The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioner:-- "In view of above it is very humbly prayed that by accepting this writ petition the condition of entry test imposed by the respondents for admission in MBBS may kindly be declared illegal and set aside.
(ii) That the respondents may kindly be directed to make arrangement for Central Entry test according to the Rules of PM & DC. Any other relief which this Hon'ble Court deems proper may also be given to the petitioner in vindication of the grievance afore referred".
2. Precise facts giving rise to the instant writ petition are that petitioner is first class State Subject of Azad Jammu & Kashmir who is domicile holder of District Muzaffarabad. It is stated that petitioner has passed F.Sc (Pre Medical) and obtained 901 marks from Board of Intermediate and Secondary education Mirpur. It is claimed that two medical colleges have been established by the Government respondent and for determination of terms and conditions of the said colleges a committee was constituted vide notification dated 19.10.2011. It is also claimed that respondents through advertisement published in daily "Jang" dated 27.12.2011 solicited admission in the above mentioned medical colleges. According to Condition No, 4 of the above advertisement entry test conducted by PM & DC would be valid for the purpose of admission in the medical colleges in question. The petitioner has challenged the abovementioned condition of the impugned advertisement dated 27.12.2011 through the instant writ petition filed before this Court on 03.01.2012.
3. The petition has been contested by the respondents through detailed written statement filed on 24.01.2012. It is stated that petitioner is not eligible for admission into medical colleges, therefore, is not an aggrieved party. It is also stated that petitioner has filed the instant writ petition only to pressurize the answering respondents to get admission. It is claimed that to commence first year M.B.B.S classes, due to shortage of time the Government was not in position to hold its independent entry test, therefore, with a view to regulate the first year M.B.B.S Session 2011-12, it was decided that entry test conducted by the Government of Punjab and Khyber Pakhtunkhawa shall be considered as valid for admissions in medical colleges of Azad Kashmir.
4. The learned counsel for petitioner, Mr. Sadaqat Hussain Raja and Kokab-Al-Saba Rohi, Advocates, while reiterating the grounds of writ petition strenuously argued that according to Provision-3 of conditions for admission in MBBS/BDS courses and conditions for house job Regulations, 2010 it was binding obligation for Government respondent to hold internal entry test for admission in M.B.B.S classes. The learned counsel further emphasized that abovementioned regulations were adapted in Azad Jammu and Kashmir, therefore, the same should not be violated.
The learned counsel for petitioner, however, frankly conceded that on the basis of entry test of PM & DC, after completing admission, classes have also been started in the concerned medical colleges.
5. The learned counsel for respondents, Raja Muhammad Hanif Khan, Advocate, while controverting the arguments of the learned counsel for petitioner, submitted that petitioner is not eligible for admission as he could not qualify entry test of any province, therefore, is not an aggrieved party.
The learned counsel further emphasized that for the purpose of admission in medical colleges the Government has framed a policy known as Admission Policy of Azad Jammu & Kashmir Medical College Muzaffarabad and Mohtarma Benazir Bhutto Shaheed Medical College Mirpur Azad Jammu and Kashmir for the year 2011-12, issued vide notification dated 19.1.2012 and according to para 11(2) of the same it was laid down that for first admission in medical colleges for 1st year 2011- 12 for each category entry test conducted by Government of Punjab and Khyber Pakhtunkhawa will be valid, which has not been challenged by the petitioner and the same has got finality under law, hence, prayed for dismissal of writ petition.
6. After hearing the learned counsel for the parties at length, I have perused the contents of writ petition and also examined the relevant record. The learned counsel for petitioner frankly conceded that after completing admissions in both the medical colleges classes have already been started on the basis of entry test conducted by Government of Punjab and Khyber Pakhtunkhawa. In case of extending solicited relief to petitioner all proceedings pertaining to preparation of merit and admission of all concerned students will become nullity in the eye of law.
Therefore, all those students who have been admitted in both the medical colleges will be disturbed who are necessary party in the instant writ petition. It is settled principle of law that in absence of necessary party solicited writ cannot be issued. An identical point came under consideration before Lahore High Court in case titled Dr. Aman Ul Haq and 2 others Vrs. Punjab Public Service Commission and another (PLD 1989 Lhr. 196). At page 199 it was opined as under:-- "There is another fatal defect in this writ petition. The petitioners have failed to implead the necessary parties as respondents to the writ petition. These parties are those candidates/doctors who in the process were deprived of their rights and who would be adversely affected as a result of grant of relief to the petitioners. This Court would not condemn those persons behind their back.
This is a matter which should have been attended to by the petitioners while instituting the Constitutional petition."
