Miss KHADEEJA KHAN KHANDHARI Versus PRINCIPAL AND CHAIRMAN, ACADEMIC COUNCIL, SINDH MEDICAL COLLEGE

1. SHABBIR AHMED, J.--- On conflict of decisions between two Benches of this Court, necessitated the formation of Full Bench for disposal of above titled petitions containing similar facts and law involving admissions in Sindh Medical College, in order to resolve the controversy.

2. The conflict decision emanates in the following background:

2. Constitutional Petition No.1764 of 2002 (Feroz Shah and others v. Principal S.M.C. and others), (2) C.P. No.1746 of 2002 (Haroon Anwar and others v. Principal S.M.C. and others; (3) C.P. No.1887 of 2002 (Haseeb Ansari v. Principal Sindh Medical College and others) pertaining to admission in Medical College were dismissed on 25-2-2003 by a Division Bench comprising of our learned brothers S.A. Sarwana (now retired) and Muhammad Mujeebullah Siddiqi, JJ., by common judgment, inter alia, on the ground that the High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan does not decide the disputed question of facts, which involve recording of evidence. Whereas another Division Bench comprising of our learned brothers Sarmad Jalal Osmani and Rahmat Hussain Jafferi, JJ allowed the following petitions:--

3. C.P. No.160 of 2003 (Muhammad Ayaz and others v. Principal S.M.C. and others), C.P. No.364 of 2003 (Salma Gul and others v. The Principal Sindh Medical College and others), C.P. No.367 of 2003 (Miss Uzma Farid v. Principal Sindh Medical College and others), 385 of 2003 (Zeeshan Alam Khan v. Principal Sindh Medical College and others) and 397 of 2003 (Miss Noreen Ehsan and others v. Principal Sindh Medical College and others) involving admission in Medical College by common judgment dated 27-3-2003 with the following observations/directions:

(a) The petitioners would be allowed to sit in the Final Year M.B.,B.S. Professional Examinations which are due to commence from 31st March, 2003 and shall be over on 20th April, 2003.

(b) So for as their admission to Sindh Medical College is concerned, which is the bone of contention between the parties, the matter shall be thoroughly investigated by the concerned Authority, which shall hear the petitioners on 21-4-2003. However, the petitioners shall deposit copies of the documents on which they rely to establish the bona fide of their admission with the Principal Sindh Medical College, Karachi by tomorrow viz. 28-3-2003 till 3-00 p.m.

(c) Upon hearing of the petitioners on the afore mentioned date, the concerned authorities shall be free to pass an order based on the record as well as arguments addressed at the time of hearing in accordance with the law.

(d) The order passed could be subject to the order which shall be passed ultimately by the concerned authorities.

3. It is pertinent to mention that in all petitions (disposed of and pending disposal) notice dated 23-1-2003 issued by the office of the Principal and Chairman, Academic Council Sindh Medical College, Karachi were/are impugned, the contents thereof are as follows:

4. "As per list received from the Member, Governor Inspection Team III for verification that the following students have been identified to have got admitted on bogus/fake documents. Any student who have any valid admission letter and fee receipt should submit to the undersigned within 7 days otherwise their admission will be cancelled as per Prospectus Rules, 1987, Rule 3 of Admission Sr. No.22 page 17. Till verification, their examination forms will not be accepted". The names of the persons were given in the list.

5. The names of the petitioners are included in notice impugned amongst the students, who were required to submit the documents to establish their admission.

4. The questions involved in the above petitions are almost common. It is, therefore, considered proper to deal with and dispose them of by this common judgment.

6. Petitioners in above petitions have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan for the following reliefs, except in C.P. No. 606 of 2003:--

7. A. (i) Declare that the notice, dated 23-1-2003 is illegal, without jurisdiction and has been issued with mala fide intention and it has no legal effect.

(ii) Direct the respondents to provide Examination Form for the year 2003 and allow the petitioners to sit in the said examination with all regular facilities.

(iii) Any other relief/reliefs this Honourable Court deems fit and proper under the circumstances of the case.

8. B. The reliefs claimed in C.P. No. D-606 of 2003 are in the following terms:--

(i) Declare that the notice issued to the petitioner dated 5-5-2003 by respondent No.1 requiring her to produce PRC, Domicile Certificate, Matriculation Certificate, Intermediate Certificate with marks sheet and Admission of her letter of Principal Sindh Medical College, Karachi is illegal, unlawful and of no legal effect.

(ii) Direct the respondents to accept the Equivalence Certificate of the petitioner, her Grades Certificate issued from her School in United States and take into consideration her American Passport, coupled with Visa fixed by the Embassy of Pakistan and not to insist on production of PRC, Matriculation Certificate, Intermediate Certificate, Marks Sheet.

(iii) Direct the respondents to conduct and allow the petitioner to appear in the viva voce examination of the final year M.B.,B.S. and if upon success be conferred with the Degree of M.B.,B.S.

(iv) Grant any other relief.

5. The facts are common in all petitions. However, the petitions can be categorized with reference to admissions claimed against (i) Merit Seats, (ii) Reserved Seats on (a) C.M. Quota and on (b) Foreign Students seats.

9. All petitions pertain to admission against Merit Seats except Petition No.606 of 2003 (Salma Gul v. PSMC and others) academic sessions 1997-98, against reserved seat (Foreign Student). C.P. No.241 of 2003 (Hasan Dahari v. Government of Sindh and others) academic Sessions 1996-97 and C.P. No.188 of 2003 (Khatija Khan v. Government of Sindh) academic sessions 1997-98 on C.M. Quota.

6. The petitions can also be divided into two grounds with reference to criteria for admission on merits (1) based on adjusted marks obtained in Intermediate Examination, (ii) Entry Test. It would not be out of place to mention that till academic sessions 1997-98, the admissions were based on adjusted marks obtained by candidate in Inter examination, whereas w.e.f. academic sessions 1998-99, Entry test is the basis of admission on merits.

