SAIDUZZAMAN SIDDIQUI, ACTG. CJ.---The appellants applied for admission to M.B.,B.S. 1st year classes academic year 1996-97, in Khyber Medical College (KMC), Peshawar and Ayub Medical College (AMC), Abbottabad on the basis of their results of the F.Sc. (Pre-medical) examination of the Board of Intermediate and Secondary Education. They were, however, denied admission on the ground that they failed to qualify the entry test held by the College Authorities for admission to 1st year M.B.,B.S. Classes. The appellants in Civil 'Appeal No,26 of 1997 challenged the refusal by the College Authorities to admit them in Ist year M.B.,B.S. Classes on the basis of the Jesuit of entry test organised by the College Authorities, in Writ Petition No,1430 of 1996 filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as 'the Constitution'), before the Peshawar High Court which was dismissed summarily by a learned Division Bench of that Court as follows:--- "The entry test in the Professional Colleges or otherwise in other Colleges is now a well recognised criteria, manner and method for selection of candidates for admission in a college or institution having limited number of seats. As pointed out by the learned counsel for the petitioners entry test has also been prescribed for Agha Khan Medical College, Karachi and as well for Army Medical College, Rawalpindi and now besides the medical colleges other colleges and institutions are holding and conducting entry tests. This manner and method has been evolved due to notoriety of the results of the Secondary Board of this Province which now has disinterated into 4 Boards almost division-wise. Even admissions in Professional institutions in foreign countries do require entry tests.
The marks obtained in the final examination by a candidate can also not be a safe and sole criteria, otherwise there would have been no need of conducting competitive examinations for different services in Pakistan and the Province, although there is much difference between a test and a competitive examination, which need not be elaborated and discussed in this case as neither it has been urged nor is relevant in the case of the petitioners. After hearing the learned counsel for the respondents, there is no need to proceed further in this petition which consequently is dismissed in limine and the order of status quo, dated 23-12-1996 in respect of final list of the successful candidates is vacated."
2. The appellants in Civil Appeal No,27 of 1997 also applied for admission to 1st year M.B:,B.S. Classes in the two medical colleges in the .Province of N.-W.F.P. On the strength of their results in F.Sc. (Pre- Medical) but like the appellants in Civil Appeal .No,26 of 1997 they too were declined admission in the colleges, as they failed in the entry test held by the College Authorities. The appellants in Civil Appeal No,27 of 1997, however, without challenging the action of College Authorities first before the Peshawar High Court, filed a petition before this Court against the judgment of Peshawar High Court impugned in Civil Appeal No,26 of 1997, contending as follows:--- "That the petitioners who have passed their F.Sc. Examination with flying colours, details whereof are given hereunder, are adversely affected by the judgment of the Peshawar High Court rendered in a case titled Hine Javed and others v. Khyber Medical College, Peshawar, etc. Vide Writ Petition No,1439 of 1996. In view of the dictum laid down in H.M. Saya & Company v. Wazir Ali Industries Limited (PLD 1969 SC 65), they are entitled to appeal against the order/judgment rendered by the Peshawar High Court.
Some of the similarly aggrieved persons filed petitions in the Peshawar High Court.
The cases of petitioners are identical and after rendering of the judgment by the Division Bench of the Peshawar High Court of which they are aggrieved they cannot invoke the jurisdiction of the High Court under Article 199 of the Constitution but instead are filing this petition for Special Leave to Appeal being aggrieved of the impugned order."
3. Leave was granted in both the appeals to consider the following contentions:--- "The grievance of the petitioners in both these petitions is common to the effect that they have passed F.Sc. Examination with very good results on the basis of which they are entitled to admission in the Khyber Medical College, Peshawar and Ayub Medical College, Abbottabad but they have been refused admission on the ground that they had failed in the entry test which is mentioned in the prospectus but has no legal cover as far the law and regulations issued by the Pakistan Medical and Dental Council, Islamabad are concerned.
2. It is submitted that the entry test has been super imposed on the result of F.Sc. Examination which is not permissible under the regulations and if the results of F.Sc. Which is part of the system, are not to be relied upon and discarded, then the whole system of examination should be changed and modified to make it effective instead of providing for entry test, which does not fit in the system. In support of the proposition reliance can be placed on Dr. Dinesh Kumar and others v.
Motilal Nehru Medical College, Allahabad and others (AIR 1986 SC 1877) and Aaliya Ihsan v. Mrs. Bushra Mateen and others (1994 CLC 1739).
3. The contention raised is of first impression and leave is granted to examine this contention in detail.
4. In Civil Petition 91 of 1997, there are twenty petitioners and in Civil Petition 121 of 1997 there are nineteen petitioners and prayer is made for provisional admission of these petitioners by way of interim relief. Mr. Muhammad Akram Sheikh has informed that immediately after the Eid admissions are going to be finalised and the classes will begin. Instead of giving interim relief of provisional admissions to such a large number of the petitioners we feel that it would be worthwhile to have these appeals finally disposed of after hearing the learned Advocates of the respondents and the concerned authorities. Issue notice to the respondents, the Attorney-General for Pakistan, and the Advocate-General, N.-W.F.P. Let these matters be fixed for final hearing out of turn at Peshawar before the Bench of three Judges on 15-2-1997."
"
4. The appellants in Civil Appeal No,26 of 1997 in their writ petition Wore the Peshawar High Court had impleaded only the Government of N.-W.F.P., the Principals of two Medical Colleges in N.-W.F.P.
