By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has sought a direction in the name of respondent No.1 to allow his migration from Baqai Medical College, Karachi to Quaid-e-Azam Medical College, Bahawalpur.
2. The petitioner is the real son of Mr. Iqbal Ahmed Khan, who happens to be the Principal, Quaid-e- Azam Medical College, Bahawalpur. He passed his Intermediate Examination in Pre-Medical Group and got admission for the degree of M.B.B.S. in Baqai Medical College, Karachi in academic year 1995-96 where he is studying in the First Year Classes. He claims that his entire family is settled at Bahawalpur, his mother is a diabities patient as such on compassionate grounds wants his migration from Baqai Medical College, Karachi to Quaid-e-Azam Medical College, Bahawalpur. He enquired about the migration policy and was informed that the previous policy is being adopted even for the academic year 1995-96, as envisaged in Letter No.SO(HE) 9-9-70/95, dated 28-12- 1995, and which is as follows:-- "Migration.---(i) Migration from one Medical College to an other will be allowed on mutual exchange basis subject to No Objection Certificate from the concerned Principals.
(ii) Migration will also be allowed on compassionate grounds if the student has cleared first professional examination and the concerned Principals have issued No Objection Certificate.".
Under the said policy, Principal of each college has to ensure that as a result of migration there is no increase in the total number of seats allotted to said college. In view of the legal provisions, the petitioners applied for No Objection Certificate to the Principal of his college as well as to the Principal of Quaid-e-Azam Medical College, Bahawalpur and both the Principals have been kind enough to issue such certificates dated 17-4-1996 and 24-4-1996 respectively. The certificate issued by the Principal of Quaid-e-Azam Medical College, Bahawalpur, was subject to approval of Health Secretary, Government of the Punjab. The application for migration was accordingly, sent to the Secretary Health, Government of the Punjab, by the Principal, Quaid-e-Azam Medical College, Bahawalpur for according the necessary approval. However, on equiry, the petitioner has been informed that his request for migration is not being acceded to, as it is not mutual one. This action of respondent No.1, it is alleged by the petitioner, is discriminatory, as a number of unilateral migration have been allowed as per Annexures D/1 to 6. He further alleges that a number of seats are lying vacant, an per Annextures attached with Writ Petition No.3462 of 1996 and as such if his request is accepted, it will not effect the total number of seats allocated to Qauid-e-Azam Medical College, Bahawalpur. The act of the Government in not allowing his migration, is unconstitutional, being discriminatory, against the Constitutional provisions contained in Articles 25 and 26, abitrary, illegal, without lawful authority and as such liable to be struck down.
3. The respondent No.1, in his parawise comments controverted the stand of petitioner. His main contention is that migration from a private Medical College is not allowed to a Government Medical College and Baqai Medical College, Karachi, being a privately owned college, request of the petitioner is not tenable. Accordingly, No-Objection Certificate issued by said college is not acceptable to Government of the Punjab. It is further asserted that except the case of migration of Miss Saadia Naeem, all other cases relate to migration from one Government Medical College to another Government Medical College. That as soon as the case of Miss Saadia Naeem came to the notice of Government of the Punjab, a directive dated 11-10-1995 was issued imposing a ban on all migration from private Medical Colleges to Government Medical Colleges. Even otherwise, it is asserted that if such migration are allowed, it is definitely going to undermine the educational standard besides affording an opportunity for prospective backdoor entrants to vitiate the merit policy. It was thus, prayed that writ petition be dismissed.
4.I have heard learned counsel for the parties at preliminary stage and gone through the entire record. The main contention of the petitioner is that as unilateral migrations have been allowed during the academic Session of 1995-96, so he is also entitled to the same treatment. His other contention is that his request is not being entertained, as Baqai Medical College is being treated as private college. This contention of respondent No.1, is vehemently denied by the learned counsel for the petitioner. In support of his stand, he refers to Letter No.PF-SO-F-96/17004, dated 18-9-1996, issued by Pakistan Medical and Dental Council, Islamabad. His contention is that all Medical Colleges in the Country are being controlled by the said Council and Baqai Medical College is not an exception to this policy, as the inspection of Baqai Medical College is also being conducted by the said Council, as is evident from Letter No.PF-12-F-93 (BMC) 13827. dated 25-5-1994. He also referred to various migration cases in which even unilateral migrations have been allowed as per Annexures D/1 to 6. He also referred to the decision of Writ Petition No.422 of 1994, by which his other brother Imran Ahmed Khan has been allowed migration vide order dated 9-3-1994. He further argued that the directive of the Government dated 11-10-1995, is against the provisions of Constitution, as it is discriminatory in nature as such liable to be set at naught. He further argued that the basic condition laid down in the Prospective is that both the Principals of the Colleges should give No Objection Certificate and in case of migration, total number of seats be not increased. In the instant case, as many as 28 seats are still lying vacant in Quaid-e-Azam Medical College, Bahawalpur, and both the Principals have issued No Objection Certificates, so there should be no hitch in accepting the request for migration.
