1. ' IFTIKHAR MUHAMMAD CHAUDHARY, C. J.--- In Constitutional Petitions 396, 414, 415, 416, 417 and 419 of 1999, identical questions of law and facts are involved, therefore, we have proposed to dispose of them, by instant common Judgment.
2. ' Briefly; facts relevant for disposal of these petitions are, that the Provincial Government of Balochistan, in its Cabinet meeting, amended the Prospectus of Bolan Medical College, Quetta, for the session 1997-98, whereby following decision was taken:-- "The Cabinet considered the summary/proposal submitted by the Health Department. Prospectus of the Bolan Medical Collage, Quetta for the session 1997-98 approved the selection as mentioned in the working paper and the following proposals:--
(i) All admissions are on merit.
(ii) Entry test is mandatory.
(iii) The seats reserved for other- parts of the Country + 10 seats reserved for Central Asia Republic are converted into Self-Financing Scheme."
3. ' Accordingly, in pursuance of the above decision, para. 26 of the Prospectus of Bolan Medical College, for the session 1997-98 was incorporated, in following terms: "26. Seats reserved for candidates from outside Balochistan and 10 seats reserved for Muslim Central Asian States as under (4,6,1 and II ) and unutilised foreign national seats if any shall stand converted into self-finance.
(I) All such seats will be given to candidates on merit including pretest and results.
(II) After selection the candidate shall pay an amount of Rs,750,000 at the rate of Rs,150,000 per year lump sum at the time of admission.
(III) No refund of the total or part therefore, shall be allowed."
4. ' It is stated that petitioners in all the petitions, referred to hereinabove applied for Admission alongwith other candidates on basis of Self-Financing Scheme. They all appeared in entry test and qualified the same, therefore, became entitled for admission. Out of them, following petitioners, individually deposited amount of Rs,7,50,000 on receipt of admission letters:-- S. No.Number of PetitionName of PetitionerDate of deposit
1. C.P. 396/99 Miss Uzma Sabir Qureshi d/o Sabir Qureshi 26-2-1999
2. C.P. 415/99 Miss Nargis Batool d/o Dr. Naimatullal 16-3-1999
3. C.P. 417/99 Miss Sahar d/o Salahuddin 5-10-1998
4. C.P. 419/99Muhammad Naeem Durrani son of Haji Abdul Haleem Durrani5-3-1999 ' Whereas remaining petitioners namely Muhammad Hassan son of Haji Nisar Ali and Muhammad Ameer son of Haji Muhammad Musa in C.Ps. 414 and 416 of 1999 respectively, deposited the amounts individually on 10th June, 1999.
5. ' It so' happened that on 29th April, 1999, Respondent-Secretary, Health, submitted another working paper, before the Cabinet, for re-consideration of admission on Self-Financing Scheme, wherein it was stated that on basis of said Scheme, it has been proposed to give admission to 27 students on merits, after conducting entry test and interview, through Institute of Business Administration, with a view to generate an amount of Rs,2,02,50,000, which can be utilized on the Complex of Bolan Medical College, but the Scheme became disputed, before its final implementation, as the students of Bolan Medical College, had started protest, by closing the roads. The local Newspapers have also published news in this behalf and this protest is also supported by Note able Personalities. Therefore, to control the situation, a Committee, comprising of Health Minister, Secretary Health and Deputy Commissioner, Quetta, was constituted to negotiate with the Representatives of the Students, during course !A/hereof, the Committee gave assurance, that the Scheme shall be put-up before the Cabinet for reconsideration. The above working piper was considered by the Cabinet and the following decision was taken on 20th May, 1999:- "The Cabinet decided to withdraw the Self-Financing Scheme for seeking admission in Bolan Medical College. "
6. ' In pursuance of above decision, the Government of Balochistan, Health Department, vide Notification No . SO . III (H ) 2-1/98/9478-9563, dated 21st May, 1999, withdrew the Self-Financing Scheme, for admission in Bolan Medical College, Quetta. As the Notification has been impugned in instant petitions; therefore, same is reproduced herein below, for sake of convenience:-- "Government of Balochistan Health Department.