7. In order to facilitate consideration of questions involved in these petitions, it would be proper to deal with C.P. No.D-161 of 2000 and the conclusion arrived on the basis of contentions raised on either side will be applied to all petitioners and it might suffice explaining factual background to refer the facts which emerged from these petitions.

10. The petitioners claimed to be admitted by the competent authority after complying with due procedure for admission under the Admission Rule and they also claimed to have paid the fees and they were issued Identity Cards. They also claimed that they have attended their classes regularly, paid tuition fees, other charges, including examination fee, acquired Admit Cards as well as Enrolment Card, appeared in test and examination every year without any gap. It was surprising and shocking news to them when they came to know on 25-1-2003 that a notice, dated 23-1-2003 has been displayed on notice board, whereby the petitioners approached the Principal, who asked the petitioners to submit relevant papers, first admission letter and fee receipt but the petitioners submitted Admit Card of every year and fee receipts available to them but the Principal did not accept the same and insisted for original admission letter, which is only available with the respondent. It was also pleaded that they went for their examination form for ensuing examination but they were disallowed to sit in the examination without assigning any reason. Thus, the College Administration are bent upon to cancel the admission of the petitioners which will ruin their career without their fault. Thus, they are being deprived of their right to appear in the examination. A show-cause notice dated 23-1-2003 is without jurisdiction, based on mala fide intention and only to save their skin for their irregularity. The petitioners claimed to be regular students and were never objected nor show-cause notice has been issued individually. They were not informed about the enquiry conducted by the Governor's Inspection Team, which is not competent to act as such under the law, neither the respondent No.1 is competent to take final decision of cancellation of the admission of the petitioners.

8. Reserved Seat

11. C.M. Quota (i) C.P. No.241 of 2003, Hassan Dahri v. Government of Sindh and others.

(ii) C.P. No.188 of 2003, Khatija Khan v. Government of Sindh and others.

12. Petitioners in above petitions have claimed that they were admitted in academic year 1996-97 and 1997-98 on Chief Minister Quota respectively. In support of the plea, petitioner Hasan Dahri has filed (Annexure "B"), Letter No. PA/DS/Admn./C.M./97 322, dated 22-1-1997 addressed to the Secretary, Government of Sindh, Health Department with captioned: Request for admission in Medical College, whereby the application of the petitioner was forwarded with minutes "P1. Admit". Second letter of Health Department, Government of Sindh dated 25-1-1997 (Annexure "C") addressed to the Principal Sindh Medical College with captioned "Admission in Medical Colleges against the seat reserved for the nomination of Chief Minister for consideration during the Session 1997". It says that "The Chief Minister has approved the name of Gul Hasan son of Juma Khan for admission in the first year M.B.,B.S. against the above category in the college, if not previously admitted on self-financing basis". He has also annexed photocopy of Marks sheet of Intermediate Examination of Hyderabad Board of the year 1995 with 723 marks (B-Grade) (Annexure "A") date of enrolment 26-11-1998. The petitioner Hasan Dahri claims his admission against Chief Minister Quota pertaining to Session 1996-97. The admission on Chief Minister Quota pertaining to the said year was subject of C.P. No.1641 of 1997 (Sazia Nabi Khan v. Principal and Chairman Board etc.) wherein the list of candidates admitted on Chief Minister Quota in different Medical Institutions including Sindh Medical College was placed on record. We have examined the list pertaining to Sindh Medical College. There were 79 students admitted on Chief Minister Quota in Sindh Medical College name of petitioner Hasan Dahri does not appear in the said list.

13. Petitioner Khatija has filed a Letter No.SO/ME/3/98 of Government of Sindh Health Department letter dated 9-3-1998 addressed to the Principal, Sindh Medical College, (Annexure "P-1") subject: Admission in Medical College against the seat reserved for nomination by the Chief Minister for special consideration during the session 1997-98, the contents whereof are that the Chief Minister Sindh has approved the name of Khatija, daughter of Rafiq Ahmed for admission in the 1st year M.B.,B.S. against the above category in your college, if not previously admitted on self-financing basis. She has also filed office order, dated 29th September, 1998 (Annexure "P-4") asking her to deposit college fee, dues within seven days.

9. Reserved Seat (Foreign student) C.P. No.D-606 of 2003 Salma Gul v. Principal S.M.C. and others.

14. Petitioner Salma Gul in support of her claim with regard to the admission against reserved seat has filed letter dated 19-6-1998, issued from the office of Principal and Chairman Academic Council Sindh Medical College with title: Admission of 1st year M.B.,B.S. Class 1997-98 in Sindh Medical College against the seat reserved for Foreign National under Technical Assistance Program . With reference to (i) Ministry of Economic Affairs Division, Government of Pakistan Islamabad, Letter No.2(SMC)OTA-II/97, dated 17-2-1998 (ii) University Karachi Letter R-IV-20-A/98, dated 6-6-1998 intimating her the grant of provisional admission at her risk and cost in 1st year M.B.,B.S. in Session 1997-98 with conditions mentioned therein.

15. In addition to above, the petitioners in support of their plea have filed documents, inter alia, photocopies of receipt of fee, mark sheet from 1st professional to IIIrd year professional, Enrolment card, Admit Cards, Identity Cards etc.

10. Respondents on notice filed common comments/reply statement in C.P. No.161 of 2003 narrating therein the procedure for admission in Medical Colleges in Sindh based on prospectus that the primary requirement is of passing of Intermediate Science Group, with not less than 60% marks, Sindh domicile certificate and PRC evidencing that candidate is residing for the last three years in a particular District of Sindh.