And the Joint Admission Committee of Khyber Medical College/Ayub Medical College, as respondents. Before this Court, they have also impleaded 309 students who qualified the entry test and were allowed admission in KMC and AMC on the basis of their performance in the entry test.
The appellants in Civil Appeal 27 of 1997 have, however, made only the official respondents, parties in their appeal before this Court. During pendency of these appeals, Abdul Saboor Khan, who failed to get admission in the medical college on the basis of his F.Sc. (Premedical) result filed Civil Miscellaneous Application No,265 of 1997 for being impleaded as appellant in Civil Appeal 26 of 1997 which was allowed by the court on 9-4-1997. Three other similar miscellaneous petitions (unnumbered) filed by three students, Miss Farhat Ahmed Khan, Anila Bano and Akhtar Ali, respectively, who also failed in the entry test and were declined admission on the basis of their result. Of F.Sc. (Pre-medical) examination by the College Authorities, praying that they may also be impleaded as appellants in these appeals are pending and no orders thereon appear to have been passed by the Court. Keeping in view that the Court allowed a similar petition (CMA 265 of 1997) filed by the student Abdul Saboor Khan on 9-4-1997 and joined him as appellant in the above appeals, we allow the above three pending petitions and join them as appellants in Civil Appeal 26 of 1997 subject to all just exceptions.
5. The above appeals were partly heard on 10-4-1997 and keeping in view the general importance of the issues raised therein, notices were issued to Attorney-General for Pakistan, Pakistan Medical and Dental Council (hereinafter to be referred as PMDC) and Secretary Health, Government of Pakistan, for 14-4-1997. On 14-4-1997, the learned Attorney-General could not attend the Court as he was unable to reach Islamabad from Lahore, due to inclement weather. However, the Deputy Attorney-General was present in the Court and so was the Secretary Health Division. After hearing the views the Secretary Health Division, on the issue involved in the above appeals, the Court passed the following order:--- "Mr. Mumtaz Ali Mirza, Deputy Attorney-General has stated that Attorney-General has not been able to come from Lahore for the reason that the system of flights is disrupted on account of inclement weather.
2. Mr. Zaheer Sajjad, Health Secretary to the Government of Pakistan states that he Will discuss this matter with regard to the entry test which is applicable in some Medical Colleges in N.-W.F.P. With the Attorney-General and the Federal Government so that a solution be found out that if it is justified on the ground that system of examinations is defective, then why the system should not be improved or the entry test should not be made applicable to all medical institutions throughout Pakistan so that there should be no discrimination on the question of admission in the Colleges. We expect that PMDC should also be represented before the Court by the Secretary himself. We should also like the assistance from Secretary Education to the Government of Pakistan. They should have a .Prior meeting among themselves, with the Attorney-General of Pakistan and then appear in the Court on the next date of hearing with some formula if it is possible.
Adjourned to a date in office. Not to be treated as part-heard."
These appeals were heard at some length on 24-10-1997 and having noticed that the issues raised therein are likely to affect the system of admission in medical colleges throughout the country, the Court decided to have on record the views of Pakistan Medical and Dental Council (PMDC) and Provinces of Punjab, Sindh and Balochistan as well. Accordingly, a fresh notice was issued to PMDC besides notices to Advocate-General of Punjab, Sindh and Balochistan. A report on the issues arising in the above appeals in terms of the earlier orders of this Court in the meantime, was finalised following the meeting of Secretary Health, Government of Pakistan, Secretary Education, Government of Pakistan and Secretary PMDC, in the office of learned Attorney-General of Pakistan on 23-4-1997, which was fled in the Court on 3-11-1997. The report reads as follows:--- "SUBJECT: ENTRY TEST FOR MEDICAL COLLEGES IN PAKISTAN In compliance with the directive of the Honourable Supreme Court of Pakistan, dated 14th April, 1997 a meeting of the Committee comprising the following was held in the office of the Attorney- General of Pakistan on 23rd April, 1997:---
(1) Mr. Chaudhry Muhammad Farooq, Attorney-General of Pakistan..
(2) Mr. Zaheer Sajjad, Secretary Health, Government of Pakistan.
(3) Mr. Sikandar Hayat Jamali, Secretary Education, Government of Pakistan.
(4) Syed Ehtram Ali, Secretary, Pakistan Medical and Dental Council.
The Committee noted that under Rule No,3(3) of Rules of Business, 1973, the Health Division, Government of Pakistan is responsible for ensuring uniformity and appropriate standards in Medical Education. This function is exercised by the Federal Government through the Pakistan Medical and Dental Council (PMDC) a body corporate constituted by the Federal Government under the Pakistan Medical and Dental Council Ordinance (Ordinance No,XXXII of 1962).
The Committee deliberated in detail on the question of introducing a pre-entrance test as a pre- requisite for admission into Government-owned medical colleges throughout the country. It was noticed by the Committee that the Government of N.-W.F.P. Has introduced a pre-entrance test for its two medical colleges in the public sector namely (i) Khyber Medical College, Peshawar (ii) Ayub Medical College, Abbottabad. The other Provinces have not introduced any such tests which has created discrimination amongst the prospective students of medical and dental colleges. The test carried out for the N.-W.F.P. Medical colleges is also not in conformity with the Regulations of the Pakistan Medical and Dental Council prescribed in exercise of the powers conferred under subsection (2) of section 33 of the PMDC Ordinance because a pass in the test had been made mandatory and those who did not pass the entry test were not considered irrespective of their merit in the Intermediate Science Examination. The Regulation provides as under:- 'The final selection of the candidate will be evaluated by adding his performance in Intermediate Science Medical Group Examination and the entry test'.
