' RUSTAM S. SIDHWA, J.-This judgment will dispose of the under-noted fourteen Inter-Court Appeals as they involve common questions of law and facts :-
(1) I. C. A. 213 of 1984. (2) I. C. A. 215 of 1984.
(3) I. C.A.- 216 of 1984. (4) I. C. A. 218 of 1984.
(5) I. C. A. 219 of 1984. (6) I. C. A. 220 of 1984.
(7) I. C. A. 224 of 1984. (8) I. C. A. 225 of 1984.
(9) I. C. A. 226 of 1984. (10) I. C. A. 214 of 1984.
(11) I. C. A. 217 of 1984. (12) I. C. A. 221 of 1984.
(13) I. C. A. 222 of 1984 and (14) I. C. A. 223 of 1984.
' These appeals arise out of a consolidated judgment of a learned Single Judge of this Court passed in sixteen constitutional petitions filed before him by the respondents and others, whereby he upheld the action of the Provincial Government and the Principal of the King Edward Medical College, Lahore, the Chairman of the Admission Board, the present appellants, in regard to reduction of seats, which decision of the Governor the learned Judge held to be non-justiceable, but struck down the action of the appellants regarding deduction of marks of the respondents under paragraph 22(b) of the prospectus as having been effected clandestinely, retrospectively and in a discriminatory manner. The learned Single Judge, therefore, partially accepted the writ petitions by holding that the respondents, who could not secure admission on account of rule 22(b) having been applied against them, should be considered for admission, without affecting such deduction of marks, and without disturbing the admissions of students already made by the Admission Board.
2. The brief facts of the case are that in respect of the combined admissions to the First Year M. B., B. S. Course in respect of the seven Medical Colleges in the Punjab for the Academic Year 1983-84, applications were invited through an advertisement published in various Urdu and English daily newspapers, including The Pakistan Times, Lahore dated 13-12-1983. It was stated in the said advertisement that admissions in all categories would be on merits, that the students qualifying in the Supplementary Examination of 1983 and those obtaining less than 50 per cent. Marks in F. Sc/B.
Sc. Examinations would not be eligible, and that twenty marks for NCC/WG would be added to the marks obtained by the candidates in F. Sc/B.Sc. Provided they produced certificates from the competent authorities. Other matters regarding the application to be filed and certificates to be attached, were stated. It was also stated that other details could be obtained from the Office of the Principal, King Edward Medical College, Lahore, and that the old prospectus titled "For the Session 1980-81 and Onwards" would not be applicable for the admission and that the new prospectus was under print. The last date for the submission of applications was given as 10-1-1984, but subsequently, it was extended by ten days. It was nowhere stated in the advertisement that the seats originally obtaining in the previous year would be reduced and that, each college would only admit two hundred students or that any marks would be deducted from the total number of marks of students who had appeared for their examination in parts, whilst preparing the merit list for each category of students to be admitted. It is the case of the respondents that no prospectus was available for sale either with the King Edward Medical College, Lahore, or at the Government Printing Press, till much after the admissions were made and some of the writ petitions filed were admitted. It appears that attempts were made by some of the students to obtain the prospectus from both the sources, but they failed. The case, therefore, is one of "no prospectus". Be that as it may, it appears that a few days before the Admission Board assembled to admit the candidates, certain decisions of the Provincial Government taken at the highest level were available to it, through the Principal of the K. E. Medical College, on the basis of which the admissions were made.
Two of such decisions which affected the applicants and in respect of which the sixteen writ petitions were filed are the reduction of seats and deduction of marks. The seats to be filled in each of the seven colleges was restricted to two hundred and whilst preparing the merit list of candidates, ten marks were deducted from the total marks of each candidate for each extra chance availed of in the case of such candidates who had failed, or had taken their examinations in parts, or had attempted to improve their marks in the F. Sc/B. Sc. Examinations. Since the rules regarding the reduction of seats and deduction of marks were not in force earlier, but came into effect with the admissions for the academic Year 1983-84, a large number of students, including the present respondents, filed sixteen constitutional petitions before the High Court, challenging the same. In the writ petitions leading upto Inter-Court Appeals mentioned at Serial Nos. 1 to 9 above, the appellants' action of reducing the number of seats and deducting the marks on account of clearing their examination in more than one attempt, were assailed, whilst in the writ petitions leading up to Inter-Court Appeals mentioned at Serial Nos. 10 to 14 above, the action of the appellants in deducting the said marks was alone challenged.
3. On behalf of the respondents it was urged before the learned Single Judge that, apart from the advertisement, the prospectus of 1983-84 was never available for sale or distribution to the intended applicants, either up to the last date of the filing of the application forms or up to the date when the results were announced, but was actually printed on 29-5-1984 i,e, long after the admissions were completed and the results of admitted candidates were displayed and that the prospectus was available only after most of the writ petitions were filed by the respondents. It was also submitted that there was no indication in the advertisement inviting applications for admission about the reduction of seats and deduction of marks and that the appellants' action in reducing the seats and deducting the marks was arbitrary and in deviation of the long established practice prevailing in the Province. It was also urged that the action was retrospective in nature.
