SUPREME COURT OF AZAD JAMMU & KASHMIR [Appellate Jurisdiction]

PRESENT: Mohammad Azam Khan, C.J.

Ch. Muhammad Ibrahim Zia, J. Raja Saeed Akram Khan, J.

Civil Appeal No.2 of 2014 (PLA filed on 16.1.2014)

1. Aroosa Nawaz d/o Shahnawaz Khan r/o Shalabagh, Tehsil & District Muzaffarabad, c/o Bukhari General Store, Kham Drung, Shaukat Lines, Muzaffarabad.

2. Misbah Siddique d/o Muhammad Siddique Awan, c/o Hassan General Store, near AJ&K University, Chehla Bandi, Muzaffarabad,

3. Nabeel Mushtaq Kiani s/o Mushtaq Ahmed Kiani, Prime Book Stall, Chikar, District Hattian Bala.

4. Nafeesa Hameed d/o Kh. Abdul Hameed, c/o Kh. Anjum Aziz, Shopkeeper Chinari, Tehsil & district Hattian Bala.

5. Kiran Farooq d/o Raja Muhammad Farooq Khan, r/o District Bagh, c/o Raja Muhammad Farooq Khan, NIB Bank, Muzaffarabad.

6. Amina Bibi d/o Shafique Ahmed, r/o District Sudhenuti, presently GF-2, Block 14, Stadium Road, Hamza Camp, Rawalpindi.

2

7. Hafiz Muhammad Ammar s/o Muhammad Naseem r/o Bhimber, presently House No.D-1/.A, adjacent Pak Post Medical Centre Opp. Boqis Hilal Road, Rawalpindi Cant.

8. Sania Khalid d/o Khalid Mehmood Anjum, c/o Arsalan Khalid, Junior Officer, State Bank of Pakistan, Upper Chattar, Muzaffarabad.

...... APPELLANTS

v e r s u s

1. Azad Government of the State of Jammu & Kashmir through Chief Secretary to Azad Government, Civil Secretariat, Muzaffarabad,.

2. Department of Health, Azad Government of the State of Jammu & Kashmir, Health Department, Muzaffarabad.

3. Joint Admission Committee (JAC) Government Medical Colleges of Azad Jammu & Kashmir through Chairman joint Admission Committee/Principal Azad Jammu & Kashmir Medical College, Muzaffarabad.

4. Principal, Azad Jammu & Kashmir Medical College, Muzaffarabad.

5. Principal, Mohtarma Benazir Bhutto Shaheed Medical College, Mirpur.

6. Principal, Poonch Medical College Poonch, Rawalakot. 7. Muhammad Easa Khan s/o Muhammad Arif Khan, 23-B,

Commissioner Colony Hilton Road, Gujranwala. 8. Naveez Ali s/o Bashir Muhammad r/o Dakhana Khas

Talwandi Bhindra House No.5, Street No.6, Narowal. 9. Menaal Khurshid d/o Muhammad Khurshid Ahmed Jamil

Shoes House, Bismillah Chowk Main Bazar, Rawalakot. 10. Ayesha Khan d/o Muhammad Afzal Ziai, Near Madni

Masjid, Sherjang Colony, Bhimber. 11. Hafiza Madiha Aslam d/o Muhammad Aslam Sulehria,

House No.13/.88, Aslam Sulehria, Jamil Park, Kot Khawaja Saeed, Lahore.

3

12. Hassan Masood Khan s/o Tariq Masood Khan, House No.2, Ward No.3, Near Masjid Ahl-e-Hadees, Upper Chattar, Muzaffarabad.

13. Farrah Majeed d/o Abdul Majeed, village Kherowal, p/o Moli, Tehsil Bernala, District Bhimber.

14. Ayesha Fatima d/o Muhammad Rashid village, Dehri p/o Chowki, Tehsil Samahani, District Bhimber.

15. Shehryar Khan s/o Irfan Sadiq House No.20, Street No.14, Sector E, DHA-2, Bhimber.

16. Maria Asghar d/o Ali Asghar, c/o Ali Asghar Admin Officer Examination Branch MUST, Mirpur.

17. Haseeb Ehsan s/o Ehsanul Haque Siddiqui, House No.121, Sector F/1, Mirpur.

18. Faran Naseer s/o Ch. Muhammad Naseer, village Meri, p/o Afzalpur, Tehsil & District Mirpur.

19. Andleeb Tahir d/o Tahir Mehmood c/o United Medical Store, near United Hospital, Rawalakot.

20. Kaneez Zanib d/o Raja Abdul Qayyum Khan, c/o Raja Khawar Abdul Samad College of Education near National Bank, Muzaffarabad.

21. Muhammad Hussain Hafeez s/o Muhammad Hafeez, DC Office Road, Tehsil & District Bhimber.

22. Momina Sajid d/o Muhammad Sajid, House No.2-A, Sector DD, DHA Officers Flats Phase-IV, DHA Lahore.

23. Esha Irfan d/.o Mirza Irfan Baig, Bai G Pak Industries p/o Box 1374, Daska Road Hajipura, Sialkot.

24. Muhammad Ali Shahid s/o Shahid Iqbal, Mohajir Colony No.2, Upper Chattar, Muzaffarabad.

25. Muhammad Saad Javed s/o Javed Akhtar p/o Tehsil Samahni, District Mirpur.

26. Maha Nisar d/o Nisar Ahmed Cheema, behind Khan Market, Shaukat Lines, Muzaffarabad.

27. Khurram Rafique s/o Muhammad Rafique, c/o Suleman Khan DFO Normal Forest Division Kotli.

28. Amna Bashir d/o Muhammad Bashir, 224-A, Kausar Block, Awan, Town, Lahore.

29. Misbah Abbas d/o Muhammad Abbas, r/o Naseem Qureshi, Qureshi Market Bela Noor Shah, Muzaffarabad.

4

30. Abdul Wahid Naseem s/o Muhammad Naeem Khan, Dr. Naeem Khan Radiologist SKBZ Hospital, Rawalakot.

31. Ridda Fatima Gilani d/o Syed Waheed-ul-Zaffar Gilani, c/o Waheed-ul-Zaffar Gilani near girls High School Chattar, Muzaffarabad.

32. Bilal Haider s/o Javed Iqbal, Shaheen Town near Abdullah House, Daska, District Sialkot.

33. Aniqa Latif d/o Muhammad Latif Mughal c/o Dr. Muhammad Latif Mughal, DHO Office, Bagh.

…. RESPONDENTS

34. Maria Shahid d/o Muhammad Shahid, c/o Dr. Muhammad Shahid c/o Dr. Muhammad Shahid, House No.C/1, Doctors Colony, District Headquarter Hospital Kotli.

35. Najda Aftab d/o Aftab Ahmed Meer, r/o Muhalla Sethi Bagh, Ward No.11, Muzaffarabad.

36. Quratul-Ain d/o Muhammad Farooq, House No.45-B, Sector E/2, Mirpur.

37. Tayyaba Haroon d/o Haroon-ur-Rasheed, c/o Al-Rehman Veterinary Traders near Sangum Hotel, Muzaffarabad.

38. Momina Ansar d/o Ansar Khan Tahir, Lower Plate, Ward No.8, near Rathore General Store, Muzaffarabad.

39. Shahnaz Qamar d/o Muhammad Sarwar Qamar, c/o Sethi Cloth House, Shamas Market, Abbaspur, District Poonch.

40. Muhammad Anees Akram s/o Muhammad Akram Khan, room No.809, Block No.8, New Secretariat, Chattar, Muzaffarabad.

41. Asifa Javed d/o Javed Iqbal, House No.838, Muhalla Ali Abad, Chuharpal, Westridge-III, Rawalpindi Cantt.

42. Durr-e-Nayab Khan d/o Javed Ayub, Director Mineral Resources, Block-C, District Complex, Muzaffarabad.

43. Muhammad Ali Raza s/o Muhammad Haneef Chaudhary, House No.145-B, Sector F/3, Part-II, Mirpur.

5

44. Tayyab Tufail s/o Muhammad Tufail, Ward No.3, Muhalla Khuiyan Wala, Bhimber.

45. Iqra Shafique d/o Kh. Muhammad Shafique, c/o Shafique General Store, Khan Market, Muzaffarabad.

46. Syeda Huma Kazmi d/o Syed Iqbal Hussain Shah, HBL, Main Branch, Gilani Chowk, Muzaffarabad.

47. Sana Shaukat d/o Shaukat Hussain, Shaukat General Store, Main Bazar Chikar, District Hattian Bala.

48. Farrah Tanveer d/o Tanveer Ahmed Khan, village Khuntal, Neela Butt, Dhikrkot, District Bagh.

49. Maira Yaseen Khan d/o Raja Muhammad Yaseen Khan, r/o Jaglari Bagh, presently Flat No.11, Block No.12, Jinnah Super Market, Islamabad.