16. The students of Karachi desirous of admission in Medical Colleges of Karachi had to apply to D.M.C. on prescribed application with required documents and the Selection Board after selection of candidate on merits, had to assign them one of the Medical Colleges for admission on merits basis i.e. D.M.C. or S.M.C. There is no quota of any students from other Province on reciprocal basis except Punjab.

17. The main plea of the respondents was that neither the petitioners had applied for admission nor they were admitted on merits. The documents annexed with the petitions are fabricated documents prepared with connivance of college staff. The sum and substance of such plea was that the petitioners were not duly admitted students and they were given first opportunity to establish their admission by production of relevant documents instead of proving their admission they have rushed to the Court.

11. On the request of the learned counsel for the parties we have heard the petitions at Katcha Peshi stage for final disposal and the learned counsel have argued the petitions for final disposal of the petitions.

18. Mr. Raja Qureshi, learned counsel for the petitioners has argued the petitions, whereas Mr. Muhammad Aqil, Mr. Muhammad Nawaz, and Muhammad Hatif, Advocates, have adopted his arguments. Mr. Muhammad Aqil, while adopting the arguments of Mr. Raja Qureshi, further pointed out that petitioners Hasan and Khatija were admitted against reserved seat on C.M. Quota.

12. During the hearing, the petitioners were directed to file statements specifying therein the marks obtained in the Intermediate with year, place of domicile and date of offer and admission, whereas learned Additional Advocate-General was also directed to file statement (academic session-wise), number of applications received from desirous candidates, number of selected candidates, seat allocation to S.M.C. and closing mark for admission of each year. Both have filed such statement and also exchanged copy thereof. Even the list of applications received (yearswise) was also produced by learned Additional Advocate-General. We have also considered and referred them.

13. First we would like to refer the statement filed on behalf of the petitioners, its perusal gives the following picture:--

