' Through this single judgment, following 16 Constitutional Petitions are being disposed of as they involve common points for determi nation:- Writ Petitions Nos. 2010, 2130, 2134, 2195, 2198, 2222, 2379, 2676, 2728, 3078, 3328, 2112, 2119, 2331, 2670 and 3322 of 1984.
These Writ Petitions assail the action of the respondents whereby the petitioner's candidature for admission to first year M.B.,B.S. Course in medical colleges in the Punjab has been rejected and their names have not been indicated in the merit list of the candidates who have been selected for admission to the said Course.
2. In the case of admission to first year M.B.,B.S. Course in various medical colleges in the Punjab for the academic year 1983-84, number of seats of candidates to be admitted on merit has been reduced by 200 and while determining the merit in case of candidates who passed the F.Sc. Pre-medical examination in more than one attempts, 10 marks per each additional attempt have been deducted from the total marks obtained by such candidates. In Writ Petition mentioned at serial Nos.1 to 11, respondents' action of reducing the seats and deducting the marks on account of more than one attempts has been impugned, while in case of Constitutional Petitions described at serial Nos. 12 to 16 above, the action of the respondents of deduction of marks on account of additional attempts has been assailed.
3. According to the admitted facts, applications from candidates (male and female) of Punjab domicile for admission to first year M. B. ,B.S. course in the medical colleges of the Punjab for academic year 1983-84 were invited through advertisement published in daily "Pakistan Times" Lahore, dated 13-12-1983 and also in Urdu dailies of the Province. It was specified in the advertisement that students qualyfing in the supplementary examination of 1983 and those obtaining less than 50% marks in F.Sc./B.Sc. examintion were not eligible. It was also declared that the admission would be on merit. It has further been indicated in the advertisement that 20 marks for National Cadet Corps and Women Guards would be added to the marks obtained by the candidates in F.Sc./B.Sc. provided they produced certificates from the competent authority after completing N.C.C./W.G. training. In the advertisement, however, there was no indication that seats have been reduced by 200 as compared to the previous year and that 10 marks per each additional attempt would be deducted. It has been stated in the advertisement that prospectus 1980-81 onward shall not be applicable and that prospectus of 1983-84 was under print which would apply to the admissions for the academic year 1983-84 and that enquiry,if any, could be made from the office of the Principal, King Edward Medical College who happens to be the Chairman of the Admission Board. The last date for submission of applications was originally prescribed as 10-1-1984 but subsequently it was extended by ten days.
4. The learned Advocate-General, Punjab, has conceded that list of admitted candidates was displayed on 5-5-1984. Writ Petition No.2010 of 1984 has been filed on 12-5-1984. Other Constitutional Petitions were also brought soon thereafter. Prospectus of 1983-84, as conceded by the learned Advocate-General, was printed on 29-5-1984 i.e. long after the admissions were completed and the list of admitted candidates was displayed and even after the institution of most of the under consideration Constitutional Petitions. The precise date on which prospectus 1983-84 was available for sale at the Government Book Depot is, however not forthcoming.
5. It has been urged on behalf of the petitioners that there was no indication in the advertisement inviting applications for admission to first year M.B.,B.S. course for the academic year 1983-84 about the reduction of seats and deduction of marks, therefore, the respondents could not legally have recourse to the arbitrary impugned action which was, in fact, a deviation from the long established practice in the Province. It was, no doubt, mentioned in the advertisement that prospectus 1980-81 onward would not be applicable but the prospectus 1983- 84 which contains the provisions about the deduction of marks was not even printed and published by the dates the admissions were completed, and thereafter the Writ Petitions were instituted.