The Committee was also informed by the Secretary Education that the entry test is also envisaged by the Education Policy. The relevant portion from the Education Policy is reproduced below:--- 'A National Testing service will be established for providing national level leadership in developing tests needed in educational setting and carrying out research for this purpose. The work of test development and research will be carried out by N.T.S. On its own, or in collaboration with agencies and individuals within or outside Pakistan. The N.T.S. Will provide test as well as testing services to schools, colleges including professional colleges, universities and other institutions. This agency will also be responsible for developing a system of academic accreditation of various institutions on the basis of the performance of students of these institutions on national tests.'
The Committee also evolved a formula for introducing a pre-entrance examination for all Medical and Dental Colleges in Pakistan. The Pakistan Medical and Dental Council will be requested to frame Regulations for this,purpose so that the entry test may have the force of law. The Committee also decided that the weightage to the Intermediate (Pre-Medical Group) and the entry test shall be as under:---
(a) Intermediate (Medical Group) 50%
(b) Entry Test 50% The final selection of candidates shall be made by adding his/her performance in the Intermediate Science Medical Group and the entry test to be conducted under the Regulations of the Council on the basis of the weightage mentioned above. The passing of the entry test shall not be mandatory.
The Committee decided that a format for the preadmission test be developed with input from as many Medical Colleges as possible. The Committee also noted that the development of a format for the test will need sufficient time (at least six months) and therefore, the entry test cannot be introduced for the next admission i.e, Academic Session 1997-98 in any medical college. The criteria for admissions for the Academic Sessions 1997-98 shall only be the Intermediate Science Examination and in accordance with the following priorities as laid down in the Regulations of the Council for the degree of M.B.,B.S.:
(1) 1st Priority F.Sc. (Pre-Medical) Grade A + & A (2)2nd Priority - B.Sc. (Biological Sciences) A + & A
(3) 3rd Priority - F.Sc. (Pre-Medical) Grade-B
(4) 4th Priority - B.Sc. (Biological Science) Grade-B The admission test shall be introduced throughout Pakistan without any exception with a uniform format to be developed and provided by the Pakistan Medical and Dental Council to all Provincial Governments. The students will compete within their own district or areas for the purpose of admission into Medical and Dental Colleges according to the admission policy of the respective Provincial Governments.
This note is being put up for the perusal of the Attorney-General. He may kindly submit the suggestions/recommendations of the Committee to the Supreme Court of Pakistan.
(Sd.)
(Sikandar Hayat Jamali), Secretary Education, Government of Pakistan.
(Sd.)
(Zaheer Sajjad), Secretary Health,Government of Pakistan.
(Sd.)
(Syed Ehtram Ali), Secretary PMDC.
Attorney-General of Pakistan (Mr. Chaudhry Muhammad Farooq). Islamabad . "
On 26-3-1998 when these appeals again came up for hearing before the Court in presence of the above. Report of the Committee appointed by this Court to examine the issues raised, in the above appeals, Mr. Sardar Khan, the learned counsel for the two medical colleges of asked for time to submit objections to the report of the Committee. The law officers representing the Governments of Punjab, Sindh, N.-W.F.P. And Balochistan, however, endorsed the views expressed by the Committee on behalf of their respective Provinces. The case was thereafter adjourned to 22-4-1998 to enable the learned counsel for KMC and AMC tofile objections against the report of the Committee and also for the reason that Mr. Akram Shaikh, the learned counsel for the appellants was intending to proceed to Hat We have heard the learned counsel for the parties at length. The learned Advocate-General, N.-W.F.P. Adopted the arguments of Mr. Sardar Khan, the learned counsel for KMC and AMC in the above appeals.
6. Mr. Muhammad Akram Shaikh, the learned counsel for the appellants, contended that the introduction of entry test for admission to medical colleges in N.-W.F.P. Is discriminatory as no such examination is prescribed for admission to Ist year M.B.,B.S. Classes in the medical colleges in the remaining three provinces of Pakistan. The learned counsel for the appellants further contended that by introducing the entry test for admission to medical colleges the age old well established system of examination and the method of judging the merits of the students has been replaced overnight by new system which has no legal base or justification. It is also contended by the learned counsel that the entry test has changed the well-established criteria for admission without any legal support at its back. The learned counsel argued that the students were not made aware well in advance that besides passing the prescribed F.Sc. (Pre-medical) examination, which hitherto was the sole criteria for seeking admission to M.B.,B.S. Classes in the medical colleges, they were also required to Pass the entry test. It is also contended that the entry test was organised in an arbitrary manner as the students/appellants were not provided any syllabus for the entry test in advance so that they could prepare themselves for the same. The learned counsel lastly contended that by providing in the prospectus that the student who failed to pass the entry test will not be considered for admission to M.B.,B.S. Classes (1st year) the College Authorities refused to recognise the result of F.Sc. (Premedical) examination which was not only an arbitrary action but a patent illegality.