5.On the other hand, the stand of respondent No.1 is that migration is admissible, but it is only from one Government Medical College to an other Government Medical College, as per Government policy. As Baqai Medical College, Karachi is not a Government Medical College, so no migration can be allowed from that college to any other Government Medical College in the Punjab, and that a specific ban has been imposed vide a directive of the Governor dated 11-10-1995. That even otherwise, if such migration from non-Government Medical Colleges to Government Medical Colleges is allowed, it will definitely effect the rights of students competing on merits and it would amount to frustrate the policy of merit, being adopted for awarding admission in such Colleges. It is also asserted that the mere fact that a college is being inspected by Pakistan Medical and Dental Council does not mean that the said College has attained the status of a Government Medical Institute. He asserted that every Government has formulated its own policy of migration as such, Government of the Punjab cannot be compelled to accept students from other Provinces, belonging to private Medical Colleges. While referring to the migration of other brother of the petitioner vide Writ Petition No.422 of 1994, he said that a very serious notice of this lapse on the part of respondent No.2 has been taken by the Government, as is evident from the Letter of the Chairman, Admission Board/Principals, King Edward Medical College, Lahore No.18240/KEMC/94, dated 9-8-1994. While referring to the other unilateral migration cases, he said that majority of the cases emanate from Government Colleges as well as from Foreign Colleges, as such, the said orders do not suffer from any infirmity.
6. The point which requires determination in this writ revolves around the proposition, if migration from a private Medical College can be allowed to a Government Medical Colleges in the Punjab.
The copy of Prospectus brought on record clearly contain a title"Prospectus of the Government Medical Colleges in the Punjab" and this Prospectus only deals with admission of Government Medical Colleges in the Punjab and it also contains a policy to be adopted in respect of said colleges situated in the said Province. In this Prospectus, the policy relating to migration appears at Page No.51 which lays down that Migration from one Medical College to another Medical College be allowed only on mutual exchange basis, subject to No Objection Certificate from the concerned Principals. Thus, the very spirit of migration policy presupposes that it could be confined to one Government Medical College to another Government Medical College. Now the next question is, if Baqai Medical College is a Government Medical College. The stand of learned counsel for the petitioner is that as the said college has been recognized by Pakistan Medical and Dental Council, so it has attained the character of being a Government owned and controlled Institution. This interpretation is devoid of any force, as Pakistan Medical and Dental Council, Islamabad, has not been created for the purpose of according recognization to such Institutions, but the said Council has been formulated just to carry out inspection of the Institution to assess the facilities being provided to the students for imparting training. Thus, the mere fact Pakistan Medical and Dental Council has inspected Baqai Medical College does not mean that the said college has attained the character and status of a Government Medical College. This being settled, there remains no force in the contentions of the learned counsel for the petitioner, as no migration can be allowed from a private Medical College to a Government Medical College as per Prospectus referred above as well as per directive of the Governor of the Punjab dated 11-10-1995. The availability of seats is a question of secondary importance and looses its importance.
7.Be that as it may, the very policy of allowing migration from Private Medical College to Government Medical Colleges violates the very foundation of merit policy, as in this way a candidate, who on merit fails to secure and obtain admission, can manoeuvre to seek admission to the deprivation of a rightful claimant. Even the scheme of migration appearing in the Prospectus postulates of mutual migration only and no candidate can seek a declaration for his unilateral migration. Again, the proceedings pertaining to migration are to be completed by the respondent No.1, as such, the only course available with the petitioner is to seek the redress of his grievances from respondent No.1.
8.The net result of above discussion is, that there is no force in this writ petition and the same is