IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

Present:

Irshad Ali Shah, J.

Agha Faisal, J.

CP D51 of 2021 : Miss Hina &Anothervs.

SMBBMU Larkana &Others

For the Petitioners : Mr. Athar Abbas Solangi, Advocate

For RespondentsNos.1, : Mr. Sarfraz Ali Abbasi, Advocate

3 and 4.

For Respondents Nos.5 & 6: Mr. Liaquat Ali Shar, Addl. A.G

Dates of hearing : 25.01.2022.

Date of announcement : 25.01.2022.

JUDGMENT

Agha Faisal, J. The petitioners, being young ladies having permanent residence / domicile at Larkana, seek enforcement of their right to education[1], asserted to having been hindered by the Respondent nos. 1 till 4 by treating them as foreign students and denying them the benefit of admission despite having qualified per the advertisement[2] for admission in MBBS & BDS Session 2020-21 for public sector medical and dental universities / colleges of the Province of Sindh.

2. Briefly stated, the Advertisement solicited applications for admission from candidates having the domicile of Sindh for the admission process commencing from 01.01.2021. The petitioners, in possession of permanent residence certificates and domiciles dated 15.10.2020 (collectively referred to as "Domiciles"), applied for admission and were granted provisional admission vide letter dated 20.01.2021, subject to verification of the record / antecedents etc. Thereafter, the petitioners claimed to have been deprived of admission on account of being treated as foreign students.

3. The pivot for this determination is the interpretation of Regulation 16A ("Regulation") of the Admission Regulations (Amended) 2020-2021, which reads as follows:

"A student who does not hold a Pakistani nationality, or holds a dual nationality or is an overseas or a non-resident Pakistani citizen and having obtained their HSSC or equivalent 12th grade qualification from outside Pakistan shall for purposes of admission be deemed to be a 'Foreign Student'. The admission of a Foreign Student shall be strictly on the basis of merit and no exception shall be created for Foreign Students."

(Underline and accentuation added for emphasis.)

4. Per petitioners' counsel the petitioners did not fall into any of the categories, hence, could not be given alien treatment. The learned Additional Advocate General supported the petitioners' interpretation of the Regulation. However, the counsel for the respondent nos. 1, 3 and 4 argued that since the petitioners had HSSC or equivalent qualification from overseas, hence, they ought to be treated as foreign students and consequently disentitled to admission per the Advertisement.

5. Heard and perused. The respective learned counsel admit that the petitioners are neither foreign citizens nor holders of dual nationality. Therefore, it is only the latter inclusion of the definition, being an overseas or a non-resident Pakistani citizen and having obtained their HSSC or equivalent 12th grade qualification from outside Pakistan, which merits interpretation, so as to consider whether the stipulation is conjunctive of disjunctive.

6. It is trite law that where an enactment provides for something to be done in a particular manner then it is to be done in that manner and that the role of courts is not designed to legislate but interpret enactments / instruments according to their ordinary and plain meaning and not import and or supply words or provisions[3], no matter how laudable and desirable it may appear to be[4]. A court is not ordinarily supposed to read words into enactments[5], especially those which cannot be reasonably implied on any recognized principle of construction[6]. An earlier Division Bench of this Court, in the A P Moller Maersk case[7], relied upon a judgments from the Federal Court of Australia[8] and the Supreme Court of Canada[9] to maintain that primarily regard should be had to the four corners of the actual text and that the text must be given predominance in the interpretation process. The ordinary meaning of the words used are presumed to be the authentic representation of the legislative intention.

7. The condition of foreign 12th grade qualification is prima facie only applicable when the holder thereof is also a non-resident Pakistani. The Regulation clearly reads that the two limbs thereof are conjunctive and no case has been made out before us to read the relevant provision otherwise and / or ascribe any import thereto but the plain meaning thereof. In the present facts and circumstances the petitioners are demonstrably domiciled in and permanent residents of Larkana and the said Domiciles predate the commencement of the admission process, as envisaged in the Advertisement.

8. There is yet another aspect to address herein, being the letter dated 05.03.2021 issued by the Pakistan Medical Commission ("PMC letter") in response to the respondent no. 3's letter dated 26.02.2021 ("R3 Letter"), wherein it had been observed that the petitioners perhaps fell in the category of overseas Pakistanis. The PMC Letter renders a precise reply to the R3 Letter, which has demonstrably omitted to mention that the petitioners were permanent residents of and domiciled in Larkana. In view of such a glaring omission in provision of pertinent information, the reply, being the PMC Letter, did not take the said factum into account. Even otherwise, the PMC Letter finds no mention in the reply filed on behalf of the relevant respondents and appears to be a subsequent inclusion on record. It is thus our deliberated view that since the pertinent information was never shared with PMC and the same was never taken in account while rendering the PMC Letter, hence, the same did not augment the respondents' case.

9. The order dated 18.02.2021[10] demonstrates the respondents' concurrence that the petitioners had duly complied with the academic entrance requirements, hence, there existed no hindrance to their admission in such regard. It may also be observed that the aforesaid order had never been sought to be appealed / reviewed.

10. In summation, the petitioners have been unequivocally recorded as having fully complied with the academic entrance requirements, set forth inter alia vide the Advertisement, for admission; they are in possession of permanent resident certificates and domicile certificates, pre dating the initiation of the relevant admission process, the authenticity whereof was never in question before us; and no case has been set forth before us to consider the petitioners as overseas / non-resident Pakistanis merely on account of their secondary school examination certificates reflecting that they sat the said examination in Saudi Arabia (even though the certificates have been issued by the Federal Board of Intermediate and Secondary Education Islamabad).

11. It is, therefore, the considered view of this Court that the contesting respondents have remained unable to substantiate their treatment of the petitioners as foreign students, hence, the adverse interference of the contesting respondents in the admission of the petitioners is held to be devoid of any sanction in law.

12. This petition is hereby allowed in terms herein contained.

JUDGE

[2]Advertisement available at page 23 of the Court file ("Advertisement").

[3]AKD Investment Management Limited & Others vs. JS Investments Limited & Others (CP D 5016 of 2019).

[4]Zahid Iqbal vs. Hafiz Muhammad Adnan & Others reported as 2016 SCMR 430.

[5]Nadeem Ahmed Advocate vs. Federation of Pakistan reported as 2013 SCMR 1062.

[6]Amanullah Khan vs. Chief Secretary NWFP & Others reported as 1995 SCMR 1856.

[7]A.P.Moller Maersk vs. Commissioner Inland Revenue& Others(CP D 7097 of 2018).

[8]McDermott Industries (Aust) Ply Ltd. v. Commissioner of Taxation (2005) FCAFC 67.

[9]Crown Forest Industries Ltd. v. Canada (1995) 2 SCR 802.

[10]In respect whereof no cavil has been articulated by the respondents' counsel.