7. Dated Quetta, the 21st May, 1999.
8. NOTIFICATION.
9. ' No,SO.III (H) /98/9478-9563. In pursuance of the decision of Cabinet in the meeting held on 14th May, 1999, the Government of Balochistan Health Department is pleased to withdraw the Self- Financing Scheme for admission in Bolan Medical College, Quetta.
10. (Sd.)
11. Mohammad Hashim Leghari, Secretary Health."
12. ' Amongst the above petitions, when C.P. No,396 of 1999, came up for hearing, it was admitted and on C. M. No, 989 of 1999, order to maintain status quo was also issued on 25th May, 1999. Thus, in view of the order of status quo, the Government of Balochistan, Health Department, issued following Notification on 9th June, 1999:-- "Government of Balochistan Health Department.
13. Dated Quetta the 9th June, 1999.
14. NOTIFICATION.
15. ' No, S.O.III(H) 2-1/98/10904-13. In pursuance of order of Honourable High Court Balochistan in C.P.
16. No,396 of 1999. The Health Department is pleased to hold the Notification No, S.
0. 111(1-1)2-1/98/ 9474-7563, dated 21st May, 1999.
17. Consequently the candidates who were granted admission under Self-Financing Scheme, prior to issuance of above Notification shall be provisionally admitted and allowed to attend the classes.
18. The candidates who were selected but they did not deposit fees, shall also be entitled to be admitted and attend the classes provided that they deposit requisite fees in accordance with the admission policy/prospectus, till the final decision of the Honourable High Court of Balochistan.
19. (Sd.)
20. Muhammad Hashim Leghari, Secretary Health."
21. ' The above order of Provincial Government was also implemented by the Principal, Bolan Medical College, Quetta, by issuing Officer Order, which reads as under:-- "OFFICE ORDER ' In pursuance of Government of Balochistan Notification No, S.O. III (H)2-1/98/10904-13, dated 9th June, 1999, and in accordance with the order of Hon'ble High Court of Balochistan C.P. No,396 of 1999 the Principal, B.M.C., Quetta is pleased to notify that the candidates who were selected against Self-Financing Scheme are allowed provisionally admission in Bolan Medical College, Quetta and attend their classes provided that they should be depositing requisite fees in accordance with the admission policy/prospectus, of Bolan Medical College, Quetta till the final decision of Hon'ble High Court of Balochistan.
22. (Sd.)
23. Principal, Bolan Medical Collage, Quetta."
24. ' In the-meanwhile other petitions, referred to hereinabove, were received.
25. ' Mr. Basharatullah learned counsel for petitioners appearing in C.Ps. Nos. 414, 415, 416, and 417 of 1999, mainly addressed the arguments, in support of petition. Whereas Mr. K. N. Kohli, Advocate in C.P. No, 396 of 1999 and Mr. H. Shakeel Ahmad, Advocate in C.P. No, 419 of 1999, adopted his arguments. Malik Sikandar Khan, Advocate-General, appeared for Government of Balochistan and Syed Ayaz Zahoor, Advocate, represented the Principal, Bolan Medical College, Quetta.
26. ' Learned Counsel, contended that as petitioners, have qualified the Entry Test and Interviews and they have also deposited amounts of Rs,7,50,000 individually, for taking admission on basis of Self- Financing Scheme, therefore, the Government of Balochistan, had no lawful authority to withdraw the Scheme of Self-Financing, because once the admissions on such criteria were granted to petitioners, Government became functus officio and in view of the doctrine of locus poententia, the order of admission can neither be withdrawn nor rescinded or amended, as has been done by means of Notification dated 21st May, 1999. In this behalf, reliance was placed by them on Judgments reported in PLD 1979 Quetta 131, 1991 MLD 2121, 1995 SCMR 711, 1997 SCMR 15 and 1997 MLD 812.
