Akhtar Zaman Malghani, J:--The following reliefs have been claimed the instant constitutional petition:-- (a)"Declaring that the exercise of option by the Respondent No, 4, for admission under category "A" and its acceptance by the Selection Committee, is totally illegal, unjust, in excess and mis- exercise of authority vested in Selection Committee and further against the spirit of the Prospectus, as such is of no legal effect.
(b)On having declared so, the ,election Committee be directed to accommodate the Respondent No, 4 under Category "B" and the petitioner be granted admission under Category "A" of the Prospects and as a consequence the admission of Respondent No, 3 be cancelled.
(c) Any other relief deemed fit and proper in the circumstances of the case may also be awarded alongwith the cost of petition, in the interest of justice".
2. Briefly stated, facts of the case are that the petitioner after passing her F.Sc (pre-medical) examination submitted application 'form for admission in the 1st year MBBS course of Balochistan Medical College, Quetta against one of the reserved seats on the district merit, as well as; for the seat reserved for doctors' children, whereas; Respondent No, 4 who had secured 784 marks out of 11'00 whose father has been working as Associate Professor in B.M.C. and mother as Doctor in Health Department also Submitted three application forms for admission in the 1st year MBBS course against the seats of District merit, category "A" an "B" of the doctors' children seat. It appears from the record that Respondent No, 4 could not succeed to get admission on district, merit, however; his forms were considered for category "A" & "B" of (looters' children seat as in both categories he was at Serial No, I. However; the Selection Committee took into consideration one of his application forms in Which first choice of preference was for category "A". The Selection Committee therefore' , granted him admission on the seat allocated for category "A". The petitioner was on second number in category "A", whereas; the Respondent No, 3 who was at serial No 2 in category "B" and secured less marks than the petitioner, was granted admission in that category because Respondent No, 4 on the top of list in both the categories was granted admission in category "A".
3. We have heard the learned counsel for the petitioner as well as learned counsel for the Respondent No, 3. and learned A.G. Respondent No 4 despite service of notice did not contest the petition. It is mainly contended by the learned counsel for the petitioner that in order of merit,. meant for categories A & "B" the Respondent No 4 was at Serial No 1, the petitioner at. No, 2 whereas; the Respondent No, 3 was at Serial No,
3. The Respondent No 4 instead of having filed only one application for district merit reserved seats and the seats reserved for the doctors! children provided in categories "A" & "B" of the admission policy/prospectus for the Sessions 2003-04, filed three application forms contrary to the intent & spirit of the prospectus which provides for submission of only one admission application form in which the. candidate has to specify his preference for the given categories and Selection Committee is to consider such candidates for the admission applied for in the light of the given choices, whereas; in the instant case the Respondent No, 4 while submitting, three application forms gave conflicting choices. In the form first in time his first preference on District Merit Seat and second preference was for category "B" but the Selection Committee instead of granting admission to him on his choice, on its own granted admission to Respondent No, 4 against category "A" by taking into consideration the application form next in time wherein his first choice was for category "A" which could not have been done by the Selection Committee being contrary to the object and option exercised by the candidate and the admission policy, which provides that the seats would be allocated on merits and secondly the petitioner having secured higher marks as per determined criteria, than Respondent No, 3, should have accommodated in category "A" by granting admission to Respondent No, 4 in category "B" but out of apparent mala fides and in order to accommodate the Respondent No, 3 out of turn, the Selection Committee ignoring the merits illegally granted admission to Respondent No, 3 depriving the petitioner to admission to which she was entitled.
4. On the other hand Mr. Zahid Malik contended that the Respondent No, 3 submitted application form for admission by exercising her option of preference for category "B" and she was also granted admission in said category and thus; she has nothing to do with category "A" in respect whereof the petitioner gave his preferences for admission. He further contended that petitioner has been granted admission in the 1st year B.D.S course from quota meant for Sibi Division and she is studying in Bolan Medical College, as such; she is not entitled to the relief claimed for. However; he submitted that preference given in first application form by a candidate for admission would prevail in circumstances of the case.
5. The learned Advocate General supported the decision of Selection Committee and submitted that the petitioner; and the Respondent No, 3 are studying in Bolan Medical College and it would be unjust to de-seat any of them at this stage.
6. We have carefully considered the contentions put forth by the parties' learned counsel, the view expressed by the learned A.G. and have also gone through the relevant paragraphs of Prospectus applicable to the case and the documents filed with the memo: of Constitutional Petition, impugned order and the copies of the admission application froms placed on record by the representatives of B.M.C.