19. Name of the

20. Intermediate

21. Domicile/PRC

22. Enrolment

23. Date of

24. Petitioner with marks issuance date offer petition number

25. Waheed Ahmed Khan

26. 820

27. N.-W.F.P.

28. 13-7-1999

29. Not in

30. C.P. No.161 practice

31. Samiullah C.P.

32. 709

33. -do-

34. 20-2-1999

35. -do -

36. No.161

37. Noshaba Lal Khan

38. 720

39. -do-

40. 6-12-1999

41. -do -

42. C.P. No.161

43. Shafiullah Khan C.P.

44. 727

45. -do-

46. 27-12-1999

47. -

48. No.161

49. S.M. Fahad C.P.

50. 556

51. Karachi

52. 6-12-1999

53. Not in

54. No.161 practice

55. Jehanzeb C.P.

56. 584

57. N.-W.F.P.

58. 28-10-1999

59. -do -

60. No.279

61. Asma Jawed C.P.

62. 761

63. Karachi

64. 3-1-2000

65. -

66. No.279

67. Aisha Rasheed Awan

68. 766

69. -do-

70. 18-12-1999

71. 15-3-1999

72. C.P. No.279

73. Sajjad Ali Shah C.P.

74. 722

75. N.-W.F.P.

76. 2742-1999

77. 24-3-199

78. No.279

79. Asadullah C.P.

80. 807

81. -do-

82. 27-12-1999

83. Not in

84. No.279 practices

85. Shandana Faiz C.P.

86. 838

87. -do-

88. 20-2-1999

89. -do-

90. No.279

91. Sumaira Malik C.P.

92. 675

93. Islamabad

94. 23-12-1998

95. -do-

96. No.279

97. Saima Anwar C.P.

98. 606

99. Karachi

100. 20-2-1999

101. -do-

102. No.301

103. Waghma Ismail C.P.

104. 708

105. N.-W.F.P.

106. 4-1-2001

107. -

108. No.162

109. M. Afzal Khan C.P.

110. 644

111. -do-

112. 22-1-2001

113. -

114. No.162

115. Sajjad Ahmed C.P.

116. -

117. -

118. 134-2000

119. -

120. No.162

121. Amjad Ali C.P.

122. 834

123. N.-W.F.P.

124. 9-1-2001

125. -

126. No.162

127. Yaar Muhammad

128. 616

129. Balochistan

130. 2

131. 2-2000

132. C.P. No.162

133. Naila Ehsan C.P.162

134. 776

135. Karachi

136. 2-1-2000

137. -

138. Jawad Ali C.P.

139. 668

140. -do-

141. 2-1-2001

142. 12-2-2000

143. No.162

144. Nadia Farooq C.P.

145. 778

146. -do-

147. 2-1-2001

148. 24-2-2000

149. No.162

150. M. Raheel C.P.

151. 697

152. -do-

153. 2-1-2001

154. 25-2-2000

155. No.162

156. Amanullah Khan

157. 697

158. -do-

159. 2-1-2001

160. -

161. C.P. No.162

162. S. Muhammad Zahid

163. -

164. N.-W.F.P.

165. 25-1-2001

166. -

167. C.P. No.279

168. Zaryab Ali Khan

169. 761

170. Karachi

171. 2-1-2001

172. -

173. C.P. No.279

174. Usma Zahoor C.P.

175. 686

176. -do-

177. 13-7-1999

178. -

179. No.279

180. Afsheen Rehman

181. 780

182. -do-

183. 2-1-2001

184. -

185. C.P. No.307

186. Quratulain Waseem

187. 701

188. -do-

189. 21-1-1999

190. -

191. C.P. No.482

192. Farrukh Sair C.P.301

193. 667

194. Sindh

195. -

196. Not in practice

197. Salma Gul C.P.

198. 825

199. U.S.A.

200. 20-2-1999

201. -do-

202. No.606

203. Farooq Ahmed C.P.

204. 725

205. N.-W.F.P.

206. 2-1-2001

207. -

208. No.470

209. Breshna Ismail C.P.

210. 780

211. -do-

212. 2-1-2001

213. -

214. No.470

215. M. Imran C.P.

216. 574

217. Karachi

218. 22-1-2001

219. -

220. No.470

221. Buzhra Zahoor C.P.

222. 780

223. N.-W.F.P.

224. 9-1-2001

225. -

226. No.470

227. Khatija than C.P.

228. 720

229. Karachi

230. 21-12-1998

231. 29-9-1998

232. No.188

233. Hasan Dahri C.P.

234. 723

235. -

236. 26-11-1998

237. 22-1-1997

238. No.241

239. Gausia Khan

240. 729

241. Karachi

242. 2-1-2000

243. -

244. Khandhari C.P. No.219

245. Aneela Rafi C.P.

246. 758

247. Karachi

248. 21-12-1999

249. -

250. No.219

251. Kiran Fatima C.P.

252. 807

253. Karachi

254. 6-12-1999

255. -

256. No.219

257. Fauzia Ashraf C.P.

258. 793

259. Karachi

260. -

261. -

262. No.219

14. The detailed statement filed by learned Additional Advocate-General showing number of applications received, number of successful candidates for admission in SMC, closing marks, Entry Test, Merit, whether name of petitioners are available in the list of applicants who had applied for admission and whether the name of the petitioners are available in finalized list of successful candidates for admission in SMC, whether the petitions appeared in Entry Test, its reflection is as follows:

263. ` ` No. of`Closing`Entry`Merit`Whether`Whether

264. Applica students marks test name of name of

265. -lion success- petition- petitioner received ful in ers avail- available

266. SMC able in in final applica- list for tion list admis-sion in SMC

267. C.P. No.

268. Academic Session

269. No. of Application received

270. No. of students successful in SMC

271. Closing marks

272. Entry test

273. Merit

274. Whether of name petitioners available in application list

275. Whether of name petitioner available in final list for admission in SMC

276. D-241 of 2003

277. 1996-97

278. 995

279. 238

280. 820

281. No merit

282. No.

283. No.

284. D-188 of 2003 D-423 of 2003 D-301 of 2003 -606 of 2003 -473 of 2003 -279 of 2003 -470 of 2003

285. 1997-98

286. 1567

287. 220

288. 827

289. No merit

290. -279, 166 and 470 of 2003

291. 1998-99

292. 2531

293. 209

294. 862

295. Not appeared

296. No.

297. No.

298. -162 of 2003 -482 of 2003 -183 of 2003 -219 of 2003 -279 of 2003 -307 of 2003

299. 1999-2000

300. 2755

301. 195

302. 863

303. Not appeared

304. No.

305. No.

15. Before addressing the contentions of the learned counsel of the parties, it would be advantageous to refer to the relevant provisions of Sindh Medical College Act, 1987 and Rules framed thereunder for admission in M.B.,B.S. in Medical Colleges of Sindh. Under the provisions of section 3 of the Act the Provincial Government of Sindh enjoins the Rule Making Powers, to regulate admissions in Medical Colleges in Sindh, inter alia.

(a) with regard to allocation of seats,

(b) form of application for admission,

(c) conditions for admission.

306. In order to regulate the process of admission in M.B.,B.S. course, the Provincial Government used to issue prospectus with schedule for admission in 1'st M.B.,B.S. Course every year.

307. The following were notified Schedules for Admissions in 1st Year, M.B.,B.S./B.D.S. Class in the Medical Colleges in Sindh for the relevant Sessions shown therein.

308. Process

309. 1996-97

310. 1997-98

311. 1998-99

312. 1999-2000

313. Date of inviting applications

314. 16-11-1996

315. 10-11-1997

316. 21-12-1998

317. 25-10-1999

318. Last date of receiving applications

319. 30-11-1996

320. 24-11-1997

321. 2-1-1999

322. 15-11-1999

323. Display of provisional list of applications

324. 15-12-1996

325. 18-12-1997

326. 9-1-1999

327. 13-12-1999

328. Objections if any on provisional list and personal hearing

329. 21-12-1996 to 23-12-1996

330. 26-12-1997 to 30-12-1997

331. 24-1-1999

332. 5-12-1999

333. Last date for submission of short documents

334. 26-12-1996

335. 5-1-1998

336. 2-2-1999

337. 27-12-1999

338. Final list of District merit seats to be completed by

339. 2-12-1996

340. 12-1-1998

341. 13-2-1999

342. 30-12-1999

343. Chairman/Principals of Colleges for meeting to finalize admission of all categories of seats in Health Department

344. 6-1-1997

345. 19-1-1998

346. 22-2-1,999

347. 24-1-2000

348. Start of classes

349. 11-1-1997

350. 3-2-1998

351. 22-2-1999

352. 31-1-2000

353. Here we may also refer the prospectus issued by the Government containing similar Rules for admission for each year, except with certain variance, with regard to alteration of District-wise merit seat by increase or decrease in total seats save entry test has been introduced w.e.f. academic session 1998-99 following the guideline given by the apex Court in Hina Jawed v. Government of N.-W.F.P. and others 1998 SCMR 1469.

354. In terms of the prospectus, the seats allocation are of three categories, (I) Merit Seats (for candidates Domiciled in Sindh).

(2) Reserved Seats

(a) Foreign National (nomination by Economic Affairs Division Federal Government) for admission in Medical Colleges at Karachi (including 3 seats for Palestine).

(b) Self-financing basis (i) @ US $ 5,000 per student per year for foreign National and overseas Pakistani (ii) Rs.1,25,000 per year per student for local students.

(c) Federally Administered Tribal Area, Northern Areas and Azad Kashmir (Nominations by Ministry of Health for admission in Chandka Medical College, Larkana).

