MUZAMIL AKHTAR SHABIR, J. --- This consolidated order shall decide the titled Constitutional petition alongwith the connected Constitutional petition i,e, W.P. No, 17048/17 titled "Birrah Ijaz v.
Govt. of Punjab through Secretary Health, Lahore, etc." as similar question of facts and law is involved in both the petitions.
2. Brief facts of the case are that the petitioners in both the petitions are the residents of Rajanpur, District Dera Ghazi Khan. They applied for admission in MBBS on open merit as well as on the basis of quota reserved for candidates from under-developed Districts. Rajanpur was allocated 7-seats in MBBS and 2-seats in BDS. The candidates from the under-developed Districts are entitled to seek admission on open merit as well as under-developed Districts quota. The respondent No, 2 notified the merit list on the basis of open merit as well as quota on 29.11.2017 and respondents No, 3 to 7 have been admitted in Nishtar Medical University, Quaid-e-Azam Medical College, Sheikh Zayed Medical College and de'Montmorency College of Dentistry against seats reserved for under- developed Districts. The petitioners claim that respondents No, 3 to 7 were also qualified to be admitted on open merit and had they been given admission on the basis of open merit, the reserved quota for underdeveloped Districts would have been allocated to those candidates whose names had not appeared in the open merit list and thus the petitioners would also have been admitted and seek appropriate direction to respondent No, 1 and 2 to give admission to petitioners against the seats reserved for under-developed Districts quota for Rajanpur in the Medical College.
3. The learned Assistant Advocate General as well as legal advisor for respondent No, 2 have argued that the candidates from under-developed Districts had been given option to apply simultaneously on the basis of open merit as well as the quota fixed for the said Districts for which separate merit lists were prepared and the candidate if selected on the basis of both such lists was to be allocated seat higher in order of preference provided by the said candidate.
4. Heard, record perused.
5. The petitioners are candidates who are seeking admission the Medical Colleges. The real controversy. revolves around the seats in the Medical Colleges reserved for under-developed Districts in which the criteria laid down in Rules and Regulations for various categories of seats available (hereinafter referred to as Rules and Regulations). This includes seats reserved in quota for the Under-Developed Districts, which is as under-- "(iii) Under-Developed Districts' Seats: Sr No,District NMUQAMCEMUSZMCDCDNID Total MBBSBDS 1 D.G. Khan6 (03) for Tribal Area) 4 0(02 for Tribal Area)1 1 (for Tribal Area11 2 Muzaffar i Gz rh4 1, - 3 1 1 8 2 3 Rajanpur4 (02 for Tribal Area)1 2 (1 for Tribal Area).1 1 (for Tribal Area)
4 Lodhran4 1 - 2 1 1 7 2 5 Bhakhar- 1 5 2 1 1 8 2 6 Layyan- 1 5 2 1 1 8 2 Total 18 6 10 15 6 6 49 12 Grand Total 61
1. The candidate must have a domicile of the same District Area.
2. The candidate must have studied, from class one to twelve, from the same district. He/she shall have to submit original certificatefrom Head Masters/Principals of the concerned institutions where he/she has studied from class one to twelve. These certificates should be duly verified by the concerned EDO (Education) and DEO (Colleges), and countersigned by the District Co-ordination Officer (DCO) of the same district.
3. Candidates belonging to those tribal areas where there are no high schools or colleges available or the facility for teaching science subjects does not exist, they must have obtained their education from Class-1 to Class-12 from the district in which their respective tribal area falls and have passed their SSC and HSSC examinations from the relevant Board of Intermediate and Secondary Education.
4. The candidates from these areas can also apply against open merit seats. These reserved seats will be in addition to any number of candidates being admitted on open merit from these districts.
The candidates from each of the above six districts, admitted or not admitted on open merit, can compete within their districts for reserved seats.
5. The merit list of candidates of under-developed districts will be displayed on district basis after ascertaining merit from amongst the candidates of the specific district subject to fulfilment of all other requirements and after verification of their documents from the concerned authorities.
6. The candidates eligible for admission against both open merit as well as reserved seats can avail only one seat. The Admission Board will allocate a seat to such a candidate purely on merit in a college of his/her choice listed higher as per his/her order of preference in his/her admission form. For example, if a candidate is being admitted, according to his/her order of preference, in college number 10 on Open Merit, and in college number 8 on Under-Developed Districts Seats, his admission will be finalized in the latter category. No application against the decision of the Admission Board shall be entertained afterwards.
