. Particularly speaking about medical education, the number of seats is about 3,300 in medical colleges while 33,000 candidates appeared in entry test conducted for admission in M.B.B.S. This makes crystal clear that each candidate is not going to get admission and only those who secured good marks in entry test and F.Sc. Will be on the top of the list of eligible candidates. Further, a student who passes F.Sc. (Pre-medical) has also no vested right to get admission in M.B.B.S. Certainly, he will have to get through the conditions or merit, whatsoever, set by that institution or controlling authority. In the circumstances, some merit for the admission was required which was duly developed by the PMDC and has been adopted by all the medical colleges and universities of Pakistan, including those situated in Punjab. When competition takes place, some win while the others lose. In the competition of entry tests, the petitioners could not perform well, so they feeling aggrieved by the entry test result or weightage criteria has approached this Court. There was same syllabus and same paper for all the candidates. To that extent, there was equal opportunity for all the candidates. We are of the considered opinion that where limited seats are available, some merit for admission will have to be worked out so that best of the best candidates can be chosen. The merit, conditions or policy, whatever it be named, is necessary and inevitable and cannot be termed against law or as a process of depriving those who remain unsuccessful therein. Strict application of merit for eligibility always improves the quality and standard which is essential and should continue in all spheres of life in its true spirit.
18. So far as the admission in private medical colleges/universities is concerned, the PMDC claims that the private colleges are allowing admission on merit. However, the petitioners state otherwise.
Rather, the private colleges allow admissions to candidates of their own choice without following the merit of entry test. It is also worth-mentioning here that the candidates who fall on the border line of the merit list and could not have admission in the public sector medical colleges/universities due to being at lower stage as compared to those who are declared entitled for admission in the government medical colleges might not be accommodated by the private colleges for being unable to pay the huge fee or show the political or bureaucratic influence.
19. Undoubtedly, the public sector colleges are heavily subsidized by the government to make the fee structure affordable to common man, as far as practicable. Since the private medical colleges are commercial institutions who arrange the education at their own cost, so fee structure at both places could not be the same. However, the private medical colleges are making a lot of money by receiving huge fee from the students studying thereat. Each commercial body earning in this country is expected to spend some amount out of its profits for the welfare of this society.
20. It is obligation of PMDC to regularize the private colleges and keep a vigilant eye on them by adopting a uniform policy regarding merit, fee etc. And also to get allocated reasonable number of seats for poor students who fall on border line in entry test either free of cost or at a fee at par with the public sector medical colleges/universities. It is also pertinent to mention here that a long practice of a department has force of law. But this is not the case here. The PMDC introduced the disputed weightage criteria in the year 2003 which was adopted by all 'the provinces except Punjab. However, the Province of Punjab has adopted the same weightage criteria this year. So the practice of Punjab Government cannot be said too old to have the force of law. Further, deviation of the Punjab Health Department and University of Health Sciences from the regulations made by the PMDC has already been held illegal by this Court as well as by the Hon'ble Supreme Court of Pakistan.
21. This Court is very much conscious of the fact that about more than 70 per cent population of this country resides in the villages where sufficient facilities for education are not available. The parents of students belonging to rural areas do not have sufficient resources to bear the heavy expenses of education at cities coupled with boarding and lodging. Even if some student belonging to remote/rural areas proves his ability by getting higher marks in the examinations, he deserves to be appreciated at every level and doors of education should not be closed upon him by any means including that he could not get good marks in the entry test due to less education facilities in his locality. In our considered opinion, the conditions for living and education are quite different in rural areas when compared to those available in cities, so a student of rural background cannot compete the entry test easily with those getting education in cities, specially the big cities where all kinds of education facilities are readily available. So, there is every apprehension that the people having better resources will get undue advantage of the so-called 'uniform' policy of the PMDC this perspective, the weightage given io the entry test seems much higher than it should be. So, the PMDC should convene a meeting of all the stakeholders and re-consider the weightage criteria for its implementation in future. Definitely the PMDC has all the powers and authority to frame rules, regulations and policy and if it deems appropriate it can also change the same at any time for the benefit and welfare of the students and there is no embargo upon it in this regard. The Federal Government as well as the provincial governments should also take steps for eradication of malpractices in the educational boards so that need for entry test could be eliminated. The policy for admission adopted by the PMDC and the provinces including the province of Punjab is not too old to get the status of having the force of law, so it can be changed. Reliance is placed on Nazir Ahmad vs. Pakistan and 11 others (PLD 1970 SC 453), K.F. v. Settlement and Rehabilitation Commissioner Lahore and another (1974 SCMR 465) and Messrs Radaka Corporation and others v.
Collector of Customs and another (1989 SCMR 353).
22. The epitome of whole discussion is that the Pakistan Medical and Dental Council is fully competent to make rules and regulations including the weightage criteria for admission in medical colleges/universities for keeping a uniformity among all the medical institutions throughout Pakistan. The petitioners appeared in the Entry Test without raising any objection on the weightage criteria or merit and when they could not perform well in the entry, test, they have come to this Court, so the principle of estoppel is fully applicable upon them. The equality is only possible amongst the persons who are placed in same set of circumstances. Accordingly, all the writ petitions in hand are dismissed. However, Pakistan Medical and Dental Council is directed to convene a meeting of all the stake holders and re-consider the weightage criteria for admissions in future as the marks percentage given to entry test seems to be the much higher side. All the private medical colleges/universities are affiliated with one or the other public sector university so they should also follow the regulations of PMDC. The PMDC should device some policy or regulation for the private medical colleges so as to compel them to follow the merit of the entry test strictly and also to accommodate a reason able proportionate of poor candidates who stand on the border line of the merit list in accordance thereof either free of cost or at a fee not more than, that being charged by the public sector medical colleges/universities. The PMDC should frame rules and regulations to control the high fee structure of the private medical colleges. The Federal Government as well as the provincial governments must look into the possibility of starting second shift at all the private and public sector medical colleges in order to accommodate more and more candidates- as there is acute shortage of doctors in our country. If due to bad economic conditions and shortage of funds, the prevailing fee structure of public sector colleges cannot be adopted for the second shift, these may be started at some higher fee but it should not be too exorbitant to afford. The feasibility of public-private partnership be also considered. The PMDC is admittedly a regulatory authority for all the medical colleges/universities functioning throughout Pakistan, therefore, it should also ensure the, quality of education being imparted in public and private medical institutions through carrying out frequent inspections of the institutions and preparing evaluation report of the effectiveness of each institution. The matter of high fee being charged by the private colleges/academies in the name of preparatory classes should also be taken into account in order to avoid any undue advantage by some people. The fee charged by them be also brought under some regulation/mechanism.