(d) Children of Defence Forces Personnel (Nomination by Ministry of Health for admission in Medical Colleges).

(e) Children of Medical Doctors domiciled in the Province of Sindh (Nomination by Government of Sindh, Health Department).

(f) Afghan Refugees (Nominations by Ministry of Health Federal Government for admission in Sindh Medical College Karachi).

(3) (i) Reciprocal seats for admission in Medical College of Punjab.

(ii) Fatima Jinnah Medical College, Lahore.

355. Selection against reciprocal seat in Punjab and those in Fatima Jinnah Medical College, Lahore shall be made by the Government of Sindh, Health on the basis of merit-cum-choice.

356. Third part contains rules for admissions which are,

(i) The minimum qualification for a candidate to become eligible for admission to Medical Colleges of Sindh is Intermediate Science (Pre-Medical Group) in "B" Grade of Karachi, Hyderabad, Sukkur or Larkana Board of Higher Secondary Education or any equivalent examination of some other Board/University or body recognized by the University to which the college is affiliated. Candidates obtaining marks less than 60% are not eligible. Even the qualification in B.Sc. (Biological-Sciences) in higher division would not be considered unless Intermediate Science (Pre-Medical Group) examination has been passed at least "B" Grade (unadjusted marks).

(2) The following candidates shall be eligible for admission in the 1st year M.B.,B.S. in Medical College in Sindh for the academic session 1997-98:

(i) Those who are permanent residents and domiciled in any Districts of Sindh.

(ii) Those who have passed Intermediate Science (Pre-Medical Group) (Biological Science) Annual Examination or equivalent examination and secured at least 60% marks.

(iii) Those who have passed Intermediate Science (Pre-Medical Group) (Biological Science) Supplementary Examination or any other equivalent examination whose result has been declared after the closing date of applications of said session and before the last date for receiving applications for said session and secured 60% marks as per Board's marks sheet.

(iv) Those who have passed Intermediate Science (Pre-Medical Group) (Biological Science) Annual/Supplementary Examination and could not be considered in the last session due to late issuance of domicile or late declaration of result or late issuance of marks "certificate (provided he applied for admission during the last year) may apply provided supported by proper documentation.

(v) Candidates producing equivalent certificate of examination other than Intermediate Boards of Pakistan shall have to, produce certificate from the competent authority of having passed by the following subjects.

(a) Physics, Chemistry and Biology (two of "A" level and One at "0" level).

(b) English and Urdu/or any other language at "0" level.

(c) A pass certificate in Pakistan Studies and Islamiyat/Civics from any Intermediate Board of Pakistan for Muslim and non-Muslim as the case may be.

(d) Those candidates having studies course equivalent to Intermediate Science (a) Pre-Medical from any institution other than Pakistan Board/University, will be eligible and if admitted they will have to pass Urdu/Sindhi, Islamiat/Civics, Pakistan Studies before appearing in first Professional Examination of M.B.,B.S.

3. All seats in various Districts are open for competition within such District and nobody shall be denied admission on the ground of race, religion, colour, caste or sex.

4. Competition in each District shall take place between candidates of that District. Thus, a candidate from District "X" shall not compete with a candidate of District "Y".

8. The application forms and required documents completed in all respects shall be submitted to the Principals of the Medical Colleges as follows:--

357. College

358. Tagged District for submitting Application Forms

(i) Dow Medical College

359. Candidates domiciled in the Districts of Karachi Division.

(ii) Liaquat Medical College

360. Candidates domiciled in the Districts of Hyderabad, Thatta, Badin, Mirpurkhas, Umerkot, Tharparkar, Nawabshah, Naushero Feroz and Sanghar.

(iii) Chandka Medical College

361. Candidates domiciled in the Districts of Sukkur, Ghotki, Larkana, Jaccobabad, Khairpur, Shikarpur.

362. Rule 11. The application for the admission in 1st year M.B.,B.S. shall be invited through advertisement in the Press mentioning the last date of receiving such applications. The application received after that date shall not be considered. The application shall be submitted personally against a receipt or applicants for seats for overseas Pakistani may however, also supply/send by post.

363. Rule12. Applications along with the attached copies of required documents shall be submitted in the prescribed printed form and its columns must be filled in correctly. Incomplete forms shall be rejected.

364. Rule 15. The provisional list will be displayed at the Selection Center within 30 days after last date for receiving application and will contain 20% of more names (in order of merit) of the candidates than required number of seats. Objection from the candidates in writing shall be entertained within one week after displaying of provisional list. No objection shall be entertained thereafter in this respect. This list shall not be considered as final selection list for the purposes of admission.

365. Rule 16. The selection of candidates by Selection Board constituted by Government at each Selection Centre. Chairman shall preside over the Selecting meetings. The decision of the Selection Board shall be final. If considered necessary the Selection Board may call any candidate for interview.

366. Rule 17. Mode of working out merit of candidates:

(a) Merit for admission shall be determined on the total number of marks secured in Inter Science.

(b) The following marks shall be added or deducted from the total marks of the candidates in order to prepare the adjusted merit marks grade-wise for final merit list. This addition or deduction shall not alter the Division/Grade of the candidates and preference be given to the higher grade-holder irrespective of the adjusted marks even higher.

(i) Add 20 marks of service rendered under NCC subject to production of certificate.

(ii) Add 20 marks of Hafiz-e-Qur'an subject to production of certificate.

(iii) Deduct 5 marks if candidate has appeared in second time.

367. Under Rule 19 the Chairman of Selection Board or Selection Board shall announce the selection by displaying the list of candidates, selected by Selection Board, on the notice board of the respective college.

368. It is also pertinent to mention that till 1997-98 the selection criteria for admission against merit seats, was on the basis of adjusted marks secured in Intermediate, whereas Entry Test was introduced from the Session 1998-99 for selection on merit in the following terms:

(a) Entry test

369. 50% marks

(b) Inter

370. 40% adjusted marks obtained.

