' MUHAMMAD AZAM KHAN, C.J.---The above titled appeal with the leave of the Court arises out of the judgment of the High Court dated 13th March, 2012, whereby seven writ petitions filed by the appellants herein have been dismissed.
2. The appellants filed seven separate writ petitions in the High Court, whereby they alleged that they have passed the F. Sc. Pre-Medical Examination and being eligible for admission in M.B.B.S., they applied for admission to Nomination Board of AJ&K against the seats reserved in Medical Colleges of Pakistan against their respective quotas. They could not attain the merit position. In the meantime the AJ&K Government established two Medical Colleges; one in Mirpur and the other in Muzaffarabad. An advertisement was issued by the Secretary Health, Azad Govt. Of the State of Jammu and Kashmir, inviting applications for admission in Medical Colleges. In the advertisement there was a A condition that the candidates, who have qualified the valid entry test conducted by Punjab and Khyber Pakhtunkhawa and recognized by Pakistan Medical and Dental Council (hereinafter to be referred as PMDC) are eligible to apply for the admission. There was a further condition that the candidates, who have already applied for admission against the seats reserved in various Medical Colleges of Pakistan and are willing to seek admission in above mentioned two Medical Colleges of AJ&K, will not have to apply afresh, but have to submit just an undertaking of their willingness duly attested by a Notary Public along with their choice on prescribed form. It was alleged that PMDC recognizes only the entry test conducted by the Provinces. For determining the merit, the Admission Committee, constituted for the purpose, also-relied upon the entry test conducted by National Testing Service (hereinafter to be referred as NTS) apart from the entry test of Punjab and KPK, with the result that respondents Nos.7 to 13, who were lower in merit as compared to appellants, have been granted admission in Medical Colleges of AJ&K. After necessary proceedings, the High Court dismissed the writ petitions on the ground that .The appellants are below in the merit list prepared by the Admission Committee.
3. The learned counsel for the appellants argued that the judgment of the High Court is against law and not maintainable. The regulations framed by PMDC under the Medical and Dental Council Ordinance, 1962 are binding in nature and the Supreme Court of Pakistan in the cases titled Pakistan Medical and Dental Council v. Zia-ud-Din Medical University and others (PLD 2007 SC 323) and Nadir Khan and others v. Principal Khyber Medical College Peshawar and others (1995 SCMR 421) has held that the regulations have binding force. PMDC recognizes only the entry test conducted by the Provinces and entry test conducted by NTS is not recognized by PMDC. NTS conducts tests only for the federal area. The appellants have superior merit as compared to respondents Nos.7 to 13 on the basis of test conducted by the Provinces of Punjab and KPK. A merit list has been prepared by entering the marks of NTS only for the benefit of particular candidates.
The learned counsel referred to the regulations known as "Conditions for Admission in M.B.B.S. And B.D.S. Courses and House Job Regulations, 2010" framed by PMDC. He relied upon Regulations Nos.3, 4, 5, 11 and 12. He also referred to items Nos.10, 11, 12 and 13 of the Admission Policy framed by Azad Government of the State of Jammu and Kashmir. The learned counsel also referred to "Official Guide to Entrance Test, 2011" issued by the University of Health Sciences Lahore, which 'contains that the rules and regulations contained in this Guide are framed according to the' regulations of PMDC.
4. While, controverting the arguments, the learned counsel for the respondents argued that the judgment of the High Court is perfectly legal. The admissions in newly-established Medical Colleges of Azad Jammu and Kashmir are governed by Admission Policy issued by Azad Government of the State of Jammu and Kashmir. The appellants participated in the entry test conducted by the Provincial Governments of Punjab, KPK and NTS. After participating in the test held by NTS, the appellants claimed that the entry test conducted by NTS is not relevant for the purpose. After participating in the test, they are estopped by conduct from challenging the same.
The appellants are lower in merit position. The writ petitions were correctly dismissed. The appeal merits dismissal. The learned counsel further argued that the Admission CoMmittee was not arrayed as party in the writ petitions, therefore, the writ petitions merit dismissal on this sole ground. The learned counsel relied upon the cases reported as Muhammad Resham Khan v.
Chairman Inspection Team and 3 others (1990 CLC 1355), Muhammad Nazir Khan v. Azad Government and 4 others (2001 YLR 3271), Mian Muhammad Shafi Nazami v. Abdul Shakoor and 2 others (2003 YLR 1638), Muhammad Resham Khan v. Sardar Muhammad lqbal Khan (2003 SCR 74), Sardar Muhammad Naseem Khan v. Brig. (R.) Muhammad Akbar Khan and 7 others (2003 SCR 142) and Syeda Shaista Mumtaz v. Secretary Education and 6 others (2003 SCR 446).