27. ' On the other hand, learned Advocate-General, argued that Government being the competent Authority is empowered to review any decision in the Cabinet, particularly those, which relate to liolicy matters. Therefore, such decisions, based on deliberations made by the Cabinet, are not justiciable, before a Court of law, because, it is nobody's case that Provincial Cabinet is not empowered., to rescind the decision of granting admission in Bolan Medical College, on basis of Self-Financing Scheme. He further stated that under the Balochistan Government Rules of Business, 1976, the Cabinet has not been restricted to review its earlier decision, in the interest of public. Thus, the impugned Notification, which has been issued with the prior approval of Provincial Cabinet, is not open to discussion, before any Forum.
28. ' Syed Ayaz Zahoor, learned Advocate, initially supported the stand of petitioners, but when on 13th July, 1999, case was taken-up he pointed out that Principal, Bolan Medical College, had instructed him, not to support the petitions, and instead oppose the same on the ground; that Provincial Government is empowered to amend the prospectus, at any stage and the decision taken by it in this behalf, cannot be challenged by filing a Constitutional Petition. He relied on case-laws reported in PLD 1989 Quetta 8, 1990 CLC 2016 and 1992 CLC 2300.
29. ' We have heard the parties' counsel and considered their contentions carefully, with reference to the decision of Provincial Cabinet, in pursuance whereof, initially 27 seats in Bolan Medical College, for the session 1997-98, were earmarked, towards Self-Financing Scheme and subsequently vide its decision, dated 20th May, 1999, the was withdrawn, perhaps for the reasons, which were mentioned in the working paper of 29th April, 1999.
30. ' It may be noted that in pursuance of the last decision of Cabinet, when the Notification, dated 21st May, 1999, was issued, till then, the classes of 1st Year M.B.,B.S., for the session 1997-98, had not commenced, because statedly before the start of classes; there had been an intensive agitation by the students, who were opposing to the Self-Financing Scheme and they had also gone on strike, etc. To demonstrate, that the scheme be withdrawn as perhaps, it was against the interest of those students, who are poor and not in a position to make huge payments, and on account of their such agitation, probably the Bank authorities were also reluctant to receive the amount and in this behalf, allegedly they had also received a letter from the Principal, Bolan Medical College, Quetta. However, fact remains that amongst all the petitioners, except the petitioners in C.Ps. 414 and 416 of 199, remaining four petitioners deposited the amounts, before the issuance of impugned Notification dated 21st May, 1999. Whereas, petitioners in above referred two petitions, deposited this amount subsequently, after filing of petitions and obtaining stay order, when the Health Department' had issued Notification. On 9th June, 1999, reproduced hereinabove.
31. ' It may be noted that as far as the Provincial Cabinet is concerned, it has got powers, to discuss in its meeting the cases, involving vital political and Administrative policies, within the meaning of Rule 21 of the Rules of Business, 1976. As it has been pointed out hereinabove, that the Secretary.
32. Health, in working paper, dated 29th April, 1999, had stated that before implementation of the Scheme, students of Bolan Medical College, had started agitation, they closed the roads etc., therefore, the Cabinet reconsidered the policy for admission on basis of Self-Financing Scheme.
33. Accordingly in view of the prevailing circumstances, brought before the Cabinet, which was also involving administration problems for the Provincial Government, the decision was taken by the Cabinet, to withdraw the Self-Financing Scheme, in its meeting held on 20th May, 1999. Therefore, question for consideration would be; whether the decision taken by the Provincial Cabinet, in exercise of its Constitutional jurisdiction, is justiciable, before a Court of law or otherwise?