(c) Matriculation or equivalent

371. 10% marks

16. From the above narration of the Rules, a candidate desirous of obtaining admission in one of Medical College of Karachi is required to have the qualifications i.e. Intermediate Science Certificate with not less than 60% marks, secondly he must be domiciled in District of Karachi, Sindh. The applicant had to apply to the Centre nominated for receiving such applications i.e. Dow Medical College and there are 3 categories of seats, (1) on merits, District-wise, (2) reserved seats and last (3) reciprocal seats with Medical Colleges of Punjab. There is no quota for C.M. against reserve seats . No admission in a Medical College in Sindh is permissible except in terms of the relevant prospectus, which itself has to be in consonance with the provisions of Act, 1987.

372. Selection of candidate for admission by Board, nominated by Government, in accordance with over all merits and display of list on Notice Board and allocation of the selected candidates between DMC and SMC based on seniority in merit and from the Sessions 1998-99. Such candidate has to appear in Entry Test based on Biology, Chemistry, Physics and English are the requirements of the rule.

17. Learned counsel for the petitioners have raised the following contentions:

373. That the petitioners were admitted by the competent authority; they have paid admission fees and were allotted enrolment number. They appeared in the examinations, right from 1st professional to third professional, their examination forms were forwarded by the College Principal with certification that the petitioners are bona fide students in the following terms:--

374. "That the applicant has satisfied by documentary evidence, attended 75% lecture delivered in each subject during the academic year; has attended course of demonstration and practical work in all the subjects and has completed full course prescribed by Karachi University; he/she has attended two tests, and done three clinical tutorials and had obtained not less than 25% marks in the tests and clinical tutorials and that attendance of the student at its tutorial has been added to her total attendance. The applicant's conduct has been good in judging from the work of the applicant, there is every possibility of his/her passing the examination."

375. He placed a copy of standard examination form to contend that the above certification while forwarding the examination form, sufficiently demonstrate that the petitioners forms were forwarded after subjective assessment by the Principal that they are validly admitted students. Secondly all the petitioners have submitted their forms for final professional, some have submitted their forms for 3rd professional at the end of the day, they have been asked to submit the documents to establish their admission, which affects the right of the petitioners. Such accrued right cannot be withdrawn under the principle of locus poententiae. His further contention was that University has power to cancel the admission of a student and he referred Instruction No.17 of the Examination form which is as follows:

376. "Notwithstanding the issue of Admit Card the Syndicate shall have right, for any reasons which may appear to them sufficient to cancel the admission of any candidate of any examination whether before during or after the examination."

377. This contention has no legs. Reading of clause referred to above clearly indicates that the examining body (University of Karachi) can cancel the admission of any candidate to any examination, who has been issued Admit Card. So for the admission is concerned, the University is only Examining Body, has no concern with the admission in affiliated colleges.

378. While elaborating the principle of locus poententiae, the learned counsel for the petitioners contention was that from the 1st professional to fourth professional examination forms were forwarded to the University (examining body) with certificate that the candidate has attended lecture, attended course of demonstration and practical work and also passed the examinations thus, a right accrued in favour of the petitioners to pursue their study and to appear in examination cannot be withdrawn and to support his contention reference was made to cases of (1) Sheerin Munir v. Government of Punjab PLD 1990 SC 295 (2) Chairman Selection Committee/Principal King Edward Medical College, Lahore v. Wasif Zamir 1997 SCMR,

15. In the last cited case the rule laid down by the apex Court is that the principle of locus poententiae was although available to the authorities whereby any order which was made by mistake could be undone yet such order could not be interfered or rescinded once it had taken legal effect and created certain right in favour of an individual.

18. The learned Additional Advocate-General, on the other hand, contended that the principle of locus poententiae like the principle of natural justice is principle of equity and once it is established that a decisive step has been validly taken by the authorities/executive functionaries which are untraceable and such right in favour of a person cannot be withdrawn, an exception to provision of section 21 of General Clauses Act that the authority that has power to make an order has the power to undo it but the principle will not be applicable if the order/action is based on misrepresentation or fraud. His contention was that the petitioners have failed to demonstrate their valid admission, through a process which starts from submission of application with required documents to the center i.e. college assigned, selection by the Board and their assignment to one of the Colleges of Karachi.

379. The learned Additional Advocate-General is right in his contention that the principle of locus poententiae principle cannot be applied in such cases where the admission is claimed defecto. Mere on the basis of examination forms forwarded with connivance of the staff of the college a vested right cannot be pleaded particularly when the petitioners failed to demonstrate their eligibility for admission from their own statement either they are short of closing marks and or are domiciled in other Province than Sindh.

380. The learned Additional Advocate-General while opposing the petitions maintained that the petitioners failed to demonstrate that, they were eligible for the admission in M.B.,B.S. course as none of them has filed their mark sheet and domicile and PRC Certificates, claiming admissions against merit seats allocated to Sindh Medical College Karachi. He also pointed out that even the statement filed by them their marks are not equal to the closing marks for admission in the relevant session. His further contention was that the petitioners name do not appear in the list of applicants who have applied for admission in particular session or their names appear in the list of successful candidates and documents filed in support of the petitions are manipulated one of post admission period. He contended that it is well-settled that where step taken is based on fraud or misrepresentation cannot be allowed to perpetuate and to support his contention he referred the view taken by a Division Bench of this Court in Shahan Aurangzeb v. Principal Liaquat Medical College 1999 CLC 509 in similar circumstances, the petition was dismissed, wherein the petitioner had obtained admission with manipulated and incorrect mark sheet and the observation made was that the petitioner cannot be allowed to continue his study on the basis of admission obtained on manipulated marks sheet.