The other grounds of attack advanced were that the impugned actions were retrospective in nature, that the reduction in seats had been made only in case of open merit seats, but not in case of reserved category seats, such as that of nominees of the Governor, army personnel's children and doctors' children, that in the presence of rules 7 and 15 of the Rules for the Intermediate Examination in force from 1974, which were statutory and had been framed under section 21 of the Punjab Board of Intermediate and Secondary Education Act, and which permitted persons to pass their Intermediate Examination in parts or to appear in more than one examination to improve their aggregate of marks, the appellants could not by executive action deduct marks in violation of Article 4 of the 1973 Constitution and that the clandestine manner in which the marks were deducted. Without any previous notice in the advertisement, and the late distribution of prospectus for sale, much after the completion of admissions, led to the irresistible conclusion that the action of the appellants was unjust and unfair and legally not in order.
4. On behalf of the appellants it was urged before the learned Single Judge that the Medical Colleges in the Punjab were financed, run, managed and controlled by the Government of the Punjab, that the Governor of the Punjab, as head of the Province, had full powers to formulate and modify the policy regarding admissions in the medical colleges, that in view of the deterioration in the standard of medical education and cramped facilities of laboratories, etc., and to avoid congestion, the Governor, in the exercise of his plenary powers, had reduced the number of seats and upgraded the standard of merit. It was further urged that the advertisement did not confer any right on the rudondents to be admitted and that the previous prospectus clearly indicated that the Government in the Health Department reserved the right to make additions and alterations in any of the Rules in the prospectus and in the admission form. It was also contended that the candidates who had been admitted in the medical colleges, in preference to the respondents, had not been impleaded as parties in the writ petitions, therefore, the merit lists could not be disturbed to their detriment. It was lastly urged that half the course had by then been covered by the students who had been admitted and, therefore, it was not possible for the appellants to admit the respondents at that belated stage.
5. The learned Single Judge in dealing with the question relating to the reduction in the number of seats held that as the medical colleges were run, staffed, financed and controlled by. The Provincial Government, although they were affiliated to different universities, the Governor, as. Head of the Province, had full executive powers, in the absence of any law to the contrary, to lay down, amend and modify the policy of admissions and to fix the number of seats for students to be admitted in the institutions and that such decision of the Governor was not justiceable in the exercise of the extraordinary jurisdiction of the Court. The learned Judge also observed that the decision about the reduction of seats in the medical colleges had been taken prior to the submission of applications by the respondents, which decision they knew, for the Federal Minister of Health had given an undertaking on the floor of the House that in the case of girl students, there would be no reduction.
As regards the Minister's undertaking, the learned Judge held that the same had no binding force, as it only amounted to his personal opinion,. With regard to the rule about the deduction of marks, the learned Judge held that the same was not violative of rules 7 and 15 of the Rules for the Intermediate Examination of the Board of Intermediate and Secondary Education, Lahore (as in force from 1974), but that it was retrospective clandestine and arbitrary, for the order of the Governor justifying the same had not been produced before him and that the students who passed the F. Sc. (Pre-medical Examination) from the institutions affiliated with the Federal Board of Intermediate and Secondary Education, did not have any marks deducted from their aggregate, though they passed their examination in two attempts. In these circumstances, the learned Judge took the decision, as has been stated in paragraph 1 above, which need not be repeated.
6. On behalf of the appellants the same arguments have been pressed into service as were urged before the learned Single Judge and which have been noted above. In addition, it is submitted that once the learned Single Judge came to the conclusion that the question regarding the reduction of seats was clearly not justiceable, the learned Single Judge could not have treated the rule regarding the deduction of marks as justiceable. It is further submitted that the policy regarding deduction of marks is being followed in respect of admissions to medical colleges in the other Provinces. It is also contended that the learned Judge was wrong in holding that there was no order of the Governor approving such deduction and that the observation made in that respect was erroneous. As regards the learned Judge's observation that the deduction of marks was retrospective, it is submitted that the policy decision of the Provincial Government in respect of admissions to the medical colleges was taken on 18-3-1984, which had the consent of the Governor, an that the same was in the knowledge of the Board of Admission in time, which then assembled and took its decisions, resulting in the display of the admission list on 7-5-1984. Since the decision was known to the Admission Board before it assembled and took its decisions, the said decision of the Governor cannot be treated as retrospective. In this connection, Muhammad Razzaq v. Province of Baluchistan through Secretary Health and 6 others (1), Kaiomarz R.
Ferozepurwala and others v. The Administrator, Dow Medical College, Karachi and others (2) and .Sajid Raza and 3 others v. The Commissioner, Quetta Division, Quetta and 9 others (3) have been referred.