50. Syed Fayyaz Hussain Shah s/o Syed Muhammad Shafique Shah, r/o Haveli, c/o Muhammad Shafique Shah, Assistant Director Agriculture, Muzaffarabad.

51. Faryal Bashir d/o Muhammad Bashir, c/o Shell Petrol Pump Hajira, District Poonch.

52. Kashaf Shamraiz s/o Shamraiz Akhtar, c/o Zeeshan General Store, Mang Road, Rawalakot.

53. Saher Zaffar s/o Zaffar Mehmood Khan, r/o District Poonch, presently House No.1240-A, Gulistan Colony, Lane No.3, Ayyub Park Road, Rawalpindi.

54. Israr Ahmed s/o Muhammad Younas, village Sarsawa Tehsil & District Kotli.

55. Bushra Altaf d/o Muhammad Altaf, r/o village Doongi Naseemabad, Tehsil Barnala, District Bhimber.

56. Faiza Shah d/o Shaukat Hussain Shah, Takiya Syedan, Post Office Panjera, Tehsil & District Kotli.

57. Sadia Hussain d/o Muhammad Sharif, village Gahee, p/o Samrot, District Kotli.

58. Abdul Wahid s/o Abdul Qayyum, r/o village Dhamot, p/o Tehsil & District Kotli.

6

59. Quratul Ain Latif d/o Muhammad Latif, House No.494, Sector F/3, Part-I, Mirpur.

60. Sundus Ali d/o Ali Asghar, r/o village Mangla Hamlet, p/o Mangla Colony, District Mirpur.

61. Sobia Mushtaq d/o Mushtaq Ahmed, r/o village Dobay p/o Bernala, Tehsil & District Bhimber.

62. Muhammad Ali s/o Muhammad Siddique Ward No.1, Muhalla Bawli, Tehsil & District Bhimber.

…. PROFORMA RESPONDENTS

(On appeal from the judgment of the High Court, dated 2.1.2014 in writ petition No.1836 of 2013)

FOR THE APPELLANTS: Mr. Abdul Rasheed Abbasi, advocate.

FOR THE RESPONDENTS: Ms. Abdul Majeed Mallick, Raja

Ghazanfar Ali Khan, Advocate-General, Sardar Shahid Hameed Khan & Sardar Muhammad Azam Khan, advocates, for the respondents.

Amicus curie: Mr. Bostan Chaudhary, Raja Niaz Ahmed Khan, Ch. Muhammad Reaz Alam, Raja Inaamullah Khan and Sh. Masood Iqbal, advocates.

Date of hearing: 3/2/2014 JUDGMENT:

Mohammad Azam Khan, C.J.—The following

short order was passed on 22.1.2014:-

7

“For the reasons to be recorded in the detailed judgment, this appeal is accepted. The impugned judgment of the High Court is set aside. Resultantly the writ petition filed by the appellants and proforma-respondents in the High Court is accepted. The seats reserved in the medical colleges on self-finance basis are declared to be in contravention of law. The seats shall be allotted on district wise quota.”

2. The detailed reasons for the order are as under:-

The Joint Admission Committee of the Government

medical colleges through an advertisement dated 21.8.2013

invited applications for admission in the first year, MBBS course

in the Government medical colleges of the Azad Jammu &

Kashmir as well as against the seats reserved for Azad Jammu &

Kashmir students in various medical colleges of Pakistan. The

appellants and proforma respondents qualified the entry test and

applied for admission on merit basis against the seats allocated to

various districts of Azad Jammu & Kashmir. The merit position

was determined. After preparation of merit list, respondent No.1,

Azad Government of the State of Jammu & Kashmir, issued a

notification on 23.10.2013, whereby number of seats allocated to

the districts and the refugees’ quota was changed and ten seats

each in the medical colleges were reserved for admission on self-

finance basis. Resultantly, 30 students including the appellants

and proforma respondents were deprived of the admission against

the seats reserved for them in the district quota. Appellants No.1

8

to 7 and proforma respondents No.45 to 62 challenged the said

notification through writ petition in the High Court on

25.11.2013. The writ petition was dismissed vide impugned

judgment on 2.1.2014. This appeal is filed by the leave of the

Court.

3. Appreciating the nature of importance of the legal

proposition involved in the case, we issued notices to some of the

senior members from the District Bar Association, Mirpur. Mr.

Bostan Chaudhary, Raja Niaz Ahmed Khan, Ch. Muhammad

Reaz Alam, Raja Inaamullah Khan and Sh. Masood Iqbal,

advocates, appeared as amicus curie to assist the Court.

4. Mr. Abdul Rasheed Abbasi, advocate, while arguing

on behalf of the appellants, submitted that the judgment of the

High Court is against law and the record. By allocating 30 seats

on self-finance basis, fundamental right of equality of the State

subjects before law and entitlement of the State subjects to equal

protection of law has been violated. The allocation of seats on

self-finance basis is unjustified. The notification dated

23.10.2013, has been issued without any reason and has no

wisdom behind it except to give edge to the wealthy people on

self-finance basis. It is not a reasonable classification. The

learned counsel referred to the cases reported as Azad Jammu &

9

Kashmir Government & others vs. Muhammad Younas Tahir &

others [1994 SCR 341], Nazir Hussain Hashmi vs. The Capital

Development Authority, Islamabad [PLD 1976 Lahore 1115],

Shrin Munir & others vs. Government of Punjab through

Secretary health, Lahore & another [PLD 1990 SC 295], I. A.

Sharwani & others vs. Government of Pakistan through

Secretary Finance Division, Islamabad & others [1991 SCMR

1041], Government of Baluchistan through Additional Chief

Secretary vs. Azizullah Memon & 16 others [PLD 1993 SC 341]

and Mst. Attiyya Bibi Khan v& others vs. Federation of Pakistan

through Secretary of Education (Ministry of Education), Civil

Secretariat, Islamabad & others [2001 SCMR 1161]. The learned

counsel submitted that classification is permissible only if it is

reasonable and based on intelligible differentia. By reserving the

seats on self-finance basis, a class has been created, which has no

reasonable nexus to the subject. A class can be created under

right No.12(6) of Section 4(4) of the Azad Jammu & Kashmir

Interim Constitution Act, 1974 for making the provision for the

advancement of any society or educationally backward class of

the State subjects but a class cannot be created for extending the

benefit to the privileged ones and wealthy people on the basis of

their wealth. The learned counsel argued that the medical

10

education is to be governed under the Pakistan Medical & Dental

Council Ordinance, 1962 (to be referred hereinafter as PMDC

Ordinance). The admission policy is framed in the light of

provisions contained in PMDC Regulations, which has been

adapted in Azad Jammu & Kashmir. Regulation 5(c) of the

PMDC Regulations provides seats for foreign/self-finance while

the seats have been reserved only on self-finance basis through

notification dated 23.10.2013. No seat has been reserved for

foreign students. It is a violation of PMDC Regulations. The

learned counsel submitted that the University of Health Sciences,

Lahore, has issued criteria for admission in the medical colleges

and the seats have to be reserved on foreign/self-finance basis.

The notification is also violative of the criteria issued by

University of Health Sciences, Lahore. The learned counsel

submitted that the applications were invited for admission in

three medical colleges of Azad Jammu & Kashmir on 21.8.2013.

