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Constitutional Petition No.593 of 1986, decided on 12th April, 1987

‑‑‑Art. 199‑‑University of Karachi Act (XXVI of 1972), Ss. 25, 28, 29, 31 & 33‑‑University of Karachi Code, 1984, pp. :363 372 383 385‑‑Medical Colleges (Governing Bodies) Ordinance (XIII of 1961) Preamble‑‑Educational Institution‑‑Admission to Medical College‑ University of Karachi was the authority to lay down conditions for admission to M . B . , B . S . First Year Classes‑‑Affiliated Colleges also permitted to lay down additional conditions for admission with previous approval of University‑‑Governing Bodies under Ordinance of 1961 not having been appointed, Provincial Government could claim power to lay down conditions for admission to Dow Medical College‑‑Dow Medical College, although owned, managed and financed by Provincial Government, by virtue of affiliation comes within the control of University of Karachi‑‑Petitioner granted equivalence certificate by University treating him to have passed Intermediate Science Pre‑Medical Group with 83.17 marks‑‑Prospectus for the year 1985‑86 issued by Government of Sind prescribing under R.2(iv) that a candidate seeking admission on basis of equivalence certificate was additionally required to have passed Physics, Chemistry, Biology, English and Urdu or any other language and any other two subjects in lieu of Pakistan Studies and Islamiat/Civics‑‑Petitioner not fulfilling additional requirement of having passed in "English and Urdu or any other language" refused admission in Medical College‑‑Prospectus being issued by Government of Sind publicly and openly for the last so many years regulating admission to Medical Colleges, accepted and followed by Principal of Medical College and nothing brought on record to show that University of Karachi had ever objected to conditions contained therein‑‑Additional conditions prescribed by prospectus found to be consistent with pre‑qualifications laid down by the University of Karachi‑‑Condition of having passed Urdu as a compulsory subject imposed on students holding equivalence certificate, held, neither contrary to conditions laid down by the University nor unreasonable‑‑No one has a vested right in the admission to a Medical College and changes in the prospectus or the admission rules could be made before a vested right was created.

A. Rahman Qureshi v. Principal Dow Medical College Karachi PLD 1967 Kar. 534; Syed Abdul Wadood v. Pakistan, P L D 1957 Kar. 740; Ismail v. Principal Dow Medical College Karachi P L D 1957 Kar. 493; Humera Sitwat Yousuf v. Government of Punjab, P L D 1971 Lah. 641; Ehsanul Haq v. Federation of Pakistan P L D 1976 Lah. 501: Ghulam Mustafa v. Mehran University of Engineering and Technology 1986 CLC 1056 and Sajid Raza and 3 others v. The Commissioner Quetta Division P L D 1973 Kar. 332 and Province of Punjab v. Miss Khaqan Mahmood P L D 1985 Lah. 300 ref.

Naseem Mahmood v. Principal, King Edward Medical College. Lahore, P L D 1965 Lah. 272 distinguished.

Khalid M. Ishaq and Mushtaq Memon for Petitioner.

R.H. Farooqui for Respondent No. 1.

Date of hearing: 26th February, 1987.

‑‑The petitioner has filed this petition challenging the decision of the respondent No.2 refusing admission in the 1st Year M.B.,B.S. class for the year 1985‑86. The petitioner had completed his 'O' Level and first year of 'A' Level in Physics, Chemistry, Biology and General studies from Eastcliffe Grammar School U.K. In the year 1983, the petitioner approached the respondent No.2 and t.1nquired about the qualifications required for admission to the Medical College. According to the petitioner he was informed that the minimum qualification for eligibility of a candidate for admission was Intermediate Science (Pre‑Medial Group) or any equivalent examination from institution recognized by the University of Karachi. The petitioner then made inquiries from the University of Karachi, and it is alleged that he was advised that for grant of equivalence certificate to become eligible for Medical College, the petitioner should qualify in five subjects with 2 'A' levels and '3' 'O' levels. In this regard the petitioner also consulted the prospectus for the year 1983‑84 issued by the respondent No. 1. The petitioner has, however, not filed any letter of the University of Karachi to show that he was advised as alleged above. According to the petitioner acting upon the instructions of the University and the Prospects he sought admission in Karachi American School and successfully completed his 12th Grade in the month of May 1985. Thereafter, the petitioner applied to the University of Karachi for recognition of the examination he had passed and for grant of equivalence certificate. The University of Karachi granted equivalence certificate holding the American 12th Grade and '0' Level Examination as equivalent to Intermediate (Pre‑Medical Group). On 16‑1‑1986 the petitioner submitted his application for admission to the First Year M . B . , B . S . class for the Academic session 1985‑86 at Dow Medical College, Karachi. On 18‑2‑1986 a tentative merits list was issued containing names of candidates who were proposed to be selected for admission but it did not contain the name of the petitioner, although according to the equivalence certificate he had attained 83.17 of marks. The petitioner then submitted objections to the respondent and various Government Authorities including the Chief Minister and the Health Minister, but the respondent, took the stand that the petitioners case could not be considered for not having done Urdu at His 'O' Level. He then approached the University of Karachi who clarified through their letter dated 12‑4‑1986 that the equivalence certificate issued to the petitioner is in accordance with the existing policy. The petitioner also filed objections to the final merit list issued by the respondent, No.2, but he was not granted admission.