34. ' Mr. Basharatullah, learned Counsel, stated that if a vested right has been created, in favour of an individual, then this Court in exercise of its Constitutional jurisdiction under Article 199, is competent to interfere in the Policy matters. Reliance was placed by him on the case of Sheikh Mudassar Ahmad v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 2 others (1991 MLD 2121). For convenience, relevant para. Therefrom is reproduced herein-below:- "Normally, the policy decisions of the Government are not open to judicial review under Article 199 of the Constitution as under the Scheme of our Constitution, Executive had to be given complete power to formulate its own policy. However, the position would be different if the policy decision adversely affects the vested right of a citizen in which power to interference by the High Court through judicial review would be attracted. Since the vested right of the petitioners have been effected through the impugned policy, decision of the Cabinet, as such the jurisdiction of this Court under Article 199 of the Constitution . Is clearly attracted. In this back ground the cases cited by the learned Deputy Attorney-General are distinguishable and have got no applicability to the facts of the cases in hand."
35. ' As we have noted' in the above citation, wherein it has been observed that Executive has to be given complete power to formulate its policy, however, the position would be different, if policy decision adversely affects the vested right of a citizen in which power to interference by the High Court through judicial review, would be attracted.
36. ' Before considering; whether admission in a Professional College, does constitute a vested right or not it would be appropriate to examine the powers of Provincial Government to control/formulate policy for admissions. In this behalf, first of all, reference may be made.To the case of Gul Khan v.
37. Government of Balochistan through Secretary, Education and 4 others (PLD 1989 Quetta 8).
38. Relevant para. From this Judgment, is reproduced herein below:-- "10. At the outset, it may be pointed out, that the learned counsel has not challenged the competency of the Government to frame rules or chalk out a policy to regulate the admissions in the Balochistan Engineering College, Khuzdar. However, an abortive attempt was made by contending that there is no law under which policy is framed. It may be pointed out here, that the learned counsel Aid not specifically raise the plea that it is not Government but some other forum which was competent to have framed such rules or policy. Obviously admissions in the Engineering College which is being financed, staffed and run by the Government has to be regulated by certain rules or policy and the Government clearly retains the right to guide and control the affairs of such institutions including the question of admission in such colleges. We are, therefore, of the clear view that Government has got the authority to formulate a policy regularising the process of admission.
39. The Government of Balochistan has framed such a policy for admission in the Engineering College.
40. The main attack of learned counsel, however, was that clause 2.12 of the policy is violative of Article 22(4) read with Article 25 of the Constitution."
41. In view of the above observations, there is no hesitation in holding that the Government retains the jurisdiction to regulate admissions in the Educational Institutions, particularly those, which are financed by it.
42. ' In the case of Riaz Muhammad v. Government of Balochistan through Secretary Health Department and 2 others (PLD 1993 Quetta 19). In which one of us (Justice Iftikhar Muhammad Chaudhary was the Member). Held that 'admission of students in the Educational Institutions, is regulated by policy and instructions formulated in shape of prospectus. No doubt, Government can change Rules and instructions, contained in the prospectus from time to time, but under no circumstances, 'existing policy of rules could be violated or deviated from by - any executive order of Chief Minister. ' Applying these observations on the facts of instant case, we are persuaded to hold, that the Government is also empowered to change Rules and instructions, contained in the Prospectus, from time to time, as it had happened in the case in hand, because earlier 27 seats were earmarked for Self-Financing Scheme, but later on vide Cabinet decision, dated 20th May, 1999, the policy of admission against 27 seats on basis of Self-Financing was withdrawn. Thus, change in Prospectus for admission through Self-Financing Scheme is within the competency and jurisdiction of the Government.
43. ' Now turning towards the question; whether in view of the Judgment relied upon by learned counsel Mr. Basharatullah, in the case of Sheikh Mudassar Ahmad, the petitioners have acquired a vested right, to enjoy the admission on basis of Self-Financing Scheme or not?
