P L D 2021 Balochistan 84
Before Naeem Akhtar Afghan and Zaheer ud Din Kakar, JJ
BAHADUR KHAN--- Petitioner
Versus
The VICE -CHANCELLOR, BALOCHISTAN UNIVERSITY OF MEDICAL AND
HEALTH SCIENCES, QUETTA ---Respondent
C.P. No. 1470 of 2020, decided on 26th April, 2021.
(a) Constitution of Pakistan ---
----Art. 199 ---Constitutional petition--- Test for admission in Medical College ---Policy
decision of government ---Scope ---Petitioner passed his matriculation examination in the year
2012, thereafter, he continued his Islamic education, however, in the year 2017, he passed
Higher Secondary School Examination and scored higher marks but since there existed gap
between the degrees of matriculation and intermediate, therefore, five marks of the petitioner as per annum , were deducted from his qualification marks despite the fact that he qualified
for medical seat ---Petitioner also contended that on the one hand his marks were deducted
while on the other hand he was not granted additional 20 marks given to persons acquir ing
madrasa degree---Validity ---Petitioner had not submitted any certificate to show that he was
a Hafiz- e-Quran, therefore, he was not entitled for the 20 marks ---Eligibility of candidates
was a policy of the College, thus, High Court could not interfere in the policy matters, which
required consideration of various factual aspects ---Constitutional petition was dismissed in
limine.
Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of
Pakistan and others 1998 SCMR 2679 ref.
(b) Constitution of Pakistan ---
----Art. 199 ---Constitutional jurisdiction ---Policy decision ---Scope ---High Court cannot sit
as a Court of appeal over the policy decisions and substitute its own decision with the decision of the Government unless it is proved that the decision has been made in excess of jurisdiction or the same is arbitrary and devoid of any justification.
Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of
Pakistan and others 1998 SCMR 2679 and Dossani Trave lls Pvt. Ltd. and 4 others v. Messrs
Travels Shop (Pvt.) Ltd. and others 2013 SCMR 1749 ref.
Syed Abdul Basit Shah for Petitioner.
Sohail Azam, Admin: Officer B.M.C., Quetta for Respondent.
Date of hearing: 21st April, 2021.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---Through this Constitution Petition under Article
199 of the Constitution of the Islamic Republic of Pakistan, 1973 "the Constitution", the
petitioner has made the following prayer:
"That this Hon'ble Court may graciously be pleas ed to declare that the merit formula
of the respondent university by deducting marks for the gap between the academic degrees of the petitioner is against the merit and transparency, hence is vires to the Constitution, as such, be declared null, void and of no legal effect and in consequences thereof the respondents be directed to consider the application of the petitioner against the seat of MBBS on merit and in accordance with law and transparency without applying merit formula pertinent to deduction of m arks with
regard to gap in the academic certificates (metric and F.Sc) of the petitioner; any other relief which this Hon'ble Court deems fit and proper may also be awarded, in the interest of equity, fair play and justice."
2. It is the case of petitioner that he passed his matriculation examination in the year
2012 from Balochistan Board of Intermediate and Secondary Education (hereinafter "BBISE"). Thereafter, he continued his Islamic Education, however, in the year 2017, he passed Higher Secondary Schoo l Exam. from BBISE and then twice applied for medical seat
in MBBS/BDS of sessions 2017- 18, where he scored higher marks but since there exist gap
between the degrees of matriculation and intermediate, therefore, five marks of the petitioner as per annum, were deducted from his qualified marks despite the fact that he qualified for medical seat. It is also the case of petitioner that on one hand, the respondent deducted his
marks due to gap in his academic degree but on the other hand not granted the additi onal
marks (20 marks) pertinent to religious scholar/moulvi and madrasa degree as per prospectus. In this regard, he approached the authority, but in vain, hence this petition with the prayer mentioned above.
3. We have heard learned counsel for the petiti oner and gone through the record. To
understand the case, it will be convenient to reproduce Chapter -I Clause -6 of the prospectus
of Bolan Medical College Quetta, which reads as under:
"6. The following marks shall be added/deducted from the aggregate mar ks of the
candidate:
a. Twenty (20) marks shall be added to the F.Sc marks who submitted the certificate of Hafiz- e-Quran by registered Madrasa/Jamia/institute and qualify the test of recitation.
The panel of Hafiz- e-Quran, who conduct the test, shall be c onstituted by the
Selection Committee BMC. The decision of panel shall be considered for adding the Twenty (20) marks in his/her F.Sc marks.
b. Ten marks shall be deducted per year or part of a year if a candidate fails to pass or tries to improve Division in F.Sc examination in two years after passing the
matriculation/F.Sc examination as the case may be.
c. Five marks per year shall be deducted if the candidate fails to get admission during
the year he/she passed F.Sc examination. However, this condition does not apply in case of delay in admission caused by legal procedures resulting in Court decision favorable to a candidate originally rejected by the Admission Committee.
4. It is admitted fact that the petitioner applied for admission in MBBS/BDS after gap of
six years and his five marks per annum were deducted as per policy of the College.
5. The petitioner also claimed 20 marks for his getting Islamic education, but in this
regard sub -para "a" of the prospectus is very much clear, which is regarding the submission
of certificate of Hafiz- e-Quran from a registered Madrasa/Jamia/Institute and subject to
qualify the test of recitation, whereas the petitioner has not submitted any certificate to show that he is a Hafiz- e-Quran, therefore, he is not entitled for the 20 marks as mentioned in sub-
para "a" of the prospectus.
6. In prayer clause of the petition, the petitioner has prayed for declaring Clause -6 of the
Prospectus as null and void. Chapter -3 of the Prospectus deals with the Eligibility of the
Candidates which is policy of the College, thus, this Court, in view of the law laid down in
the case of Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of Pakistan and others 1998 SCMR 2679, cannot interfere in the policy matters, which requires consideration of various factual aspects. The High Court cannot sit as a Court of appeal over the policy decisions and substitutes its own decision with the decision of the Government unless it is proved that the decision has been made in excess of jurisdiction or the same is arbitrary and devoid of any ju stification. The Hon'ble Supreme Court of Pakistan
in another judgment reported in 2013 SCMR 1749 titled "Dossani Travells Pvt. Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd. and others" has held that policy making is the
domain of the Executive and interference in such domain was not the function of High Court while exercising jurisdiction under Article 199 of the Constitution, unless it is violative of the Constitution, law or product of mala fide.
6(sic). In view of all the above, the petitioner is held not entitled for the reliefs claimed
for, thus, the instant petition is dismissed in limine.
SA/109/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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