7. Students admitted against these reserved seats from under-developed districts will be required to submit a Surety Bond on stamp paper (Annex-II of the Prospectus), duly attested for amount of Rs. 500,000/- and with an undertaking that he/she shall serve in his/her district of domicile for at least five years or in default thereof pay Rs. Five Lac in lump sum to the Government of the Punjab."
6. Six Districts have been declared as under-developed as per policy. These are D.G. Khan, Muzaffar Garh, Rajanpur, Lodhran, Bhakkar and Layyah. From the perusal of clause 4 above, it is seen that all the candidates from the under-developed Districts are entitled to apply for admission in MBBS on the basis of open merit and he may be admitted on merit. However, the merit lists for open merit and reserved seats are maintained separately. The candidate belonging to the under-developed Districts is entitled to simultaneously apply for admission on the basis of open merit as well as reserved quota. In the admission process under consideration, 7-seats had been reserved for MBBS and 2-seats for BDS for quota of under-developed Districts in District Rajanpur. The respondents No, 3 to 7/selected candidates applied at the same time for selection on open merit as well as quota and retained quota seats as the same entitled them to be admitted to. Medical Colleges higher in their lists of preference. The clause 4 of Rules and Regulations relating to under- developed Districts seats reproduced above, provides that "these reserved seats will be in addition to any number of candidates being admitted on open merit from these district." Furthermore, it has been provided that "The candidates from each of the above six districts, admitted or not admitted on open merit. can compete within their districts for reserved seats". The clause 6 of the Rules and Regulations provides that "The candidates eligible for admission against both open merit as well as reserved seats can avail only one seat." The said seat is to be allocated by the Admission Board purely on merit in a college of choice of the candidate listed higher as per his/her order of preference in his/her admission form. It has categorically been provided that "if a candidate is being admitted, according to his/her order of preference, in college number 10 on Open Merit, and in college number 8 on Under-Developed Districts' Seats, his admission will be finalized in the latter category." This shows that the Medical College higher in the preference list of a candidate would be imposed on him if he was eligible to be selected on the basis of both merit lists, The respondents No, 3 to 7 who were higher in merit than the present petitioners, were allocated seats in Medical Colleges in order of their preference, reserved on the basis quota for the under-developed Districts.
Resultantly, the seats that could have been admitted to on open merit were not occupied by them as the said seats were lower in their choice of preference of Medical colleges.
7. In view of the afore-referred position, the petitioners seek two-fold orders of this Court i,e, either to direct the respondent to adjust the said candidates/respondents No, 3 to 7 on seats of open merit on which they would have been selected and adjust the petitioner on the seats reserved for quota or in the alternate, if the said candidates are to retain the seats on quota basis then the seats in college where the said candidates would have been selected on open merit be allocated to the petitioner. These prayers are based on the assumption that the purpose of allocation of quota is to encourage the candidate from under-developed Districts for admission in medical colleges for higher study as sufficient opportunities are not available to them at their own district level.
8. During the course of arguments, the learned counsel for the respondent No, 2 has placed on record copy of order dated 07.10.2010 passed by a learned Division Bench of this Court in W.P.No, 1432/2010 titled "Tahira Zaib v. Vice Chancellor/Chairman Admission Board, etc." wherein the admission to the category of special seats came up for consideration and the question requiring determination was "whether the condition laid down in Rule-ii(3) of the prospectus (Page 25) of the University of Health Sciences, Lahore regarding reserved seats for under-developed districts authorizes the respondent No, 1 to treat the 14 preferences of Medical and Dental Colleges given by an applicant on the admission form to constitute an indivisible set of options .which must be exhausted before moving the consideration of the applicant's case from the open merit list to the reserved quota competition for under-developed districts."The said Rule ibid is reproduced as under:-- "3. The seats will be in addition to any number of candidates being admitted on open merit from these districts. The candidates from each of the above six districts not admitted on open merit will compete within their districts. for reserved seats. This is subject to the condition of having passed F.
Sc. (Pre-Medical with minimum 65% marks) and Entrance Test (Minimum 40 marks) and meeting the minimum required criteria stipulated in the prospectus."
9. The learned Division Bench of this Court decided the matter in the following terms:-- "We have carefully perused Rule ii(3) ibid and do not find any prohibition therein against the simultaneous consideration of an applicant for admission to a college on open merit as well as on the reserved quota seats. Thus the applicant with the highest merit on the reserved seats may reach one of his preferred medical or dental colleges although he may have failed to do so in the open merit competition for that college. According to the procedure adopted by the respondent No, 1, the applicant with the highest merit on the reserved seats is denied admission to a preferred college because he succeeds on open merit to get admission in a college that is lower on his option list. This is precisely the fate of the petitioner. As a result, admissions on reserved seats may be made contrary to the true merit list for the quota of such seats because she stands admitted to a lower preference dental college.