The appellants and proforma respondents, after qualifying the

entry tests, applied for admission in the medical colleges. The

merit list was prepared and most of the appellants were in the

merit position to get admission against 30 seats which were later

on transferred to self-finance category by creating a special

category. After qualifying the entry test and preparation of merit

11

list, a right has vested in the appellants and proforma

respondents, which has been snatched arbitrarily by issuing

notification dated 23.10.2013. Without hearing a person, a vested

right cannot be snatched subsequently by changing the admission

policy.

The case reported as Mst. Attiyya Bibi Khan v&

others vs. Federation of Pakistan through Secretary of Education

(Ministry of Education), Civil Secretariat, Islamabad & others

[2001 SCMR 1161], relates to admission in medical colleges.

While elaborating the principle of equal protection before law the

Supreme Court of Pakistan observed that reasonable

classification is permissible. Equal protection of law doesn’t

mean that every citizen shall be treated alike in all circumstances.

Different laws can be enacted for the persons of different age

groups, financial standings or in relation to crime and sex. No

universal application or test for laying down a standard of

classification can be laid down. Equal protection of law means

that all persons equally placed be treated alike and classification

shall be based on intelligible differentia and must have rational

nexus to the object.

In the case reported as Azad Jammu & Kashmir

Government & others vs. Muhammad Younas Tahir & others

12

[1994 SCR 341], it was observed that fundamental right No.15 of

the Constitution guarantees that all State subjects are equal before

law and are entitled to equal protection of law. It was further

observed that fundamental right No.15 holds out a firm and

forthright guarantee that all State subjects are equal before law

and are entitled to equal protection of law.

In the case reported as Government of Baluchistan

through Additional Chief Secretary vs. Azizullah Memon & 16

others [PLD 1993 SC 341], it was observed that any law made or

action taken in violation of the principles contained in Article 25

of the Constitution of Islamic Republic of Pakistan is liable to be

struck down.

In the case reported as Shrin Munir & others vs.

Government of Punjab through Secretary health, Lahore &

another [PLD 1990 SC 295], the facts of the case were that the

Government allocated 677 seats to the boy students on open merit

and 181 seats to the girl students out of total 858 seats. Some of

the girl students challenged the allocation of seats on the ground

that they have the right to compete on open merit. The Court

reached the conclusion that debarring the girl students from

participating on open merit with the boys is discriminatory and

allowed the girl students to participate on open merit. It was

13

observed by the Court that classification based on intelligible and

reasonable standard is permissible within the framework of

Article 25 on the ground of sex and sex alone.

In the case reported as I. A. Sharwani & others vs.

Government of Pakistan through Secretary Finance Division,

Islamabad & others [1991 SCMR 1041], it was observed in para

25 that all the citizens are equal before law and are entitled to

equal treatment, however, the treatment of citizens by a State on

the basis of reasonable classification is not prohibited. It was

observed in para 25 as under:-

“25. As pointed out hereinabove earlier that the case of the petitioners is not founded on the ground of violation of any provision of the Civil Servants Act or the relevant statutory rules but is grounded on the violation of Article 25 of the Constitution. It would, therefore, be advantageous to reproduce hereinbelow the above Article, which reads as follows:--

‘25. (1) All citizens are equal before law

and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex alone.

(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.’

It may be noticed that above-quoted clause (1) enshrines the basic concept of religion of Islam. However, this is now known as the golden principle

14

of Modern Jurisprudence, which enjoins that all citizens are equal before law and are entitled to equal protection of law. The above clause corresponds to 14th Constitutional Amendment of the American Constitution, which inter alia provides that ‘no State shall deny to any person within its jurisdiction the equal protection of law’. However, the above clause does not prohibit treatment of citizens by a State on the basis of a reasonable classification. The question, therefore, arises what should be the basis or criterion for classification as to avert violation of the above clause. In this regard, it may be pertinent to refer the following cases of this Court and of the Indian Supreme Court:--

(i) Brig. (Retd.) F. B. Ali and another v. The State PLD 1975 SC 506;

in which this Court considered the scope of Fundamental Right No.15 of the late Constitution of 1962 in context with Article 25 of the Constitution and Hamoodur Rehman, C.J. who delivered the leading judgment, made the following observations:--

‘Equal protection of the law does not mean that every citizen, no matter what his condition, must be treated in the same manner. The phrase ‘equal protection’ of the

laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty property, or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the

15

same manner. Besides this, all law implies classification, for, when it applies to a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference of distinction. Thus different laws can validly be made for different sexes, for persons in different age groups, e.g. minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed the bulk of the special laws made to meet special situations come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain anti-social effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of the State, maintenance of public order, removal of corruption from

16

amongst public servants or for meeting an emergency.’”

In the case reported as Nazir Hussain Hashmi vs. The

Capital Development Authority, Islamabad [PLD 1976 Lahore

1115], it was observed that reasonable classification is

permissible but such classification, which is arbitrary is not

permissible.

5. Mr. Abdul Majeed Mallick, advocate, while arguing

on behalf of the respondents, submitted that the notification dated

23.10.2013 is not violative of the fundamental rights. The

classification is permissible under the Constitution if it is based

on intelligible differentia and has reasonable nexus to the subject.

The learned counsel referred to right No.12(3) & (6) of Section

4(4) of the Azad Jammu & Kashmir Interim Constitution Act,

1974. The learned counsel referred to PMDC Regulations, 2013

and argued that the Regulations recognize the classification and

reservation of seats on self-finance basis. The learned counsel

further submitted that the seats have also been reserved in the

admission policy issued by the admission committee of Punjab

which is approved by the Government of Punjab and seats are

also reserved on self-finance basis in Khyber Pakhtunkhwa

province. The admission policy for medical and dental

institutions of Punjab and Khyber Pakhtunkhwa provinces is in

17

line with PMDC Ordinance and Regulations made thereunder.

The reservation of seats on self-finance basis is not violative of

fundamental rights. He requested for dismissal of appeal.

6. Raja Ghazanfar Ali Khan, the learned Advocate-

General, defended the notification dated 23.10.2013 and

submitted that the seats have been reserved on self-finance basis

due to financial crunch for raising the revenue. As the Azad

Jammu & Kashmir Government was not in a position to meet the

expenses, therefore, thirty seats have been reserved in the self-

finance category. The learned Advocate-General submitted that

PMDC Regulations recognize reservation of seats on self-finance

basis, therefore, reservation of seats on self-finance basis by the

Government is not violative of fundamental right No.15. The

learned Advocate-General submitted that Misbah Siddique, one

of the appellants, has also applied for admission on self-finance

basis. After applying for the same, she is estopped by conduct to

challenge the reservation of seats on self-finance basis. The

learned Advocate-General requested for dismissal of appeal.

7. Sardar Shahid Hameed Khan, advocate, one of the

counsel for the respondents, submitted that the judgment of the

High Court is perfectly legal. The PMDC Regulations recognize

the reservation of seats on self-finance basis. The admission

18

policy has been issued in the light of the provisions contained in

PMDC Ordinance and Regulations made thereunder. The PMDC

Ordinance has been adapted in Azad Jammu & Kashmir. The

learned counsel submitted that the seats have been reserved in

most of the higher educational institutions of Azad Jammu &

Kashmir and Pakistan on self-finance basis. The learned counsel

referred to the breakup of seats in Azad Jammu & Kashmir

University, Muzaffarabad, Mirpur University of Science &

Technology (MUST), Sind University, Karachi, Peshawar

University, Peshawar and argued that in all the said institutions,

more than 40% seats are reserved in different science subjects on

self-finance basis. For improving the standard of education, the

Government has allowed the higher educational institutions to

reserve seats on self-finance basis. The learned counsel referred

to and relied upon the cases reported as Chairman, Joint

Admission Committee, K.M.C. Peshawar etc. vs. Raza Hassan

etc. [PLJ 1999 SC 810], Miss Uzma Sabbir Qureshi & others vs.

Government of Baluchistan through Secretary Health

Department, Quetta etc. [PLJ 2000 Quetta 64 (DB)], Mian

Muhammad Afzal vs. Province of Punjab & others [2004 SCMR

1570] and Secretary Economic Affairs Div., Islamabad & others

vs. Anwarul Haq Ahmed & others [PLJ 2013 SC 850].

