1. ' NASIM HASAN SHAH, J.-This appeal by special leave is directed against the judgment of a Division Bench of the Sind High Court, Karachi dated 11-10-1977 dismissing the Constitutional Petition (No, 440 of 1977) filed by the appellant herein.
2. ' The relevant facts are that the Administrator, Chandk a Medical' College, Larkana (respondent No, 2 herein) invited applications for admission in the First Year M. B., B. S. Class in the Chandka Medical College, Larkana, for the academic year 1976-77 and the last date for submission of the applications was on or before the 30th November, 1976. Both the appellant and respondent No, 3 submitted applications for admission in the said College before the prescribed date. The appellant had passed Intermediate Science (1975-Examination) securing 456 marks and was placed in second division, while respondent No 3, who passed the Intermediate Soience (Supplementary 1975-Examination) secured 447 marks, three short of 450 marks required to obtain Second Division.
3. Thus, she was placed in third division. It may be mentioned that she had also completed the Women Guard's Training which entitled her to an addition of 20 marks. It is common ground between both the parties that these marks could not be taken into consideration for purposes of improving her division although some authority to the contrary exists see Imrana Malik v.
4. Chairman, Selection Committee (1). According to the rules of admission of the College, Third Division candidates were not eligible for admission and their applications were not to be considered. Consequently, an order was passed on her application form on 29-11-1976 that as she had passed in the third division, she was not eligible. However, as the appellant was placed in second division she was called for an interview on 8-1-1977 and was included in the "list of candidates provisionally selected by the Selection Committee, Chandka Medical College, Larkana, for admission to Ist Year M. B., B. S. Class for the Academic Session 1976-77" and placed at Serial No, 15 of the said list. As according to the prospectus, 15 seats were allocated to the girl students from Larkana, in the Chandka Medical College, the appellant stood selected to the College vide the above list. The academic session, however, was to commence from July, 1977 and the developments that took place by that time, has culminated in this appeal.
5. ' On 25-1-1977, a notification was issued by the Board of Intermediate Education, Karachi, to the effect that in a resolution of the Board adopted on 8-12-1976 it had been decided to award 1/2% marks of the aggregate to raise the Division of the candidates with the result that 99 candidates, who had been placed in third division, were placed in Second Division ; this also included the appellant. She thereafter submitted an application on 1-2-1977 to the Secretary, Health Department, Government of Sind stating therein that as she was now qualified for admission to the Chandka Medical College, she may be admitted and a direction be issued to the College authorities in this behalf. On 14-3-1977 a letter was issued on behalf of the Secretary, Health Department to the Principal, Chandka Medical College in the following terms :- "I am directed to inform you that the Board of Secondary Education, Karachi has given 3 marks to Miss Tahira Bhutto raising her to
(1) PLD 1977 Lah. 820 ' 2nd Division and along with her N. C. C. Certificate. She has been permitted to compete on merit by the Minister of Health. You may therefore include her name in the merit list of the candidates.
6. The original marks sheet is enclosed."
7. ' She was, therefore, asked to appear before the Selection Committee on 12-4-1977 alongwith her certificates and on .25-6-1977 she was informed that she has been selected. In the meantime, on 24-6-1977 a revised list of the selected candidates was issued wherein intead of the appellant's name at Serial No, 15, the respondent's name was shown. The appellant naturally felt aggrieved for having been dropped from the list of the selected candidates and challenged the action of the College authorities by filing a Constitutional Petition before the Sind High Court at Karachi (C. P. No, 440/ 77). Herein, she contended that the last date for the filing of the applications for admission to the Chandka Medical College was 30-11-1976 and on that date respondent No, 3 was a third divisioner and her application was rightly rejected and for the same reason she was not even called for interview. The award of additional marks so as to make her eligible to compete with Second Division candidates was not correct and respondent No, 3 could not therefore displace her.
8. ' The learned Judges in the High Court held that before the list of successful candidates was published, respondent No, 3 not only became qualified but on merit she had more marks than the appellant on account of the addition of 20 marks to her total for having completed Women Guard's Training. Therefore, as between the appellant and respondent No, 3 irrespective of other considerations on merit she was higher than the appellant if she was given admission in preference to the appellant it would not be appropriate to interfere with her selection in the exercise of writ jurisdiction.
9. ' As regards the contention that the addition of grace marks after seven months of the declaration of result, which was declared in May 1967, to raise the Division of the candidate was not justified, the learned Judges referred to rule 14 of the Rules governing the Examinations of the Board of Intermediate and Secondary Education, Karachi, which reads as follows :- "If required per cent. Marks of the aggregate shall be awarded to raise the Division of a candidate."
10. ' This rule, according to the learned Judges, was not discretionary as contended by the learned counsel for the appellant but mandatory in the sense that if required to raise the Division the requisite marks would be added. As to the delay on the part of the Board in doing so, it was observed that respondent No, 3 could not be blamed.
11. ' Mr. Nizam Ahmad, in support of this appeal, contended that the list published on 23-2-1977, wherein the appellant was shown amongst the selected candidates was a final list and sanctity was attached to it. The application of respondent No, 3 was rejected earlier, being not eligible for admission. Rule 14 of the above rules should be construed as conferring upon the Board the power to add marks before the declaration of the results and not after the declaration of the results. As on the basis of the results declared, the respondent No, 3 was not eligible for admission she could not seek admission even if she became eligible later.
