The case of the petitioner is that he had 8 As in '0' Level from the Lahore Grammar School. He applied for admission in 'A' Level classes in the Aitchison College but it was declined to him vide letter dated 1.9.2003 which reads as follows:- "I am sorry to inform you that your application cannot be considered for admission to 'A' Levels as the number of applications was very large and we have a limited number of places. We have given preference to those who have met our criteria in a single attempt .(underlining is mine)."
2. In the report and parawise comments submitted by the Principal of the Aitchison College, it has been stated that the College had received 71, applications for admission to 'A' Levels Classes out of which 51 boys were denied admission, 6 did not turn up and 14 boys were admitted. The list of the admitted candidates was enclosed with the comments. It is further reported that special consideration was given to the candidates from "sister institutions" such as the Lawrence College Ghora Gali & Cadet College Hassan Abdal where 'A' Level facilities are not available and, the said consideration was for those candidates who had passed '0' Level in two attempts, however, the final selection depends on the interview with the Academic Council. It was further stated 'that criteria of admission was a minimum of 7 As in one attempt.
3. Perusal of the list of admitted candidates produced on the record shows that Muhammad Umar Farooq, who had 6 As in first attempt. and Muhammad Umar Aqeel, who had 7 As, in the first attempt were among the admitted candidates. Writ petition was originally filed against the Aitchison College and the Principal of the said College. However, after submission of the report and parawise comments, the petitioner sought amendment of the writ petition by impleading aforesaid Muhammad Umar Farooq and Muhammad Umar Akeel. The amendment was allowed and the aforesaid two candidates were arrayed as Respondents Nos, 3 and 4. Through the amended petition admission of the Respondents Nos, 3 and 4 has also been assailed on the ground that Respondent No, 4 had lessor merit in as much as that he had 7 As in '0' Level while the petitioner was discriminated against. as far as Respondents Nos, 3 is concerned. The list of admitted candidates shows that Respondents Nos, 3 had 8 As in two attempts with 6 'Ass first attempt. As for as Respondent No, 4 is concerned he had 7 'As' in first attempt.
4. The learned counsel for the petitioner submits that since-Respondent No, 3 did not have 7 As in the first attempt and had 8 As in two attempts, his case was at par with the case of the petitioner.
As far Respondent No, 4 is concerned, he maintains that while the petitioner had 8 'As' in '0' Level and all in grade (a), the said respondents had 7 'As'. He invited my attention to the prospectus of the Aitchison College. Under the head "Re-admission", it is provided as follows:-- Once a boy appears for '0' Level examination, he is automatically withdrawn from the College. His return to College is determined by the academic standards required for re-admission and his record of past behaviour."
His precise contention is that a boy, who had passed '0' Level examination even from the Aitchison College has to compete with others for admission to `A' Level and, therefore, there was no occasion for giving preference to the students of the so called "sister institutions" like Cadet College, Hassan Abdal and Lawrence College, Ghora Gali. Therefore, if the admission Policy required 7 'As', preferably in first attempt, could. be relaxed in case of Respondent No, 3, the petitioner with 8 As was also entitled to be treated in the like manner and no preference could be given to Respondent No,
3. It is also contended that preference to a candidate with equal merit from other institutions was against the equality clause of the constitution.
5. On the other hand the learned counsel for .Respondents Nos, 1 and 2 submits that the Governor of the Punjab is also the Chairman of the Board of Governors of Cadet College, Hassan Abdal, Lawrence College, Ghora Gali and Sadiq Public School Bahawalpur, and under his directive preference is being given to the students of the aforesaid Colleges. It was contended that the petitioner had 2 'As' in first attempt and 6 'As' in second attempt while Respondent No, 3 had 6 As in the first attempt while Respondent No, 4 had 7 As in first attempt.
6. Learned counsel for Respondents Nos, 3 and 4 have also strenuously opposed this petition. The learned counsel for Respondent No, 3 maintains that although Respondent No, 3 has been arrayed as a respondent but no relief has specifically been claimed against the said respondent and since there is no seat for admission in 'A' Level, the prayer of the petitioner can not be granted unless the admission of Respondent No, 3 was set aside. This contention is supported by Prof. Muhammad Usman and others Vs. Punjab University Academic Staff Association and another (1991 SCMR 320), similar view was taken in Akhtar Abbas and others Vs. Nayyar Hussain (1982 SCMR 549). In the said cases it was observed that the relief to be granted in a constitution petition must be confined to the prayer made. The learned counsel for Respondent No, 4, contended that in accordance with the Admission Policy, he had 7 'As' in the first attempt and, therefore, no exception could be taken to his admission.