The respondent No.2 filed counter‑affidavit in which it was pleaded that according to the prospectus for the year 1985‑86 a candidate producing equivalence certificate were to comply with the following conditions:‑

"2. The following candidates shall be eligible to apply for admission in 1st Year M.B.,B.S/B.D.S. in Medical Colleges in Sind for the year 1985‑86.

(i)..........................

(ii) .........................

(iii) .........................

(iv) Candidates producing equivalence certificates of examination other than Intermediate Board of Pakistan shall have to produce certificate from the competent authority of having passed the following subjects:‑--

(a) Physics, Chemistry and Biology at 'A' Level.

(b) English and Urdu/or any other Language at 'O' Level.

(c) Any other subjects in lieu of Islamiat/Pakistan studies or Civics/ Pakistan Studies at 'O' Level. However, with effect from session 1986‑87 the candidates would be required to pass Islamiat/Pakistan Studies or Civics/Pakistan studies for Muslims and non‑Muslims respectively.

The equivalence certificates of 'A' Level and 'O' Level subjects should necessarily be taken from the same Board at each level."

This condition was subsequently amended as follows:‑-----

"(iv)(a) Physics, Chemistry and Biological Science.

(b) English and Urdu/any other language.

(c) Any other two subjects in lieu of Pakistan Studies and Islamiat/ Civics."

It was further pleaded that the merit list of candidates other than 'A' level candidates was displayed, and 'A' level candidates were not included in the list as most of the candidates like the petitioner did not fulfil the conditions as prescribed in the prospectus for the year 1985‑86. It was also pleaded that rules of eligibility for admission are strictly governed by the prospectus issued by the Government. It was stated that the petitioner has passed all subjects except Urdu or any other language to qualify for admission, and as such he had not fulfilled the conditions for admission and his application was rejected.

Mr. Kahlid M. Ishaq the learned counsel for the petitioner has contended that qualification for admission to First Year Degree class is to be laid down by the University of Karachi, and the respondent No.l has no power to lay down or vary those conditions. It was further contended that even if the Government wants to vary those conditions a period of two years should be given to acquire the requisite qualification and that the prospectus issued is not higher than Bye‑Laws and should be struck down if it is found to be unreasonable.

The question arises whether the Government of Sind has the power to prescribe conditions for admission to First Year M . B . , B . S . class. In this regard we will first examine the provisions of the University of Karachi 'Act, 1972. Under section 2(b) an Affiliated College is that college 'which is affiliated to the University but not maintained or administered by it'. Before affiliation is granted the College has to p satisfy the conditions prescribed by section 33. By virtue of affiliation the University is responsible for maintenance of efficiency of the institution and to see that properly qualified staff, library, building, laboratory and educational facilities are provided. There is no dispute that Dow Medical College and Sind Medical College are affiliated to the University of Karachi. Section 25 of the University of Karachi Act, 1972 (Sind Act No.26 of 1972) provides that the Academic Council shall be the academic body of the University. Subject to the provisions of this Act and Statute it has the power to play down proper standards of instructions and regulate the academic life of the University and Colleges. Under section 25(2)(c) the Academic Council has the power to regulate the admission of students to the courses of studies and examination in the University. Under the University of Karachi Act, Statutes, Regulations and Rules can be framed as provided by sections 28, 29 and 31. The Statute, Regulations and Rules are contained in the University of Karachi Code published in January 1984. The Regulations regarding admission and registration of students in University classes and colleges is regulated by Regulations which are at page 363 of the Code. At page 372 Conditions of Admission in Colleges and Teaching Departments have been given. Para.5 at page 372 of the Code prescribes the minimum qualification for admission to a particular course or particular degree. At page 383 at Serial No.34 it is provided that the minimum qualification for admission to the Course of Bachelor of Medicine and Bachelor of Surgery is that the candidate should have passed Intermediate examination in Science with Physics, Chemistry and Biology; B.Sc. in Animal Husbandry; B.Sc., Medical Technology. Therefore, according to the Regulation any candidate who has passed Intermediate examination in Science with Physics, Chemistry and Biology is eligible to apply for admission in the First Year M.B.,B.S. Class. However, para. 6 at page 385 of the Code provides that in addition to the qualifying examination, the University, Teaching Department or the affiliated Colleges or Institutes may, with the previous approval of the University lay down additional conditions of admission consistent with the Regulations. A perusal of the Regulation and the relevant paragraphs quoted above makes it clear that the University of Karachi is the authority to lay down conditions for admission to M. B.,B.S. First Year classes. Regulation has prescribed the minimum qualifications for admission to the 1st Year M.B.,B.S. class as stated above, but it has permitted the affiliated Colleges to lay down additional conditions for admission with the previous approval of the University and such conditions should not be inconsistent with the Regulations.

