TASSADUQ HUSSAIN JILANI, J.---This consolidated judgment shall dispose of following Writ Petitions as common questions of law and fact are involved:- S. No,W RIT PETITION PARTIES NAME DOMICILE
(1) W.P. No.486/2003 Kamran Haider Shaheen D.G. Khan
(2) W.P. No.525/2003 Muhammad Athar Khan Laghari Rajanpur
(3) W.P. No.526/2003 Ayesha Raheem Rajanpur
(4) W.P. No.835/2003 Nigham Ashfaq Rajanpur
(5) W.P. No.463/2003 Nadia Haroon Bahawalpur
(6) W.P. No.386/2003 Ayesha Moeen Bahawalpur
(7) W.P. No.394/2003 Zulfiqar Ali D.G. Khan
(8) W.P. No.773/2003 Afifa Zahoor Rajanpur
(9) W.P. No.665/2003 Hina Nizakat Qureshi Layyah (10)W.P. No.3870/2003 Usama Mustafa Attock (11)W.P. No.5363/2003 Sara Ahmad M.B. Din (12)W.P. No.800/2003 Aqsa Fizan Muzaffargarh (13)W.P. No.278/2003 Tahira Kalsoom Bahawalpur (14)W.P. No.645/2003 Fahad Qaiser Bahawalpur (15)W.P. No.4394/2002 Shaghufta Sikandar Bahawalpur (16)W.P. No.284/2003 Hassan Moeen Bahawalpur (17)W.P. No.736/2003 Uzma Qayyum Bahawalpur (18)W. P. No.280/2003 Asma Fayyaz R.Y. Khan
2. The petitioners in the afore-referred writ petitions appeared in the M.B.,B.S. Entry test for admission to the Government Medical Colleges in the Punjab and prayed that their cases be considered both on merit and against the quota of seats reserved for the under developed areas in the light of the judgment of the august Supreme Court in Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161. Since the quota has not been reserved for the under developed areas, hence these petitions.
3. Learned counsel for the petitioners (Mian Abbas Ahmad Advocate) in Writ Petition No,486/2003, 525/2003, 526/2003 and 835/2003, made following submissions:--
(i) That the seats reserved under various categories in terms of the Prospectus of the Government Medical Colleges in the Punjab for the year 1997-98 came up for consideration before the august Supreme Court which, by a majority judgment, declared the reservation of seats as illegal and without lawful authority except the following categories:--
(a) Disabled persons within the meaning of Disabled Persons (Employment and Rehabilitation) Ordinance, 1981.
(b) Students domiciled in FATA and under-developed districts as well as Azad Kashmir and Northern Areas;
(c) Afghan Refugees who had taken School and Inter mediate Education in the educational institutions situated within those areas;
(d) Students of foreign countries on reciprocal basis.
' The reservation of seats in the afore-referred categories was directed to continue for a period of seven years for the time being.
(ii) That subsequent to the judgment of the august Supreme Court in Mst. Attiyya Bibi Khan, case (supra), the Government of the Punjab restored the special seats for the afore-referred categories, except the quota reserved for the under-developed areas. This lapse on the part of the Health Department, Government of the Punjab, he contended, is violative of the law laid down by the august Supreme Court;
(iii) That last year Writ Petition No,207 of 2002 was filed by a candidate similarly placed and the same was decided alongwith several petitions. The relief Was not granted as a division of this Court was of the view that the petitioners were late, the academic session had commenced for a quite sometime but in para.5 of the judgment it was specifically held that the quota shall be reserved in the light of the august Supreme Court judgment during the next academic year;
(iv) That the Chairman of the Admission Board of Medical Colleges in the Punjab, vide his letter dated 22-4- 2002, addressed, to the Provincial Health Secretary reminded the department of the august Supreme Court's judgment and the need for restoration of the quota in question but the same has not been heeded to and petitioners' applications have not been considered;
(v) That the objection of the department that the petitioners have belatedly filed these writ petitions, is not tenable as they could claim admissions only after they cleared the entry test by securing certain percentage of marks. Result of the entry test was announced on 18-1-2003, applications for admissions were invited on 25- 1-2003 and Writ Petition No,394 of 2003 was filed on 28-1-2003 and thereafter in two weeks' time all the afore- referred petitions were filed;
(vi) That all the petitioners are residents and have domiciled from the areas which are under-developed areas as per Prospectus for the year 1997-98 and in terms of judgment of the august Supreme Court seats had to be reserved within a period of seven years for those areas.
