Muhammad Ali Mazhar, J.--The petitioner has filed this constitution petition with the following prayers:--
(a) To declare that the order dated 24.11.2011 and 10.12.2011 which have been passed without application of judicial mind and are illegal, nullity ab initio in the eye of law.
(b) To restrain the Respondent No. 1, sending the petitioner to Nawabshah PMC which is against the option given by the petitioner as well as Respondent No. 2.
(c) To pass an order for suspension of the impugned order till decision of this petition.
(d) To declare the Respondent No. 1 to allow the petitioner so also the Respondent No. 2 for admissions on Mutual basis as per their policy and precedents.
(e) To grant any other relief, which deems to fit and proper under the circumstances of the case.
(f) Cost of proceedings."
2. The case of the petitioner is that she and Respondent No. 2 in the month of September, 2011 applied for admission in MBBS in Ghulam Muhammad Mahar Medical College, Sukkur. The petitioner and Respondent No. 2 both cleared medical entry test 2011-12 but due to limited seats, they were directed to apply under the University Education Assistance Program (Self Finance) in the month of October, 2011. Consequently, in the aforesaid scheme their Forms were accepted and they were offered admission on the allocated seats of their respective Districts. The name of petitioner is at Serial. Number 12 of the Provisional Merit List of candidates applied for MBBS/BDS on Self Finance basis for Session 2011-12 for District Khairpur while the name of Respondent No. 2 is appearing at Serial Number 4 of the Provisional Merit List for District Ghotki.
3. The grievance of the petitioner is that she was allowed admission in Peoples Medical College, Nawabshah against her option i.e. Ghulam Muhammad Mahar Medical College, Sukkur. The petitioner filed an application on 22.11.2011 in which it was reiterated that she had given an option for Ghulam Muhammad Mahar Medical College, Sukkur on the ground that her elder brother is already getting education in the said College and her mother is also ailing and her father is stationed at Karachi, therefore; it was convenient for her to get education in Ghulam Muhammad Mahar Medical College, Sukkur. It was further averred that the Respondent No. 1 after examining the application directed the petitioner to bring another student who willing to accept admission in Peoples Medical College, Nawabshah on mutual basis. The Respondent No. 2 according to the petitioner also opted admission in Peoples Medical College, Nawabshah but she was allowed to be admitted at Ghulam Muhammad Mahar Medical College, Sukkur, therefore, on 23.11.2011 the petitioner along with Respondent No. 2 moved an application for mutual transfer. The Respondent No. 1 informed them that this application will be put-up before the Admission Committee and the decision will be conveyed later on. On 24.11.2011 the Respondent No. 1 conveyed the decision to Vice Chancellor Shaheed Muhtarma Benazir Bhutto Medical University, Larkana, in which, it was stated that meeting was convened under his Chairmanship along with five other members to discuss the request of Mr.Ubedullah regarding his daughter's admission in Peoples Medical College, Nawabshah on Self Finance basis, was scrutinized and fully discussed as per prospectus and the petitioner's position for Peoples Medical College as per previous decision, was upheld. The Respondent No. 2 has also filed her affidavit in support of petition and she stated that she has no objection if the petition is allowed as prayed.