Having examined the provisions of the University of Karachi Act we will consider the contentions of the learned Additional Advocate- General that as the Government of Sind owns and manages the Medical Colleges it has the power to issue prospectus and prescribe conditions for admission in those colleges. Except this contention no provision of law was cited or relied upon. We regret to mention that on this question the Advocates for none of the parties referred to any provisions of law except the University of Karachi Act, 1972 nor cited any authority on this aspect of the case. We have, however, taken note of the following judgments:‑--------

(1) A. Rahman Qureshi v. Principal Dow Medical College, Karachi PLD 1957 Kar. 534;

(2) Syed Abdul Wadood v. Pakistan P L D 1957 Kar. 740;

(3) Ismail v. Principal Dow Medical College Karachi P L D 1957 Kar. 493;

(4) Naseem Mahmood v. Principal King Edward Medical College, Lahore P L D 1965 Lah. 272.

(5) Humera Sitwat Yousuf v. Government of Punjab P L D 1971 Lah. 641.

(6) Province of Punjab v. Miss Khaqan Mahmood and others P L D 1985 Lah 300.

(7) Ehsanul Haq v. Federation of Pakistan P L D 1976 Lah. 501.

In A. Rahman Kureshi's case it was held that Dow Medical College is affiliated with the Karachi University which is governed by University of Karachi Act LIX of 1950. Under this enactment the University authorities were entitled to frame Ordinance for the admission of students in the Colleges affiliated to the University. In this case the Principal who was entitled to grant admission, granted provisional admission to the petitioner, but on the instructions of Health Ministry his name was removed from the Rolls. It was held that once a student has been admitted he can be removed only as provided by the University Act.

In Syed Abdul Wadood's case this view was followed and it was observed as follows:‑

"It would thus, appear that the Principal of the College is responsible for the admission of students in his college, but such admission is to be provisional, and it becomes final upon the satisfaction of the requirements of certificates and production of documents and the silence of the Vice‑Chancellor in refusing admission. "

In both these judgments it was noted that although Karachi University Act provides for constitution of a Governing Body for the College, the same had not been appointed. ,

Similar question as in the present case came up for consideration in Naseem Mahmood's case in which the aforestated two judgments were considered and distinguished on the ground that they were governed by a different provision of law. In this case it was pointed out that under section 30 of Ordinance 22/61 the King Edward Medical College at Lahore and Nishtar Medical College at Multan which are affiliated with the Punjab University had to be under the management of a duly constituted Governing Body. It was, however, noted that there was a Central Ordinance 13 of 1961 which deals with Medical Colleges throughout Pakistan. It was, therefore, observed that "the matter is to be governed by the Special Central Law dealing with the subject and not by section 30 of the Provincial Ordinance which generally deals with all colleges affiliated to the Punjab University. It, however, transpired that Governing Body as required by Medical Colleges (Governing Bodies) Ordinance, 1961 (Ordinance XIII/61) was not constituted. After scrutinizing the provisions of Ord. XIII of 1961 it was observed:‑

