' SALMAN HAMID, J.---Prior to the filing of the present petition, Tipu Sultan Khan, (the petitioner), preferred Constitution Petition No,D-737 of 2011, (earlier Petition) when the Institute of Business Administration (respondent), as per the contents of the earlier Petition, denied and did not process his HEC Scholarship despite petitioner passing Graduate Recorded Examination (GRE) and also obtained letter from Lancaster University, Management School, United. Kingdom, which University had allowed him to join 2011 Session. The earlier Petition, amongst other dates, came up for hearing on 10-5-2011 when this court directed the respondent that its director or any other officials or committee at any date within 10 days of passing of that Order hear the petitioner and thereafter pass a speaking order within 15 days thereof. It was further observed in Order dated 10-5-2011 that the petitioner would seek remedy available to him if he would still be aggrieved by the speaking order. It appears that requisite speaking order, as contemplated by Order dated 10-5-2011 had not been passed by the respondent with the result that the petitioner preferred contempt application(s) in earlier Petition being C.M.As. Nos.9054 and 9417 of 2011. Speaking order came forth after contempt application(s) under cover of Statement dated 4-6-2011. The speaking order itself was of May 31, 2011. Aggrieved by it (speaking order) and the fact that in terms of Order dated 10-5- 2011 the petitioner was allowed to avail further legal remedy in case he was still aggrieved, present petition was filed challenging the speaking order and release of HEC scholarship for the session September, 2011.
2. It was the case of the petitioner that once his application for HEC scholarship had been accepted and that too on the basis of GRE (not GMAT), it was not open to the respondent to have rejected and/or denied the same by raising that he (petitioner) was to have had GMAT score. Next it was urged that he (petitioner) was never communicated and/or made aware of faculty presentation evaluation (in which he failed). Finally it was implored that 50th percentile was not the requirement for the HEC scholarship. It was also argued that the respondent having processed his HEC scholarship earlier in time on the basis of GRE and had also obtained filled up forms on such basis and also required him to appear before the faculty for presentation, at a later stage cannot turn around and say that for HEC scholarship the requirement was GMAT and not GRE. It was also mentioned that the respondent was not clear as to what was the requirement for HEC scholarship GRE or GMAT and in such regard also communicated with HEC for clarification. It was mentioned that HEC informed that for the discipline of business and management, the basic requirement was GMAT score. However, at the time when the HEC scholarships had been advertised, it was informed by HEC that particular defined eligibility criteria had to be the discipline and that the applications had to be entertained strictly in that context. Petitioner's GRE score was therefore accepted by the respondent. It was prayed that under the circumstances, respondent be directed to release the HEC scholarship funds for the academic session September, 2011 in favour of the petitioner.
3. Learned counsel for the respondent resisted the petition. In the first instance it was argued that the petition was barred by Order II rule 2 Civil Procedure Code 1908 inasmuch as that in earlier Petition the relief that was sought by the petitioner had been granted and it was not prayed therein that he should be given HEC scholarship. The next argument that was advanced by the learned counsel was that since the petitioner failed to meet the minimum criteria of 50th percentile in GRE which was applicable in the case in 2010 and also failed in faculty presentation evaluation and also failed to achieve individually 50% in each module was not eligible for the HEC scholarship.
Elaborating his arguments, it was stated and the documents were produced and shown that petitioner failed to meet the minimum criteria. In the first instance it was mentioned that 40th percentile which was the minimum threshold of the year 2009 had been raised in the year 2010 to 50th percentile and admittedly such was not achieved by the petitioner. It was also mentioned that the petitioner to deceive and mislead the respondent filled in the forms incorrectly and/or incompletely where only scores had been shown in general test scores of GRE examinee's score report inasmuch as that in Column No,6 to the query of GRE/GMAT score not below the 50th percentile, the petitioner answered in the affirmative, though he did not achieve such percentile. It was also mentioned that because of such incorrect and false statement in the application form, the respondent proceeded further into the petitioner's case who otherwise would have had stopped there. It was urged that despite this deceitful act of the petitioner he filed the earlier petition wherein he obtained Order dated 10-5-2011, which was honoured. The petitioner was given full-fledged hearing and a speaking Order was passed, wherein each and every aspect of the petitioner's case was dealt with extensively and convincing answer to each and every query was given and it was thoroughly explained as to why and under what circumstances the petitioner was not entitled to HEC scholarship. This speaking Order was extensively referred to and relied upon by the respondent.
4. We have heard arguments of the petitioner and of the learned counsel for the respondent. As to the objection to the maintainability of the petition, suffice to observe that the Order dated 10-5-2011 itself says that if the petitioner would still be aggrieved by speaking order of the respondent he would be at liberty to have further legal recourse. Since the petitioner found himself aggrieved by the speaking order preferred present petition, which was altogether based on a new cause of action. Objection of maintainability does not hold the ground.