19

In the case reported as Chairman, Joint Admission

Committee, K.M.C. Peshawar etc. vs. Raza Hassan etc. [PLJ

1999 SC 810], one Raza Hassan applied for admission to one of

the medical colleges in the province of NWFP on self-finance

basis. After completion of process, the admission policy for self-

finance was withdrawn, whereupon he filed a writ petition in the

High Court which was dismissed but on appeal, the Supreme

Court observed that the Government has powers to amend or alter

any rule laid down in the prospectus but it cannot be done so after

completion of process of admission. It was observed in para 5 as

under:-

“…..But in the present case, it would not be out

of place to observe that for this litigation the petitioners have only themselves to blame. Even if the petitioners have power to amend or alter any rule embodied in the prospectus, such action appears to be completely ill-advised after the process of admissions had already commenced.”

In the case reported as Miss Uzma Sabbir Qureshi &

others vs. Government of Baluchistan through Secretary Health

Department, Quetta etc. [PLJ 2000 Quetta 64 (DB)], initially

seats were reserved on self-finance basis. Some students applied

for admission on self-finance basis. Later on the prospectus was

changed and seats earmarked on self-finance basis were

20

withdrawn. On writ petition, the Baluchistan High Court

observed that no right vests in the students who applied on self-

finance basis.

In the case reported as Mian Muhammad Afzal vs.

Province of Punjab & others [2004 SCMR 1570], the upper age

limit was fixed for admission in MBBS course as 25 years. One

of the candidates challenged the same. It was observed by the

Supreme Court of Pakistan that authorities were not debarred

from prescribing the maximum age limit for admission to such

courses of studies.

In the case reported as Secretary Economic Affairs

Div., Islamabad & others vs. Anwarul Haq Ahmed & others [PLJ

2013 SC 850], one Anwarul Haque got admission in MBBS

course on self-finance basis. Later on fee structure was revised

vide notification dated 3.2.2003. Anwarul Haque challenged the

said notification through writ petition before the High Court and

prayed that revised fee structure in self-finance scheme for

foreign students of Pakistani origin be declared ultra vires the

provisions of Article 2-A, 3, 4 and 25 read with 37(c) of the

Constitution of Islamic Republic of Pakistan, 1973 and

depositing of bank guarantee for remaining period may also be

declared illegal. After necessary proceedings, the High Court

21

allowed the writ petition to the extent of letter dated 3.2.2003

laying down a different fee structure for the foreign students

under the self-finance scheme in different colleges of the Punjab

and the condition of furnishing bank guarantee was set aside. The

Supreme Court dismissed the appeal of Secretary Economic

Affairs Division, Islamabad and others. It was observed as

under:-

“Thus, it is held that the classification between

the students, who secured more marks and succeeded in getting admission on open merit and the students, who, after failing to get admission on open merit, opted to get the benefit of Self-Finance Scheme, is based on an intelligible differentia as such reasonable. Therefore, students who opted to apply for admission on Self-Finance basis, after being failed to get admission on open merit, can not claim the protection of Article 25 of the Constitution as they are neither similarly placed nor such classification is unreasonable.”

8. Sardar Muhammad Azam Khan, advocate, counsel

for respondents No.17 and 18, while adopting the arguments of

Mr. Abdul Majeed Mallick and Sardar Shahid Hameed Khan,

advocates, submitted that the notification is not ultra vires the

Azad Jammu & Kashmir Interim Constitution Act, 1974. The

learned counsel requested for dismissal of appeal.

9. Raja Niaz Ahmed Khan, advocate, (amicus curie)

submitted that the Constitution guarantees the equality of citizens

22

before law and equal protection of law. It is the duty of the

Government to provide free quality education to the State

subjects. The reservation of seats on self-finance basis is

discriminatory because students having superior merit are

deprived of the admission in the medical colleges on the ground

that they are financially poor. The learned counsel submitted that

reservation of seats for privileged class on the basis of self

finance is discriminatory and not recognized by the injunctions of

Islam. The learned counsel submitted that once merit list has

been prepared in the light of advertisement issued by the

admission committee, valuable right vests in the students who

have secured the merit position. They cannot be deprived of the

admission by changing the admission policy.

10. Mr. Bostan Chaudhary, advocate, submitted that

reservation of seats on self-finance basis is against the

fundamental rights. The PMDC Regulations offends the

provisions of the Constitution. The learned counsel distinguished

the categories VII and VIII of the admission policy of Punjab,

where seats are reserved for foreign students under the technical

assistance program and on self-finance basis only for foreign

students while in the Azad Jammu & Kashmir, the seats have

been reserved for local students on self-finance basis. The act of

23

admission committee is discriminatory and offend the

constitutional provisions. He further submitted that after inviting

the applications a merit list has been prepared and a right has

accrued to the students for admission who secured the merit

position, which cannot be snatched later on by issuing a

notification. Such notification is against the provisions of the

Constitution.

11. Ch. Muhammad Reaz Alam, advocate, who appeared

as amicus curie on Court notice, submitted that under the PMDC

Regulations made under the PMDC Ordinance, the seats can be

reserved on self-finance basis. The learned counsel referred to

clause 5(2)c of the PMDC Regulations, 2012, and argued that

regulation provides that a foreign admission/self-finance seat

shall only be given to the foreign students who meet the Council

criteria for admission on such seat. If foreign admission/self-

finance seats are left vacant in any institution, a local student can

only be admitted on such seat if he fulfills the eligibility criteria

for admission as laid down in regulation 5(2)a. The learned

counsel submitted that if a seat can be reserved under the PMDC

Regulations on self-finance basis for a Pakistani student residing

abroad, then why the seat cannot be reserved for a local student

on self-finance basis. The learned counsel argued that reservation

24

of seats on self-finance basis is not violative of PMDC Ordinance

and Regulations. The notification is not open to challenge.

12. Raja Inaamullah Khan, advocate, submitted that

reservation of seats on self-finance basis offends the provisions

of equality before law and equal protection of law, as enshrined

in Right No.15 of Section 4(4) of the Azad Jammu & Kashmir

Interim Constitution Act, 1974. The reservation of seats on self-

finance basis by decreasing the number of seats reserved on merit

is discriminatory and such classification is not reasonable and not

permissible under the Constitution. The learned counsel

submitted that a class can be created for better education of an

ignored class but seats cannot be reserved for extending an edge

to the upper strata of the society on the basis of wealth and

financial position. The learned counsel argued that the

notification is violative of fundamental rights of the State

subjects provided under right No.15 of Section 4(4) of the Azad

Jammu & Kashmir Interim Constitution Act, 1974. The learned

counsel referred to the case reported as Imdad Hussain vs.

Province of Sindh through Secretary to Government of Sindh,

Karachi & 3 others [PLJ 2007 Karachi 91 (DB)].

In the case reported as Imdad Hussain vs. Province of

Sindh through Secretary to Government of Sindh, Karachi & 3

25

others [PLJ 2007 Karachi 91 (DB)], one Imdad Hussain got

admission in the medical colleges of Sind on self-finance basis

on, a seat reserved for self-finance. Later on, the admission

policy was changed and he was ordered to furnish guarantee for

fee of remaining five years. He challenged the said action

through a writ petition in the Sind High Court. The Sind High

Court accepted the writ petition and declared the condition of

depositing bank guarantee of five years’ fee to be unreasonable

and unconstitutional, thus have no legal effect.

13. Sh. Masood Iqbal, advocate, submitted that the

Constitution guarantees the equality before law and equal

protection of law. Reservation of seats on self-finance basis is

discriminatory, ultra vires the Azad Jammu & Kashmir Interim

Constitution Act, 1974 and PMDC Ordinance and Regulations

made thereunder. The learned counsel submitted that

classification is permissible and right No.12(3) and (6) of Section

4(4) of the Constitution recognize the classification for better

education of a neglected part of the society but a class cannot be

created on the basis of wealth and cost of those students who

have superior merit. The learned counsel submitted that Article

22 of the Constitution of Islamic Republic of Pakistan, 1973,

protects the rights of minorities and right No.12(6) of Section

26

4(4) of the Azad Jammu & Kashmir Interim Constitution Act,

1974 protects the similar situation. The learned counsel referred

to the case law reported as Abdul Qadir Shaikh vs. Registrar,

N.E.D. University of Engineering & Technology and others

[1992 CLC 2222].