6. The other grounds of attack advanced on behalf of the petitioners are that the effect of the impugned actions is retrospective in nature and that reduction has been made only in case of general seats but not in case of nominees of the Governor, Army Personnels' children and doctors' children. It has further been urged that under Rules 7 and 15 of the Rules for the Intermediate Examination in force from 1974 which are statutory rules having been framed under section 21 of thePunjab Board of Intermediate and Secondary Education Act, a candidate could pass the intermediate examination with a maximum of four examination opportunities within a period of 21 months and he could also at his option avail himself of one more examination opportunity to improve the aggregate of marks obtained by him previously. It has thus been argued that in the presence of the afore-mentioned Statutory Rules, the respondents could not take a contrary decision of deduction of marks on account of additional attempts. Thus, the respondents' action of deduction of marks, while determining the merit, amounted to taking away of legal right vesting in the petitioners in violation of Article 4 of the Constitution, 1973 which stands saved under the Provisional Constitution Order. It has also been argued that the clandestine manner in which 10 marks per each additional attempt have been deducted in case of the petitioners, while determining their merit, without any previous notice in the advertisement or otherwise and publication of the prospectus after the completion of the admissions, leads to an irresistible conclusion that the impugned action of the respondent in this behalf is unjust, unfair and thus legally not in order.
7. Reliance on behalf of the petitioners has been placed on: Amjad Perwaiz v. Province of Punjab NLR 1980 Civil SC 16, District Board Lahore v. Agha Mohammad Khan PLD 1957 Lah. 780, Shahnaz Maqbool v. Province of Sind PLD 1979 SC 32, Commissioner of Income-tax Lahore v. M/s Hajveri Agencies Lahore PLD 1984 Lah. 401, Abid Hussain Bokhari and 2 others v. Government of Pakistan 1984 CLC 1222, Miss Shahida Khatoon v.
Government of Sind PLD 1982 Kar. 454 Miss Imrana Malik v. Chairman Selection Committee for admission in Medical Colleges, Lahore PLD 1977 Lah. 820, Haji Ghulam Zamin and another v.
A.B.Khondar and others PLD 1965 Dacca 156, Mian Jamal Shah v. Member Election Commission, Government of Pakistan PLD 1966 SC 1, Malik Mir Hassan and others v. State PLD 1969 Lah. 786, Bilal A hmad Malik v. Secretary, Ministry of Commerce, Government of Pakistan and others PLD 1963 Kar. 981, Pakistan and another v. S.Hussain Ali Shah PLD 1960 SC 310, Mohammad Ashraf v.
Board of Revenue, West Pakistan PLD 1968 Lah. 1155, Government of Baluchistan and others v.
Riffaat Parveen 1981 SCMR 1002, Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, Miss Safia Hameed v. The Chairman, Selection Committee Medical Colleges, Baluchis tan and 6 others PLD 1979 Quetta 66 and University of the Punjab, Lahore and 2 others v. Rehmatullah PLD 1982 Lah.
729.
' In Amjad Perwiaz's case, mentioned at serial No.1 above, it was held that rules of prospectus for working out merit of candidates for admission should be read subject to provisions in National Guards Act. It was observed in this case that the prospectus does not have any statutory sanction and while interpreting its contents, preferene has to be given to the legislative provisions of the relevant laws.
' In the precedent case mentioned at serial No.2, it has been laid down that the executive powers of a Government functionary or a statutory body are always subject to an important limitation namely, that they are to be exercised fairly, justly and reasonably. An exercise of power which is arbitrary, oppressive and wanton is an abuse and is not an exercise of power within the meaning of Statute.
' In Shahnaz Maqbool's case it was observed that contents of the prospectus are required to be construed very strictly and that a new rule providing some disqualification deserved to be struck down as illegal to the extent of its retrospectivity.
' In the case mentioned at serial No.4 above, it was held that the rule that no one should be condemned unheard is to be read in every statute empowering passing of order having penal consequences unless statute itself lays down to the contrary.
' In Abid Hussain Bokhari's case, it was observed that the executive authority's actions which are not fair, resonable and just are liable to be struck down in exercise of writ jurisdiction. It was further observed that an arbitrary decision has always been treated as without jurisdiction.