12. ' He further contended that respondent No, 3 had passed the Intermediate Examination in May, 1976 and the award to her of three marks in January, 1977 was not a proper exercise of discretion by respondent No, 4, even though if provision in this behalf existed in the rules. It was further contended that the appellant having been selected vide list notified on 23-2-1977, if her selection was to be cancelled and respondent No, 3 selected in her place she ought to have been afforded a hearing to show cause that her selection was not liable to be cancelled. No such hearing was afforded.
13. ' It was lastly contended that under rule 120) of the Rules of the College, relating to admission, the list of candidates was to be notified by the Principal on the date of interview and any candidate, who had any objection to it, could file objections within 15 days to the Principal concerned and no claim was to be entertained after the expiry of the said 15 days. Since respondent No, 3 was not called for interview and she raised no objection to the rejection of her admission form on the ground of being ineligible, as a third divisioner within the period of 15 days, she could not revive her claim and her selection thereafter was not justified.
14. ' Mr. Muhammad Hussain Adil Khatri, on behalf of the Board of Intermediate and Secondary Education, Karachi (respondent No, 4 herein) has explained the circumstances in which the grace marks were awarded. He submitted that under rule 14, Chapter VI of the Calendar, it is laid down that if required, 1/2 per cent marks of the aggregate shall be added to raise the Division of the candidate. The above rule was followed till 1974. However, in the meeting held on 9/10th December, 1974 by the Chairmen of all the Boards of Intermediate and Secondary Education in Pakistan it was decided that the system of awarding grace marks for the purpose of raising the Division of candidates should be stopped. However, the Chairman Intermediate & Secondary Education Board, Hyderabad addressed a letter on 26-7-1976 to all the Boards that his Board would not follow the above decision. In order to prevent prejudice to candidates appearing from other Boards, the Governor of Sind, as Controlling Authority, caused a Press release dated 19-10-1976 to be issued which was to the effect that the system of awarding grace marks be followed for Annual Examination of 1975 for the students securing a minimum 595 marks out of 900 marks i.e, for raising the marks by per cent. Of the aggregate for upgrading them to First Division. As, however, as already noted, the ',Board of Intermediate and Secondary Education, Hyderabad, had decided tot to follow the resolution of the Committee of the Chairman of Pakistan the Board of Intermediate Education, Karachi, in its meeting held on 22-12-1976 passed the following resolution to attain uniformity in the Province "Resolved that the provision of raising of Division upto the extent of half per cent. Of Aggregate be allowed to all categories of students in all groups who can be benefited by the above provision for the F. Sc. Part II Annual and Supplementary Examination of 1975 and 1976."
15. ' It was in pursuance of the above resolution of the Board the notification dated 25-1-1977 was issued in which the roll numbers of the students who appeared in the Annual and Supplementary Examination 1975 and had obtained minimum 445 marks were allowed to bring Marks Sheet for necessary correction. In this manner, 99 students were found entitled to the said benefit and their Division was raised from Third to Second. Respondent No, 3, on the basis of the aforesaid notification, had brought her Marks sheet to the Board which was, accordingly, corrected and she was given 3 marks to place her in Second Division.
16. It is, therefore, quite clear that the award of grace marks to respondent No, 3 was not done as a special favour to her but under a general police covered by existing rules. With the award of the said marks, she became superior in merit to the appellant, because after the addition of 20 mark to which she was entitled for having completed the Women Gaurd's Trainin to her existing marks of 447 she had 467 marks as against 456 marks obtained by the appellant.
17. ' The question which still falls for determination is as to whether the list of selected candidates notified on 23-2-1977 was not the final list and whether it could be interfered with later on. Rule 12(b) relating to Rules of Admission to the College appears to show that this cannot be done, because according to it selection of candidates is to be made after interviewing them and the candidate, who is not called for interview and does not raise B any objection to it, within 15 days, is to be deemed to be rejected and cannot thereafter complain in respect of his rejection. The list published on 23-2-1977 was, no doubt, described as a provisional list but it was provisional in the sense that it was subject to the fulfilment of the certain formalities such as payment of dues etc. Rule 14 of the Calendar of the Board, of Intermediate and Secondary Education, Karachi, Volume III, no doubt allow per cent. Of the marks of the aggregate to be awarded to raise the Division of the candidates but this should necessarily be done at the time of the declaration of the results and not thereafter. In this case, although results C were declared in May, 1976, the award of the grace marks was made in January 1977, which contravened the spirit of the rule. The interference with the selection of the appellant on the basis of the subsequent addition of 3 grace marks even without giving her an opportunity to be heard in this behalf cannot, therefore, be upheld.
18. ' So this brings us to the order which should be passed in this case. The appellant, no doubt, could not be displaced as she was rightly selected without any objection on the basis of the interview held on 8-1-1977. We would, therefore, direct that she should be admitted in the First Year M.B., B.S. Class in Chandka Medical College, Larkana, in the forthcoming Session of the College.
19. ' As for the 3rd respondent, she is in her Third Year. The question of creating a seat for her does not arise, as the appellant will be joining the First Year, whereas the respondent No, 3 is by now in the Third Year. We would clarify that she should be allowed to continue her studies in the College.
20. ' The result is that this appeal succeeds and is allowed in the above terms. Parties are, however, left to bear their own costs.