MAULVI ANWARUL HAQ, J.---The petitioner having secured "Grade-A" with 818/1100 Marks in his Intermediate Examination and further claiming to be a disabled person registered under the provisions of Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 vide Certificate (Anrtexure "B"), applied for admission to first year M.B.,B.S. Class against the seats reserved A for disabled students for the Session 2004-05. He appeared in the entry test and got 992/1100 Marks.
His cumulative merit was 79.9 per cent and amongst the category of disabled students he stood at No.2 in the merit list. To his misfortune the Medical Board headed by respondent No.2 proceeded to observe that he is not fit to undergo the training vide Annexure "F". The result was that he was not granted admission despite his merits.
2. This W.P. Came up for hearing on 18-4-2005 when respondents Nos.1 and 2 were called upon to file a report as to why the petitioner was not recommended for admission. A report was accordingly filed. This was found to be unsatisfactory and W.P. Was admitted to hearing on 13-6- 2005. On 27-7-2005 during the course of hearing of the case it was observed that a categorical assertion made in para.7 of the W.P. To the effect that the petitioner had earlier also applied for admission to the said M.B.,B.S. Class under the same category for Session 2003-04. He was declined admission not on the basis of an adverse medical opinion but on the ground that his merit was lower. Consequently directions were issued to the respondents Nos.1 and 2 to file a reply to the said averment. The learned A.A.-G. Was also told that if he deems proper a written statement may also be filed. This written statement was filed on 2-9-2005. In response to the said averment of the petitioner in para.7 of the W.P. It was stated as follows:-- "Had the petitioner told the Board as such at the time when he was examined for the purpose or for that matter even thereafter, the Board would have, of necessity, reconsidered and recommended him for admission to the session and his previous year would have been saved, which has unfortunately been wasted owing to the folly of his own and the role of the Board may at the best be styled as an "inadvertent lapse", wherefor it can reconsider his candidature for the forthcoming session for which the admission are being opened very shortly as the results of Intermediate examinations have already been declared."
3. Learned counsel for the petitioner contends with reference to the said admitted position emerging from the pleadings of the parties that his client being on the top of the merit list and having been found to be a disabled person and not suffering from any disqualification, he is entitled to the admission to the said class.
4. Learned A.A. -G., on the other hand, reiterates the position taken by respondents Nos.1 and 2 that it was for the petitioner to disclose that earlier he was found to be a disabled person entitled to get admission against the said category and the fault lies at his shoulders.
5. Learned counsel for the petitioner rejoins to state with reference to the report dated 19-9-2005 filed by the respondent No.1 that admittedly there is no column in the admission application calling upon a candidate or enabling him to declare about his previous assessment by the Medical Board and as such his client cannot be held to be guilty of any neglect in the matter.
6. I have given some anxious thought to the above-noted contentions. I have already referred to the pleadings of i.e. The W.P. And the written statement filed by respondents Nos.1 and 2. There is no manner of doubt in my mind that it has been clearly admitted that had the factum of earlier assessm ent of the petitioner being in the notice of the respondent-Board, the petitioner was to be recommended for admission to the sessions and_his previous year would have been saved.
7. Having admitted that the petitioner was duly qualified to be admitted to the said M.B.B.S. Class and what to my mind is an expression of regret by the said Board, a feeble attempt has been made to state that the folly is of the petitioner. To my mind after the said admission made in the said pleadings, no fault is attributable to the petitioner, who was neither called upon nor was in a position, with reference to the several columns in the admission form, to state that he stood qualified by the Medical Board earlier.
8. When confronted with the said admitted position on record, the learned A.A.-G. Has tried to argue that since the said session is over and new session has started, the petitioner should take the fresh entry test. I am afraid in the absence of any denial that it was the right of the petitioner to be admitted to the said class in the said category, he cannot be denied relief for the said reason.
He is present in Court with his learned counsel and agrees to join the next available class of M.B.B.S. First year. In somewhat similar circumstances in the case of "Muhammad Alam v. Chairman, Joint Admission Committee and 3 others" 2003 YLR 854) while finding the writ petitioner therein to be entitled to admission, a full Bench of learned Peshawar High Court declined to accept the said contention raised on behalf of the Joint Admission Committee of N.-W.F.P. By observing that the said writ petitioner, namely, Mst. Surraya Begum was denied admission on wrong premises and hence was entitled to be restored to the same position as of right to the maximum possible extent, which she would have occupied, but for wrongful act of the College Authorities. A direction was accordingly issued to admit the said lady in Ayyub Medical College, Abbottabad against the reserved seats with a further observation that if due to any administrative difficulty, the College Authorities are unable to accommodate Mst. Surraya Begum in the said Session, then she will be admitted in the forthcoming Session for the Ist Year M.B.,B.S. Class.
9. For all that has been discussed above, this W.P. Is allowed and the respondents Nos.1 and 2 are directed to admit the petitioner to Ist Year M.B.B.S. Class for the Session 2005-06 under the "disable" category in a Medical College, in which, seats of said categories are reserved.