' In Miss Shahida Khatoon's case with reference to rule 17 of the Prospectus of M.B.,B.S. and B.D.S. for medical colleges in Sind 1980-81, it was found that total number of marks secured by a candidate was determining factor and that the admission could not be based on the marks obtained by him in individual subjects.
' In Miss Imrana Malik's case, it was observed that although the Selection Committee was bound by the provisions of the prospectus which have the force of rules unless some statutory provisions demanded otherwise, but the change which had been introduced by the Board (Board of Intermediate and Secondary Education) for evaluating the merit of the candidates could not be ignored.
' In Haji Ghulam Zamin's case, it was held that Government's executive act must be backed by contemporaneous law.
' In Mian Jamal Shah's case, it was observed that actions of Election Authorities could not, ordinarily, be interfered with unless such actions were characterized as having been done mala fide or in bad faith.
' In Malik Mir Hassan's case, it was ruled that a direction or order by a public functionary would be, invalid if it does not have the backing of a valid contemporaneous law. It was further observed that the Chief Martial Law Administrator, by preserving Article 2 of 1962 Constitution (provisions whereof are analogous to the provisions of Article 4 of 1973 Constitution) had made clear once for all that the intention of Government was to act in accordance with law.
' In Bilal Ahmad Malik's case, it was held that when a scheme was formulated by the Government even without any statutory sanction behind it, violation of such scheme by the Government itself in an arbitrary manner was legally objectionable and, therefore, justiciable.
' In the case mentioned at serial: No.12 above, it was held that when an import licence was granted to a person according to the declared policy of the Government on fulfilment of certain conditions, the Government had no power to cancel the said licence on the pretext of non-compliance with the rule requiring submission of a bank certificate.
' In Mohammad Ashraf's case, it was held by the Lahore High Court that a person could be termed as "aggrieved party" for the purposes of Article 98 of 1962 Constitution if under law he was entitled to certain benefit or treatment which was refused to him.
' In the case mentioned at serial No.14, it was held that the status of rules or regulations embodied in the prospectus of Bolan Medical College could not, in any case, be placed higher than the rules or bye-laws framed in exercise of delegated powers of executive authority.
' In Mian Fazal Din's case it was ruled that a right considered sufficient for maintaining proceedings in Writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege of liberty or franchise.
' In Miss Safia Hameed's case, it was held that the Chairman Selection Committee rejected the petitioner's application for admission on fallacious grounds and that such order could not be maintained as superior Courts in our country have always condemned arbitrary and injudicious orders.
' In the last case mentioned at serial No.17, it was held that educational facilities being provided by the Universities should not be denied to citizens except for valid and legal reasons.
8. While controverting the arguments addressed on behalf of the petitioners, the learned Advocate-General emphasized that:
(a) medical colleges in the Punjab are financed, run, managed and controlled by the Government of Punjab for promoting the health of the public and that, therefore, the Governor of the Punjab, as Head of the Province, has full powers to formulate and modify the policy regarding admission in medical colleges. He, in exercise of such powers, keeping in view the deterioration in the standard of medical education, reduced the number of seats to avoid congestion and to provide more facilities of laboratories class rooms and practical experience etc. to medical students. To achieve the same goal, merit has been improved and those who passed the F.Sc.(Pre medical) examination in one attempt have been given preference to the ones who passed such examination in more than one attempts;
(b) there is no illegality in case of the actions assailed through the under considertion Writ Petitions and, therefore, this Court cannot exercise jurisdiction in these cases under Article 9 of the Provisional Constitution Order;
(c) the advertisement in the press only invited applications from candidates for considering their candidature for admission and the advertisement thus did not confer any right on the petitioners to be admitted;
(d) it has been specifically indicated on the front page of the prospectus including prospectus of 1980-81 and onwards that "Government in the Health Department reserves the right of additions and alterations of any rule in the prospectus and admission forms";
(e) boys and girls who have been admitted in medical colleges of Punjab in preference to the petitioners have not been impleaded as respondents in the under consideration Writ Petitions and, therefore, merit cannot be disturbed to their deteriment; and
(f) by now half of the course has been covered by the students who have been admitted for 1983-84 session of the first year M.B.,B.S. course and, therefore,it would not be possible for the functionaries of the medical colleges to admit the petitioners at this belated stage.