44. As it has been pointed out hereinabove, that except qualifying the Entry Test and Interviews as well as depositing the fee amounts on the dates noted hereinabove, the petitioners have not started receiving education therefore, in our opinion, no vested right has accrued to them, to claim their admission on basis of Self-Financing Scheme, because as far as the amounts, which have been deposited by them are concerned, legitimately they can claim its refund from the Principal, Bolan Medical College, Quetta Even otherwise merely qualifying examination of Admission in any institution, does not constitute a vested right, as it has been held by Hon'ble Supreme Court in the case of Fateh Muhammad v. Government of Balochistan and others (1989 SCMR 407) Relevant para from said Judgment reads as under:-- "No person acquires a vested right under the conditions of service or admission to any Institution at a stage, when he acquires the qualification. It is something else, which clothes him with a vested right in a matter."
45. ' Learned counsel Mr. Basharatullah, was of the opinion that once fee has been deposited, the petitioners acquire a right, to claim seat, which has been allocated in his favour. In this behalf he strongly placed reliance on the case of Chairman, Selection Committee/Principal, King Edward Medical College, Lahore v. Wasif Zamir Ahmad and another (1997 SCMR 15)
46. ' We have carefully gone through the facts, noted in this case, which are distinguishable in our opinion, because in the reported case, Wasif Zamir Ahmad was given admission on merits by competent Authorities, after considering his case, as such, he deposited requisite fees, which was accepted by the College Authorities and he was also allotted Roll Number and was asked to join 1st Year M.B.,B.S. Class. Subsequently his admission was withdrawn and the seat, allocated to him, was given to another candidate, for the reason that admission was given to him, due to mistake of computer. He filed a Constitutional Petition before Lahore High Court, which was allowed, therefore, the decision was challenged before Hon'ble Supreme Court, but Leave to Appeal, was refused.
47. Comparing these facts, with the facts of under consideration petitions, we may mention here, that in these* matters, it is nobody's case, that on account of some wrong in the procedure of selecting candidates, admission was given to petitioners and on detecting the same, now it is being cancelled, as in the instant case, what had happened that on 20th May, 1999, the Cabinet in exercise of its Constitutional jurisdiction changed the policy and decided to withdraw its earlier decision of earmarking 27 seats on Self-Financing Scheme, probably for the reason, disclosed in working paper. Since the Government is competent to change the conditions of admission, at any stage, therefore, in view of such power, impugned Notification, dated 21st May, 1999, was issued, which was applicable not only on the present petitioners, but it has also adversely affected the cases of majority of students, who have not shown their grievances, as they did not challenge cancellation of their admission, by invoking the Constitutional jurisdiction of this Court. Thus, with utmost respect the Judgment relied upon by learned counsel has no application on facts of this case.
48. ' It was also contended by Mr. Basharatullah, learned counsel that in view of the Judgment of Hon'ble Supreme Court in the case of Hamza Khan v Province of Balochistan (1995 SCMR 711) petitioners are entitled to continue their study, as they have been admitted against the seats, reserved for Self-Financing Scheme.
49. ' We are not inclined to agree with his contention, because as per the ratio decidendi of this reported case, petitioners legitimately cannot make out a case of acquiring a vested right to continue the study, as in this Judgment, the Hon'ble Supreme Court was pleased to grant casual admission to Hamza Khan, but when petition came-up for hearing till then he had completed four years of his medical career and was in Final year of M.B.,B.S. Therefore, Hon'ble Supreme Court did not deprive him of his bright medical career, at belated stage. Whereas in instant case, admittedly petitioners have not started attending the classes and before commencement of their education, seats were cancelled by means of impugned Notification, dated 21st May, 1999. As such we are of the considered opinion, that even on the strength of this Report, no case has been made out by petitioners for judicial review of the decision of Provincial Cabinet, dated 20th May, 1999 which was followed by impugned Notification.
50. ' In view of above discussion, we are not inclined to 'issue writ against the impugned Notification, dated 21st May, 1999, thus, petitions are dismissed, leaving parties to bear their own costs.