7. Mr. Sardar Khan, the learned Advocate Supreme Court representing the management of two medical colleges of N.-W.F.P. On the other hand contended that the entry test for admission to 1st year M.B.,B.S. Classes in the medical colleges of N.-W.F.P. Was introduced to determine the real merits of candidates seeking admission in these colleges as in view of the rampant corrupt practices and serious irregularities committed in the conduct and compilation of the result of the examinations by the Board of Secondary Education, the results of F.Sc. (Pre-Medical) could .Not be taken as representing the true merits of the candidates. The learned counsel argued that the entry test for admission of candidates in professional colleges is not a new phenomenon as such tests are in vogue in various medical colleges in Sindh and the Army Medical College, Rawalpindi, for quite some time. The learned counsel argued that the legal sanction behind the introduction of entry test for admission to medical colleges in N.-W.F.P. Was the Regulation of PMDC and the notification of the Government of N.-W.F.P. Issued in August/September, 1996. The learned counsel argued that much before the introduction of entry test for admission to medical colleges, it was widely publicised through press as well as by mentioning it in the prospectus of medical colleges for the academic year 1995-96 that from the next academic year, the entry test will be compulsory for candidates seeking admission to M.B.,B.S. Classes.. The appellants, therefore, had due notice about the entry test and had ample time to prepare themselves for appearing in the test. The appellants having participated in the entry test without protest could not be allowed to raise objection regarding its validity after they failed in the test. The learned counsel vehemently argued that the entry test was arranged through an independent and neutral agency Agha Khan University which had sufficient experience in holding such tests. It is contended that Agha Khan University prescribed the entry test for admission to its college, Agha Khan Medical College, long time back and it had helped in improving the standard of medical education in that institution. Mr. Sardar Khan lastly contended that the report submitted by the Committee constituted by this Court to recommend a uniform policy in respect of medical education in the country failed to take into account that entry tests were provided for in the regulations of PMDC framed in 1981 and 1987 and it was the failure on the part of respective Provincial Governments to give effect to these provisions while formulating the admission policy for the medical colleges situated in their respective provinces. The provision for entry test for admission to medical colleges in N.-W.F.P., therefore, suffered from no legal lacuna.
We have carefully considered the contentions of the learned counsel for the parties and have also examined the contents of the report of the Committee constituted by this Court to formulate its recommendations on the issues arising in these appeals and our conclusions are as follows.
8. Rule 3(1) of the Rules of Business, 1973 (hereinafter to be referred as the Rule') which have been framed under Articles 90 and 99 of the Constitution provides that the Federal Secretariat shall comprise of the Ministries and Divisions shown in Schedule I. Ministry of Health, Special Education and Social Welfare is listed at Serial No,10 of section Aof Schedule I, and Health Division which works under Ministry of Health, Special Education 'and Social Welfare is shown at Serial No,16 of Section 'Bof Schedule I. Sub-rule (3) of rule 3 of the Rules provides that the business of the Government shall be distributed amongst the Divisions in the manner indicated in Schedule H of the Rules. Item No,5 under heading No,16 Health Division of the Second Schedule, reads as follows:--- "5. Medical, .Nursing, dental, pharmaceutical, para-medical and allied subjects:---
(a) maintenance of educational standards;
(b) education abroad; and
(c) educational facilities for backward areas and for foreign nationals, except the nomination of candidates from Federally Administered Tribal Areas for admission to Medical Colleges."
Therefore, under the Rules referred to above, amongst others the responsibility of maintenance of educational standards of medical, nursing, dental, pharmaceuticals, para-medical and allied subjects rests on the Federal Government. The Federal Government through Medical and Dental Council Ordinance XXXII of 1962 (hereinafter to be referred as the Ordinance') has constituted an Authority known as Medical and Dental Council in Pakistan (PMDC) which has been entrusted with the responsibility of establishing a uniform standard of basic and higher qualifications in medicine and dentistry. Section 33 of the Ordinance deals with the powers of PMDC to frame Regulations with the previous sanction of the Central Government to carry out the purposes of the Ordinance.
Subsection (2) of section 33 which is relevant here, provides as follows:---.
"(2) Notwithstanding anything contained in subsection (1), the Council shall make Regulations which may provide for---
(a) prescribing a, uniform minimum standard of courses of training for obtaining graduate and post-graduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules;
(b) prescribing minimum requirements for the content and duration of courses of study as aforesaid;
(c) prescribing the conditions for admission to courses of training as aforesaid;
(d) prescribing minimum qualifications and experience required to teachers for appointment in medical and dental institutions;
(e) prescribing the standards of examinations, methods of conducting the examinations and other requirements to be satisfied for securing recognition of medical and dental qualifications under this Ordinance;
(f) prescribing the qualifications and experience required of examiners for professional examinations in medicine and dentistry antecedent to the granting of recognised medical qualifications;
(g) registration of medical or dental students at any medical or dental college or school or any university and the fees payable in respect of such registration."
9. Section 33(2j(a) of the Ordinance authorises PMDC to lay down a minimum uniform standard of courses of training for obtaining graduate and post-graduate medical and dental qualifications.
Under sub-clause (c) of section 33(2) (ibid), the PMDC is authorised to prescribe the conditions for admission to courses of training for graduate and post-graduate qualifications. The PMDC in exercise of its power under section 33(2) of the Ordinance, effective from Ist year admission of the Academic Session of 1981 in the medical colleges all over Pakistan, laid down the conditions for admission and courses for training for obtaining M.B.,B.S. Degrees of not less than 5 years duration.
Under the heading Admission to Medical College, the Regulations provided as follows:--- "ADMISSION TO MEDICAL COLLEGE.
No candidate should be allowed to begin the medical curriculum proper unless:
(a) He/she has passed the Intermediate Science Examination (Medical Group) securing at least 45% marks in aggregate of a Pakistan University, or an equivalent examination of a Board of Secondary Education in Pakistan.