7. On behalf of the respondents the same arguments have been pressed into service as were urged before the learned Single Judge and which have been noted above. In addition, on the question of reduction of seats, it is submitted that neither in the advertisement nor in the application forms, there was any indication that the seats in each of the colleges had been reduced. The advertisement referred to the fact that other details were mentioned in the advertisement which could be obtained from the office of the Principal, King Edward Medical College, Lahore, and that the old prospectus titled "For the Session 1980-81 and onwards" was not applicable for these admissions and that the new prospectus was under print, but since no information regarding the reduction of seats was displayed outside the office or communicated by the Principal of the King Edward Medical College, lahore, to any applicant and no copy of the new prospectus for the Session 1983-84 was available even uptil the date when the results of the admissions were declared, the absence of any reference in the advertisement about the proposed reduction of seats amounted to a declaration of the policy of the Provincial Government and the Admission Board that there was no intention on their part to reduce any seats. In these circumstances, the action of the Provincial Government or of the Admission Board to reduce the seats was not only retrospective, but violative of the declared policy of the Governor, which should have been struck down and set aside by this Court. In addition, on the question of deduction of marks, it is submitted that the advertisement clearly stated admission in all categories would be made on merit and that twenty marks for NCC/WG would be added to the marks obtained by the candidates who had completed their NCC/WG Training, if they produced certificates from competent authority. Since no representation was made with regard to any form of deduction of marks, the said advertisement amounted to a declaration of the policy of the Provincial Government and the Admission Board that there was no intention on their part to deduct any marks. It is further submitted that the decision to deduct marks affected the vested rights of the respondents. In this connection, Maxwel on Interpretation of Statutes (1969 Edition) page 219 and Craies on Statute Law (1971 Edition) page 400, have been referred. It is also contended that the deduction was arbitrary and unjust in that it placed the students of colleges affiliated with the Lahore, Rawalpindi, Quetta and Multan Boards, who passed their F. Sc (Pre-medical Examination) in two straight years, at a disadvantage, against those who passed the same examination from colleges affiliated with the Federal Board and other Boards, who passed their examination in the same period of two years, but in two parts, the first part in the first year and the second part in the second year.
(1) PLD 1976 Quetta 64 (2) PLD 1976 Kar. 1039
8. I have given my anxious consideration to this case.: Before I deal with the main contentions, I note with some concern that proper assistance was not rendered to the learned Single Judge, as the judgment is founded upon certain misconception of facts. In paragraph 2 of the judgment, the learned Single Judge refers to the fact that in respect of the admissions in question, the number of seats of candidates to be admitted on merits has been reduced by two hundred. In paragraph 3 thereof, the learned Judge states that in the advertisement there is no indication that seats have been reduced by two hundred as compared with the previous year and in paragraph 10 thereof he states that the number of students to be filled against merit quota has been reduced by two hundred. In fact, the seats against merit quota were not reduced by two hundred ; rather a maxima ceiling of the candidates to be admitted in each college was fixed at two hundred, thus reducing the aggregate number of seats in the seven colleges by 376 seats over those in the previous year.
Consequent to the reduction in seats, the number of students to be admitted against open merit quota and special category quotas also stood reduced in different proportioRs, In paragraph 12, the learned Single Judge refers to the submission before him that the Governor directed the change in the policy of admission so as to affect deduction of marks in case of additional attempts, but since no such order of the Governor was produced before him, it could, therefore, not be said as to when the Governor issued such direction. The learned Judge accordingly went on to assume that the deductions were, therefore, effected clandestinely. After inspecting the relevant file, I note that the policy decision was taken on 18-3-1984 by the Provincial Government, presided over by the Governor of the Punjab. Various decisions including that relating to the reduction in the number of seats and deduction in the marks was taken in that meeting. The Principal of the King Edward Medical College, Lahore, the Chairman of the Admission Board, was, amongst others, present at that meeting. The Admission Board, therefore, through its Chairman, had knowledge of all decisions taken by the Provincial Government before it assembled on 25-3-1984 to deal with the admissions.
The Government also formally communicated its decisions to the Admission Board on 1-4-1984.
The Admission Board sat twice to go through the applications, the first time from 25-3-1984 to 28- 3-1984 and the second time from 1-4-1984 to 4-4-1984. The Admission Board acted on the policy decisions before the list of admitted candidates was displayed. I record these facts as I feel that the learned Single Judge was not offered proper assistance and that he was not presented with the proper facts which were available and which have, therefore, led to certain findings, which he otherwise would not have given.
9. Before I take up the two main questions of reduction of seats and deduction of marks, it is first necessary to examine the following questions. First, what are the powers of the Provincial Government in respect of the admission policy, of the medical colleges. Second, upto what epoch of time can amendments be made to the admission policy, so as not to affect the vested rights of applicants, if any obtaining. Third and last, what is the effect of the rules, conditions or instructions contained in the application form for admission and the College Prospectus.