381. His further contention was that the fact urged by the petitioners is that they were admitted by competent authority has been seriously disputed by the respondents and such matter cannot be brought under the constitutional jurisdiction to resolve the factual controversy and he cited the following cases in support of his contention; (i) Asif Majeed and others v. A.D.C.(C) Lahore 2000 SCMR 998; (ii) Secretary to Government of Punjab v. Ghulam Nabi PLD 2001 SC 415; (iii) Lahore Cantonment Cooperative Housing Society v. Dr. Nusratullah PLD 2000 SC 1068. The observation in the first case is in the following terms:--

382. "The entire controversy revolves around the question of facts' and needed elaborate enquiry including recording of evidence which exercise could not be undertaken under the constitutional jurisdiction."

19. The petitioners' contention is that they were admitted by the competent Authority, their examination forms were forwarded to the University, examining body as such they cannot be asked to establish their admission late in the day, whereas the respondent's main contention was that they were not validly admitted student for the M.B.,B.S. professional course. They managed to deposit fee in the college and were also successful in getting their examination forms forwarded. Mere deposit of fee, forwarding of their forms and appearance in examination will not give them valid admission. The Principal of Sindh Medical College is not authorized to admit the petitioner, as Selection Board constituted by Government is the authority to notify the admitted candidates and the petitioners name do not appear in list of admitted candidates. The petitioners who claim admission in session 1998-99 and subsequent thereto have not pleaded that they appeared in the entry test.

383. Learned Additional Advocate-General raised two-fold contention with regard to admission based on C.M. Quota, firstly that there was no quota of C.M. in reserved seats, secondly the documents in support of the claim are disputed by the respondents. He pointed out that a Caretaker C.M. against the rule, had granted admission by coining his quota. Such admissions were subject to various petitions and Chief Minister quota was struck down by this Court. In Pardeep Kumar v. Province of Sindh and others PLD 1998 Kar. 433 this Court had shown its anguish by noticing the admissions on purported quota of the Chief Minister and after notice in terms of rule 8 of Order I, C.P.C. cancelled the admission of the least qualified students in the relevant Medical Colleges in Sindh inducted under so-called. Chief Minister Quota and rescinded the order forthwith. He also pointed out that matter of admission against reserved seats came under consideration in Atiya Bibi v. Federation of Pakistan 2001 SCMR 1161 by the apex Court, the Court declined to approve the reservation of seats for all categories in Medical Colleges and declared the same as illegal and without lawful authority except reservation of seats for disable persons students, domiciled in FATA and under developed Districts as well as Azad Jammu Kashmir and Northern Areas. Afghan refugees, who have taken school and intermediate education in educational institutions other than those areas and students of foreign countries on reciprocal basis only for certain period. He also pointed out that the petitioners names are not appearing in the list of the applicant who have applied for the admission in the relevant academic session.

384. The learned Additional Advocate-General pointed out that entry test is in vogue w.e.f. 1998-99 academic sessions, none of the petitioners claiming admission in the year 1998-99 or thereafter have claimed to have appeared in the entry test as the criteria for the selection was changed from the said academic year, following observation of the Supreme Court in case of Ms. Hina Javed v. Government of N.-W.F.P. 1998 SCMR 1469 wherein, the plea was taken that the entry test has been superimposed on the result of FSC Examination, which is not permissible under the Regulation and if the result of FSC which is part of the system are not to be relied upon and discarded then the whole system of examination would be changed instead of providing for entry test which does not fit in the system. Such plea was repelled by the apex Court after considering PMDC Regulations report of the Committee appointed by Court and the decision from Indian jurisdiction wherein constitutionality and legality of rule relating to the introduction test prescribed for admission to graduate and postgraduate medical course in Medical Colleges were examined by the Supreme Court of India in cases (i) State of U.P. v. Anupam Gupta AIR 1992 SC 932 (ii) Asif Hameed v. State of J&K AIR 1989 SC 1899 and (iii)Indu Kanat v. State of U.P. AIR 1993 SC 1225. The necessity of such test was highlighted by the apex Court which is reproduced with advantage as follows: --

385. "Firstly the standard of education and the method of examinations throughout the country has shown 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 ... 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 honest and dedication of those who are responsible for its enforcement... The credibility of the entry test in doing away of viva voce test completely eliminated the chances of personal discretion and favouritism in awarding the marks to a candidate."

20. On examination of petitioners claim of admission on the touchstone of the statements filed by the petitioners and the respondent, the position is as follows:

(a) Petition No.D-161 of 2003 Petitioners Waheed Khan, Samiullah, Noshaba, Saifullah Khan are of N.-W.F.P. Domicile their Intermediate marks are shot of closing marks for admission in Sindh Medical College (closing marks 827 for 1997-98).

(b) C.P. No.D-279 of 2003 Petitioners Jehanzeb, Sajjad Ali Shah, Asadullah, Shandana Faiz, Sumera Baig are not of Sindh domicile and claimed domicile of N.-W.F.P. and Islamabad, except petitioner Asma Javed and Aisha who claimed to be of Sindh domicile, Karachi, had obtained 606 marks in Intermediate, thus, short of 827 marks. Likewise Muhammad Zahid, Zaryab Ali, Usma Zahoor they claim admission in Session 1999-2000 and 1997-98 yet they are short of closing marks of that year.

(c) C.P. No.D-301 of 2003 Petitioner Saima Anwar claimed to be of Sindh domicile but having 606 marks which is short of closing marks. Petitioner Farrukh Sair has moved an application for joining him as petitioner though his petition was disposed of, however, according to his own statement he is of Sindh domicile and obtained 607 marks in the Intermediate short of closing mark i.e. 827 marks.