OR A higher examination of a Pakistan University with any group of subjects provided he/she has passed the Intermediate Science Examination (Medical Group) at least in the 2nd Division.
OR Any other Examination of foreign University/Examining Body, which in scope and standard is found equivalent to the Intermediate Science Examination (Medical Group) of a Pakistani University/Board.
(b) He/she has qualified a completely computerised entrance examination, whose total marks will be equivalent to the total marks of the Intermediate Science (Medical Group) marks.
(c) The priorities for admission to the Medical Colleges should be fixed as under:- Ist Priority - F.Sc. (Pre-Medical) 1st Division. 2nd Priority - B.Sc. (Biological Sciences) 1st Division. 3rd Priority - F.Sc. (Pre-Medical) 2nd Division. 4th Priority - B.Sc. (Biological Sciences) 2nd Division.
Note.--The final selection of the candidate will be elaborated by adding his performance in the Intermediate Science (Medical Group) Examination and Computerised Entrance Examination."
We are, therefore, of the view that the provision for entry test for admission to Ist year M.B.B.S. Classes in medical colleges was not a foreign or alien concept at least from academic year 1981 when the PMDC provided for ii in its Regulations. The learned counsel for the appellants has, however, argue that the entry test provided in the prospectus of medical colleges of N.-W.F.P issued for the academic session 1996-97 was not in accordance with the entry test prescribed under the PMDC Regulations reproduced above. The learned counsel contended that the entry test contemplated under the above Regulations of PMDC was a completely computerised test while the test carried by the college authorities of KMC and AMC was not at all a computerised one. It is true that commencing from academic year 1981 up to 1986 the above-quoted Regulation of PMDC contemplated a computerised entry test for admission to 1st year M.B.,B.S. Classes. However, the above provision for computerised entry test was amended by the PMDC, effective from 1st year Admission of Academic Session (1987-88) as follows:--- "(5) Examination may be used to improve selection wherever possible."
The reason for the above amendment was explained by the PMDC in one of its letter, dated 1-4- 1997 addressed to one Dr. Ambar Badshah in response to the application of the latter, as follows:-- - "To, Dr. Ambar Badshah, H.No,148, St. No,37, F-10/1, ISLAMABAD.
Subject: ENTRY TEST FOR ADMISSION TO THE 1ST YEAR M.B.,B.S. Dear Sir, I am directed to refer your application, dated the 1st April, 1997 on the subject cited above and to inform you that the Council has prescribed the idea of computerized entry test in their old Regulations and existing regulations in order to select the better candidates in the 1st year M.B.,B.S. Class.
M.B.,B.S. Regulations effective from the 1st year admission of the Academic Session 1981-86, the extract of which is reproduced below:--- "The final selection of the candidate will be elaborated by adding, his performance in the Intermediate Science (Medical Group) Examination and computerized Entrance Examination."
M.B.,B.S. Regulations effective from 1987 todate repealing the old Regulations of 1981, the extract of which is reproduced below:--- "Examination may be used to improve selection whenever possible."
The Council has made amendments for entry test because the Provincial Governments could not make arrangements in their admission policy for entry test due to paucity of funds.
The entry test is also implemented by some of the Medical Colleges of the Country which is in conformity with the admission policy of the Council as given in the Regulations quoted above.
The entry test is not against the Rules and Regulations of the Council.
Yours faithfully, (Sd.)
(HAFEEZULLAH KHAN), ASSISTANT SECRETARY, FOR SECRETARY."
Apart from the Regulations framed by PMDC referred to above which provided for the entry test for admission to M.B.,B.S. Classes and which became effective from academic year 1987, the Provincial Government of N.-W.F.P. Also issued a notification on 2-9-1996 providing for introduction of entry test for admission to Medical and Dental Colleges of N.-W.F.P. From the academic year 1996-97 which was as follows:--- "GOVERNMENT OF N.-W.F.P. HEALTH DEPARTMENT Dated Peshawar the 2nd September 1996 NOTIFICATION No,SO-II (Health)/2-2/95-96. The Government of N.-W.F.P. Is pleased to direct that an Entry Test shall be introduced in Medical and Dental Colleges of N.-W.F.P. From the next academic year 1996- 97.
It has further been decided that:---
(i) All candidates seeking admission in Medical and Dental Colleges shall have to qualify the Entry Test. In order to qualify the Entry Test, a candidate must secure at least 40% marks in the prescribed test. If a candidate fails in the prescribed Entry Test, he will not be eligible for admission in the respective college.
(ii) The eligibility for appearing in an Entry Test for Medical/Dental Colleges shall be 60% marks in F.Sc.
(iii) In the Entry Test for Medical/Dental Colleges, basic Mathematics of Matric standard with only 5% weightage will be included.
(iv) The merit of the candidates for admission shall be determined in the following manner:--- Weightage Matric 10% F.Sc. (Adjusted marks)50% Entry Test 40%
(v) Medical/Dental Colleges in the Private Sector will admit only those candidates who qualify the prescribed Entry Test in the manner specified move. Tests for Medical/Dental Colleges in the Private Sector would be conducted by the respective Professional Institutions of the Government.
(vi) All reserved seats stand abolished except FATA seats which will remain intact, but the inter se merit of FATA candidates shall be determined on the basis of Pre-entry Test, F.Sc. And Matric marks as in the case of others. SECRETARY TO GOVERNMENT OF N.-W.F.P.
HEALTH DEPARTMENT."