"In other words, it is clear that although it was a requirement of law that the Medical Colleges should be managed by Governing Bodies, yet the requirement has not so far been complied with and the result is that the Colleges are being managed by the Principals or Administrators who are except in the case of Khyber Medical College employees of the Provincial Government and thus directly subordinate to it----- Now, the question is whether in the absence of Governing Bodies, the Principals/ Administrators of the Government Medical Colleges are to be regarded as completely independent and autonomous officials, not amenable to the control of any, superior authority. We think that the answer to this question must clearly be in the negative. The institutions being Government institutions and their Heads being Government employees, not much argument is needed to see that the Provincial Government clearly retains a right to control and guide the affairs including the question of admission, of these Colleges. The Heads of these institutions cannot claim to be independent of Government control. We consider, therefore, that the Provincial Government has authority to lay down a policy in the matter of admission to the various Government Medical Colleges under its control, so long as the Government Bodies contemplated by Central Ordinance 13 of 1961 do not start functioning." The same question came up for consideration in Humera Sarwat Yousuf's case but during the pendency of this case Ordinance XIII of 1961 was repealed by the Medical Colleges (Governing Bodies) (Punjab Repeal) Ordinance, 1970. By this Ordinance the applicability of Ordinance XIII of 1961 to the Province of Punjab was repealed. It was, therefore, argued that in the absence of any Statute the Government could issue any order regulating the admission to the Medical Colleges. It was observed that the petitioners had not acquired any vested right to be admitted in the Medical College by virtue of any regulation and by the Governing Body before the repeal of the Ordinance. It was held:‑

"But after the repeal of the law requiring the Government to set up Governing Bodies to administer the affairs of the Medical Colleges, one cannot insist that the prospectuses of the various Medical Colleges must be issued by the Governing Bodies under the repealed statute. The result is that the prospectuses issued by the three Medical Colleges of Punjab under the directions of the Government of the Punjab, cannot be held to be invalid on the ground that these have not been issued by the Governing Bodies visualised by the Ordinance XIII of 1961."

In Ehsanul Haq v. Federation of Pakistan it was observed that "for new (College and additional) seats the authorities concerned were free to lay down such sphere and scope as they liked".

In Miss Khaqan Mahmood's case on question what are the powers of the Punjab Government in respect of the Admission Policy of the Medical Colleges, the view expressed in the aforestated judgment was followed and disapproval was expressed for not establishing the Governing Bodies, refusing to frame Rules under section 8 of Ordinance XIII of 1961 and repealing it.

The view of the Lahore High Court is that in the absence of the governing Body and any Statute governing the regulation of admission to the Medical Colleges in Punjab, the Provincial Government could frame rules and policy to regulate it. In A. Rehman Qureshi and Syed Abdul Wadood's cases decided by the Karachi Bench of the then High Court of West Pakistan in view of the provisions of the University of Karachi Act 1950 which provided for establishment of Governing Bodies for the Dow Medical College the University authorities were entitled to frame Ordinances for admission of students in affiliated Colleges and the Ministry of Health could not order for removal of a student admitted in the College: it was to be governed by the University Act. After these judgments Medical Colleges (Governing Bodies) Ordinance, 1961 (Ordinance XIII of 1961) was promulgated which is still in force. But neither Rules have been framed, nor Governing Bodies have been appointed by the Provincial Government. In these circumstances, in view of the aforestated judgments of the West Pakistan High Court of Lahore the Provincial Government can claim the power to lay down the conditions for admission to the Dow Medical College. For the last three decades time and again need for establishment of Governing Body for the Medical College is being pointed out, but it seems that the Provincial Government is completely unconcerned for reason better known to it.

In the present case the short question is whether the Provincial Government can prescribe conditions for admission to Medical College. This question unlike the judgment of the Lahore High Court has to be considered with reference to the University of Karachi Act, 1972. As discussed above‑ in respect of Colleges affiliated to it, the University is empowered to prescribe the qualification which a candidate applying for admission to First Year M.B.,B.S. class must possess. Although the Medical College is owned, managed and financed by the Provincial Government by virtue of affiliation to the University of Karachi it comes within the Control of the University of Karachi to the extent provided by the University of Karachi Act, 1970 and statutes, Rules and Regulations framed under it. This view finds support from the observation made in Abdul Rahman Qureshi, Syed Abdul Wadood's and Ismail's case. Nasim Mahmood's case is distinguishable as in the absence of constitution of Governing Body it is not clear whether the University of Punjab had any power to prescribe conditions and Rules for admission to Medical Colleges. In the present case the University of Karachi has the power to prescribe minimum qualification for admission to affiliated Medical Colleges. Therefore, this power can be exercised by the University.