5. To the mind of the Court, Rule ii(3) ibid is being applied inequitably and wrongly by the respondent No, 1 because the selection made ignores merit and fairness. It is accordingly directed to respondent No, 1 shall correct its method of assessment of applicants who are eligible for admission on the reserved seats to be given simultaneous consideration both in the open merit list and the reserved seats list for admission to medical and dental colleges. By such means the petitioner shall have the right to chose the college in which she gets admission on merit against either of the said lists: Writ petition allowed with no order as to costs."
10. On the basis of afore-referred decision, the candidates of under-developed Districts were provided choice for simultaneous consideration both in the open merit list and the reserved seats for admission to medical and dental colleges. In view of the said decision the new policy provides the amended provision for admission, which has been provided in the policy and prospectus and has been reproduced as under:-- "6. The candidates eligible for admission against both open merit as well as reserved seats can avail only one seat. The Admission Board will allocate a seat to such a candidate purely on merit in a college of his/her choice listed higher as per his/her order of preference in his/her admission form. For example, if a candidate is being admitted, according to his/her order of preference, in college number 10 on Open Merit, and in college number 8 on Under-Developed Districts' Seats, his admission will be finalized in the latter category. No application against the decision of the Admission Board shall be entertained afterwards."
11.The petitioners had applied for admission on the basis of the afore-referred provision. Such provision in a prospectus or policy of an educational institution on the basis of which the candidate seeks admission, is the base or policy of the institution and it is by now settled that educational institution is the best judge to determine the policy upon which the admissions are to be provided to the candidates. The said decision cannot be set aside by this Court unless the same was found to be mala fide, perverse or against any provision of law. No such ground has been pointed out by the petitioners, therefore, the said provision cannot be set at naught.
12.The learned counsel for petitioners have tried to argue that the allocation of quota to the candidate likely to be selected on merit is the negation of right provided to them in view of Article 37 of the Constitution of the Islamic Republic of Pakistan, 1973 which provides as under:-- "37. Promotion of social justice and eradication of social evils.--- The State shall---
(a) promote, with special care., the educational and economic interests of backward classes or areas;
(b) remove illiteracy and provide free and compulsory secondary education within minimum possible period.
(c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit;
(d) ensure inexpensive and expeditious justice;
(e) make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment;
(t) enable the people of different areas, through education, training, agricultural and industrial development and other methods, to participate fully in all forms of national activities, including employment in the service of Pakistan;
(g) prevent prostitution, gambling and taking of injurious drugs, printing, publication, circulation and display of obscene literature and advertisements;
(h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of non-Muslims, religious purposes, and
(i) decentralize the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public."
13. The afore-said argument of the learned counsel for petitioners when taken into consideration appears to be that candidates whose names figured on open merit list could not seek admission on the quota basis because the said seats would have to be allocated to the candidates who did not qualify on the open merit list at all. This does not seem to be the intention fixing the quota for the reason that the candidate whose names figured on open merit list but belonged to the under- developed Districts despite having succeeded to obtain more marks than the candidates who had obtained less marks would be selected for medical and dental college lower in category of their preference than the candidate from the under-developed Districts who has obtain lower marks on merit but succeeds still to obtain admission in a medical college higher in category of preference than the candidate selected on merit list, therefore, allowing this interpretation would be discrimination to the candidate of under-developed Districts who has succeeded to obtain more marks and was also entitled to be selected on merit which would be violative of their fundamental right not to be discriminated as provided under Article 25 of the Constitution. Thus, there is no force in the afore-said argument of the petitioners.
14.The alternate argument of the learned counsel for petitioners that the open merit seat vacated by the candidate selected on under-developed Districts quota be allocated to them as they were lower in the order of preference of the said candidates and the petitioners would be satisfied for being admitted against the said quota. This argument of the learned counsel for the petitioners is also not in accordance with the enrolment policy because the seat on open merit if not joined by the said candidate is to be allocated to the candidate next in the line on merit on the open merit list and cannot be allocated by leaving aside that list for adjusting the candidate from under- developed Districts against the same for the reason that said arrangement would cause prejudice to the rights of the candidates selected on open merit. Resultantly, the said candidate of the selected on open merit would be disturbed despite having achieved more marks, which would also be against their fundamental right provided under Article 25 of the Constitution.