10. From the above discussion, it is quite clear that the introduction of entry test for admission to M.B.,B.S. Classes had the necessary legal sanction. The appellants have, however, relied on the case of Aaliya Ihsan v. Mrs. Bushra Mateen and others (1994 CLC 1739), a decision by the learned Single Judge of the Lahore High Court, to contend that the introduction of entry test for admission of candidates to Ist year M.B.,B.S. Classes in medical colleges armed the college authorities with arbitrary powers to deny admission to a candidate who may have an excellent performance to his credit in the F.Sc. (Pre-medical) examination. The learned counsel, accordingly, contended that the provision in the prospectus for the year 1996-97 providing for entry test is liable to be struck down being arbitrary and unreasonable. The contention does not appear to be correct. In the cited case, the college authorities while laying down the conditions for admission to M.A. Classes had reserved 25 marks for written test which was arranged by the Head of the Department of the College with the assistance of other staff and 10 marks for interview. It was in this background that the learned Judge observed as follows in the above-cited case:- "The admission should be, absolutely on merit in accordance with the performance of students in the previous examinations held by the statutory bodies like Board of Secondary Education and Universities.
The conditions of overall second division and also second division in the subject are justified while the written test and interview by the College Authorities surely furnish basis for nepotism, favouritism and corruption. If of course suits the College Authorities because on the one hand they have assumed absolute and arbitrary powers in the admission matters and on the other hand, provided them ample opportunity to oblige their superiors which is necessary to maintain their high position. In the present case out of 82.5 marks the respondents have 35 marks in their pockets which are sufficient to exclude the students entitled to admission on merit, therefore, this provision in the prospectus is declared unconstitutional and illegal I am fortified in my view by the judgment reported as Ajay Hasia etc. v. Khalid Mukin Sehravardi and others (AIR 1981 SC 487)."
The above-cited case, therefore, besides being distinguishable on facts, does not lay down any rule that a provision for entry test for admission to a professional college is not in accordance with the law. In the case before us, the provision in the prospectus issued by the medical colleges of N.- W.F.P. For academic year 1996-97 making entry test compulsory for students seeking admission to 1st year M.B.,B.S. Classes, not only had the legal sanction of the Regulations issued by PMDC at its back but it was reinforced by the direction of the Provincial Government of N.-W.F.P. Issued on 2-9- 1996 which was constitutionally valid. Therefore, on legal and Constitutional plan, no objection was available against the introduction of entry test in the prospectus of medical colleges issued for admission to the medical colleges for 1st year M.B.,B.S. Classes. The next contention of the appellants is, that the introduction of entry test for admission was not sufficiently publicised and no syllabus for the entry test was formulated which caused serious prejudice to the appellants. It is also argued that the entry test armed the College Authorities with arbitrary power to deny admission to any candidate who may have done well in F.Sc. (Pre-medical) examination. These conditions have no merit.
11. Firstly, the standard of education and the method of examinations throughout the country has shown a downhill slide in recent past. The manner in which Board examinations are conducted and marking on the papers is done has considerably eroded the faith and confidence in the fairness of the process of these examinations. Therefore, refusal by authorities of medical colleges to abide solely by the result of these examinations to determine the true merit of a candidate was not totally unjustified. Secondly, keeping in view the prevailing irregularities and unhealthy practices in the Board examinations and to meet the challenges of growing competition for admission in the professional colleges, the introduction of entry test for determining the true merits of the candidates was a welcome step. We may mention here that merits of entry test for admission to higher studies and professional colleges have since been recognized all over the world and it is gradually finding its way in the professional colleges of our country as well. The foremost institution in the medical field which introduced entry test to determine the merits of candidates seeking admission to M.B.,B.S. Classes was Agha Khan Medical College. Since then many other medical colleges in private sector in the Province of Sindh have adopted this system. The entry test system is also in vogue in the Army Medical College, Rawalpindi. With the success of entry test system in Agha Khan University and other Colleges many other professional colleges in the country have also introduced entry test for determining the merits of candidates seeking admission to these colleges.
The system of entry test for admission to professional colleges has by and large met with the approval of people and has been a success so far without arousing any serious adverse criticism from the concerned quarters. No doubt, like all other systems the success of entry test for admission to professional colleges also depends largely on the fairness and transparency of the system and the honesty and dedication of those who are responsible for its enforcement. The steps so far taken by the Government of N.-W.F.P. For introducing entry test for admission to Medical and Dental Colleges of the Province of N.-W.F.P. In our view, are a pointer in a right direction. For instance in the notification, dated 2-9-1996 issued by the Provincial Government of N.-W.F.P., The entry test has been made compulsory even for admission of candidates in Medical and Dental Colleges run by private sector. The reservations of the seats for special interest has been abolished and the limited categories for which reservation still exists, the inter se merit of candidates in each such category is to be determined through pre-entry test and on the basis of F.Sc. And Matric results. The decision of the Provincial Government to hold entry test for admission to Medical and Dental Colleges in N.-W.F.P. For academic year 1996-97 through the well-reputed institution, Agha Khan Medical College, in the country was another welcome step. Another important decision taken by the Provincial Government of N.-W.F.P. Which established the credibility of the entry test was the doing away of viva voce test which completely eliminated the chances of personal discretion and favouritism in awarding the marks to a candidate. The letters of Agha Khan University, dated 12-9-1996 and 4-1-1997 on record before us, confirming the holding of the entry test by them exclusively under their supervision and then delivering the result of entry test in sealed cover to the Principal and Dean of Khyber Medical College, Peshawar, sufficiently establishes the credibility and transparency in the conduct of entry test.. The contentions of the appellants that they did not have sufficient notice before the introduction of entry test for admission to M.B.,B.S. Classes and, that no syllabus for entry test was available which caused serious prejudice to them, have no merits. The Regulations of PMDC enforced from academic year 1987 provided for such test before admission to M.B.,B.S. Classes in the medical colleges. The fact that entry test was introduced only in the medical colleges in N.-W.F.P. Did not render its enforcement illegal or discriminatory. The entry test applied to all categories of students seeking admission to Medical and Dental Colleges in N.-W.F.P. Such classification cannot be described as unreasonable or having no nexus to the object. The respondents have placed before us the prospectus issued for admission to Medical and Dental Colleges in N.-W.F.P. For the academic year 1995-96. Paragraph 7 of the prospectus under heading Admission, clearly stated that "there will be Entry Test for admission into Khyber Medical College, Peshawar, from session 1996-97". Therefore, one year before the introduction of entry test, the students were notified that they will be required to appear in entry test for admission to Medical Colleges. Apart from it, there has been continuous publication of notices and news items in English and Urdu dailies of the Province of N.-W.F.P.