In the case reported as Abdul Qadir Shaikh vs.

Registrar, N.E.D. University of Engineering & Technology and

others [1992 CLC 2222], the petitioner wanted to get admission

in NED University, Karachi. The prospectus for admission issued

in the year 1991-92 introduced a new category of students where

the students, who have acquired education outside Karachi, were

not entitled to compete on open merit and only 17 seats were

reserved for them. The candidates claimed that they are

domiciled in Karachi and permanently residing there and entitled

to competent on open merit. On writ petition, the High Court

struck down the category on the ground that it is not reasonable.

14. We have heard the learned counsel for the parties, the

learned amicus curie and perused the record.

15. The Azad Government of the State of Jammu &

Kashmir established three medical colleges in public sector in

Azad Jammu & Kashmir. The Chairman Joint Admission

27

Committee issued a proclamation for admission in the medical

colleges of Azad Jammu & Kashmir and the seats reserved for

students of Azad Jammu & Kashmir in medical colleges of

Pakistan on 21.8.2013. Following eligibility criteria was laid

down in the advertisement:-

“Eligibility criteria

i) Azad Jammu & Kashmir Nationals (from all districts of AJ&K, refugees settled in Pakistan in 1989)

ii) Only AJ&K nationals (Having domicile of any district of AJ&K) can apply against reserved seats for Disabled candidates. Nomination/admission against these seats will be made on merit as on the recommendations of Medical Board constituted/headed by Director General of Health Department Go. AJ&K.

iii) For special seats reserved in Ayub Medical College Abbottabad, for Neelum and Leepa valley have to apply separately.

iv) Only AJ&K nationals (Having domicile of any district of AJ&K) can apply against reserved seats for doctors’

children. Candidates who are applying against these seats will have to submit certification of 10 years’ service of their

parents in Health Department Go. AJ&K.

v) Admissions/nominations will be made according to prescribed quota of each district/unit, anyhow if no eligible candidate available from any unit, the seat will be allocated on open merit. However, vacant seats in medical colleges of AJ&K will be filled according

28

to Policy Notification No.S.H/II/P-II/(24)1/2013, dated 24.4.2013.

vi) Overseas Kashmiris meeting the PMDC criteria for admission against the reserved seats for overseas candidates will have to apply with all relevant proof of second nationality and certificates of education record from a foreign institution along with the result of SAT-II.

vii) For nomination against reserved seats for BDS candidates (excluding refugees 1947-1989) will have to apply separately.

viii) Refugees 1947, selected on open merit of any other province of Pakistan are bound to avail their seats of open merit if their nomination/admission is found otherwise at any stage, the admission/nomination will stand cancelled from date of admission/nomination.

ix) Candidates claiming for Hafiz-e-Quran marks will have to appear before the committee constituted for such purpose. Candidates who are applying against more than one category, must fill separate form for each category.”

Clause (V) of the eligibility criteria provides that

admission/nomination will be made according to the prescribed

quota of each district/unit. If no eligible candidate is available

from any unit, the seat will be allocated on the open merit. The

Government issued an admission policy in the year 2012 through

notification dated 13.1.2012, where 25 seats were reserved for

different categories. In each of the medical colleges, 10 seats

were kept for open merit and 65 seats were allocated on the basis

of district-wise quota. The notification is reproduced as under:-

29

“NOTIFICATION

No.SH/1/(24)1 Part-II/2011. In suppression of Notification No.SH/1/(24)1 Part-II/2011 dated 10th of January, 2012, the President of Azad Jammu & Kashmir has been pleased to accord approval of the allocation of MBBS seats for each medical college of Azad Jammu & Kashmir as first admission for current year, keeping in view, shortage of time to start the classes as per scheduled period.

1 Reserve Seats 25 2 Open merit 10 3 District/Refugee quota prevailing

in AJ&K 65

Total 100

In case any seat remains unfulfilled, it will be added to open merit.

Detail of reserve seats in each medical college is as under:-

1 Punjab 02 2 Sind 02 3 Baluchistan 02 4 KPK 04 5 FATA 01 6 Overseas Kashmiri 05 7 Gilgit Baltistan 05 8 Occupied Kashmir 02 9 Doctor’s children 01 10 Disabled Students 01 Total 25

s/d Additional Secretary Health”

The advertisement was issued in the light of said

notification and in pursuance of said advertisement the candidates

30

including the appellants and proforma respondents applied

against the quota reserved for respective districts and the

refugees. The merit list was prepared and the appellants secured

merit position for admission in the medical colleges against the

seats reserved for their respective districts quota when a

notification was issued on 23.10.2013. Entry No.19 of the said

notification provides the detail of seats allocated to different

categories and 10 seats in each college were reserved on self-

finance basis. We deem it appropriate to reproduce entry No.19

of the notification dated 23.10.2013, which reads as under:-

19. ALLOCATION OF SEATS IN MEDICAL COLLEGES OF AJ&K

Allocation of seats in Public Sector Medical College of AJ&K is as under:-

S. # Category Number of Seats Total AJ&K

MC MBBS

MC PMC

1. Open Merit 10 seats 10 seats 10 seats 30 seats 2. Quota of

districts 54 seats 54 seats 54 seats 162 seats

3. Self-finance 10 seats 10 seats 10 seats 30 seats 4. Overseas

Kashmiri 05 seats 05 seats 05 seats 15 seats

5. Punjab 03 seats 03 seats 03 seats 09 seats 6. Sind 02 seats 02 seats 02 seats 06 seats 7. Baluchistan 02 seats 02 seats 02 seats 06 seats 8. KPK 04 seats 04 seats 04 seats 12 seats 9. Gilgit

Baltistan 04 seats 04 seats 04 seats 12 seats

10. FATA 01 seat 01 seat 01 seat 03 seats 11. Indian held 03 seats 03 seats 03 seats 09 seats

31

Kashmir 12. Disabled

candidate 01 seat 01 seat 01 seat 03 seats

13. Doctor’s

children 01 seat 01 seat 01 seat 03 seats

Grand total 300 seats

A comparison of the notification dated 13.1.2012 and

notification dated 23.10.2013, shows that vide notification dated

13.1.2012 there are 100 seats in each medical college. 25 seats

are reserved for different categories including Punjab, Sind,

Baluchistan, Khyber Pakhtunkhwa, FATA, Overseas Kashmiris,

Gilgit Baltistan, Occupied Kashmir, Doctors’ children and

disabled students etc. 10 seats are reserved on open merit and 65

seats are allocated to the quota of different districts and refugees

while through notification dated 23.10.2013 the number of seats

allocated to districts and refugees was curtailed from 65 to 54 and

10 seats were reserved in each medical college on self-finance

basis whereas one seat in each medical college was increased for

Punjab. The students, who have applied against the seats reserved

for their respective district quota and seats reserved for refugees,

have been deprived of admission due to decrease in the number

of seats allocated to the districts and the refugees.

16. The first question which needs resolution is whether

PMDC Regulations recognize the reservation of seats on self-

finance basis or not. The Azad Jammu & Kashmir Government

established medical colleges without statutory backing and

framed an admission policy in hasty manner. The admission

32

policy was challenged in the case reported as Anam Jabbar &

others vs. Azad Government of the State of Jammu & Kashmir

through its Chief Secretary, Muzaffarabad & 12 others [PLJ

2013 SC (AJ&K) 18]. While observing by this Court that the

colleges have been established without any statutory backing, a

direction was issued to the Government that it shall immediately

provide a mechanism for admission in the next session. It was

also observed that PMDC Ordinance, is the parent law. The Azad

Jammu & Kashmir Government shall fix the criteria and make

policies in the light of said Ordinance and Regulations framed by

the PMDC. It was observed as under:-

“….In Pakistan, PMDC is the controlling body of the Medical/Dental Colleges and medical profession. PMDC ordinance was issued in 1962. In the light of powers vested in it under the Ordinance of 1962, PMDC framed regulations from time to time for admission in Medical and Dental Colleges which are being followed by AJ&K Government in the field of medical education. Azad Jammu & Kashmir is a backward area. After the establishment of Medical Colleges in Azad Jammu & Kashmir, the Government has to formulate a proper mechanism for admissions in Medical Colleges based on merit so that no candidate is deprived of his legitimate right of admission in Medical Colleges. It is necessary to provide a legal cover to the Medical colleges. We, therefore, issue a direction to the Government for providing legal cover to the establishment of Medical Colleges and for making the Regulations as well as Admission Policy akin to PMDC Ordinance and the regulations framed thereunder before the next academic Session.”

