C.P.NO.D-3441 OF 2012

 

 

Mohammad Ikram                 …………      …………………….. petitioner

 

                                                Versus

 

Principal & Chairman,

Admission Committee, Ghulam Mohammad

Mahar Medical College Sukkur & Ors        …………………… Respondents

 

 

 

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 Ghulam Mohammad Mahar Medical College, Sukkur, under the University Education Assistance Program (UEAP) from allocation of District Khairpur Mirs.

 

2.         Per petitioner, he filled the form for admission in MBBS Course from District Khairpur Mirs in the Ghulam Mohammad Mahar Medical College, Sukkur, under the University Education Assistance Program (UEAP), in the month of October, 2012;  twelve (12) seats for the Course of MBBS for District Khairpur Mirs, were allocated, under the said program (UEAP) out of 12 seats, 3 seats were reserved for girls student in Peoples University of Medical & Health Sciences, Nawabshah (PUMHS) and rest 9, seats were reserved to be admitted in Ghulam Mohammad Mahar Medical College, Sukkur. Petitioner qualified examination on merits and his name appeared at S.No.12 of the merit list, published in the official face book page of Ghulam Mohammad Mahar Medical College, Sukkur on 7th November, 2012. He claimed to be selected purely on merits and his name was shown at serial No.96 of the said merit list, having secured 78.69%;  as per prospectus and rules of admission respondent No.1 has to sent three girls student out of 12 from District Khairpur Mirs under the UEAP to people University of Medical and Health Sciences, Nawabshah (PUMHS) and 9 seats were reserved for Ghulam Mohammad Mahar Medical College, Sukkur under the said program; respondent No.1 with mala fide scored off his name from merit list, without assigning any reason and giving him an opportunity of hearing and enlisted the name of respondent No.3 amongst the selected candidates in the merit list, though the respondent No.3 was not qualified to bisected on merits, because she secured less percentage than the petitioner i.e. 78.55 %, thus petitioner was deprived of his legal right; he was kept on hopes by respondent for letter of admission but later  refused and he is not being allowed admission in 1st year MBBS.

 

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 Medical College and the petitioner, being a male candidate, could not be allocated / granted admission at PMC Nawabshah hence next candidate Tahira d/o Dhani Bux of Sr.No.13 was considered for 3rd seat at PMC Nawabshah. They claimed that rules, regulations and policy so explained in the prospectus was followed hence petition is not maintainable under the law.

 

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, Govt. College (2010 MLD 103) , Muhammad Ilyas v Bahauddin Zakariya University, Multan and another (2005 SCMR 961), Secretary, B, & R, Government of West Pakistan and 4 others v Fazal Ali Khan (PLD 1971 Karachi 625) and Abdul Farid Vs NED University of Engineer (2001 CLC 347).

 

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, Govt. College  (2010 MLD 103), Zaheeruddin Sheikh and 30 others Vs United Bank Ltd, (2002 CLC 147), and Ali Yousuf and another v. Chairman Academic Council & principal DOW Medical College Karachi ( 2000 SCMR 1222).

 

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, Govt. College reported in 2010 MLD 103, it relates to promotion to next semester; case of Zaheeruddin Sheikh and 30 others Vs United Bank Ltd, reported in 2002 CLC 147, revolves round Bank policy; and case of Ali Yousuf and another v. Chairman Academic Council & principal DOW Medical College Karachi, reported in 2000 SCMR 1222, being relating to appearance in examination, therefore, they are not related with issue, involved in the petition.

 

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