9. In support of his arguments, the learned Advocate-General cited:- ' Naseem Mahmood v. Principal, King Edward Medical College and others PLD 1965 (W.P.) Lab. 272, Mohammad Razaq v. Province of Baluchistan through Secretay Health, Quetta and 6 others PLD 1976 Quetta 64, Mian Mohammad Nasrullah and 2 others v. District Magistrate, Lahore and 3 others 1970 SCMR 214, Humaira Satwar Yusuf v. Government of the Punjab through Secretary of the Health Department PLD 1971 Lah. 641, Ehsanul Haq and another v. Federation of Pakistan and 2 others PLD 1976 Lah. 501, Miss Majeeda Tabassam v. Government of Sind and 3 others PLD 1978 Kar. 222, Kaiomarz R. Ferozepurwala and others v. Adminis trator Dow Medical College Karachi and others PLD 1976 Kar. 1039, Sajid Raza and 3 others v. The Commissioner Quetta Divison Quetta and 9 others PLD 1973 Kar. 332, Naqvi Muhammad Abbas v. The Admission Boar for admissions to first year M.B.,B.S. class of medical colleges in Punjab and another 1983 CLC 1430, and University of the Punjab v. Shahid Nazir 1982 P SC 456.
' In Naseem Mahmood's case, quoted at serial No.1 above, it was observed that all the medical colleges except one at Peshawar are government institutions, maintained, staffed and financed by the Provincial Government, although affiliated to the respective Universities in whose jurisdiction they are geographically located. It was further observed that these institutions being government institutions and their heads being government employees, not much argument is needed to see that the Provincial Government clearly retains a right to control and guide the affairs including the question of admissions to all these colleges.
' In Mohammad Razaq's case, it was held that the power of the Governor, as executive head of the Government in the Province, extends to the matter of laying down a policy and issuing instructions for regulating admissions to the medical colleges run by the Provincial Government.
' In Mian Mohammad Nasrullah's case, it was ruled that policy matter cannot be decided by Courts in exercise of the Writ jurisdiction and that Courts were merely concerned to see that executive acted in accordance with law and rules and exercised discretion upon sound principles fairly and reasonably and not perversely and whimsically.
' In Humaira Satwar Yusuf's case, it was ruled that the right to apply for admission to an educational institution does not carry with it a right to be admitted which could be enforced under Article 98 of the Constitution (1962).
' In Ehsanul Haq's case, it was found that with the increase of colleges in the Province, Government was at liberty to increase the seats and a petitioner, with reference to an old advertisement, could have no just or legal grievance against the same.
' In Miss Majeeda Tabassam's case, it was ruled that the petitioner who was never admitted to the college did not acquire any vested right which could be said to have been interfered with by the admission of the contesting respondent to the medical college as against the petitioner.
' In Kaiomarz's case, the petitioner had taken an objection to the validity of the amendment of the rule in the prospectus which provided that merit for admission would henceforth be calculated on the total marks obtained in all the five subjects. It was contended that the amendment was made on the last date for submitting applications for admission. It was held that apart from inherent right to amend on general principles, it was expressly stated in the prospectus that the provisions incorporated therein were subject to additions or alterations as may be considered necessary from time to time. It was further observed that the petitioner had not shown any case of prejudice by the last minute amendment.
' In Sajid Raza's case, it was opined that though the petitioners had certainly the right to apply for admission, they had no right to be considered, muchless, selected, until the surplus seats of Kalat Division became available and these did not become available before 4th December, 1972, when applications of the candidates from Kalat Division were considered by the persons authorized to make selection. However, before the arrival of the said date, prior to which the petitioners had applied for admission, the instructions contained in the prospectus were amended by the Governor of Sind, by the aforesaid letter, dated 8-11-1971 and the selection of respondents Nos. 6 to 10, being, admittedly in terms of these amended instructions, was not open to question.