33

17. Again the admission policy was challenged in Basit

Mukhtar’s case (Civil Appeal No.160/2012, decided on

7.10.2013). The question of reserve seats came under

consideration of this Court in the referred case. It was observed in

para 10, 11 and 12 as under:-

“10. Two Medical Colleges were established by the Azad Government of the State of Jammu & Kashmir in public sector without any statutory backing. While deciding the case reported an Anam Jabbar & 6 others vs. Azad Government of the State of Jammu & Kashmir through its Chief Secretary, Muzaffarabad, AJ&K & 12 others [PLJ 2013 SC (AJ&K) 18] it was directed by this Court that the colleges have been established without any statutory backing. The Government shall immediately provide a mechanism for admission in the next session. It was also observed while deciding the said case that PMDC Ordinance, 1962 is the parent Ordinance. The Azad Jammu & Kashmir Government shall fix the criteria and make policies in the light of said Ordinance and Regulations framed by the PMDC. The admission committee in its meeting dated 2.2.2012 decided that the admission shall be granted to the candidates in newly established medical colleges on the basis of criteria and policy laid down by the PMDC. The Supreme Court of Pakistan in a number of cases has observed that PMDC is the sole authority in respect of medical education and registration of doctors possessing recognized medical qualification and the regulations framed by the PMDC shall apply to all medical colleges of Pakistan and admission is to be granted in the light of Regulations issued by the PMDC. The admission committee decided that the admission shall be granted on the basis of

34

criteria laid down by PMDC as applicable for the time being in public sector medical colleges in Pakistan.

11. The Azad Jammu & Kashmir has a special status as compared to Pakistan. Previously there was no medical college in Azad Jammu & Kashmir and seats were reserved in medical colleges of Pakistan for State Subjects which were allotted by the Azad Jammu & Kashmir Nomination Board. After the establishment of medical colleges in Azad Jammu & Kashmir the seats in medical colleges of Pakistan are still reserved for Kashmiri students. The scheme of PMDC describes two categories of students; local Pakistani students and overseas students. Pakistani nationals applying for admission against overseas seats having passed the examination equivalent to Intermediate level of Pakistan from a foreign education system with three science subjects out of which Biology and Chemistry are essential subjects with 60% marks in each as certified by IBCC, are eligible to appear in the entry test or in lieu of the entry test conducted by the admission authority, the candidate is required to have passed SAT-II examination score with minimum 550 marks along with three science subjects out of which two have to be Biology and Chemistry. Overseas Pakistani Students, who have passed Intermediate examination from any Pakistani Board from abroad are also eligible. After the establishment of new medical colleges in Azad Jammu & Kashmir, the seats have been reserved for students of Punjab, KPK, Baluchistan and Sindh on reciprocal basis because these provincial Governments have reserved seats in their medical colleges for students of Azad Jammu & Kashmir. The seats for students from Occupied Kashmir have also been reserved and seats have also been reserved for the students of Gilgit Baltistan, the doctors’

children and overseas State Subjects.

35

12. The PMDC Regulations for admission in medical colleges have been framed for ensuring quality education. The criteria for granting admission laid down in PMDC regulation is that the candidate whether local Pakistani or overseas student, must have passed the F.Sc. examination equivalent to pre-medical with science subjects, whether passed from Pakistani Boards or from abroad and must have passed entrance test or SAT-II examinations with minimum score of 550 marks. If the admission committee fixes the criterion for admission in violation of this criteria which is below the one fixed by the PMDC, then the criterion is clearly against PMDC Regulations but when criterion for admission is that same which is laid down by the PMDC, then the admission policy is not in violation of PMDC Regulations and it is a valid document. The detailed study of whole policy reveals that in the admission policy the admission committee for medical colleges of Azad Jammu & Kashmir has laid down same criteria for eligibility of a student to apply for admission in two medical colleges, as is fixed by the PMDC and University of Health Sciences, Lahore. The criterion is not below the one laid down by the PMDC as such is not in violation of the PMDC Regulations. The criterion laid down by the admission policy is valid and perfectly in line with the PMDC Regulations. The judgment of the High Court on this point is not maintainable and the same is set aside.”

18. The notification dated 23.10.2013 has been

challenged on the ground that it is against the provisions of

PMDC Ordinance and Regulations made thereunder and on the

ground that reservation of seats on self-finance basis is against

the principle of equality before law. Right No.15 of the

Constitution guarantees equality of State subjects and equal

36

protection before law. The proposition came under consideration

of this Court, the Supreme Court of Pakistan and the Supreme

Court of India, where in a number of cases the Courts have

observed that classification is permissible if it is reasonable and

based on intelligible differentia which has nexus to the subject.

The intention of legislature is always that a class can be created

for a particular group. All the citizens can be treated alike in

similar circumstances. In the case reported as Azad Jammu &

Kashmir Government & others vs. Muhammad Younas Tahir &

others [1994 SCR 341], it was observed as under:-

“The Interim Constitution Act through

Right No.15 holds out a firm and forthright guarantee that all State subjects are equal before law and are entitled to equal protection of law. Its meanings are plain enough to ensure that laws of the State shall equally apply to all subjects and there would be not discriminatory treatment amongst them. Since there is no particularization in the phraseology these guarantees cover all laws dealing with State subjects whether they relate to life, honour, property, freedom, employment and all rights and liabilities. These lofty pronouncements have, however, been rationalized were experienced and literally implementing these guarantees. These difficulties are real and substantial, therefore, reasonable classification was recognized.”

Similarly in the case reported as Government of

Baluchistan through Additional Chief Secretary vs. Azizullah

Memon & 16 others [PLD 1993 SC 341], for application of

37

equality clauses of the Constitution, following principle has been

laid down in the judgment:-

“(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(viii) that in order to make a classification reasonable it should be based---

38

(a) on an intelligible differentia which distinguished persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.”

A class on self-finance basis has been created for

admission under notification dated 23.10.2013. The case of the

appellants is that the reservation of seats on self-finance basis is

in violation of PMDC Ordinance and the Regulations. The

provisions of PMDC Ordinance and Regulations have not been

challenged. The PMDC Ordinance and Regulations have been

adapted in Azad Jammu & Kashmir. In the light of judgment of

this Court recorded in the case titled Anam Jabbar & others vs.

Azad Government of the State of Jammu & Kashmir through its

Chief Secretary, Muzaffarabad & 12 others [PLJ 2013 SC

(AJ&K) 18] referred to hereinabove, the admission committee

framed the admission policy and criteria for admission has been

fixed. The validity of notification is to be considered in the light

of PMDC Ordinance, 1962 and Regulations made thereunder.

19. PMDC Ordinance, 1962 has been adapted by the

Azad Jammu & Kashmir Government along with its Regulations.

Whether reservation of seats on self-finance basis is violative of

PMDC Ordinance and Regulations or not, we have to go through

the provisions of PMDC Ordinance and Regulations. Sub-section

(1) of Section 33 of the PMDC Ordinance, empowers the Council

39

that it may, with the previous sanction of the Government, make

regulations generally to carry out the purpose of the Ordinance

and prescribing a uniform minimum standard of courses of

training for obtaining graduate and postgraduate medical and

dental qualifications to be included respectively in the first, third

and fifth schedules. In the light of Section 33, PMDC used to

issue Regulations from time to time and last Regulations for

admission in MBBS/BDS course and conditions for admission in

MBS and BDS course were issued in the year 2013. Part II of the

Regulations deals with the admission in MBBS and BDS course.