10. With regard to the first question, the power of the Provincial Government to lay down and amend the admission policy of the medical colleges under its control was first noted by this Court in Naseem Mahmood's case (1). In that case it was observed that Governing Bodies constituted by the Provincial Government, with the approval of the Central Government, for each of the medical colleges in Pakistan under the Medical Colleges (Governing Bodies) Ordinance, XIII of 1961, had the power to administer and manage the affairs of the medical colleges, for which they were constituted, that subject to the rules made in that behalf they had all the powers necessary for that purpose and that in the exercise of their powers and performance of their functions, they could be guided in respect of policy making, co-ordination and maintenance of educational standards, by such directions as the Central Government gave from time to time. Since it was discovered that Governing Bodies of the various medical colleges in the Province, which had been formed, were not functioning, as no rules had been framed by the Central Government, as required by section 8 of the Ordinance, it was held that the Principals or Administrators of such colleges could not be regarded as completely independent and autonomous officials, not amenable to the control of any superior authority, but that the institutions being Government institutions, maintained, staffed and financed by the Provincial Government, the Provincial Government had authority to lay down an admission policy in respect of the colleges under its control. The same question again came up in Humera Satwat Yusuf's case (2), where it was noted that Governing Bodies had never been set up under the provisions of the said Ordinance in respect of the King Edward Medical College, the Fatima Jinnah Medical College for Women and the Nishtar Medical College for the nine years that the said Ordinance had been on the statute book and that to bury all controversy, the Government of the Punjab had repealed the said Ordinance, in its application to the Province of the Punjab, by the Medical Colleges (Governing Bodies) (Punjab Repeal) Ordinance, 1970, during the pendency of the hearing in the said case. In the result, this Court held that the prospectus issued by the three medical colleges of the Punjab, under the directions of the Government of the Punjab, were valid, notwithstanding that they had not been issued by the Governing Bodies visualised under the Central Government's Ordinance XIII of 1961. In Ehsanul Hay's case (3), where the question was whether students who had passed the F. Sc. (Pre-medical) in the Supplementary Examination, had the right to apply for extra seats arising in the medical colleges as a result of a new medical college being set up, which seats were subsequently advertised, over the heads of such students who had passed the F. Sc (Pre-medical) in the Annual Examination and had earlier applied for admission, this Court held that for the new additional seats, the authorities concerned were free to lay down the sphere and scope of their policy. This Court, therefore, has expressed itself clearly with regard to the powers of the Punjab Government to lay down and amend the admission policy of the medical colleges under its jurisdiction and I have no hesitation in following the' same view. But this should not be taken to mean that this Court has approved in ,principle the action of the Government in not framing the rules under section 8 of the Medical Colleges (Governing Bodies)
Ordinance, 1961, or in enacting the Medical Colleges (Governing Bodies (Punjab Repeal) Ordinance, 1970, both of which have prevented prope Governing Bodies from being established and managing the Medical Colleges g in the Punjab, which is so very necessary for the proper academic development of these colleges and for effecting some stability to their
(1) PLD 1965 Lah. 272 (2) PLD 1971 Lah. 641
(3) PLD 1976 Lah. 501 academic policies, so that the vagaries of too frequent amendments does not unsettle the hopes and prospects of intended applicants.
11. As regards the second question, namely, the fixing of the epoch of time up to which amendments can be made to the admission policy by the competent authority, without disturbing the vested rights of the applicants, if any obtaining, the same does not present any difficulty. In Arif Ali Hazoor's case (C. P. S. L. A. No, 124 of 1970, decided on 29-5-1970), the Supreme Court held that there was no authority for the proposition that the right to apply for admission to an educational institution carried with it any legal right to be admitted, which could be enforced under Article 98 of the Constitution I submit that application forms are nothing but offers received from students offering themselves for being considered for admission and agreeing to be bound by the terms and conditions of the institution with regard to a host of matters, including their admission, courses of studies, etc., both as conditions precedent to their admission and as conditions subsequent to their selection. Where the C selection is dependent upon interview, or where the institution reserves the right at any stage to refuse admission to any candidate who appears, at the time of interview, to be unsuitable or unlikely to complete the course, the mere possession of high qualifications or superior position by itself dues not guarantee him any admission. In the instant case, rules 16 and 18 of the Prospectus provide for such eventualities. It would, therefore, appear that the date when the Admission Board assembles to select candidates and conducts its proceedings, can fairly be taken as the final date by which amendments should he made or adopted. However, this may present a difficulty. In the preparation of the list of candidates admitted, certain errors may creep in. Before such lists are displayed, the Admission Board would have the right of checking the lists and removing any anomalies or correcting any mistakes that may appear therein. Thus, for all legal purposes, the date when admission lists are finally displayed, E is the date by or before which all amendments to the admission policy made by the Admission Board or communicated to it by the Provincial Government should be made. Once the admission lists are displayed, vested rights would accrue in favour of candidates whose names are included therein and any amendments in the admission policy thereafter, adversely disturbing their position, would be treated as retrospective and affecting their vested rights. Whilst on the subject, I refer to three cases which have a bearing on this matter. In Sajid Raza's case, certain students of the Quetta Division who were claiming left over seats of the Kalat Division, found themselves deprived of this privilege by the decision of the Governor to claim all the left over seats of Kalat Division. It was pleaded that as the Governor's decision on 8-11-1971 came much after 5-11-1971, which was the last date for filing the applications, the petitioners had acquired a vested right to be admitted to the Dow Medical College and the instructions could not be retrospectively applied to them. The learned Judges of the Sind High Court, however, repelled this contention by holding that the petitioners had no