5. After hearing the learned counsel for the parties, we summoned the record from the Admission Committee of the Medical Colleges of Azad Jammu and Kashmir. The whole merit list prepared by the Admission Committee was furnished by the Additional Secretary Health and the Vice-Principal of Muzaffarabad Medical College,. We again summoned the Principals of both the Medical Colleges of AJ&K. The Principal of Mohtarma Benazir Bhutto Shaheed Medical College Mirpur, AJ&K; appeared in person along with the record. He apprised the Court that in the Admission Policy formulated by the Government it is laid down that the Government shall make arrangement for holding entry test, but due to shortage of time, the entry rest could not be conducted by AJ&K Government. The merit list was prepared on the basis of entry test conducted by Punjab, KPK and NTS. He further apprised the Court that NTS is such an institute which conducts tests on behalf of Government Departments and different institutions. He brought on record a copy of letter written by the Manager Coordination NTS, which contains the names of appellants that they have participated in the test conducted by NTS.
' He also brought on record a letter issued by PMDC addressed to one Muhammad Salim Khan, Director Sardar Builders, to the effect that the entry test Conducted by NTS is of national level and the same, can be' accepted in terms of para 3 of Regulations known as "Conditions for Admission in M.B.B.S. And B.D.S. Course and House Job Regulations 2010". The departmental authority for admission is competent to accept the same. Lastly the Principal requested for dismissal of appeal on another pound that the classes in Medical Colleges of Azad Jammu and Kashmir were started in. January, 2012. A period of six months has elapsed. The registration process with PMDC is closed in middle of March, 2012. Further registration of candidates is not possible in this academic year. If the appeal is accepted, even then the appellants cannot be granted admission in Medical Colleges of AJ&K in the current academic year.
6. It is an admitted position that all the appellants are State Subjects and have passed the F. Sc.
Pre-Medical examination as such they are qualified to apply for admission in the Medical Colleges.
It is also an admitted position that the appellants after qualifying the entry test conducted by the Provinces of Punjab and KPK applied for admission in Medical Colleges of Pakistan through Nomination Board, constituted by Azad Government of the State of Jammu and Kashmir. Due to lower merit position, they could not be nominated against the reserved seats in different Medical Colleges of Pakistan. The appellants are entered prior to respondents in the merit list prepared 'by the Nomination Board in their respective quotas on the basis of entry test conducted by Punjab and KPK. In response to advertisement issued by the Government for admission in Medical Colleges, the appellants were not required to file fresh applications. They were required to file only an undertaking for their willingness for admission in the Medical Colleges of AJ&K.
7. Prior to establishment of two Medical Colleges in Azad Jammu and Kashmir, seats in Medical and Dental Colleges of Pakistan were reserved for the students of Azad Jammu and Kashmir.
Admissions were granted in -the said Colleges on district-wise quota basis by the AJ&K Nomination Board on the basis of entry test conducted by the Government of Punjab and KPK. After the establishment of two Medical Colleges in AJ&K, the Government announced Admission Policy on 19th January, 2012 through Notification No,SII(24)1 Part-II/2012 and admissions in these Colleges were granted in the light of said policy. Para 11 of the said policy relates to entry test on .The similar lines as the entry test was conducted by Punjab and KPK Governments for admission in Medical Colleges of both provinces. For proper appreciation of the policy relating to entry test, we deem it necessary to reproduce para 11 of the Admission Policy of AJ&K announced through Notification dated 19th January, 2012, which is 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 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 2011-2012 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."
' A perusal of para 11{1) shows that it is mandatory for the Government to make arrangement 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. It is further laid down that all the Rules for conducting test and interview in Punjab etc. Shall apply mutatis mutandis. The para further elaborates that the students who have already appeared in any test, they will furnish its proof and will be eligible to apply for admission. The para also provides that due to paucity of time it is impossible to conduct test and interview for admission in this year, therefore, the admission will be granted on the basis of test and interview conducted by different authorities recognized by PMDC.