7. Controverting the, objection of the learned counsel for Respondent No, 3, learned counsel for the petitioner relied on Saiyyid Abul A'la Maudoodi, Misbahul Islam Farugi and Umar Farooq Vs. The Government of West Pakistan and another (PLD 1964 S.C. 673) to contend that this Court is competent to grant such relief as is available to the petitioner on the facts found by this Court and in any caw the alternate prayer in the writ petition for any other appropriate relief which the Court may deem fit in the circumstances covers the relief of annulment of admission of Respondent No,
3. He further submits that by virtue of the decision of the Hon'ble Supreme Court in Hussain Bakhsh Vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 S.C. 1) Civil Procedure Code is applicable to writ jurisdiction and, therefore, the Court has ample powers to grant proper relief.
8. I have considered the submissions made by the learned counsel for the parties. As far as Respondent No, 4 is concerned his admission was in accordance with the Admission Policy as he had 7 'As' in the first attempt in `0' Level. Therefore, to his extent the petitioner has no case.
9. However, as far Respondent No, 3 is concerned he had 8 'As' in two attempts which included 6 'As' in first attempt while the petitioner had also 8 'As', although he had 2 'As' in the first attempt. The criterion for admission in 'A' Level, according to the Admission Policy, is 7 'As' preferably in the first attempt. The petitioner as well as Respondent No, 3 did not fulfill the said admission criterion. The question, therefore, was whether Respondent No, 3 could be preferred for admission as against the petitioner only for the reason that the said respondent belonged to the Cadet College, Hassan Abdal. The directive of the Chairman of the Board of Governors of the Aitchison College is neither backed by Admission Policy nor the Prospectus. The Prospectus shows that for re-admission even the Aitchisonians are not entitled to any preference. In view of the aforesaid rule in the Prospects, there was hardly any scope to give preference to candidates belonging to any "sister institution" and all candidates had to compete on the basis of merit alone. Although, grant of preference to the students of the Cadet College, Hassan Abdal, Lawrence College, Ghora Gali or Sadiq Public School, is not backed by the Admission Policy or the Prospectus, even if it. was there, it could only be saved if it was based on reasonable classification. When questioned as to what was meant by the "sister institutions" the learned counsel for Respondents Nos, 1 and 2 referred to Schedule 1 of the Rules of Business of the Govt. of the Punjab. Column 4 of the said Schedule gives out the list of autonomous bodies. Apart from a number of other autonomous bodies, the Cadet College, Hassan. Abdal, Lawrence College, Ghora Gali, Sadiq Public School, Bahawalpur and Aitchison College, have also been shown as autonomous bodies under the Education Department. The mere fact that these four institutions have been declared as autonomous bodies under the Education Department of the Govt. of the Punjab is not by itself sufficient that a student of Cadet College, Hassan Abdal, Lawrence College, Ghora Gali or Sadiq Punjab School, Bahawalpur is entitled to any preference, over other candidates in the matter of admission to the Aitchison College. All these are public institutions and admissions therein can only be regulated by the Prospectus and the Admission Policy duly framed.
10.The question which, however, survives for consideration is as to the relief to which the petitioner is entitled to. The case of Akhtar Abbas, supra, arose out of a settlement matter in which the order of Additional Rehabilitation Commissioner, which was not challenged in the writ petition, was quashed and with reference to the facts of the said case the observation relied upon by the learned counsel for Respondent No, 3 was made by the Hon'ble Supreme Court. In the case of Professor Muhammad Usman and others, supra, allotment made in favour of Professor Muhammad. Usman was not challenged before the High Court but it was set aside and the Hon'ble Supreme Court interfered. In the said case, the case of Akhtar Abbas, supra and A.G. Khan Vs. Shuja-ud-Din Qureshi and others (PLD 1961 S.C. 1) was noted. Before proceedings further with the examination of the other judgments bearing on the controversy, it may be noted at the out set that a precedent is to be understood and applied in the context of facts of a particular case as observed by the Hon'ble Supreme Court in Trustees of the Port of Karachi Vs. Muhammad Saleem (1994 SCMR 2213). Explaining the scope of grant of relief in constitutional jurisdiction the Hon'ble Supreme Court in the case of Pakistan through Secretary National Assembly, supra, the Hon'ble Supreme Court made the following observations:-- "It is of the very essence of judicial proceedings that the relief to be granted should follow as a legal result from the right alleged and found. The error in the proceedings is therefore, fundamental where the relief granted is different from the one prayed and flows not from the right alleged but from a right which has not been pleaded and as to which the Court has never heard the parties.