4. The Respondent No. 1 filed his comments, in which, it was stated that the petitioner and Respondent No. 2 applied for admission of regular seats but could not secure the marks, thereafter they applied for admission in Self Finance. As per merit cum-choice basis mentioned in the prospectus for the Session 2011-12, the petitioner was placed at Merit No. 12 of District Khairpur, which was the last one as the seats under the scheme for District Khairpur, are only 12, therefore, she was rightly nominated for admission at Peoples Medical College, Nawabshah in accordance with the policy laid down in prospectus. Likewise, the Respondent No. 2 is placed at Serial Number 4 for District Ghotki, therefore, she was rightly nominated for admission in Ghulam Muhammad Mahar Medical College, Sukkur according to the policy laid down in the prospectus though the petitioner had opted for Ghulam Muhammad Mahar Medical College, Sukkur, but she could not be accommodated as per her own choice but she was to be accommodated according to the policy, therefore she was rightly nominated for Peoples Medical College, Nawabshah and there is no fault of College administration or Admission Committee. It is further stated that the Respondent No. 1 never directed the petitioner to bring another student for admission at Peoples Medical College, Nawabshah on mutual basis. It is further stated that Respondent No. 2 never appeared before the Respondent No. 1 with any application for mutual transfer. Annexure-B attached to the petition, does not speak about any mutual transfer between the petitioner and Respondent No. 2 even in another application dated 23.11.2011 nothing has been mentioned for the mutual transfer with the Respondent No. 2. It is further stated that Annexure-C attached to the petition, seems to be a forged document as it was never presented before the Respondent No. 1. However, the application moved by the petitioner on 23.11.2011 was under consideration for her admission at Ghulam Muhammad Mahar Medical College, Sukkur, but no application was received from Respondent No. 2 and Admission Committee unanimously decided in its meeting held on 24.11.2011 that the policy laid down in the prospectus is to be adhered to therefore, the previous decision was upheld after scrutinizing the record. It was further stated by Respondent No. 1 in his comments that he is not competent to entertain and allow the mutual transfer of admission between two candidates in two different Colleges and it is only the Vice Chancellor of the University, therefore, there was no question of deciding or allowing mutual transfer to the petitioner and Respondent No. 2 as in the order dated 24.11.2011 only the question of accepting the choice of petitioner for her admission at Ghulam Muhammad Mahar Medical College, Sukkur, was considered and declined in view of the policy laid down in the prospectus. It is further contended that there is no order dated 10.12.2011, which has been impugned in the petition. However, Annexure-H attached to the petition, is only a letter addressed to Vice Chancellor, Peoples Medical College, Nawabshah nominating five girls for admission at Peoples Medical College.
5. The learned counsel for the petitioner argued that Respondent No. 1 acted contrary to law and they have violated their policy and the order dated 24.11.2011 is based on mala fide. He further argued that it is well settled law and policy of the Colleges and Universities to give preference to the option of girls candidates for admission but the Respondent No. 1 failed to consider and passed a nonspeaking order dated 24.11.2011 whereby he declined the request of the petitioner. He further argued that at no point of time, the Respondent No. 1 called the Respondent No. 2 for explaining her position and her no objection to the request of the petitioner and that the act of Respondent No. 1 is discriminatory. Since there was no efficacious and adequate remedy available, therefore this constitutional petition has been filed for seeking relief against the Respondent No. 1 to allow the petitioner for admission on mutual basis.
6. On the contrary, the learned counsel for the Respondent No 1 argued that mutual transfer or migration is only within the competence of Vice Chancellor and the Respondent No. 1 is not competent to accord any mutual transfer to the petitioner or the Respondent No. 2. He further argued that the admission to the petitioner and Respondent No. 2 was granted on Self Finance basis in accordance with the policy and prospectus and no violation was committed by the Respondent No. 1. He also contended that many controversial questions of fact have been raised by the petitioner, which cannot be resolved under the constitutional jurisdiction of this Court. The learned counsel further disputed that at no point of time, the petitioner was directed by the Respondent No. 1 to bring another student showing willingness for admission at Peoples Medical College, Nawabshah on mutual basis. It was further averred that the Respondent No. 2 never appeared before the Respondent No. 1 with any application duly signed by her for mutual transfer and the Respondent No. 1 was never told the petitioner or the Respondent No. 2 that their application will be put-up before Admission Committee. The application submitted by the petitioner on 23.11.2011 was placed before the Admission Committee but her request was declined and the decision was conveyed to the Vice Chancellor Shaheed Mohtarma Benazir Bhutto University, Larkana on 24.11.2011. The learned counsel also invited our attention to Annexure-II of their comments, which is relevant to allocation of seats and Clause 5(i) of prospectus 2011-12 relates to District-wise MBBS and BDS General merit and UEAP seats, which shows 9 seats for Ghulam Muhammad Mahar Medical College, Sukkur and 3 seats for Peoples Medical College, Nawabshah under the classification of UEAP for District Khairpur. The learned counsel finally argued that there is no illegality or any mala fide on the part of Respondent No. 1, who is otherwise not competent to allow transfer on mutual basis and he further argued that there is no case of any discrimination.