right of being considered, muchless, selected, until the surplus seats of Kalat Division became available, that the same did not become available till 4-12-1972 and that since the Governor's decision amending the prospectus had become effective before that date, the petitioners' vested rights were not affected. In this case 4-12-1972 was considered as the pivotal date, i,e, the date on which the petitioners could claim they had a right to have their applications for admission considered. In Kaiomarz R. Firozepurwalla' s case,amendment made to the prospectus on the last date for submission of applications, providing that merit for admission would be considered on the basis of the total marks obtaining in all the five subjects, instead of the three science subjects, as previously in force, was held to be valid, not only on the inherent right of Government to amend on general principles, but also on the basis of the condition contained in the prospectus which expressly stated that the provisions contained therein could be enlarged or altered, as would be considered necessary from to time. In Muhammad Razaq's case a number of petitioners were selected against eight seats reserved for candidates from the Sibi District. According to the prospectus, an appeal lay to a High Powered Appellate Committee from the decision of the Selection Committee. Certain appeals were preferred against the selection of the petitioners to the said seats. Whilst the appeals were pending, the Governor of Baluchistan issued a direction to the Appellate Committee to re- allocate seats on the basis of population, as recorded by the 1972 Census. Accordingly, the reserved Sibi seats stood reduced from eight to six. The Appellate Committee thereupon accepted certain appeals and granted to the appellants seats previously given to the petitioners, The petitioners having challenged the Government's letter as retrospectively affecting their vested rights, the Sind High Court held that as the admission granted to the petitioners by the Selection Committee was the subject of appeal before the High Powered Appellate Committee, which was seized of the entire matter, and until the said Appellate Committee had finally selected the candidates, there was no finality attaching to the selections made by the Selection Committee and, therefore, the amendment made did not adversely affect any vested rights of the petitioners, Muhammad Razaq's case illustrates the principle that dates falling even after that on which the results of the admission are declared, can, in certain cases, be treated as extending the epoch of time by which amendments can be made in the admission policy. But, in the instant case, since no such special circumstance exists or has been shown, the date '-of the declaration of the result would have to be treated as the date by which amendments to the admission policy could be validly made.
12. Turning to the third and last question as regards the legal position of the Application for Admission form and the College Prospectus, the same does present some difficulty. An application for admission form contains a number of particulars, which have to be filed, questions, which have to be answered, and details of documents, which have to be attached therewith. In specifying such particulars, questions and details, it cannot be said that any express or implied representations are made or the declared policy of the College or the Government is published for the benefit of the intending applicants. The application form does not constitute any acceptance of any offer. It itself is the vehicle by which a student conveys his offer to the college authorities to be considered for admission. Any conscious or unwitting expression of any particular matter in the admission form would not give the applicant any foundation to lay a claim, thereon, on the basis of any vested right acquired through its publication, or distribution. Cases where the policy of Government is expressly declared publicly in the press or by public notice, which, if acted upon, would) grant to the person fulfilling the conditions a vested right, such as was found in Hussain A. Shah's case (1), Bilal Ahmad's case (2) and Fazal Din's case (3), fall in a category apart and must not be confused with a case covering an application for admission, which stands in a totally different category. An admission form; therefore, does not grant any vested right. A college prospectus, however, stands on a different footing. Rules, regulations and instructions or commitments contained therein, depending upon the mode of expression, can be considered as proper publication of the declared policy of the college concerned or of the Government in that behalf and be treated as binding the college authorities to honour them. To grant the college authorities sufficient latitude to introduce changes in the rules and regulations contained in the prospectus, a clause is generally added, binding students to abide by any changes that may be made to the rules and regulations by the competent authority from time to time. Assuming that such a provision is not there, the inherent right of the competent authority to effect any change, on general principles, cannot be negative.
The question whether the rules or regulations contained in a prospectus can be treated as having a statutory sanction or be equated with bye-laws, was considered by the Supreme Court in Muhammad lqbal Khan Niazi's case (4), where it was held that as the prospectus before them had not been framed under the statutes of the University or under the powers conferred by any law, it had no statutory sanction. On the question whether the prospectus could be equated with subordinate legislation, like bye-laws, it was held, on the basis of well-established principles laid down in treatises on statute law, that even if they were so treated like some form of bye-laws, they could be challenged on the ground that they were repugnant to the laws of the land, or on the ground that they were uncertain, or that they were unreasonable. Distinguishing the ratio laid down by Russel Chief Justice in Kruse's case (5), for determining the reasonableness of a bye-law in respect of the bye-laws of a company or of a corporation, as opposed to that of a statutory public representative body, the Supreme Court held that the rules in the prospectus could not be construed liberally, but had to be construed strictly and any rule which was unreasonable or unfair, could be struck down as invalid. Examining the matter on the assumption that the prospectus could be equated with a contractual document, the Court, following Bonsar's case (6), held that rules which were thrust on and had to be accepted by a party out of compulsion, were less a contract, but more like bye-laws, and on the said analogy, any provision in a prospectus which was unfair or unreasonable,' could be struck down as invalid. This case has been followed by the Supreme Court in Shahnaz Maqbool's case (7) and Rifat Parveen's case (8). In Rifat Parveen's case, the Supreme Court held that rules in the prospectus could not be placed higher than rules or bye- laws framed in exercise of delegated powers, or executive authority, and that the rules in the prospectus could be struck down on the ground of unreasonableness.