This is true in all proceedings but moreso in proceedings for prerogative writs where the Court does not generally act ex debito justitiae but confines the petitioner to a specific right and a specific relief."
11.The question as to the scope of powers of the Court to grant relief in exercise of extra ordinary jurisdiction also came before a bench of five Hon'ble Judges of the Hon'ble Supreme Court in the case of Saiyyid Abul' Ala Mudoodi, supra, in which the following observations were made:-- "I also find no difficulty in granting relief because of any defect in the form of the prayer in the petition. The prayer as framed in the petition is sufficiently wide and, in any event, the Court is not powerless to grant the relief that the justice of the cause requires to the same extent as if it had been asked for."
"Reference may also be made to Ittefaq Foundry Vs. Federation of Pakistan (PLD 1990 Lahore 121) in which the following observations were made:-- Technicalities cannot prevent this Court from exercising the constitutional jurisdiction and affording relief which otherwise petitioner is found entitled to receive."
In the case of Sharaf Faridi and 3 others Vs. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD. 1989 Karachi 404) a learned Full Bench of the learned Karachi High Court made the following observations:-- "However, there cannot be any doubt that a Court having jurisdiction to adjudicate upon a matter, has the power to mould a relief according to the circumstances of the case, if dictates of justice so demand even if such a relief has not been expressly claimed provided the relief to be given is within the compass of the jurisdiction of the Court."
12. As per the rule laid down in the case of Hussain Bukhsh, supra the Code of Civil Procedure applies to the proceedings in constitutional jurisdiction. It may be noted that according to the Order VII Rule 7 of the Code of Civil Procedure the relief claimed by the plaintiff in the suit shall be expressly stated but it is not necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if had been asked for. The principle of the said rule, to my mind, is equally applicable to the proceedings in the writ jurisdiction.
13.From the perusal of the judgments noted above the ratio appears to be that the relief granted to the petitioner in a Constitutional petition should be founded on the pleadings, the other party had notice to meet the case set up in the petition and the relief granted flows from the adjudication made by the Court. Perusal of the amended writ petition shows that admission of Respondents Nos, 3 and 4 has specifically been assailed in this petition with a prayer for setting aside the letter dated 1.9.2003 whereby admission was declined to the petitioner with a further prayer to allow admission to the petitioner. In view of the fact no seat is available for accommodating the petitioner, the relief to which he is entitled to can only be granted, if the admission of Respondent No, 3 is set aside and the matter of admission of petitioner and Respondent No, 3 is reconsidered.
14.Perusal of the impugned letter dated 1.9.2003 shows that the only reason to refuse admission to the petitioner was that preference is given to those, who met the criteria for admission in a Single attempt. Since both the petitioner and Respondent No, 3 were not eligible in accordance with the Admission Policy, and preference could not be given to Respondent No, 3 on the stated ground the comparative merits of the petitioner and Respondent No, 3 were required to be examined objectively. The contention of the learned counsel for the petitioner that the petitioner had (a) grade in all 8 'As', had thus, better merit than Respondent No, 3 and is entitled to admission is not acceptable because the College Authorities are the best Judge of the merits of the two competing candidates.
15.For what has been stated above, this writ petition is partly allowed, the admission of Respondent No, 3 is declared as without lawful authority and of no legal effect and the case is remitted to the Principal of the Aitchison College for considering the petitioner and Respondent No, 3 for admission in 'A' Level in the Aitchison College by applying objective criteria and to pass a speaking order. It is hoped that while exercising authority, which is parental in nature, the Principal of the College will not be influenced by the fact that the petitioner had agitated the matter before this Court. Respondent No, 1 is directed to pass an order within 10 days from the date of production of a copy of this order before Him. No order as to cost.