4. Learned counsel for the petitioners in Writ Petition-Nos.463 of 2003 and 386 of 2003 (M/s. A.R. Tayyab and Haroom Tayyab, Advocates) adopted the afore-referred arguments of Mian Abbas Ahmad, Advocate but added that in the comments submitted in Writ Petition No,284 of 2003 the Health Department had taken the plea that the special seats had been abolished on account of the High Court judgment and they never took up the plea that any fresh exercise had to be carried out after the judgment of the august Supreme Court to declare certain areas as under-developed. He added that it was never the case of the Department that areas which were declared as under-developed in the Prospectus for the year 1997-98 were not underdeveloped and now at this belated stage they took up this plea. He further submitted that the petitioner in W.P. No,773 of 2003 had filed Writ Petition No,728 of 2002 which was disposed of alongwith Writ Petition No,207 of 2002 and despite the judgment of the august Supreme Court which was reiterated by Division Bench of this Court (in W.P.
No,207 of 2002), his application for admission against the reserved seats had not been considered. In reply to the objection taken in the comments that the session has commenced, learned counsel referred to page 22 of the current prospectus of the Government Medical Colleges in the Punjab (Session 2002-2003) which provides that "if a seat falls vacant, the next candidate on merit in that category will be selected admission will be closed after the lapse of a period of three months from the start of first year M.B.,B.S. Class " According to the learned counsel the classes started in March, 2003 and the period of three months has yet to lapse. He further contended that the Federal Government went in review against the reservation of seats for FATA Areas and Doctors and the petitioner in W.P. No,394 of 2003 filed an application to be impleaded as a party but while dismissing review Application on 13-2-2003, the august Supreme Court re-affirmed the reservation of special seats in terms of its judgment in Mst. Attiyya Bibi Khan's case (supra) and held that the quota remained intact.
5. Syed Shabbar Raza Rizvi, learned Advocate-General, Punjab assisted by Mr. M. Bilal Khan, learned Additional Advocate-General opposed these petitions and submitted as under:--
(i) That the claim of the petitioners to be admitted against the merit is violative of Articles 22 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and the law declared by the superior Courts, on question of admission in the Government Medical Colleges, for considerations other than merit. In support of his submission he relied on Sajjad Ahmad v. Government of Balochistan through Secretary Education, Government of Balochistan, Quetta and '3 others PLD 1994 Quetta 64; Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295 and Huma Rafiq Khan and others v.
Government of Sindh and 12 others 1988 MLD 2098;
(ii) That the petitioners ,have arrogated themselves that they belong to under-developed areas where there is no declaration in Mst. Attiyya Bibi Khan's case (supra) that those are under-developed areas. Headded that in the said judgment it was left to the Government to declare the socially and academically backward areas and only when such an exercise has been carried out, the domiciled of those areas can claim reservation of seats.
In absence of such an exercise, the claim of petitioners, according to him, is devoid of any force;
(iii) That the policy regarding admission in the Government Medical Colleges in the Punjab was announced well in time, no challenge was thrown to the said policy and it is rather late in the day, when petitioners failed to get admission on merit that the areas they belonged to be declared as under-developed, the seats be reserved for those areas and they be admitted against those seats.
(iv) That a learned Division Bench of this Court had refused relief to candidates similarly placed in several writ petitions disposed of alongwith W.P. No,207 of 2002 and this Court is bound by an earlier judgment- of this Court. Reliance was placed on Maulvi Shahzado Dreho v. Khalid Mahmood Soomro and others 2003 PCr.LJ 319 and Ardeshir Cowasjee and 10 others 1999 SCMR 2883.