13. I now turn to the main question before me. With regard to the first question, namely, the question of reduction of seats, the arguments of
(1) PLD 1980 SC 310 (2) PLD 1963 Kar. 981
(2) PLD 1969 SC 223 (4) PLD 1979 SC 1
(5) (1898) 2 Q B 91 (6) (1954) 1 All E R 822
(7) PLD 1979 SC 32 (8) 1981 SC MR 1002 the respondents can be rejected on the short ground that there is no appeal on their behalf challenging the finding of the learned Single Judge on this matter. However, the right of the Provincial Government to fix the number of seats open for admission in different categories, such as open merit seats and the other special category seats, vests exclusively N in the Admission Board and/or the Provincial Government. The question as regards the reservation of seats in medical colleges located in the different Divisions specially for students belonging to those Divisions, came up for consideration in Nasim Mahmood's case, where it was held that in exercise of the Provincial Governments right to control and guide the affairs of the institutions controlled and maintained by it, it was competent to formulate its policy regulating the admissions to colleges on the basis of "tagged areas". In Humera Satwat Yousaf's case, the right of the Government in limiting the number of seats for female students in the three colleges in the Punjab was challenged on the ground that the Provincial Government had no right to limit the seats, as this was a function which could only have been performed by the Governing Bodies of the medical colleges concerned under the Medical Colleges (Governing Bodies) Ordinance, XIII of 1961. During the pendency of proceedings in the High Court, the said Ordinance was repealed. The High Court held that notwithstanding the said repeal, the prospectuses of the three colleges issued under the directions of the Provincial Government could not be held invalid and that allocation of a fixed number of seats for female students was valid. The further objection that the said limitation was ultra vires of Article 2 and Fundamental Right No, 12(3), was also repelled. In Ehsanul Haq's case, the question whether additional seats created could be filled from the students passing the F. Sc. (Pre- medical) supplementary Examination, over the heads of previous applicants who had passed the F. Sc. (Pre-medical) Annual Examination and had earlier applied for the original number of seats advertised, came up for consideration. It was held in this case that the authorities concerned had full freedom to lay down the sphere and scope how the additional seats could be filled and that there was no legal bar preventing the authorities from doing so. In Muhammad Razzaq's case, the right of the Governor of Baluchistan to make alterations in the admission policy, as a result of which the seats reserved for Sibbi District were reduced from eight to six, was supported on the ground that the Governor had reserved to himself the power to make alteratidns, by virtue of a term to that effect contained in the prospectus. In Sajid Raza's case (1), the re-allocation of seats on population basis was also maintained. There are some other cases dealing with the same point, but I need not drag a greater length of chain. In the instant case, the proposal to reduce the seats in the medical colleges in the Punjab was first mooted in 1982. Orders were issued by the Health Department to implement the decision of the Governor. Some of the students filed writ petitions in the Lahore High Court praying that the reduction in seats was not in conformity with the provisions of the prospectus in force. Subsequently, on re-consideration, the decision was suspended. However, between 1932 and 1984, the Provincial Government built up public opinion through the press and in April, 1984, introduced the scheme in the best interest of the medical profession, particularly to remove over-crowding in the colleges and the medical profession and to remove difficulties arising out of lack of trained staff and equipment and inadequacy
(1) PLD 1973 Kar. 33 of facilities in the teaching hospitals. The objection that since the case is one of "no prospectus", the Government has no right to introduce a change which retrospectively affects the rights of the students adversely,, cannot be sustained. As held by me in para. 10 above, even if the case be treated as one of "no prospectus" the right of the Provincial Government on general principles to lay down the policy as regards the number of seats to be filed, cannot be denied. The decision cannot be stated to be retrospective either, as the same was in the knowledge of the Chairman of the Admission Board on 18-3-1984 and formally communicated to the Admission Board by the Health Secretary on 1-4-1984. The Admission Board assembled from 25-3-1984 to 28-3-1984 and from 1-4-1984 to 4-4-1984 to consider the applications. The Admission Board could have postponed the admissions and after printing and distributing the new prospectus, could have invited applications afresh. This would have indefinitely delayed the admissions and the commencement of the session. To meet the emergency, the applications were considered in the light of the new policy. As held in para. 11 above, since the amendments were adopted before the date of release of the result of the selection, the same cannot be treated as P retrospectively applied. Taking all circumstances into consideration, the finding of the learned Single Judge that the decision of the Government to reduce the seats was proper, is correct and I endorse the same.
14. I now turn to the last point relating to the deduction of marks. Rule 22(b) of the Prospectus for 1983-84 states that- "The following marks shall be added or deducted from the total marks of the candidates in order to prepare the final merit list :-
(a) Add 20 marks for National Cadet Corps Training for a person who has completed the training or, having successfully completed not less than seventy-five per cent of the total training period and is still undergoing training.
(b) Deduction of 10 marks shall be made for each extra chance availed of in the case of students failing, taking examination' by parts or attempting to improve marks in F. Sc/B, Sc. Examinations."