It may be seen that according to Paragraph-3 of the Prospectus out of total 154 seats, 103 seats were required to be filled on District merits and ten on provincial merits, whereas remaining seats were allocated for different categories, out of which three seats were reserved for the children of Doctors of Balochistan, one each for the following categories as per paragraph 10 of the prospectus:-- "CATEGORY-A: TEACHING STAFF OF BOLAN MEDICAL COLLEGE Children of Teachers/Doctors, in Bolan Medical College, Quetta with at least ten years service and the Children of retired and deceased teachers of Bolan Medical College, are eligible for the seat provided that the deceased teacher had at least ten years service at his credit-One Seat."
"CATEGORY-B"
Children of doctors serving in the Provincial Health Department with at least ten years service other than those mentioned in Category "A" above. The children of retired and deceased doctors shall also be eligible for the seat provided that the deceased doctor has at least ten years service at his credit-One Seat."
"CATEGORY-C"
The children of only those doctors who are full time medical Practitioners, Employees of sort/semi sort department (Other then Provincial Health Department) in Balochistan and are local/domicile and permanent resident of Balochistan and are not employees in Provincial Government and the children of deceased doctors falling in this category would also be eligible for the seat, provided that the deceased family is permanently residing in Balochistan, and they should have served the people of Balochistan as private practitioners for at least ten years. One-Seat."
7. The Respondent No, 4 being eligible for category 'A' and 'B' as his father to be Associate Professor in B.M.C. and mother serving as Doctor in Health Department, applied in both the categories in addition to seats reserved for Qilla Abdullah District. He submitted three separate application forms for each category including for district merit seat, though the prospectus does not provide for submission of separate application forms for each category except when a candidate is simultaneously applying for admission in the let year MBBS and B.D.S. course (Paragraph-38).
Paragraph 35 requires that a candidate applying for admission against the District merit seats as well as; special category seat to mention his first and the second choice, for which purpose a separate column has been provided in the application form. It appears that the policy makers never intended to require a candidate to submit separate application forms for each category.
Therefore, any form subsequently submitted showing different choices/ preferences to categories other than those mentioned in admission application form, subsequent in time would be invalid and could not be taken into consideration, therefore it would be appropriate to look into the reasons which prevailed with the Selection Committee to grant admission to the Respondent No, 4 on the seat reserved as per category 'A' for the doctors Children. For convenience and reference the decision of the committee is reproduced herein below in extenso:-- "During the course of interviews of the candidates of above categories, Miss. Mehak Hasnain (S. No, 3 on the list) requested the committee that Syed Muhammad Azeem Agha, who is coming on the merit of Doctor's Children Category 'A' from his father side, and also coming on merits of Doctor's children Category 'B' from his mother side, hence for the sake of merit and competition his application may be considered in category 'B' as she is coming on merit after Syed Muhammad Azeem Agha is Category 'A' and better marks as compared to next coming on merit in category 'B'.
The Selection Committee unanimously decided that the application of Syed Muhammad Azeem Agha should be considered as per his option mentioned in his application form, submitted from his father side. Accordingly, as per his choice his application was recommended against the reserved seat of Doctors Children Category "A", and the request of Miss. Mehak Hasnain was declined."
It is manifest from the above reproduced decision that no reasons what so ever have been assigned by the Selection Committee for reaching to such conclusion, amounting and virtually invalidating the first and initial exercise of right of option of preferences to 'categories' as given by Respondent No,
4. As per admission policy, it has been left to the option of the candidate to show his choice in the order of preference and the Selection Committee has not been vested with any authority to substitute its own choice with that of the candidate. We failed to understand logic or rationale behind the decision of the Selection Committee on the basis whereof it decided unanimously to grant admission to Respondent No, 4 in category 'A' in view of his second application form by ignoring his first and the third application forms, in which too the Respondent No, 4 specifically exercised his first option of preferences to category 'B'. It is interesting to note that the Respondent No, 4 submitted three separate application admission forms en 10.11.2003 in the office of the college in which, as hereinabove mentioned, conflicting preferences were given with regard to the categories against which admission to 1st year M.B.B.S. was sought for. In order to ascertain about the exercise of first and second preferences of categories on the basis of the application forms submitted first in time except the order in which receipts showing acknowledgement of the deposit of application forms in the office of the college, no other material has been placed on record by any of the parties to the case. Receipts of the depositing of the admission forms are issued in accordance with the procedure laid down in Para No, 40 of the prospectus. Application admission form, first in time is the one on which Receipt No, on the top of the form has been mentioned as 70, deposited in the office of the college for which acknowledgement Receipt No, 70 was issued, the second in time was deposited vide Receipt No, 71, whereas; the third application form was entertained vide Receipt No,
72. In the first admission application form, first choice was given by the Respondent No, 4 for the district merit seat (Killa Abdullah district) and his second choice of preference in relation to the categories was for 'B' category, whereas; the third choice was for category w. In the admission application form second in time, his first choice of preference was for admission against category 'A' and the second given choice of preference was for category 'B', whereas; in the application form third in time entertained vide Receipt No, 72 his first choice of preference was for category 'B' and the second choice of preference was given for category 'A'.