(d) C.P. No.D-162 of 2003 Petitioners Muhammad Zahid, Zaryab Ali, Usma Zahoor though claim admission for the academic session 1990-2000, 1997-98 respectively yet they are also short of closing marks for the said session.

(e) C.P. No.D-301 of 2003 Petitioners Waghma Ismail, M. Afzal Khan, Amjad Ali, Yar Muhammad are of N.-W.F.P. domicile. Amjad Ali has failed to disclose his marks as well as domicile. Petitioner Naila Ehsan, Jawad Ali, Nadia Farooq, Raheel Fazil are of Karachi domicile. They claimed admission in academic session 1999-2000. None of them claimed marks in Intermediate more than 863 (closing marks) nor claimed to have appeared in the entry test.

(f) C.P. No.D-307 of 2003 Petitioner Afsheen Rehman claims admission from the session 1999-2000 and her Intermediate marks, according to her own showing were 780 far less than the closing marks for the said year nor appeared in the entry test.

(g) C.P. No.D-470 of 2003 Petitioners Farooq Ahmed, Breshna Ismail, M. Imran and Bushra Zahoor claim admission from the academic year 1998-99, 2000-2001, 1999-2001 respectively. All are of N.-W.F.P. domicile, except Bushra Ismail. All are short of closing marks pertaining to the relevant session, none has appeared in the entry test.

(h) Petitioner Salma Gul in C.P. No.606 of 2003 claims admission as foreign student in the academic year 1997-98 and she has annexed a letter address to her by the Principal and Chairman Academic Council Sindh Medical College dated 19-6-1998 for intimating her that admission in 1st years M.B.,B.S. 1990-98 under Technical Assistance Program.

(i) Petition No.219 of 2003 Petitioners Gausia Khandhari, Aneela Rafiq, Kiran Fatima and Fauzia Ashraf marks of Intermediate Examination are short of closing marks for the relevant academic session.

21. The outcome of above examination is that the petitioners who claim admission against merit seats, their Intermediate marks are short of closing mark of the session of admission claimed by them and the petitioners who have claimed admission in the academic session 1998-99 or thereafter, they have not appeared in the entry test. Neither the petitioners name appear in the list of candidates who have applied for admission in the relevant academic session nor they are amongst the successful candidates in the list issued by the Selection Board for admission in Sindh Medical College; Karachi.

22. Learned Additional Advocate-General contended that petitioner Salma Gul (C.P. No.606 of 2003) is not one of the applicants for the admission nor she was selected by Selection Board. Document filed by her in support of the petition intimating her for admission but the signature of the Principal is a false. His further contention was that the admission to foreign nationals, no doubt, is by nomination by Economic Affairs Division Federal Government but the petitioner has failed to produce any document evidencing her nomination by the Economic Affairs Division and even if she was foreign student, she was required to submit application for admission to the Centre for admission i.e. Dow Medical College. Her name does not appear in the names of applicants nor selected against the reserved seat against foreign student. Significant and noticeable difference, between the instant petitions and the cited cases is that in those cases plea was that the admission was obtained by fraud on forged documents, whereas in the instant petitions the admissions are denied.

23. The facts contended by the petitioners with regard to their, claim for admission are seriously disputed by the respondents. Even their eligibility for admission has been disputed. The controversy in entirety revolves around the questions of facts, and needed elaborate enquiry, such exercise could not be undertaken by this Court under its constitutional jurisdiction under Article 199 of the Constitution.

24. The petitioners have failed to demonstrate their admission in accordance with rules for admission. There is no concept of defacto admission by force entry with the connivance of the college staff and their appearance in examinations.

386. It is also well-settled that the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan is discretionary in nature and this Court declines to exercise such jurisdiction in cases where such exercise of jurisdiction will work in aid of injustice or will protect some ill-gotten gain of a party. If reference is required, following cases can be cited (i) Zameer Ahmed v. Bushir Ahmed 1998 SCMR 516; (ii) Export Promotion Bureau v. Qaiser Saifullah 1994 SCMR 859 (iii) Province of Punjab v. S.M. Zaheer PLD 1997 SC 351.

25. The learned counsel for the petitioner last contention was based on obitar dicta of apex Court. In Miss Rizwana Andleeb v. Principal Chandka Medical College, Larkana 2003 SCMR 1944, the apex Court while refusing to grant leave to appeal against the judgment- in C.P.' No.1430 of 2000 involving admission in the Medical College on bogus documents, following obitar dicta as made:

387. "She would be at liberty to move the University or any competent authority for seeking her migration for seeking admission in some other private institution for completion of her medical studies if the concerned institution allows the same in terms of their rules and regulations."

388. The background of above observation was that though the admission was cancelled long back in the year 1995 but she managed to continue her study in the College till she reached in fourth year of M.B.,B.S.

389. The learned counsel for the petitioners contended that on the basis of above observation, she was allowed to continue in the same college. He urged that if the petitioners are granted Migration to private Medical College, it will save their career.

390. The learned Additional Advocate-General has opposed the request for direction for migration on the grounds that petitioners should not be permitted to reap the fruit of their own wrong and fraud, if the acts and omission of the petitioners are condoned then the others would also make the same as precedent which would not be in the interest of the medical institutions. We think the learned Additional Advocate-General is right in his contention, more particularly when the claim of the petitioners are seriously disputed.

391. Consequent of above discussion, we are of the view that the petitions are not maintainable which are bereft of merits on law and facts, the same are liable to be dismissed. Resultantly, the petitions are dismissed with listed application, however, with no order as to costs.

27. (sic) Before parting with the judgment, we would like to direct the Provincial Government to modify the Rules with regard to the reserved seat by deleting all quotas under the reserved seats except those approved by the apex Court in Atiya Bibi v. Federation of Pakistan and others 2001 SCMR 1161.

392. M.H./K-26/K Petitions dismissed.