6. We have heard learned counsel for the parties, have given anxious consideration to the submissions made and have gone through the precedent case-law.
7. The operative part of the judgment of the august Supreme Court in Mst. Attiyya Bibi Khan and others v.
Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161 is couched in para. 15, at page 1189, and reads as under:-- "For the aforesaid facts, circumstances and reasons I am inclined to declare reservation of seats for all categories in Medical Colleges illegal and without lawful authority, except for disabled persons within the meaning of Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (Ordinance XL of 1981), students domiciled in FATA and under-developed Districts as well as Azad Kashmir and Northern Areas, Afghan Refugees who have taken school and intermediate education in the educational institutions situated within those areas and students of foreign countries on reciprocal basis for a period of seven years for the time being. I agree that C.P.S.A. No,1905 of 2000 is without any merit and must be dismissed. C.P.L.A. Nos.1979 and 1980 of 2000 re: Miss Nida Zulfiqar v. Government of Punjab and others and Miss Sam Arshad v. Government of Punjab and others seeking admission against seats earlier reserved for doctors' sons and daughters even after abolitionof sucseats by. The Medical Colleges are dismissed for the reasons stated hereinabove."
8. Admittedly, the afore-referred judgment of the august Supreme Court had been delivered with reference to the Prospectus for Admission in the Medical Colleges for the year 1997-1998 which had reserved 78 seats for under-developed Districts of Punjab. The said Prospectus, at page 12, has given a break-up of the areas and the seats reserved against them which is as under:-- "UNDER-DEVELOPED DISTRICTS SEATS:. The distribution of total number of 78 seats under this category shall be as given hereunder. Various districts tagged to different Medical Colleges are as indicated against each:--
1. RAWALPINDI MEDICAL COLLEGE, SEATS RAWALPINDI: SEATS
(a) Chakwal 6
(b) Jhelum 4
(c) Tehsil Gujjar Khan 2
(d) Tehsils Murree, Kahuta and Kotli Sattian (One seat for each Tehsil and fourth will go to the student who is found to be higher in merits from these Tehsils).4
(e) Attock 6 Total: 22 2, PUNJAB MEDICAL COLLEGE, ISLAMABAD: (a)Khushab 4 (b)Jhang 6 (c)Mianwali4 (d)Bhakkar 4 Total: 18
3. NISHTER MEDICAL COLLEGE, MULTAN (a)D.G. Khan 4 (b)Rajanpur , 4 (c)Muzaf fargarh 4 (d)Leiah 4 (e)Tribal Area, D.G. Khan' 2 (f)Tribal Area Rajanpur 2 Total: 20
4. OUAID-E-AZAM MEDICAL COLLEGE, BWP.: (a)Bahawalpur 6 (b)R.Y. Khan 6 (c)Bahawalnagar6 Total: 18
9. A learned Division Bench of this Court in W.P. No,207 of 2002 vide judgment dated 8-3-2002 had candidly held that the judgment of the august Supreme Court will have to be implemented prospectively but since the process of admissions stood completed, the reservation of quota at that juncture would upset the whole process. The Court held as under: "The law declared by the Supreme Court will have to be accepted and implemented by respondents prospectively. We see weight in the submission of learned Assistant Advocate-General that direction by us for reservation of seats for underdeveloped areas, as in the past, will create colossal disturbance. Creation of additional seats of 78, as claimed, may not be possible due to limited number of seats available in the Medical Colleges of Punjab. By not challenging the absence of quota at the appropriate time, the petitioners seem to have created a situation, which seems to be without reasonable solution at this juncture.. At least this Court would refrain from issuing a direction or writ which has the tendency to create serious problems and upset the submissions. It may be noticed that if the reservation takes place by reducing the number of general merit seats, the students already admitted against those seats, cannot be thrown out as they have acquired a right.
In any case, they are not before us in these proceedings."