As earlier held in relation to the decision about the reduction of seats, this decision cannot be held to be retrospective, as it was also simultaneously taken with that decision by the Provincial Government and conveyed in time to the Admission Board before it assembled to deal with the admissions and before the final lists of admissions were released. I have inspected the files of the Provincial Government and that of the Chairman of the Admission Board and do not find anything therein to indicate that this decision was taken maliciously or was enforced clandestinely. It was taken in the broader interest of the students and, in particular, to give an edge to students who were competitively quicker in their approach, over those who were less so. In favour of this view, it can be said that students who complete their F. Sc. Or B. Sc Examinations within a specified period, but without taking it in parts, are more keener, intelligent and have a quicker grasp, over those who take it in parts, or through extra chances, or by reappearing to improve their marks. Against this view, it can be stated that students who are very. Keen to join the medical profession and have stretched their studies over a longer period of time to improve their marks, their patience and perseverance should not be permitted to be sacrificed at the alter of illusory prec6ciousness.
Whatever be the thinking on either .Side, the Government has the right of laying down the policy and if it chooses to do so and there is no law on the subject which it offends, it is not the right of any Court to throw it out, other than hold, in any genuine case, that the same is unreasonable or arbitrary. The learned Single Judge has, however, held the same to be arbitrary, on the ground that in the case of students who passed the F. Sc (Pre-medical) Examination from the institutions affiliated with the Federal Board of Intermediate and Secondary Education in two attempts, no deduction of marks was made in their case by the Admission Board. On behalf of the appellants it is submitted that the total period of study fixed for completing the F. Sc. Examination, in accordance with the Rules of all the Boards of Intermediate and Secondary Education, is two years and that though some of the Boards provide for one examination to be taken in the second and final year in all the subjects, some Boards, such as the Federal Board at Islamabad and Boards at Karachi, Hyderabad and Sukker, provide for two examinations, one in each year, where all the subjects are taken in parts each year. In the latter type of Boards, where a student fails in one or more subjects of the first part, he can re-appear for all the subjects or the un cleared papers of the first part, with the second part in the second year. It is stated on behalf of the Admission Board that the words "extra chance" in rule 22(b), mean an attempt over the normal period of two years fixed for clearing the F. Sc. Examination and that, therefore, the Admission Board did not deduct marks in the case of students who had passed the F. Sc. Examination from the institutions affiliated with the Federal Board and the Karachi, Hyderabad and Sukkur Boards. It is, however, submitted that in respect of students who had appeared again after appearing for both parts or had appeared again to improve their marks, the deductions had been made. The argument raised is attractive, but loses sight of the fact that students who appear in parts, as opposed to those who take all the subjects and appear for the full examination in the second year, obviously have an edge over the latter in marks. Rule 22(b) is clear. It calls upon the Admission Board to deduct ten marks in respect of "each extra chance availed of" by a student "taking examination by parts". If a student fails in one or more subjects of the first part and re-appears in all the papers or the uncleared papers of this part in the second year, with or without all the papers of the second part, he has availed of an extra chance and has also taken the examination in parts, No proviso or exception has been added to this sub-rule that this provision shall not apply to students of the Federal or other Boards who clear their examination in parts in two straight years, without having re-appeared in all or any of the subjects of the first part. In these circumstances, I hold that though the said sub-rule is not arbitrary, the action of the Admission Board in not applying it in the case of students of the Federal and other Boards, where the examination was taken in parts, is arbitrary and without lawful authority. In short, the Admission Board has failed to interpret and apply its own rule correctly.
Before concluding, I would like to mention that no question of the enforcement of any fundamental right arises in this case. In short, the Admission Board has failed to enforce its own rule, and they can be bound to its enforcement.
15. The only question that now remains is that relating to the relief to be granted to the respondents. I note with regret that the respondents did not implead all the other students who would have been affected, had the decision on the question of deduction of marks gone in their favour, as parties to their respective writ petitions. About 28 writ petitions filed by other students are still pending disposal awaiting the decision of these appeals. I am informed that the students affected were not impleaded, as the writ petitions were mainly directed against the 'reduction of seats and had the decision on this question gone in the respondents' favour, extra seats would have been created, sufficient for the admission of the respondents, without affecting any of the admitted students. I accept this position for a moment, but then, the respondents should have been prepared for the other eventuality i. e. That the decision went against them on this point, is which case, those to be effected would have had the right to defend their interests. The Supreme Court in University of the Punjab v. Shahid Nazir (1), has clearly held that where students affected are not. Impleaded, the writ petition is liable to dismissal. The representative of the Admission Board, who is present in Court, submits that if 10 marks are now deducted in respect of all students who have passed their F. Sc., Examination from the Federal, Karachi, Hyderabad, Sukkur and other Boards, where this examination was taken in parts, over 24 male and 13 female students already admitted, would be affected. These students who will be affected, were not before the learned Single Judge and had no opportunity to defend their case. It is not sufficient to relieve them from their right of defence by merely holding that their admissions will not be disturbed. Before the learned Single Judge they had a right to urge that the rule was properly applied and if it was so held they would have succeeded. If they had succeeded, then they would have had a legal right to stay and not any secondary right to fall back on the mercy of the College authorities or the directions of the High Court to permit them to continue their studies on compassionate grounds. In the