' In Naqvi Muhammad Abbas's case,it was found that the seats for admission to the first year M.B.,B.S. class of a particulr session being limited, this Court could not direct the respondents to create additional seats for the petitioner who possessed requisite qualifications for admission to the said class but his application was erroneously not considered by the Admission Board.
' In University of Punjab's case, it was observed that there was no doubt that the High Court could not have directed the authorities to create additional seats either for 1979-80 session or 1980-81 session. It was also found that affected persons were not made party to the proceedings before the High Court, the order passed in the absence of such persons who were necessary party deserved to be set aside on appeal.
10. The arguments advanced by the learned counsel for the parties have been considered and analysed in the light of the judicial precedents as detailed above. There can be no doubt about the proposition that medical colleges in the Province of Punjab are run, staffed, financed and controlled by the Government although they are affiliated to different Universities on the basis of their location. The Governor, as head of the Province, has full executive powers, in the absence of any law to the contrary, to lay down, amend and modify the policy of admission in these colleges and to fix numer of seats of students to be admitted in these colleges. In the under consideration case, number of seats of students to be admitted against merit quota has been reduced by 200. This reduction could lawfully be ordered by the Governor as there is no statutory provision prohibiting such an action. It has, however, been maintained on behalf of the petitioners that reduction in seats has been ordered after their applications for admission to first year M.B.,B.S. course were entertained. It has further been urged that the Health Minister declared before the Provincial Council on the floor of the house that there would be no reduction in case of girls as there was already shortage of lady doctors. It appears that, in fact, decision about the reduction of seats in the medical colleges was taken prior to the submission of applications by the petitioners and they knew about this reduction. They also knew that the Minister, on the floor of the house, had given an undertaking that in case of girl students, there would be no reduction. As regards the Minsiter's undertaking or a declaration by him, the same has no binding force because that virtually amounts to his personal opinion and the Courts have to see as to what actual decision has been taken by the competent authority. In regard to reduction of seats, it is, therefore, held that the Governor, in exercise of his executive authority, has competently reduced the seats in medical colleges, run, financed and controlled by the Provincial Government. Such decision of the Governor is not justiciable in exercise of extraordinary jurisdiction of this Court.
11. It is true that rule 7 of the Rules for the Intermediate Examination (in force from 1974) of the Board of Intermediate and Secondary Education, Lahore, permits the passing of Intermediate examination in four attempts within a period of 21 months, but this rule has nothing to do with the determination of merit for admission in medical colleges and, therefore, it cannot be said that while effecting deductions, the respondents have violated statutory rule 7 supra in disregard of the provisions of Article 4 of the Constitution 1973. In case of Rule 15 ibid, a second attempt has been allowed for improving the aggregate marks. But it has been provided clearly that a candidate who thus improved the aggregate marks, would not be eligible for the award of a scholarship or any other academic distinction on the basis of the improved aggregate of marks. Thus, the impugned decision regarding deduction of marks cannot be termed as violative of a statutory rule, viz. rule 15.
12. In regard to deduction of marks, on account of additional attempts, therefore, it may be observed that ordinarily the Governor, in exercise of his powers for laying down a policy for admissions in medical colleges administered by the Provincial Government in the Province, could modify the merit. But that can be done prospectively and not retrospectively. In the circumstances of the present Constitu tional Petitions, applications for admission to first year M.B.,B.S. course were invited by 10-1-1984 although subsequently, last date for submission of applications was extended by ten days.ln the advertisement inviting the applications or even by the extended date for entertaining the applications, no decision was taken about the deduction of marks on account of additional attempts in F.Sc. examination. It was, of course, provided in the advertisement that prospectus of 1980-81 and onwards, which admittedly did not contain any provision about the deduction of marks on account of additional attempts, would not be applicable to the admissions for 1983-84 session and that prospectus of 1983-84 would be applicable. But, nevertheless, it is an admitted fact that prospectus of 1983-84 was printed long after the Admission Board displayed the list of admitted candidates which did not include the names of the petitioners.