Regarding introduction of entry test and its syllabus and the manner in which it will be conducted for admitting students in medical colleges for the academic session 1996-97, between the period from 5-1-1996 to November, 1996. We, therefore, find no substance in the contention of appellants that they did not have enough time to prepare for the entry test. The learned counsel for the respondents rightly pointed out that the appellants appeared in the entry test without raising any protest and they raised these objections regarding its validity only when they failed in the test. The importance of entry 'test for admission to professional colleges and higher education was also acknowledged in the National Education Policy of the Government of Pakistan announced for the period 1992-2002 as follows:-- "7.13. The Policy has attended to the problem with the seriousness it deserves, and proposes that efforts shall be made to improve the present system of examination in all respects. It also proposes that for the purposes of admission in colleges including professional colleges and universities, undue importance attached to the present examination results shall, in part, be surrendered in favour of scientifically validated national tests.
7.3.5. The merit for admission based on the results of public examination will be prepared as usual.
However, each personal on the merit list will be required to pass the national test before the admission is finalized. Failure in national test will make the student ineligible for admission, irrespective of his position on the merit list. The institutions will introduce regulations to accommodate this provision."
12. We have gone through the report submitted by the Committee appointed by this Court to identify the issues arising in the above appeals and to submit its recommendations for a uniform policy to be adopted throughout the country in respect of entrance test/examination. We have reproduced this report in our judgment. This report may be usefully utilized by the Government while addressing these issues and establishing the National Testing Service in Pakistan in accordance with the Education Policy. We are, however, unable to agree with the observations of the Committee that the enforcement of entry test by the Government of N.-W.F.P. For admission to M.B.,B.S. Classes in the medical colleges in N.-W.F.P. Was not in conformity with the Regulations of PMDC or that it caused any kind of discriminatory 'treatment amongst the candidates seeking admission to Medical and Dental Colleges of N.-W.F.P. These observations of the Committee do not take into consideration the regulations of the PMDC enforced in respect of admission to medical institutions of the country from the academic year 1987-88.
We will now refer to some of the cases cited at the bar wherein the constitutionality and legality of the rule relating to entrance test prescribed for admission to graduate and post-graduate medical courses in medical colleges were examined by the Indian Supreme Court.
13. In the case of State of U.P. v. Anupam Gupta (AIR 1992 SC 932), the Indian Supreme Court while examining the contention with regard to Constitutional validity of the entry test prescribed for post- graduate studies in medical colleges, with reference to its earlier decision, held as follows:--- "9. In Dr. Ambesh Kumar v. Principal, LLRM Medical College, Meerut (1987) 1 SCR 661: (AIR 1987 SC 400), this Court upheld the Government's power under Article 162 and held that where the number of seats for admission to various post-graduate courses both degree and diploma are limited and large number of candidates undoubtedly apply for admission to those courses of study, an order laying down qualifications for candidates to be eligible for being considered for selection for admission to the said courses on the basis of merit specified by regulation cannot be said to be in conflict with the regulations of All India Medical Council Act. It does not encroach upon the standard prescribed by the statute regulations. Laying down further qualifications of eligibility promotes and furthers the standard in the institutions. Thus, it could be seen that this Court consistently laid down the criteria for conducting entrance examination to the postgraduate degree and diploma courses in Medicine and the best among the talented candidates would be eligible for admission. 50% cut off marks was also held to be valid to achieve excellence in post- graduate speciality. Accordingly we uphold the prescription of 50% cut off marks to general candidates and 40% to S.Cs. And S.Ts. Together with 1.65% weightage of total marks i.e,, 50% marks in total in entrance examination as Constitutional and valid."