There is no dispute that the University of Karachi has granted equivalence certificate to the petitioner treating him to have passed Intermediate Science Pre‑medical group with 83.17% marks. The prospectus for the year 1985‑86 was issued by the Government of Sind, Health Department which prescribes rules for eligibility for admission to Medical Colleges, relevant part of which has been reproduced earlier.

Under rule 2(iv) of the prospectus a candidate seeking admission on the basis of equivalence certificate is additionally required to have passed Physics, Chemistry Biology, English and Urdu or any other language and any other two subjects in lieu of Pakistan Studies and Islamiat/Civics. It is due to imposition of condition (iv)(b) that the petitioner has been refused admission in the Medical College. As observed earlier the power to prescribe the minimum qualification for admission to affiliated medical colleges is exclusively within the jurisdiction of the Karachi University, but with its prior consent and approval additional conditions may be laid down by the College which are not contrary to the conditions already prescribed by the University of Karachi. In the present case the respondent No.l has been issuing prospectus for the last so many years regulating the admission to the Medical Colleges in Sind and the same has been accepted and followed by the respondent No.2. Although no written permission of the University of Karachi has been produced the fact remains that the respondent No.l has been issuing this prospectus publicly, and openly, but nothing has been brought on record to show that the University of Karachi has at any stage objected to the conditions contained in the prospectus for admission in the Medical Colleges. This clearly shows that the University of Karachi has impliedly consented to the conditions contained in the prospectus. The additional conditions prescribed by the prospectus are not inconsistent with the conditions laid down by the University. In fact these additional conditions are consistent with the pre‑qualification laid down by the University of Karachi. Usually all the students passing Intermediate examination take Urdu as a compulsory subject at some stage and if for students holding equivalence certificate such a condition has been imposed, it is neither contrary to the conditions laid down by the University, nor unreasonable. If the University of Karachi objects or does not give consent to any condition prescribed by the respondents Nos. l and 2 then it cannot be enforced. The limited power as stated above can be exercised by the affiliated colleges. In the present case although prospectus has been issued by the respondent No.l it seems to have been accepted and enforced by the colleges /respondent No.2.

We have noted through the Press that on 8th April, 1987 the Provincial Government has promulgated Sind Medical Colleges Ordinance, 1986 conferring power on the Government to regulate admission in Medical Colleges. We may, observe, that if the entire power to regulate and prescribe the rules and conditions for admission to Medical Colleges has been vested in the Provincial Government notwithstanding any other law for the time being in force, then the Government may exercise such power. However, as we have not seen the Ordinance, we refrain, from making any further comments.

The learned counsel for the petitioner has contended that in the year 1985‑86 admissions were given to certain students (whose names have been mentioned in the petition) without any requirement of having passed examination in any language. Those admissions according to the respondents Nos.l and 2 were made in the year 1984‑85 and other subjects in lieu of Urdu were taken into consideration, and, therefore, the question of discrimination with the present case does not arise. The petitioner has not pointed out to any candidate who has been admitted in the year 1985‑86 without complying the conditions laid down by the prospectus. The petitioner has filed with his rejoinder‑affidavit copy of Constitution Petition No. 381 of 1986 and the judgment passed in it. In this petition the petitioner had done his G.C.E. examination in the year 1985 from London University in Chemistry and Biology in 'A' Level and Physics, Urdu, English Language, Human and Social Biology and a further paper in Chemistry at '0' Level. His case is, therefore, completely distinguishable from the present case where petitioner has not done Urdu or any language at any level.

The learned counsel for the petitioner has contended that if any change in prospectus is made it must be done at least two years earlier to enable the candidate to prepare himself after passing Matric or 'A' Level examination. It is well‑settled that no one has a vested right in the admission to Medical College and changes in the prospects or the rules of admission can be made before a vested right is created. Reference can be made to Ghulam Mustafa v. Mehran University of Engineering and Technology, 1986 C L C 1056, Sajid Raza and 3 others v. The Commissioner Quetta Division P L D 1973 Kar. 332 and Province of Punjab v. Miss Khaqan Mahmood P L D 1985 Lah. 300. In the present case no vested right was created in the petitioner. The petitioner has filed a copy of the prospectus for the year 1984‑85 which provides that a candidate providing equivalence certificate should have inter alia passed in English and Urdu or any other language at 'O level. Therefore, similar condition prescribed for the year 1985‑86 was not a new condition.

The petition is, therefore, dismissed with no order as to costs.

S.Q/N‑12/K tion dismissed.

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