It is an undisputed feature of the case that the Respondent No, 4 gave and exercised conflicting choices of his preferences for admission in his three application forms. Without any hesitation and reservation applying any rule of prudence and attending to the proposition from whatever angle that may be made applicable to the case or to a case, like the one in hand, if a right has been given to a candidate to give choices of his preferences for admission in any class, institution or organization or to contest for any assignment or for any study process etc. the preference of the choices given by a candidate to be considered on merits in view of the given choices unless powers have been conferred on the institution, organization or the body, competent to make selection to alter the given choices preference-wise or to switchover to the other preference of choices given by a candidate, subsequently on the same date or otherwise. Subsequent choices of preferences given by a candidate as in the instant case, cannot be looked into nor the subsequent application admission forms though; filed on the same date but later in time as hereinabove noted can render the choices of preferences given in the application admission form first in time to have been nullified or to have rendered invalid and; if it be taken so, in the application admission form i,e, third one (last in time) shows the first preference of choice of Respondent No, 4 for category 'B' and the second choice of preference for category 'A', therefore, even in view of the fact that a subsequent act to amount in by-passing the earlier or previous act or conduct of a party, will not even be applicable to this case, because in the application form last and later in time, the first preference for choice of Respondent No, 4 was for category 'B' and secondly; no such rule can be imported to the admission policy nor for any reason the same can be made applicable to the case, moreover; as the right of choices stand exercised by the candidate cannot be invalidated, withdrawn or substituted by any other act or omission, else; it will create an anomalous situation and the selection committee will be rendered in-capable to make any final decision if the candidates are permitted to be entitled to give/make different conflicting choices of preferences at one time or thereafter in the admission application forms.
In our considered view the choices of preferences once exercised by a candidate in his application form shall always for all intents and purposes for admission on merits in the light of the admission policy shall be final.
In the admission application form first in time submitted by Respondent No, 4, his first choice was for Quetta district reserved merit seats, but as he did not stand on merit, therefore, the Selection Committee should have honoured his choice which in fact with reference to special seats is the first choice for category 'B' on merit as against the other candidates contesting for admission on the basis of claimed entitlement for admission to .1st year M.B.B.S against the ahovesaid categories, but on its own and by defeating the right made available to the candidate to exercise his preference of Choices granted him admission against category 'A' instead of category 'B' which for the reasons mentioned above was not permissible nor the Selection Committee has the authority to switchover or alter the preferences of choices given by the candidate, vice versa or on its own, as well as; in view of the fact that the petitioner stood on higher merit than the Respondent No, 3 was entitled to get admission in the first year M.B.B.S. as per her first preference of choice to category 'B'.
The learned counsel for the Respondent No, 3 in the given facts of the case and the preferences of choices mentioned by the Respondent No, 4 in his three application forms referred to above conceded that the Selection Committee should have taken into consideration the application admission form submitted by the said respondent first in time.
In view of what has been stated above, we are of the considered view that the Selection Committee has acted arbitrarily and in excess of its authority by abusing its powers granted admission to the Respondent No, 4 in category `A' instead of category 'B' which resulted in depriving the petitioner to get admission in the 1st year M.B.B.S. of Bolan Medical College, Quetta, as such; the impugned decision rendered by the Selection Committee, Bolan Medical College, Quetta, is illegal, void and without any lawful authority. Consequently; the Respondents Nos, 1 and 2 are directed to grant admission to the petitioner on the seat reserved for category 'A' in the M.B.B.S. course of academic Session 2003-2004.