5. Coming to the other two grounds: GRE/GMAT score application in the case of petitioner for availing HEC scholarship and passing faculty presentation evaluation, it may be noted that the speaking order which was passed by the respondent at page 7 under the head of Speaking points at hearing session held on May 13, 2011 at IBA shows that 6 points had been deliberated upon by the respondent which were, (1) that the petitioner was confused whether to appear for GRE or GMAT (2) that 40th percentile requirement was never communicated to him, (3) that the petitioner was not informed about the faculty presentation evaluation in the beginning (4) that the petitioner was not aware of the consequences of failing the faculty presentation evaluation (5) that the petitioner was not informed by respondent that the scholarship program was dependent upon the performance in the presentation and finally (6) that the faculty presentation evaluation was not properly assessed. The speaking order gave answers to all the above six questions. It was mentioned in the speaking order, as far as question No,1 regarding application of GRE or GMAT was concerned, "that at the time when Mr. Tipu Sultan applied for the overseas Ph.D. Scholarship applicant was required to appear for either". It was thus mentioned in the speaking order that before Mr. Tipu Sultan had appeared for GRE, clarification was obtained from HEC and HEC on its turn informed that GMAT was the requirement nevertheless, "IBA showed its supportiveness by accepting the GRE instead of GMAT." However, it was mentioned that the petitioner did not meet the 50th percentile as per the eligibility criteria, communicated to him through an Email. Above analysis of the speaking order, as far as the requirement of GRE/GMAT is concerned would set at rest that the respondent accepted GRE instead of GMAT. The second question which requires consideration is what is the applicable and acceptable percentile in the case of the petitioner seeking HEC scholarship for the session September 2011? Whether it was 40th or 50th percentile.
The documents produced by the respondent of the year 2009 shows 40th percentile whereas the eligibility criteria for the year 2010 was raised to minimum acceptable score to 50th percentile in GkE/GMAT scores/results. Such documents was available and/or filed by the respondent in terms of this court's Order dated 15-8-2011 and copy thereof was also supplied to the petitioner. First of such document was available at page 19 and the second at page 35 of the Part II of the case file.
These documents show that the minimum acceptable score for 2010 was 50th percentile in international GRE/GMAT results. Such being the position, we are afraid to note that though GRE score was acceptable to the respondent for the purposes of HEC scholarship but unfortunately for the year 2010 the percentile had been increased up to 50th percentile. The petitioner was short of it and therefore unfortunately found ineligible for HEC scholarship. At this stage we may bring on record that the counsel for the respondent offered to the petitioner that he may appear for GRE once again and may apply for the requisite scholarship upon getting the necessary percentile but this offer was declined. Decision on merits was agitated. Since the threshold has been raised to 50th from 40th percentile and the petitioner wants to join September 2011 session, under the new regime it is not possible. It may further be added that in terms of eligibility criteria, the verbal, quantitative and analytical writing scores had to be treated as three separate and independent pieces of information and should not be combined into a single score inasmuch as the scale for measurement greatly differed. It is an admitted position that the petitioner did not achieve even minimum requirement of 40% in all modules as was applicable in 2009 which now has been upgraded to 50%. On this score as well the petitioner falls short of claiming the HEC scholarship.
6. Coming to the next contention of the petitioner regarding faculty evaluation presentation, it may be noted that such was one of the requirements to qualify for the HEC scholarship also evident from the respondent Standard Operating Procedure (Annexure 9 page 77 relevant page 89) wherein under the head of " SCREENING: Initial short listing of potential candidates it was clearly mentioned that, "the short listed candidate(s) will be invited by the Faculty Coordination (FC) of the relevant faculty (Business Administration or Computer Science), to make a presentation of a topic of his/her choice before a Panel of faculty members" and that after such presentation, it was also mentioned in the above head that, "Panel members will submit their confidential written recommendations, on pre-identified criteria (See Annexure E for evaluation form), to the Director IBA". It is a matter of record that the petitioner failed in faculty presentation evaluation and his result was communicated to the Director.
7. Above being the position, it is clear that to earn a HEC scholarship, stringent criteria had to be met and was to be followed through by the petitioner which unfortunately he could not. Neither the petitioner is equipped with 50th minimum percentile in GRE nor he got such score individually in each module and that he also failed to qualify in faculty presentation evaluation. We may observe that if the petitioner's performance is gauged at this stage of time (in the year 2011) on the criteria of 2009 of 40th percentile and he is allowed to reap A benefit of such percentile, it would be extremely unfair and discriminatory for the persons who had applied for scholarship in 2010 and were refused, falling short of on the stringent 50th percentile but achieved 40th percentile or may be near to 50th percentile but could not make it through because of such standard. Therefore, the petitioner cannot claim any prefetential right and/or latitude in evaluating his case on the basis of 40th percentile as was applicable in the year 2009. Under the circumstances we are afraid and sorry to dismiss this petition being meritless, however with no order as to costs.