8. The analysis of para 11 of aforesaid policy relating to entry test makes it crystal clear that Azad Government wants to conduct entry test on similar lines on which it is conducted by Punjab and KPK or any other institution recognized by PMDC, but due to shortage of time it was decided that the merit position will be determined on the basis of entry test conducted by Punjab, KPK or any other institution. The question which needs determination is whether the entry test concluded by NTS can be considered for determination of merit for admission in AJ&K Medical Colleges or not? It was vehemently argued by the learned counsel for the appellants that the regulations made by PMDC are mandatory and Supreme Court of Pakistan has held so in a number of cases. We agree that the rules and regulations made by PMDC for admission in Medical Colleges are mandatory and have binding force. PMDC has formulated the regulations known as "Conditions for Admission in MBBS and BDS Course and House Job Regulations, 2010". Regulation 3 relates to rules of Central Entry Test which postulates that the Provincial Governments shall make arrangements for holding a central entry test for admission in MBBS/BDS for both private and public institutions in their respective provinces in order to determine the order of merit and no admission shall be given to the resident of that Province without it. The regulation further postulates that entry test of one Provincial authority shall be acceptable for admission in other Provinces in private Colleges. The regulation further provides that for admission in Medical and Dental Institutions located in Islamabad Capital territory, the central entry test shall be held under the arrangements of a Federal Public University nominated by the Federal Government. Regulation 3 recognizes two authorities for conducting entry tests; under the Provincial Governments and under the authority of the Federal Government. It is on record that the appellants participated in NTS entry test for admission in private Medical Colleges in Islamabad territory, meaning thereby that apart from entry test conducted by the Provincial Government, they also participated in the entry test conducted by an institution, authorized by Federal Government and recognized by PMDC. It appears that Azad Government of the State of Jammu and Kashmir, while formulating Admission Policy, was conscious of the fact that apart from two provincial Governments, Punjab and KPK, NTS holds entry test for admission in Medical Colleges recognized by PMDC; that is why it was specifically inserted in para 11 relating to entry test that "the entry test is being conducted by the Government of Punjab, KPK or any other test acceptable to PMDC". The said para leaves no doubt that the entry test conducted by NTS can be considered at par with the test conducted by Punjab and KPK. Admission can be validly granted on the basis of test conducted by Punjab, KPK and NTS because entry test conducted by NTS is recognized by the regulations known as "Conditions for Admission in MBBS and BDS Course and House Job Regulations, 2010".
9. There is another aspect of the case that as per record and admitted position the appellants also participated in the entry test conducted by NTS. Although their case is that they participated in the entry test for admission in private Medical Colleges situate in Federal territory, but the fact remains that they participated in the entry test and according to their own version, they are lower in merit in the entry test conducted by NTS and private respondents have superior merit position in NTS entry test. It is now a celebrated principle that one cannot blow hot and cold in one breath. The appellants at one side participated in the entry test conducted by NTS and when they could not achieve the desired result and admissions were granted to private respondents, they turned round and challenged the same on the ground that the entry test conducted by NTS cannot be considered for determining the merit. The doctrine of estoppel by conduct is fully applicable in the case of appellants. After participating in the entry test conducted by NTS they cannot challenge the admission granted to private respondents on the basis of NTS entry test. This Court in a case fitted Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947 alas held as under:-- "....We may add that acquiescence and estoppel are two recognized grounds in presence of which, jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the, writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it."
' Similarly in a recent judgment of this Court titled Ehsan-ur-Rehman and others v. Arshad Ali Khan and others (2012 PLC (CS) 795) it was observed as under:-- "13. Another argument of the learned counsel for the appellants that after participating in the test and interview the petitioners have acquiesced and they are estopped by their conduct to challenge the proceedings of the Selection Committee by way of writ petitions is worth consideration. Both the petitioners qualified the typing test and after qualifying the same, they participated in the written test and also appeared in the interview. They could not attain the required merit position and were put in lower position. Appellants Nos.1 and 4 were at No,1 and 2 in the merit list prepared for District Muzaffarabad. They were duly appointed. After participating in the test and interview the petitioners have acquiesced and by their conduct they are 'estopped from challenging the proceedings of Selection Committee. The matter of acquiescence and estoppel has since long been settled by this Court in different cases. It has been held by this Court in a number of cases that if a person participates in the proceedings and remains unsuccessful in getting the desired result, later on he cannot turn round and challenge the proceedings on the ground that the same were not conducted by the legally constituted body."
The writ petitions filed by the appellants were not competent on the principle of estoppel by conduct.
10. We have examined the argument of the learned counsel for the respondents that the Admission Committee was a necessary party and without arraying it as party in the line of respondents, the writ petition was not competent. The proposition came under consideration of this Court in a number of cases apart from the cases cited by the learned counsel for the respondents wherein it was held by this Court that if any order passed by an authority is challenged and such authority is not arrayed as party, the. Writ petition is not competent. In a case reported as Muhanimad Resham Khan v. Chairman Inspection Team and 3 others 1990 CLC 1355 it was observed as under:- "Apart froin 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 Inspecfion Team, while the order has been passed by the Inspection Team.
It is elementary requirement that in a writ petition the Government or 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:-- 1)
2)
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(5) In this section, unless the context otherwise requires, 'person' includes anybody 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 Services.'
' 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."