7. After hearing the learned counsel, we have reached to the conclusion that the petitioner has only arrayed the Principal of Ghulam Muhammad Mahar Medical College, Sukkur, who is also a Chairman Admission Committee but neither Peoples Medical College has been arrayed as necessary party nor the Vice Chancellor who is competent to accord the transfer on mutual basis or the migration of the student from one Institution/College to another. On 21.12.2011 parawise comments were filed by Respondent No. 1 and he was also present in person and he categorically stated that the only Vice Chancellor is competent to allow the transfer, therefore, in order to provide a fair right of representation to the petitioner, the Respondent No. 1 was directed by this Court to prepare a reference and submit to the learned Vice Chancellor with all necessary facts and the Vice Chancellor was directed to decide the reference within ten days and since the petitioner requested that she may be allowed to attend the classes at Sukkur, therefore, the- petitioner and Respondent No. 2 both with the consent of Professor Doctor Qarib Abbass Shah Principal Ghulam Muhammad Mahar Medical College, Sukkur and Chairman Admission Committee (Respondent No. 1), were allowed to attend the classes at Sukkur. The learned counsel for the Respondent No. 1 submitted the order passed by the Professor Akbar Haider Soomro Vice Chancellor SMBBMU, Larkana on 31.12.2011, which shows that the petitioner, Respondent No. 2 both were present before the Vice Chancellor with their fathers and Principal GMMMC, Sukkur was also present and the Vice Chancellor after hearing them passed the order. In the order the Vice Chancellor concluded as under:-- "The Principal GMMMC Sukkur was directed by the honorable Court to prepare and submit Reference in the matter as such the Reference is received from Principal concerned for decision.
Admittedly the case of admission of both applicants was considered by the Admission Committee under the Chairmanship of Principal GMMMC Sukkur against the category. of UEAP (Self Finance) and finalized in accordance with relevant Rules and no violation of and deviation from the same in such decision of Admission Committee has been found. The admission has been granted to both of them and their files have also been sent to concerned Colleges. They have been allowed to attend classes at Sukkur by the Honorable Court at their request. At this stage the case of applicants clearly falls within the purview of Migration from one College to another College, which is governed by Rule 13.1 of the Prospectus Session 2011-12. It will be advantageous to reproduce Rule 13.1 (i) of the Prospectus for the sake of convenience, which reads as under:-- "The following categories of students shall not be allowed migration.
(i) Those who are admitted against: (a)Reserve Seats (b)Special Seats (c)UEAP Seats".
A bare reading of the rule cited supra, reveals that there is restriction on the migration of students admitted against UEAP seats. Since both the applicants have been granted admission under the category of UEAP seats, hence their request for transfer/migration can not be accepted, thus the same is hereby declined and the Reference in hand is disposed of accordingly.
Announced on 31-12-2011. Sd/-31.12.11 (PROF.AKBAR HAIDER SOOMRO) VICE CHANCELLOR SMBBMU Larkana".
8. The whole thrust of the petitioner is that she should be accommodated in Ghulam Muhammad Mahar Medical College, Sukkur keeping in view her option but the petitioner has failed to point out any violation of prospectus or the policy of Ghulam Muhammad Mahar Medical College, Sukkur.
Though at the time of her admission under Self Finance Scheme she might have placed an option for admission at Ghulam Muhammad Mahar Medical College, Sukkur but she cannot claim transfer and or acceptance of her option as a matter of right unless some vested right shown to have been violated. In the memo. of petition she pleads mala fide but no specific instances or details have been shown, which may substantiate her plea of mala fide against the Respondent No. 1. It is also a fact that in the memo. of petition numerous controversial and disputed questions of fact have been raised and in the comments filed by the Respondent No. 1 most of the allegations have been denied. The petitioner has also failed to demonstrate any lawful right which should have been accommodated by Respondent No. 1. It is well settled that for the purpose of maintaining constitutional petition, it is the duty and obligation of the petitioner to show that action of the authorities was in derogation of some law, rules and or regulations.