Regulation 2 provides the power of the Council for determining

the number of seats in the medical and dental institutions which

lays down that total annual admissions in an MBBS course shall

not exceed 350 in a public sector medical institution and 150 in a

private sector medical institution. The total annual admissions in

the BDS course shall not exceed 100 in a public sector dental

institution and 80 in a private sector dental institution. Regulation

5 deals with minimum academic requirements for admission in

MBBS/BDS courses and Regulation 5(2) deals with the

admission on merit seats/Pakistan seats provided in the colleges

and foreign seats/self-finance seats in public and private colleges.

It is useful to reproduce Regulation 5(2) which reads as under:-

“5. Minimum Academic requirements for Admission in the MBBS/BDS course:

(1) …………………………………………..

40

(2) Admission on merit seats/Pakistani seats in private colleges and foreign seats/self-finance seats in public and private colleges

a. Admission in a private college and in a public medical or dental college on reserved seats/self-finance/special seats/quota seats shall be given only to a candidate who has passed an examination equivalent to intermediate level of Pakistan from a foreign university or examining body or foreign education system with three subjects out of which Biology and Chemistry are essential subjects with 60% marks in aggregate as certified by IBCC to be equivalent to F.Sc/HSSC/intermediate.The equivalence by IBCC in the above terms shall be accepted in aggregate and the candidate shall be eligible for admission in the MBBS/BDS course with any study group whichever the IBCC may write.

The candidate shall have to appear in the provincial entry test or in lieu of the entry test of the admission authority, the candidate is required to have passed SAT II examination score with minimum 550 marks in each of the three subjects of which two have to be Biology and Chemistry of MCAT with minimum aggregate score of 24. The candidate is required to present a valid TOEFL or IELT with a minimum score of 500 or 5.5 only if the medium of instruction of study two years prior to application for admission/entry test is not English. An alternate to TOEFL and IELT is a certification by NUML Islamabad after a one year English language course.

b. No admission shall be given in MBBS/BDS course on the foreign admission/self-finance seats or any other

41

such Government or private scheme, without an entry test or the requisite SAT II examination score with minimum 550 marks in each of the three subjects of which two have to be Biology and Chemistry or MCAT with minimum aggregate score of 24 and other conditions laid down in 5(2)a above.

c. Upto 15% of seats in college shall be allowed to be foreign admissions/self-finance. The foreign admissions shall be filled only by persons who meet the Council criteria for admission on such seats. If foreign admission/self-finance seats are left vacant in any college, a local student can be admitted on such seat subject to fulfillment of eligibility criteria for admission as given in `regulation 5(2)a above.”

20. Regulation 5(2)a deals with the qualifications and

regulation 5(2)c provides for reservation of 15% seats for foreign

admission/self-finance. The Regulation also provides that if

foreign admission/self-finance seats are left vacant in any

college, a local student can be admitted on such seat subject to

fulfillment of eligibility criteria for admission as given in

regulation 5(2)a. The eligibility criteria for admission on

overseas/foreign seats, has been laid down by the PMDC in the

said Regulations providing therein the detailed reasons for

reservation of seats for foreign and overseas admissions. The

same is reproduced as under:-

“Eligibility criteria for Admission on

foreign/overseas seats

Background

42

A. The principle is to encourage foreign students and ex-pats to explore and come for their medical and dental education to Pakistan which offers a wide range of exposure to medical issues and a very cost effective and time effective completion of medical and dental education. Countries like India and Far East are rapidly offering facilitation to students who wish to explore the possibility, a huge Diaspora of Pakistani origin overseas families wish for their children to get this education in Pakistan but are forced to look elsewhere because of various hurdles and restrictions in our system. This deprives the students the opportunity of pursuing their profession of choice and the foreign remittance that is so dearly needed to boost our economy. One classical example is the rigid stance of the IBCC for various subjects and undue underscoring of individuals coming from abroad.

B. There are well reputed and well established international examinations which test the competency of students and are used world over to determine eligibility for admission to university programs, including medicine and dentistry. These examinations are significantly superior to many of our local systems and are much more discriminatory in identifying high performing students.”

A perusal of the same would show that PMDC is of

the view that families of Pakistani origin who are settled abroad

desire that their children may get education in Pakistan. For

providing an opportunity to them, the seats have been reserved

for foreign students/self-finance provided they otherwise qualify

43

to apply for the admission by fulfilling the criteria fixed in the

PMDC Regulations. What transpires from the study of PMDC

Ordinance and Regulations made thereunder is that the concept

of reservation of seats on self-finance basis is recognized by the

PMDC Ordinance and Regulations made thereunder. In modern

times, higher educational institutions are introducing new

disciplines and concept of exchange of students between different

countries is rapidly growing. The number of seats in education

institutions has also been increased, therefore, educational

institutions under the guidance of the Higher Education

Commission have introduced the idea of self-finance scheme

since long. The admission on self-finance scheme was transferred

to the Higher Education Commission in the year 2006 and limited

number of seats in the discipline of medicine (MBBS), dentistry

(BDS), Pharmacy (Pharm-D) and B.Sc. (Engineering) to facilitate

both foreign as well as Pakistani origin dual nationality holder

students, for their admission in Universities/institutions of

Pakistan. Following objectives have been defined by the Higher

Education Commission:-

“Objective

To encourage and facilitate Pakistani national settled abroad as well as foreign nationals to seek admission in Pakistani universities/institution.

44

To promote the image of Pakistan in outside world.

To share knowledge and expertise with friendly developing countries

To renew the contacts of expatriate Pakistanis through education of their children in Pakistan.

To provide quality education to the students of developing and underdeveloped countries in Pakistan.

To earn foreign exchange for the institutions/country.”

In the light of the guidance of Higher Education

Commission the universities have introduced self-finance scheme

not only for foreign students but also for Pakistani origin dual

nationality holder students and idea of reservation of seats on

self-finance basis is fully recognized not only by the Higher

Education Commission but also introduced by the PMDC in the

Regulations issued from time to time as well as in the latest

Regulations for admission in the year 2013.

20. The reservation of seats is further supported from the

prospectus issued by the University of Health Sciences, Lahore.

The said prospectus, which is approved by the Government, is

applicable in all the medical colleges of Punjab whether in public

or private sector. Various categories for admission have been

provided in the medical colleges of Punjab. The breakup of the

same is provided in the said prospectus as under:-

45

46

Entry No.VII relates to foreign students under

Pakistan Technical Assistance Program. This category is meant

for foreign students of those countries where Pakistani students

are accommodated and granted admissions on the basis of

technical assistance and entry No.VIII relates to foreign students

on self-finance basis. Similarly, seats are reserved in admission

policy of Khyber Pakhtunkhwa province on self-finance basis. As

it has been observed above that the PMDC Ordinance empowers

the Council to frame Regulations for admission and Regulations

framed by the PMDC recognize the reservation of seats on self-

finance basis, therefore, the admission committee has powers to

reserve seats on self-finance basis.

20. The next question which needs resolution is whether

the Government was empowered to issue notification dated

23.10.2013, after preparation of the merit list. As is evident from

the record and as has been discussed hereinabove, the

applications for entry test and admission in medical colleges were

invited by the Joint Admission Committee on 21.8.2013 on the

basis of notification dated 13.1.2012. 65 seats were reserved in

each medical college in the quota of the districts and the refugees.

