C.P.NO.D-3441 OF 2012
Mohammad
Ikram ………… …………………….. petitioner
Versus
Principal & Chairman,
Admission
Committee, Ghulam Mohammad
Date of hearing: 18/01/2013.
Mr. Maqbool
Ahmed Awan, Advocate for petitioner
Mr. Ghulam
Ali Samtio, Advocate for respondent Nos.1 & 2
Mr.Agha Ather
Hussain, AAG (on court notice)
Respondent No.3
absent.
O R D E R
SALAHUDDIN PANHWAR, J:-
The petitioner has assailed his refusal for admission in MBBS Course in the
2. Per
petitioner, he filled the form for admission in MBBS Course from District
Khairpur Mirs in the
3. The
respondent Nos.1 and 2 filed comments,
wherein, denied any illegality on their part but claimed that petitioner was
not selected for admission; his name was at serial No.96 of the merit list of
District Khairpur for General seats by securing 78.69% score. It was claimed
that nothing wrong was done with petitioner. There were 12 allocated seats for
District Khairpur under UEAP. Out of which, nine (9) seats were of GMC Sukkur
and for that candidates from Merit No.1 to6 opted for GMC Sukkur and according
to their merits they were given admission there. The candidate at Sr.No.7
namely Huma Khursheed opted
for PMC Nawabshah and she as 1st candidate opting for PMC was given
1st seat admission out of 3 seats of PMC Nawabshah as per her
Merits. The candidates at Sr.No.8 and 9 again opted for GMS Sukkur and they
were given the seats / admission there on merits and as such admission at GMC Sukkur
came to 8 number out of 9. Candidate at Sr.No.10
namely Uroosa opted for PMC Nawabshah and as per her
merit 2nd seat was given to her there. The candidate at merit No.11
opted for GMC Sukkur and he was given 9th seat / admission there
which was the last one for GMC Sukkur and thereafter no seat remained available
for anybody for GMC Sukkur. It was claimed that since all above candidates were
higher / better in merits as compared to petitioner and they had also exercised
the right of option recognized in the Prospectus. At this junction only 1 seat
was in balance at PMC Nawabshah which is purely a girls
4. Learned
Counsel for the petitioner has argued that the name of the petitioner was
existing in the list of 12 successful candidates hence scoring off the name of
the petitioner from list of such 12 candidates by respondents was illegal,
especially, where the petitioner was not provided any opportunity of hearing
nor any cogent reason was shown for such scoring off. He insisted that it is
one of the undeniable right of the petitioner to be
admitted in MBBS Course and unjustified refusal to admission of the petitioner
would cause a serious prejudice to the life and career of the petitioner. He
stoutly argued that the respondents have deviated from their own policy and
rules and even discriminatory one. Summing up his arguments he lastly added
that policy and rules are always meant to ensure equity and not to
discriminate. Having said so, he prayed that petitioner be allowed to admission
in the MBBS course. He has placed reliance on the case laws, reported in Mst. Attiyya Bibi
Khan and others v Federation of Pakistan
(2001 SCMR 1161), Ali Yousuf and another vs Chairman Acadmic Council & principal DOW Medical College Karachi
(2000 SCMR 1222), Mst. Faiqa
Ali Vs Vice Chancelor,
5. Responding
to the arguments of learned counsel for the petitioner, the counsel for the
respondent Nos.1 and 2 has argued that since there has not been any departure
from policy, rules and procedure on part of the respondent Nos.1 and 2 hence the
instant petition is not sustainable and liable to dismissal. He has placed
reliance on the case laws reported in Mst. Faiqa Ali V. Vice Chancellor,
6. We
have carefully heard the arguments, so advanced by either sides and have also perused
the record. There can be no denial to legal
position that every institution has a right to make rules, regulations and
policy of its own so as to run its institution but same time such authority and
power is always subject to certain limitations, hence, while making such rules,
regulations and policy; it should not come out as a sword of discrimination,
because, the Article 25 of the Constitution provides a guarantee of equal
protection of law and equal treatment before law hence while exercising
jurisdiction, power and authority an institution is always under obligation to keep
this principle at its correct place with correct understanding and meaning.
7. What
we have understood from the explanation, so provided at the page-46 of the
Prospectus, is that though a male candidate obtains higher marks / score and
obtains a better place yet in result of option choice by top girls he would
stand replaced by a female who has neither obtained marks / score equal to such
male candidate and even is placed after the name of such candidate in the merit
list.
8. The
position, being so, brings us to say that it is the “gender” of the candidate
which, per the Institution policy, matters and not the merit alone. The policy,
so framed, gives a right to of choice to the “female” candidate alone
which, if exercised, would be beneficial to the female candidate alone hence it
is quite safe to say that this can well be used as manoeuvre
by female candidates for taking advantage of such choice option at the cost of
the rights, interests and claims of the male candidate, thus, it can well be
concluded that induction of such choice option policy denies the very guarantee,
which is guaranteed by Article 25 of the Constitution. We would take support from the case of Mst. Attiyya Bibi
Khan & Others vs Federation of Pakistan, reported
in 2001 SCMR 1161 wherein honourable Supreme Court of Pakistan held:
“Article 25 of the Constitution
unambiguously guarantees that all citizens are equal before law and are
entitled to equal protection and that they shall not be discriminated on the
basis of sex alone. Inter alia Article 2A, 18 and 25 of the Constitution are
designed, intended and directed to bring about an egalitarian society based
difference between individuals of mankind on the basis of race, colour and territory and that all human beings are equal in
the eyes of Allah as He created all from a quintessence of clay”
9. We
are conscious and clear of the fact that the Constitution speaks about
the “person”
and not gender hence within the spirit of the Constitution an
Institution / Authority is required to frame rules keeping in view such
principle else the purpose and objective of the article 25 of the Constitution
will stand frustrated. On this point, we are also shouldered with the case of
Abdul Farid Vs NED University of Engineer, reported
in 2001 CLC 347 wherein it is held that:-
“It would therefore, follow that Article
25 has to be read with Article 37(c) which would imply that any classification
made for the purpose of admission into institution of higher learning on a
basis other than merit would be invidious and violative
of Article 25”.
Thus the method of preparing joint
merit list, equipping female candidates of top and bottom to oust the
intermediate male candidate, cannot be said to be within spirit and objective
of the Article-25 of the Constitution. Further, what is not disputed is that
the petitioner has obtained more marks / score and his name did appear at
S.No.12 of merit list therefore, refusal to petitioner for his admission in
MBBS on sole count of exercise of choice option by female does not seem to be
justified nor within spirit of the Article-25 of the Constitution. As we are also
mindful of the fact that it is the legitimate and legal right of every
individual to have higher education therefore, it would not be appropriate to
deprive the petitioner from his such legitimate and legal right in name of an
option choice technique, meant for female candidates alone, because the
technicalities of procedure should not be used as a sword but as a bridge of
facilitation in achieving intended objects of legislation, rules, procedure and
policy.
10.
As regard the case law relied by respondent counsel, we have examined all precedents,
case of of Mst. Faiqa Ali V. Vice Chancellor,
11. Accordingly,
petitioner is entitled for relief claimed; by short dated order dated 18.01.2013 petition
was allowed, whereby respondents were directed to admit the petitioner in MBBS
course for GMC for this academic year.
J U D G
E
J U D G E