This prospectus was, in fact, printed even after the institution of the present Constitutional Petitions.
The provisions contained in this prospectus of 1983-84 cannot, therefore, be applied retrospectively. It has been stated that the Governor directed the change in the policy of admission so as to effect deduction in case of additional attempts. No such order of the Governor has been produced and it cannot be said as to when the Governor issued such directions. The deductions have been effected clandestinely, retrospectively and arbitrarily. In case of students who passed F.Se. (Pre-medical) examination from the institutions affiliated with Federal Board of Intermediate and Secondary Education in two attempts, no deduction has been effected. As a matter of fact, in case of such institutions, examination cannot be passed in one attempt. The deduction has been effected in case of students who passed examinations from the institutions affiliated with the Provincial Boards of Intermediate and Secondary Education. It has also not been taken into consideration that the additional attempt was for improving the division/marks or for passing the examination in the subjects in which the student failed in an earlier examination.
13. As already observed, deduction of marks, on account of additional attempts, has been effected in case of the petitioners clandestinely, retrospectively, arbitrarily and in a discriminatory manner. Such an action cannot be said to have been taken in accordance with sound principles, fairly and reasonably and not perversely or whimsically. It is so well-established that a public duty cannot be exercised arbitrarily, whimsically or in disregard of the principles of natural justice. Same observations hold good when retrospectivity is involved without any statutory sanction. It is true that the petitioners have no legal right to be admitted to the medical colleges but certainly they have the right to demand that the college authorities should determine their merit in accordance with law, fairly and equitably. Unfortunately, this has not been done while determining their merit as deduction of marks has been effected clandestinely, retrospectively and in a discriminatory manner. Such an action can certainly be struck down by this Court, in exercise of its Constitutional jurisdiction.
14. The learned Advocate-General, as already stated above, has urged that since the students who have been admitted in preference to the petitioners have not been implied as respondents in the present Constitutional Petitions, therefore, no adverse order can be made against them and further that almost half the course of the first year class of M.B.,B.S. course has since been covered, therefore, it would not be proper to direct that the petitioners be admitted in the said class at this belated stage. In regard to these contentions, it may be observed that, of course, no adverse decision can be taken against a person who is not a party to these proceedings, but keeping in view the limited number of petitioners, it can be directed that without disturbing the admissions already made, the petitioners whose admission has been refused, on account of wrongful deduction of marks, be also admitted by creating a few additional seats as a special case. Needless to say that 200 seats have already been reduced this year and addition of a few seats would not cause any embarrassment to the respondents.
15. The objection regarding belated stage is also without any substance. The present Writ Petitions were filed in May, 1984 i.e. soon after the list of admitted candidates was displayed. These Writ Petitions were fixed after notice to the respondents for regular hearing in the month of July, 1984, but the learned Advocate-General himself sought an adjournment for filing the written statement and preparing the arguments. Consequently, the case had to be adjourned to 17-9-1984 i.e. for a date soon after the vacations which commenced with effect from 15th July, 1984. The learned Advocate-General could not contradict the information supplied on behalf of the petitioners that till only a few days prior to 17-9-1984, candidates against reserved seats and even against merit quota have been admitted in the first year M.B.,B.S. course for the session 1983-84.
16. In the light of what has been said above, the Writ Petitions are allowed to the extent that the petitioners who could not secure admission on account of wrongful act of the respondents whereby, while determining the merit, their marks, on account of additional attempts, have been deducted out of the total marks obtained by them, be re- considered for admission without effecting such deductions and without disturbing the admissions already made.
' There shall be no order as to costs.