The appellants and proforma respondents applied for admission

against the seats reserved in their respective district quota and

47

quota for refugees. The students qualified the entry test, merit list

was prepared and the appellants secured merit position to get

admission in medical colleges. After preparation of merit list a

right has accrued to the appellants and proforma respondents

which cannot be taken away subsequently by issuing a

notification deducting thereby 10 seats from the category of

reserved quota of districts and refugees and reserving the same on

self-finance basis. The vested right is an immediate fixed right of

present or future enjoyment, and rights are vested in

contradistinction being expectant or contingent. It must be a title

to the present or future enjoyment of property, or to the present or

future enforcement of a demand, or a legal exemption from a

demand made by another. The Supreme Court of Pakistan in the

case tilted Nabi Ahmed & another vs. Home Secretary,

Government of West Pakistan, Lahore & 4 others [PLD 1969

Supreme Court 599], defined the term ‘vested right’ as under:-

“29. What is a vested right? According to the

Oxford English Dictionary, “vested” means

“clothed, robed, dressed especially in ecclesiastical vestments…..vested rights essentially differ……from rights which are contingent…..that is, completely created……vested interests may perhaps be defined as rights based not upon contract but upon custom”. A close examination of these meanings and explanations reveals that a vested right is free from contingencies, but not in the

48

sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights. For instance, the right to cross-examine (not to re-cross-examine) a witness is a vested right, although the occasion for exercising it arises only if the witness says or has said something unfavourable and often after his examination-in-chief is over. The occasion to cross-examine may not arise or may not be exercised—but the right is not to be denied. The following discussion of the connotations of “vested rights” by J. G. Sutherland in his book on “Statutes and Statutory Construction,” Vol.

2, Art.2205, is helpful in clarifying the above thought :-

‘It is impossible……to assign precise meaning to the term (vested right) for any attempt results only in conflict in the decisions. By ‘vested right’ can be meant

no more than those rights which under particular circumstances will be protected from legislative interference (unless it is clearly intended). But as it is a right which vests upon equities, it has reasonable limits and restrictions it must have some regard to the general welfare and public policy, it is not a right which is to be examined, settled and depended on a distinct and separate consideration of the individual case, but rather on broad and general grounds which embrace the welfare of the whole community and which seek the equal and impartial protection of the interest of all.’

The observations go to the core of the problem with remarkable directness. Their central idea is equally well the essence of the doctrine

49

which is the subject of this discussion, that is, the statutes are presumed to be applicable to cases and facts which come into existence after they are enacted, unless there is a clear intention to give them retrospective effect.”

In the case reported as Fazal Dad vs. Mst. Sakina

Bibi and another [PLJ 1997 SC (AJK) 329], it was observed as

under:-

“5. We have given our due consideration to the arguments raised at the Bar. There is no quarrel with the proposition that the law of limitation is a procedural law and generally it is given retrospective effect even if it is not so provided by the statute itself. However, there is one exception to it: if such retrospectively takes away, destroys or nullifies the vested rights of a litigant, the old law of limitation would govern the matter and new statute or provision of law introduced by an amendment or otherwise, would not affect the vested rights of a litigant. Even, the authorities relied upon by the learned counsel for the appellant support the aforesaid view. A reference may also be made to a case reported as Joshi Manganlal Kunverji vs. Thacker Mulji Budha [AIR 1951 Kutch 15]. While dealing with the proposition it has been observed as under:-

‘(4)……………………………………….

In the present case the plaintiff had a vested right under the repealed Limitation Act to bring his suit when the new Limitation Act was applied. The effect of the new Limitation Act was to destroy it outright. In such circumstances unless the legislature has stated in unequivocal terms that the new enactment should destroy the vested right it cannot be applied retrospectively so as to prevent the

50

plaintiff from exercising his right to bring a suit which he had under the repealed Act.’”

The Supreme Court of Pakistan in a case reported as

Gatron (Industries) Limited vs. Government of Pakistan & others

[1999 SCMR 1072] has observed as under:-

“....Here the appellant has heavily relied upon

the statutory provision of Section 6 of the Act which grants statutory protection against withdrawal of exemption granted under the notification, in question. Thus, visualized, the appellant has acquired a vested/statutory right of exemption from the levy of whole of the custom duty for the goods, in question, imported by them for the relevant period mentioned in the notification dated 13-12-1990. That statutory right couldn’t, therefore, be

taken away through the subsequent notification purported to supersede the first notification unless it is taken away through a legislative measure. This is not the case here. The second notification referred above being completely destructive of the right vested in the appellant is, therefore, without lawful authority and of no legal effect in so far as it affects the entitlement of the appellant for exemption from levy of whole of the customs duty for the disputed period.”

In the case reported as Muhammad Fayaz and 4

others vs. Shah Nawaz Khan, Lecturer English, Government

Degree College, Garhi Dupatta and 32 others [1999 PLC (C.S.)

1493] it was observed as under:-

51

“…It is well-settled principle of law, as is evident from the authorities cited by the learned counsel for the parties, that an amendment in existing law would be prospective until and unless it is otherwise provided by the law-givers. In the instant case the amendment in the Rules of 1990 has not been made operative retrospectively. It is also not controverted that the advertisements inviting applications had already been published in May, 1997 when the unamended Rules of 1990 held the field. The contention of the learned counsel for the respondents that despite the fact that amendment in the said Rules was made after the publication of the advertisements, the same would govern the recommendations in question, is not sustainable because the amendment was not operative retrospectively. The process of the selection by the Public Service Commission commenced when the applications were invited through advertisement specifying the qualification etc. of the candidates. Thus, the candidates had the right to be considered according to the qualifications etc. laid down in the rules existing at the relevant time or for that matter which had been mentioned in the advertisement.”

Similarly, in the case reported as Muhammad Imtiaz

Khan vs. AJK Government & 3 others [2001 SCR 115], this

Court has observed as under:-

“The principle of law laid down above is fully

applicable to the present case. The P.S.C. had commenced the selection process by advertising the disputed post and the appellant had duly applied for it. It is nobody’s case that

the requisition was withdrawn by the Government. Thus a right has come to reside in

52

the appellant that he should be considered for appointment to the advertised post in the light of the rules prevalent at the time when the post was advertised. Thus, the view taken by the High Court is not correct.”

In another case reported as Accountant General &

another vs. Shahid Mehmood & another [2005 SCR 255] this

Court has held as under:-

“6. We have repeatedly laid down that when an act is required to be performed in a particular way, it must be done according to the same way or not at all. Reference in this regard may be made to In re: Reference No.1 of 1977 by President, Azad J&K [PLD 1978 SC (AJ&K) 37], Azad Government & 6 others v. Faqir Hussain Shah & another [2004 SCR 23] and Habibullah v. Government of Punjab & 5 others [PLD 1980 Lahore 337].

7. Even on merits the petitioners have got no case because the new sub-para (iv) was added in the original Government policy notification No.FD/R/9755-9855/91 dated August 22, 1991 vide notification dated April 30, 1999, whereas the respondent was granted three advance increments on 19.8.1998. This amendment has not been made applicable retrospectively. Therefore, the rights acquired by the respondent cannot be snatched under this amended provision.”

21. Thus, it can safely be concluded that taking out the

seats of each medical college from the quota of districts and

refugees after preparation of merit list, where the appellants and

proforma respondents, who attained the merit position for

53

admission in the category of quota reserved for districts and

refugees, deprives such students of admission on the basis of

merit position, which is not recognized by law. After attaining the

merit position a right has vested in the students and they are

entitled to get admission against the seats reserved in their

respective quota. The act of deducting seats from the quotas of

districts and refugees in each medical college amounts to

depriving such students of their accrued rights, which is against

the spirit of fundamental rights guaranteed by the Constitution.

The notification dated 23.10.2013 to the extent of reservation of

ten seats in each medical college on self-finance basis is violative

of law.

22. We have carefully perused the record. Appellant

No.8 Sania Khalid, was not a party in the writ petition in the line

of petitioners or the respondents, therefore, she has no right to

maintain the appeal in this Court. Her appeal merits dismissal.

23. Before parting with, we are thankful to Mr. Bostan

Chaudhary, Raja Niaz Ahmed Khan, Ch. Muhammad Reaz

Alam, Raja Inaamullah Khan and Sh. Masood Iqbal, advocates,

amicus curie, for their able assistance.

54

The result of above discussion is that the reservation

of seats on self-finance basis is not violative of PMDC

Ordinance, 1962 and Regulations made thereunder. The

Government is at liberty to reserve seats on self-finance basis

before inviting applications in future. After the advertisement on

the basis of admission policy notification dated 13.1.2012 and

preparation of merit list, the deduction of seats from the quota

reserved for districts and refugees, is violative of law and

notification dated 23.10.2013 to this extent is not maintainable.

The appeal is partly accepted in the terms indicated above with

no order as to costs.

CHIEF JUSTICE JUDGE JUDGE

Muzaffarabad 6/3/2014