' In the case reported as Muhammad Nazir Khan v. Azad Government and 4 others 2001 YLR 327 it was observed as under:-- ' Therefore supposing we accept the appeal and decide to declare that land acquired from the appellant cannot be utilized for construction of a plaza, we would still not be able to give any relief because Chairman of the Pearl Development Authority, who is a respondent, is not constructing the plazas but it is the Authority which is doing so, but the Authority is not impleaded as a respondent for which reason.No writ can be issued to it."
' In the case reported as Mian Muhammad Shaft Nazami v. Abdul Shakoor. And 2 others 2003 YLR 1638 it was observed as under:- "4. After hearing the respective contentions of the learned counsel for the parties, we are of the view that the objection raised by the learned counsel for the appellant that the Divisional Director Education who made the appointment of appellant was a necessary party and without his impleadment as one of the respondents, the writ could not have been issued, has a lot of substance in view of various pronouncement of this Court."
' While accepting the appeal in the referred case the writ petition was dismissed due to non- impleadment of necessary party.
' In the case reported as Muhammad Resham Khan v. Sardar Muhammad Iqbal Khan (2003 SCR 74) it was observed as under:-- "(6) The allotment order was made in the name of respondent in August 1996 by the Chairman Pearl Development Authority who under rules was not competent to pass such orders. The respondent was not justified in law to challenge the allotment order of the said plot issued in favour of deceased, Begum Jan, on the basis of his void order of allotment. Alternatively he was bound to implead the Allotment Committee in the line of respondents in his writ petition but he failed to implead the said committee, therefore, his writ petition in the light of the above referred judgment of this Court was liable to be dismissed."
' In the case reported as Sardar Muhammad Naseem. Khan v. Brig. (R.) Muhammad Akbar Khan and 7 others (2003 SCR 142) it was observed as under:-- "(7) So far as the point raised by the learned counsel for the petitioner that members of the Board of Governors were impleaded as party in the proceedings, therefore, to array the Board of Governors as party was not necessary is concerned the proposition was resolved in a case reported as Muhammad Resham Khan v. Chairman Inspection Team 1990 CLC 1355 wherein it was held as . Under:-- ' xxx xxx xxx xxx xxx xxx xxx xxx' This Court took this view in number of other reported cases such as Abdul Hamid v. Muhammad Zameer 1990 MLD 1617, Mirza Lal Hussain v. Custodian of Evacuee Property (1992 SCR 214), Barkat Hussain v. Sardar Misri Khan (PLD 1992 SC (AJK) 45) and Muhammad Shafi v. Feroze Khan (1994 SCR 19). Therefore, the writ petition without the necessary party was not competent and was correctly dismissed by the Court below."
' In the case reported as Syeda Shaista Mumtaz v. Secretary Education and 6 others (2003 SCR 446) it was observed as under:- " The petitioner has blamed the Selection Committee in her replication, copy of which has been placed on the record of this Court that it wrongly received the application of private, respondent who was not the resident of Hattian Bala. She has further blamed that the Selection Committee wrongly allowed respondent to participate in the test and interview conducted by it and also illegally recommended her for appointment against the vacancy. In these circumstances. The Selection Committee was the necessary party, without impleading it as answering respondent to defend its action, no relief could be granted to the petitioner on such grounds."
In the instant case the Admission Committee granted admission to private respondents in the Medical Colleges. The order of Admission Committee has been challenged in writ petitions, therefore,admission Committee was a necessary party. Without arraying the Admission Committee as a party in the writ petitions, the writ petitions were not maintainable and liable to be dismissed.
11. We are aware of the fact that both the Medical Colleges in Azad Jammu and Kashmir have recently been established through a Notification and admissions have been granted in a short span of time. Admission Policy was issued by AJ&K Government on 19th January, 2012 without any statutory backing. In Pakistan, PMDC is the controlling body of the Medical/Dental Colleges and medical profession. PMDC Ordinance was issued in 1962. In the light of powers vested in it under the Ordinance of 1962, PMDC framed regulations from time to time for admissions in Medical and Dental Colleges which are being followed by AJ&K Government in the field of medical education.
Azad Jammu and Kashmir is a backward area. After the establishment of Medical Colleges in Azad Jammu and Kashmir, the Government has to formulate a proper mechanism for admissions in Medical Colleges based on merit so that no candidate is deprived of his legitimate right of admission in Medical Colleges. It is necessary to provide a legal cover to the Medical Colleges. We, therefore, issue a direction to the Government for providing legal cover to the establishment of Medical Colleges and for making the Regulations as well as Admission Policy akin to PMDC Ordinance and the regulations framed thereunder before the next academic Session.
12. The result of above discussion is that finding no force in this appeal it is hereby dismissed with no order as to costs. The Admission Committee may consider the cases of the appellants for admission in next academic year under the rules.