15.Although the Article 37 of the Constitution of Pakistan, 1973 which provides for promotion of social justice and eradication of social evils provides that the State shall promote, with special care, the educational and economic interests of backward classes or areas but it does not provide that for providing education similarly placed persons would be discriminated against. The policy framed by the respondents rather appears to be in consonance with and not against the Article 37 sub-Article {a) reproduced above with an added protection that while promoting the educational interests of backward classes the people of the said area are not discriminated against inter se by ignoring the persons higher on merit to accommodate persons lower or merit. Rather an attempt has been made by the respondents to accommodate the persons higher on merit in preference to persons lower than them in merit list. This type of reasonable classification based on intelligible differentia having rational nexus to object sought to be achieved is permissible in law and is justified therefore, no exception can be taken to the same. Reliance in this behalf may be placed on Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others (2013 SCMR 1687), the relevant portion of which is reproduced below:-- "22. With regard to the arguments of the learned counsel for the respondents-students that the charging of fee/endowment funds at higher rates from the students' of SFS as compared to other students is discriminatory as well as violative of Article 9 read with Article 25 of the Constitution, it is to be noted that Article 25 provides that all citizens are equal before law and are entitled to equal protection of law and that there shall be no discrimination on the basis of sex. However, by now it is well-settled that equality clause does not prohibit classification for those differently circumstanced provided a rational standard is laid down. The doctrine of reasonable classification is founded on the assumption that the State has to perform multifarious activities and deal with a vast number of problems. The protection of Article 25 of the Constitution can be denied in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. The differentia, however, must have rational nexus to the object sought to be achieved by such classification. Reference in this behalf may be made to the case of I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041) wherein the issue has been dealt with in detail. In the case of Tariq Aziz- ud-Din and others (Human Rights Cases No, 8340 of 2009, etc.) (2010 SCMR 130) it was held as under.--- 22..... We are also conscious of the provision of Article 25 of the Constitution, which guarantees equality of citizens. However, denying such protection in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. The differentia, however, must have rational nexus to the object sought to be achieved by such classification [Dr. Mobashir Hassan v. Federation of Pakistan and others PLO 2010 SC 265].
16.Besides, the afore-referred policy made by the government included in the rules and regulations and forms part of the prospectus is within the policy making domain of the respondents and a policy made by the competent authority cannot be set aside unless it is found to be illegal, arbitrary or ma/a fide. Reliance in this behalf may be placed on M/s. Dossani Travels Pvt. Ltd., and others v. M/s. Travel Shop (Pvt.) Ltd. and others (PLD 2014 SC 1). In the present case no illegality, arbitrariness or mala fide is apparent on the record, rather an attempt has been made to accommodate students securing more marks in preference to others.
17.Even otherwise, the respondents have a complete freedom to adopt any policy for the admission of students to medical colleges and the Courts cannot lightly interfere in the same.
Reliance is placed on Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others (2013 SCMR 1687), wherein it is provided as under:--- "20. Before dilating upon the arguments of the parties, it is considered appropriate to note that educational institutions are independent to follow policy for admission including affairs relating to changing conditions for endowment funds or fee, either under the policy given by the government or adopted by the college,. and interference in the policy by the Court is possible only in exceptional circumstances. Reference may be made to the case of Chairman Joint Admission Commission v. Raza Hassan (1999 SCMR 965) wherein it was held that the universities in Pakistan enjoy complete freedom to take decision in their own matters and interference by the Courts in such matters would be the least desirable, except for exceptional circumstances. In another case namely Mian Muhammad Afzal v. Province of Punjab (2004 SCMR 1570) this Court declined to interfere in the matter relating to the admission in the medical college, on the ground that it was of administrative nature relating to policy. In the case of Shazia Irshad Bokhari v. Government of Punjab (PLD 2005 Lahore 428), the learned Lahore High Court held that the Court, under its Constitutional jurisdiction would not enter into policy making domain of the State or question the wisdom of the legislatures it would not normally interfere or strike down a policy made by the Government unless the same was proved mala fide or made in a colourable exercise of authority, etc. It was further held that the classification in terms of equal treatment was legally permissible.
Reference may also be made the case of Wages Zafar v. Baha-ud-Din Zakriya University (2010 CLC 999)."
18. The idea behind fixing the quota seems to be that at least a minimum number of candidates from the under-developed Districts be admitted to medical colleges with further added condition that they would serve in their districts for a fixed number of years so that the people of the said area are benefitted from their services. If the interpretation, as is asserted by the counsel for the petitioners, is adopted, the same would w3 tantamount to discouraging the candidates who have obtained higher marks and have been place nigher on merit and depriving them of their earned right just to accommodate persons lower of merit, which could not be intention of the law or the policy. The candidates having obtained more marks have availed the said quota and they would be bound by the conditions attached thereto. No ground to interfere is made out.
19. For what has been discussed above, there is no merit in both the constitutional petitions, therefore, the same are dismissed.