absence of necessary parties, it is not possible for this Court, which is bound by strict rules of propriety and procedure, which the law of the land and precedents compel, to give any relief in favour of any person. It was the duty of the T respondents to have impleaded in their writ petitions all the other students who would have been affected. This failure is fatal to their case. It is also submitted before me that though the Prospectus for 1983-84 has not provided for any Governor's seats, wholesale admissions have been made by the Chief Executive and this indirectly shows that the policy fixing the ceiling of total admissions has been relaxed and if the judgment is allowed to stand, the learned Governor will himself admit the respondents, who are few in number, on the principle of relaxation. I note that the previous prospectus limited the Governor's seats to a total of 15 for all the seven colleges and the policy decision taken by the Provincial Government, as is apparent from the Health Secretary's note dated 8-3-1984 in the Governor's summary file, shows that the Governor's quota has been preserved, but it appears that by mistake this has not been shown in the latest prospectus for 1983-84. I am sure the Chairman of the Admission Board will ensure that necessary amendment is made to the prospectus in this regard. Since this ground was not taken in the writ petitions, it cannot be permitted to belt/ argued at this late stage. Even otherwise, it has no nexus with the question; of deduction of marks. In these circumstances, I regret my inability to offer any relief to the respondents. This, however, does not mean that the college authorities stand debarred from considering the case of such of the applicants who stand to gain by para. 14 of this judgment. On grounds of
(1) 1982 P SC 454 justice and equity, they can re-consider their cases, considering that this debacle is their own creation. "Ehsan" is an essential embodiment of the executive process in Islam and has been applied to meet technical difficulties It is for the college authorities and the Government now to decide whether they would like to undo the wrong. Since the Admission Board, by its own action, has disturbed the hopes and aspirations of some of the applicants it alone has the power to initiate action to retrieve their future. According to information supplied, I am informed that assuming these appeals were dismissed, 37 students would have been affected and correspondingly the same number of students would have been validly entitled to admission. I think, this is a small number and it is now for the College authorities and the Government to decide their course of action.
16. For the foregoing reasons, all these fourteen appeals are accepted and the decision of the learned Single Judge dated 26-9-1984 passed in the said petitions, out of which the present appeals arise, is set aside. Since the appellants have succeeded on a technicality, it is hoped that the Admission Board will favourably consider the observations made by me in the para. Last aforementioned.
17. There will be no order as to costs.
' SAAD SAOOD JAN, J.-With respect, I agree with my learned brother! That the Provincial Government being the managing as well as the financing W authority, was competent to reduce the number of seats in medical colleges. A perusal of the written-statement filed by the Provincial Government indicates that its decision in this regard was based upon the recommendation of the Principals of the various medical colleges in the Province and was mainly influenced by the deteriorating standard of medical education on account of the overcrowding of the colleges and growing unemployment in the medical profes3ion. The respondents have not been able to establish even a semblance of a right which may enable them to require the Provincial Government to maintain the same level of admission as in the previous years,
2. I also agree with my learned brother that the decision of the Provincial Government to deduct ten marks for each additional attempt made by a candidate to pass or improve his marks in the intermediate Examination is not arbitrary. A candidate who applies for admission on the basis of the marks obtained by him in his very first attempt cannot be equated with a candidate who has applied for admission on the basis of marks obtained in two or more attempts; consequently, while comparing the merit of the two the former must be given an edge. That being the position the direction given by the Provincial Government that in assessing merits of the candidates ten marks should be deducted for each additional attempt made to pass or to improve the marks cannot be described a arbitrary. We were informed by the learned Additional Advocate-General that the practice of deducting ten marks for each additional attempt has been recognized and is rife in the other Provinces of the country.
3. It is true that no such deduction has been made in the case of the candidates who passed the Intermediate Examination conducted by the Federal Board of Intermediate and. Secondary Education but then the case of these candidates is on a slightly different footing. The said Board has divided the Intermediate Examination into two parts. The first part is to be cleared in the first year and the second part is to be cleared in the second year. Tbus, these candidates have no choice but to take the Examination in two parts. The rule relating to deduction of marks does not in terms apply to them as they do not avail of any "extra" chance but only take such chances as are normally provided for passing the Examination. To my mind, the words "extra chance" have been used in the rule in the sense of an additional hance taken over and above the normal or ordinary chance. An examinee who takes and passes the Examination by taking the normal chance can hardly be said to have taken an extra chance. It is also worth-noticing that those who take the Examination held by the Federal Board have a much shorter period to prepare for the same than those who are required to take the Examination at the end of two years' course but avail of more than one attempt in this regard. Nevertheless, I am prepared to concede that the splitting of the Examination in two parts gives the candidate from the Federal Board an advantage over other candidates and, perhaps, for this reason non-deduction of marks in their case may seem to be somewhat discriminatory. But then, no relief can be granted to the respondents on this ground alone for two reasons. Firstly, at present no writ can lie for the enforcement of fundamental rights.
Secondly, the candidates who took the Examination held by the Federal Board are not before us. In the event it is held that the deductions should have been made in their case also, even though they had no choice but to take the examination in two parts, they might lose admission which has already been granted to them. This we cannot do without hearing) them.
4. As regards the final decision, I agree with my learned brother to the extent that these appeals be accepted and the writ petitions be dismissed with no order as to costs.