The above point was again considered by the Lahore High Court in another case titled Muhammad Javid Malik Vrs. Government of Pakistan and others (1989 MLD 2192). At page 2201 it was observed as under:-- "It will, therefore, be seen that on the bare plea of financial propriety i,e, that compliance of law by authorities will financial resources of the Boards for the benefit of the general public fail to confer necessary locus standi on the petitioner to invoke constitutional jurisdiction of the Court. Be that as it may, the petition is liable to be dismissed on the score that the direction prayed for cannot be issued in the absence of necessary parties i,e, the Service Institutes which are managing these auditoriums and which have granted the licences or leases to the private respondents. It will be seen that in the absence of necessary parties and proper pleadings and necessary material, jurisdiction of this Court cannot be invoked. Some of these institutes, as well as Cantonment Board Peshawar are situated outside territorial jurisdiction of this Court. As against them no order or direction can be passed by this Court. The failure to implead Services Institutes appears to be deliberate. It was suggested that non impleading of these institutes is not only deliberate but also mala-fide with a view to obtaining order adverse to them in their absence as on the objection being raised, no step was taken to implead these institutes. These institutes are the real contesting parties as a lessee or licensee has interest till the expiry of the lease period. It was explained that petitioner so long as he himself was the lessee of the Auditorium at Kamra, did not come up with the pleas that duty was payable, but after the expiry of his lease with a view to causing financial loss to the respondent (Ch. Mushtaq Ahmad) has filed this petition at the behest of the other two private respondents. The move so made being mala fide it was emphasized should not be allowed to succeed. These submissions in the circumstances are not devoid of merit. In any case the direction/order sought in all fairness should not be made in the absence of the necessary parties."
Similar point came under consideration before the Hon'ble Supreme Court of Azad Jammu & Kashmir in case titled Muhammad Resham Khan Vrs. Chairman, Inspection Team and 3 others (PLJ 1990 SC (AJK) 38). At page 43 of the precedent case it was observed as under: "Apart from that I have noticed that the Inspection Team was not impleaded as a party. The parties in the writ petition were (i) the Chairman of the Inspection Team, (ii) Azad Jammu and Kashmir Government, (iii) Mst. Fatima Bi, (who claims to be in possession of the disputed land) and (iv) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the Government of the person performing functions in connection with the .affairs of the State whose order is challenged should be made a party. The word 'person' is defined in Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The definition is reproduced below: `In this section, unless the context otherwise requires, `Person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or tribunal other than the (Supreme Court of Azad Jammu and Kashmir) , the High Court or a Court or Tribunal established under a law relating to the Defence Service."
It is clear that the Inspection Team is a 'person' within the meaning of the above definition and is not inter-changeable with the Chairman or the Secretary of the Team. Since Inspection Team as such was not made a party in the High Court writ petition entailed dismissal on this ground alone."
Likewise in case titled Muhammad Ashraf and 8 others Vrs. Azad Government of the State of Jammu & Kashmir and 13 others (PLD 1985 SC (AJ&K) 102), it was held at page 109 as under:-- "On a parity of reasoning, in view of the fact that the provisions of the Code of Civil Procedure are applicable to the proceedings under Section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, it is reasonable to hold that all parties who derive any benefit of the orders are necessary parties. We are, accordingly, of the view that the omitted parties were necessary parties and in their absence or without notice to them, no order or direction could be issued to them.
In these circumstances, in the present case, the High Court could not issue an effective writ in favour of the appellant in both the cases, as all the claimants were not before it in the writ petition.
Apart from the above, the High Court could not effectively adjudicate upon the matter when all the legal heirs of the dead claimants have not been impleaded. Likewise, the inclusion of dead person as non-petitioner was also fatal to the writ petitions."
7. Even otherwise, the Government has framed a policy known as Admission Policy of Azad Jammu & Kashmir Medical College Muzaffarbad and Mohtarma Benazir Bhutto Shaheed Medical College Mirpur Azad Jammu and Kashmir for the year 2011-12, which was promulgated vide notification dated 19.012012. For the purpose of entry test para 11 of the above policy is relevant, which is reproduced as under:-- "11. Entry Test.--(1) The Government shall make arrangements for holding entry test for determination of merit in similar manner to which the entry test is being conducted by the Government of Punjab. KPK or any other test acceptable to PMDC: All the Rules on the subject applicable in Punjab etc shall apply mutatis-mutandis. Students already appeared in any test acceptable to PMDC shall produce the proof of appearance in test and shall also to be acceptable for this year admission in AJK Medical Colleges in case entry test is not possible due to paucity of time.
(2) The merit for first admission in Medical College for the first year MBBS Session 2011-12 for each category shall be determined on the basis of entry test conducted by the Government of Punjab and Government of Khyber Pakhtunkhawa held in year 2011."
The petitioner has not challenged the above mentioned policy in the instant writ petition which has got finality. It is settled principle of law that to get rid of effect of any policy or order, as the case may be, the same must be challenged.
8. The nub of the above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed with no order as to costs.