10. It was conceded by the Secretary Health himself who was called to appear that the Chairman of the Admission Board for the Medical Colleges in the Punjab had conveyed in writing to reserve special seats for underdeveloped areas in view of the judgment of the august Supreme Court and of this Court but despite that, seats were not reserved. According to the Secretary Health and the learned Advocate-General, Punjab, the areas classified as under-developed mentioned in the Prospectus for the year 1997-1998 are no longer under- developed and that in terms of para.12 of the judgment of the august Supreme Court in Mst. Attiya Bibi Khan's case (supra), as per Mr. Justice Rana Bhagwan Das, the Government was to take appropriate steps to identify the backward areas and since the Government has not declared the areas in question as under-developed petitioners cannot claim reservation seats for those areas. This argument is not tenable for more than one reason. Firstly, in absence of any exercise having been carried out the areas which, as per the Prospectus for the year 1997-1998 were underdeveloped, would continue to be treated as socially and academically underdeveloped warranting reservation of seats for a period of seven years as per the judgment of the august Supreme Court. Secondly, in the comments filed by the Secretary Health, Government of the Punjab (in W.P.
No,207 of 2002), the Government never took up the plea that the afore-referred areas were no longer under- developed and the Government would carry out the exercise afresh. Thirdly, in the summary put up by the Secretary Health to the Government of the Punjab which was produced before this Court for perusal, neither any reference was made to the reservation of seats by the august Supreme Court for the under-developed areas nor such an opinion was expressed by the Secretary Health in the said summary. On a Court query, the Secretary Health submitted that this aspect was discussed orally. Fourthly, even in these petitions the plea that the judgment of the august Supreme Court was subject to an exercise to be carried out by the Provincial Government, has not been taken in the written reply submitted by the Department. Fifthly, it was conceded before this Court and it was borne out from the departmental file as well that the request of the Provincial Government for filing a review application against the judgment of the august Supreme Court was not acceded to by the learned Attorney-General for Pakistan Mr.Makhdoom Ali Khan. Sixthly, the august Supreme Court vide order dated 13-2-2003 (passed in Civil Miscellaneous Application No,195 of 2002 in Civil Petition/Appeal No,758 of 1998 in Civil Review Petition No,386 of 2001 reiterated the reservation of seats and observed as under:-- "A perusal of above para indicates that the quota of reserved seats for under-developed districts as well as Azad Kashmir and Northern Areas etc. Has been kept intact
11. It is unfortunate that despite the clear verdict of the august Supreme Court, the Health Department, Government of Punjab, has partly complied with the said judgment by restoring quota of doctors' sons, disabled persons within the meaning of Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (Ordinance XL of 1981), students domiciled in FATA and Afghan Refugees. Who have taken school and intermediate education in the educational institutions situated within those areas and students of foreign countries on reciprocal basis for a period of seven years for the time being. However, the seats for under- developed areas have not been restored.
12. As discussed in the preceding paragraph, the Department was all along fully aware of the real import of the judgment of the august Supreme Court. It made an abortive attempt to seek review of the judgment. Before the Division Bench of this Court in W.P. No,207 of 2002, the Department took up the plea last year that those petitioners were late. But even then for the current session it has not restored the quota. No individual and no institution can arrogate to itself the virtue of being wiser than law and flout the judgment of the apex Court of the country. Petitioners cannot be condemned for no fault of their own. The argument that petitioners are late and that academic session has commenced, is not tenable because the Prospectus (for the Session 2002- 2003) itself stipulates that the "admission will be closed after a lapse of 3 months from the start of the first year M.B.,B.S. Class" and it is not denied that the M.B.,B.S. 1st year Class started in March, 2003. However, since the students who have already been admitted on merit are not party before us and as any fresh exercise, at this stage, may disturb those admissions and prolong the academic session, while allowing these petitions we direct that the Provincial Government shall create 78 fresh seats for the areas which were declared as under- developed in terms of the Prospectus for the year 1997-1998. Those seats shall be filled in on the basis of the merit list already prepared by the Department. This exercise shall be completed within a period of two weeks of the receipt of this judgment.