In Asif Hameed v. State of J & K (AIR 1989 SC 1899), the Supreme Court of India while examining the nature and scope of entrance test prescribed for admission to M.B.,B.S. Classes, observed as follows:-- "30. All the learned counsel appearing for the unsuccessful candidates have attacked the method and procedure of holding the entrance examination and the viva voce. Mr. Altaf Ahmed with the help of Prof. Satish Raina, who was present in the Court and also other officials, explained to us the way the entrance examination and the viva voce was conducted. The entrance examination prescribed by the competent authority is of an objective type test. Every candidate taking the written examination is provided with one copy of answer sheet and one question booklet per subject. Every question paper contains 70 questions and each question has one correct answer and three distractors printed on the question paper itself. Every answer sheet is a printed document in duplicate and the candidate has to write the answer in the space provided against the question number. The candidate is required to put the.Number of what according to him is the correct answer, on the answer sheet against the question number. Similarly the viva voce test is also on objective basis. The candidates are supplied with printed question cards in two lots. Lot Aconsists of question cards pertaining to general science for determining the aptitude .Of the candidates. Lot 'Bconsists of question cards pertaining to the general knowledge to test the general ability of the candidate. The experts are provided with necessary answer booklets which carry the answer to a question against a particular serial number of the question card. The candidate is asked to pick up two question cards one at a time from each lot. Each correct answer is awarded four marks in the case of lot Aand 3.5 marks in the case of lot 'B'. The award is given to the candidate and recorded on the award sheet supplied to the experts. The award is as per answers given in the answer booklet. The proceedings of the day including the viva voce of each candidate is tape recorded and kept on record. The awards of the written examination and viva voce are sent to CMC India Ltd., New Delhi for computerised result processing.
31. The above procedure was demonstrated before us in the Court. It has totally eliminated the element of discretion and has minimised the scope of favouritism. Mr. Altaf Ahmed fairly offered to produce the answer sheets or to play the tape recording in respect of any candidate. Although Mr. Bhim Singh generally argued that there was bungling in the entrance examination and the viva voce but he could not specifically point out any infirmity in the whole of the process of selection. Mr. Salman Khurshid also appearing for the unsuccessful candidates has contended that in the process of selection while bringing objectivity and reducing subjectivity the element of chance has crept in. We would prefer a method of selection which rules out human discretion and favouritism but may bring in a fraction of chance in its operation. This very method of a viva voce came for consideration before this Court in Kaushal Kr. Gupta v. State of Jammu and Kashmir (1984) 3 SCR 407: (AIR 1984 SC 1056). The Court observed (at page 1058 of AIR):--- " ...We must record our appreciation that respondents 1 to 3 have practically set at naught drawbacks and deficiencies in oral interview as pointed out by this Court. The viva voce test conducted must be held to be fair, free from the charge of arbitrariness, reasonable and just...Undoubtedly, the expectation of the Court which frowns upon anything arbitrary or unreasonable has added to the workload of the Selection Committee. But today when there is rush for admission to Engineering Colleges like the Ceasar's wife, the selection must be objective and beyond approach. That has been scientifically achieved in this case. We hope that bodies charged with the difficult task of ascertaining merits for admission will take cue from what has been done by respondents 1 to 3 and the lead provided by them in this field would restore faith of young aspirants in the system...."
32. The objective test for entrance examination and viva voce for admission to M.B.,B.S. Course in the medical colleges of Jammu and Kashmir. For the session 1984-85 was again approved by this Court in Atul Khullar v. State of J & K 1986 (Supp.) SCC 225: (AIR 1986 SC 1224). We see no force in the argument of learned counsel and uphold the selection." .
In Indu Kant v. State of U.P. (AIR 1993 SC 1215), the Indian Supreme Court while examining the contention regarding validity of the rule which provided that securing of 50% marks for general category and 40% marks for SC/ST category in the entrance examination, was necessary to qualify the admission to post-graduate course, observed as follows:--- "2. All the above writ petitions have been filed by the doctors who had appeared in the entrance examination of 1990 and 1991 for admission to post-Graduate Medical Courses of Medical Colleges in the State of Uttar Pradesh. All the petitioners secured less than 50% marks in the general category and less than 40% marks in the SC/ST category necessary to qualify for admission to the Post-Graduate Course. The petitioners have challenged the aforesaid rules by which the minimum percentage of marks has been kept as 50% for general category and 40% for SC/ST category. This Court in a recent decision in State of Uttar Pradesh v. Dr. Anupam Gupta, AIR 1992 SC 392: (1992 AIR SCW 746) had already held that the prescription of 50% cut off marks for the students of general category and 40% for SC/STs was valid. The aforesaid decision was affirmed in Writ Petitions (Civil)
Nos.451, 454, 525, 545 of 1992. Ombir Singh v. State of U.P. Decided on July 30, 1992 (reported in 1992 AIR SCW 3218) and it was held that any challenge to the above rule laying down minimum percentage of marks for eligibility for admission to Post-Graduate Courses was no longer res integra.
5. We have given our thoughtful consideration to the entire facts and circumstances of the case.
We have already held that the rule laying down the minimum percentage of marks in the entrance examination is valid and no direction can be given to the State Government to fill up any vacant seats by the candidates securing less than the minimum qualifying marks. We had of course, made a recommendation to the State Government in respect of the vacant seats of Post- Graduate Course for 1992 but we find no valid justification to make such recommendation in respect of the candidates off the earlier years of 1990 or 1991. The candidates who had not secured the minimum qualifying marks in the years 1990 or 1991 had an opportunity to appear in the entrance examination of 1992 and to make up the deficiency. We find justification in the difficulties pointed out by the State Government in doing so. Granting admission to the candidates of 1990 and 1991 batch now and to allow them to join with the batch of 1992 is bound to increase the total strength of Post-Graduate students in 1992. This would not only be in violation of the directions of the Medical Council of India, but would also put an additional financial burden on the State Government. In any case, the State Government itself is vehemently opposing such request made on behalf of the candidates of 1990 and 1991 and we cannot give any direction to the State Government in this regard."
As a result of the preceding discussion, we find no ground to interfere with the order of the High Court. The appeals are, accordingly, dismissed but in the circumstances of the cases, we will make no order as to costs.