9. In the case reported in 2010 M LD 103 (Ms.Faiqa Ali v. Vice Chancellor, Government College University Lahore and others), the petitioner in that case had filed the petition alleging therein that the papers were not checked properly and syllabus was not considered at the time of rechecking of papers. The learned bench held that factual controversies could not be resolved by High Court in constitutional jurisdiction. General allegations of mala fide levelled but no specific mala fide against the University was shown, therefore the High Court declined to issue writ against the University on the basis of general allegations and petition was dismissed.
10.The learned division bench of this Court in the case reported in 2002 CLC 147 (Zaheeruddin Sheikh and 30 others v. United Bank Limited) held that party invoking constitutional jurisdiction has to establish the existence of a clear legal right and further that such legal right must be so clear so as not to admit of a reasonable doubt or a controversy. Such legal right must be a personal and individual right and that it must be statutory right or a right recognized by law. The jurisdiction of this Court under Article 199 of the Constitution can be invoked only by an aggrieved person and a person can be said to be aggrieved only when he is denied a legal right by someone, who has a legal duty to perform relating to the right. It is also to be noted that for invocation of constitutional jurisdiction of this Court, the aggrieved party has to establish not only a legal right but a right which is justiciable in a Court of law, in absence of which no order can be issued under Article 199 of the Constitution of Pakistan. It is incumbent upon the party invoking of jurisdiction of this Court under Article 199 of the Constitution to satisfy that some illegal wrong had been inflicted or was about to be inflicted on the petitioner.
11.In another judgment reported in SBLR 2011 1393 (Miss Javaria v. Mehran University of Engineering & Technology), the divisional bench of this Court in which, one of us (Muhammad Ali Mazhar-J) has authored the judgment and held that the controversy which entirely revolving around the question of fact and needed elaborate enquiry could not be undertaken by High Court under Article 199 of the Constitution. In the same judgment, the dictum of honorable Supreme Court reported in 2000 SCM R 1222 in case of Dow Medical College was also referred to in which, it was held that right to seek admission in an Educational Institution and to continue studies therein is always subject to the rules of the discipline prescribed by the Institution and therefore, student who intends to pursue his studies in the Institution is bound by such rules. In another CP.No. D-523/2000, it was held by the learned division bench of this Court in the case of Mehran University of Engineering and Technology, Jamshoro, in which the petitioner Farhan Kareem Mahar in spite of his short attendance claimed the right to appear in the examination, this Court dismissed the petition and held that the exercise of discretion in favour of the petitioner will amount to unnecessary interference in the working of an Educational Institution.
12. The whys and wherefores lead us to an irresistible conclusion that the petitioner has failed to demonstrate violation or infringement of any legal right or the contravention of prospectus/policy.
The Vice Chancellor was directed to pass an appropriate order on the reference of Respondent No. 1, which has been answered after hearing the petitioner and Respondent No. 2 and reasons have been assigned in the order, which does not warrant any interference by this Court in its constitutional jurisdiction, especially, in the circumstances, where factual controversy and disputed question of fact are involved. The petitioner has attached a letter dated 13.11.2010, allowing provisional adnfission to one student Ali Haider in 1st MBBS Class at Chandka Medical College, Larkana and another letter of the same student dated 23.12.2010, which was issued by the Registrar of the same University to' the same student on mutual basis. First of all no credentials of student Ali Haider have been provided in the petition to show his number in the merit list in his District.
Secondly, Shaheed Mohtarma Benazir Bhutto University, Larkana is not party to the petition and the letter issued to Ali Haider showing the category of seats "District Merits" and not of "UBAP", therefore, his case is distinguishable. In the case of Bahauddin Zakaria University Multan, the honorable supreme Court in its judgment reported in 2005 SCM R 961, held that Rules and Regulations framed by the University were required to be interpreted by them and Courts should avoid to interpret the same unless a case of grave injustice is made out. Mr.Maqbool Awan, learned counsel for the petitioner shown us a letter issued by Respondent No. 1 on 11.1.2012 to VC in which due to voluntarily withdrawn of student Yassen Ali from his seat of Self finance from district Khairpur, one more candidate is to be accommodated and inducted to complete 12 seats of District Khairpur and he requested the Vice Chancellor to return the file of petitioner. Let it be decided by the institution by their own according to their rules and prospectus.
13. For the foregoing reasons, this constitution petition is dismissed. Interim orders are recalled.