M. MEHBOOB AHMAD, J.-This order will dispose of Intra-Court Appeal No. 534 of 1980, and Writ Petition No. 120 of 1981. The latter case has been put up with the former because the dispute is 'identical.
2. The facts necessary for the purposes of this order are briefly stated hereunder respectively for the Intra-Court Appeal and the writ petition.
3. I.-C. A. No. 534 of 1980.
The appellant after passing his F. Sc. (pre-Medical) Examination from the Board of Intermediate and Secondary Education, Punjab, applied for admission in one of the Medical Colleges of Punjab against reserved seats allocated for admission of children of members of the medical staff who have served for a total period of not less than 10 years in Medical Colleges, Post-Graduate Medical Institutions and Hospitals affiliated to such Colleges etc. As provided by para. 5(i) of the Prospectus governing admission to Medical Colleges in the Province of the Punjab.
4. The admission was refused to the appellant holding him not eligible for admission against the reserved seats aforementioned. .
5. According to the appellant, the refusal was based on the ground that the father of the appellant had not served in the Medical Colleges and Hospitals affiliated to such Medical Colleges for 10 years. This conclusion was arrived at by excluding the period of service of the appellant's father in Medical Schools.
6. It may be observed here that earlier, in the year 1976, two sisters of the appellant had similarly applied for admission but were refused the same on the above basis. They filed a writ petition (W.
P. No. 227 of 1976) in this Court which was accepted by judgment dated 8-2-1976 and they were admitted to the Medical Colleges. In pursuance of that judgment.
7. The appellant feeling dissatisfied with the decision of the Selection Committee made a representation to the Government which also did not find favour. He thereupon filed a Writ Petition (W. P. No. 9243 of 1980) in this Court and on rejection thereof he has preferred the present Intra- Court Appeal.
8. Since the writ petition had been dismissed in limine the learned Assistant Advocate-General sought permission to file written statement to this Intra-Court Appeal which has since been filed. In this written statement the respondents have set up the plea that although the respondent's stand- point is that the appellant is not entitled to admission against the reserved seats under para. 5(i), his father having not remained a member of the medical staff in the Medical Colleges and their affiliated Hospitals for 10 years after exclusing the period of his service in the Medical Schools, the appellant otherwise also having secured only 400 marks in the F. Sc. Examination is a third divisioner and as provided by para. 3 of the Prospectus was not entitled to admission and consequent had neither the locus standi to file the writ petition nor the present I.-C. A.
9. It has also been asserted that the petitioner could not be admitted against the reserved seats in any case as two other candidates, namely Mst. Samina Hasan and Mst. Ghufrana Hasan who had secured 528 and 459 marks respectively as against 420 marks secured by the appellant including 20 marks of N. C. C. Training and both of whom were also refused admission on the basis of lack of qualification of their father of having served in Medical Colleges and affiliated Hospitals for less than 10 years which 10 years bad also been arrived at after excluding his service in the Medical Schools would be more entitled to admission in view of their marks being higher than the appellant.
10. The aforementioned two girl students, namely Mst. Samina Hasan and Mst. Ghufrana Hasan, have also come up in the connected writ petition the facts of which have been given hereunder:
11. W. P. No. 120 of 1981: The petitioners in this case have come up against the order of refusal of their admission in Medical Colleges. They have passed their F. Sc. (pre-Medical) Examination by securing marks as given against each hereunder: Mst. Samina Hasan, Petitioner No. 1 . . 528 marks.
Mst. Ghufrana Hasan Petitioner No. 2 . . 459 marks.
Their application for admission to any of the Medical Colleges in Punjab was rejected on the ground that their father's service in the Medical Colleges and affiliated Hospitals was less than 10 years. This period of 10 years was admittedly arrived at by excluding the period of service of their father in the Medical Schools and it has been conceded by the respondents in the written statement filed to this writ petition that but for this exclusion of service in Medical Schools the services of the father of the petitioner was more than 10 years.
12. Mr. Abid Hasan Minto, Advocate the learned counsel for the appellant in the I.-C. A. Contended that the service of the father of the appellant in Medical Colleges and affiliated Hospitals was the subject of controversy in Writ Petition No. 229 of 1976, titled Mst. Khadijatul Kubra etc. v. The Government of Punjab etc. Wherein the appellant's sisters were the petitioners and that it having been decided in the said writ petition that the service of a Doctor in Medical Schools has to be included while calculating the period of 10 years mentioned in para. 5(i) of the Prospectus in question, the refusal to the appellant of admission on the basis of want of qualifying service period of the father of the appellant was not valid in law.
It was urged that the reference to I: C. A. No. 9 of 1979,IBVP by the respondents would not be of any avail to refuse admission to the appellant as in that case not only the judgment delivered in W. P.
No. 229 of 1976, was not brought to the notice of the learned Judge but also the learned counsel for the appellant in that' case had conceded before the learned Single Judge in the writ petition out of which that appeal had arisen that the word "College" would not include `Medical Schools'.
Continuing his arguments, the learned counsel submitted that the word "College" in para. 5(i) ibid would include any Medical Institution which imparts medical education and thus a `Medical School' would fall within the ambit of the para. Especially when the Government had accepted the inter-- pretation which was conceded by the learned Advocate-General in Writ Petition No. 229 of 1976.
As regards the appellant's ineligibility to seek admission being a third divisioner the learned counsel contended that para. 3 in the Prospectus would only be applicable to such of the reserved seats as are mentioned in the paras preceding this para and not to those which follow para. 3. The basis of this argument was that since this condition has been specifically mentioned in paras. 8 and 9 which also deal with some reserved seats but the same condition has not been laid down in para. 5 it should be inferred that the condition of being at least a second divisioner mentioned in para. 3 has not to apply to para. 5.
8. Mr. Muhammad Arif, Advocate the learned counsel for the peti--tioners in Writ Petition No. 120 of 1981, adopted the arguments of the learned counsel for the appellant in the Intra-Court Appeal under adjudica--petition so far as the basis of calculation of the period of 10 years service mentioned in para. 5(i') is concerned.
He further contended that the petitioners having secured more marks than the appellant in the Intra-Court Appeal were in any case entitled to admission against the reserved seats under para. 5(i).
9. The learned Assistant Advocate-General, in reply, only argued that the decision of the Selection Committee to refuse admission to the appellant and petitioners on the basis that their respective fathers' period of service was less than 10 years after excluding their services in Medical Schools was on the basis of the decision in I.-C. A. No. 9 of 1979/BWP, and this being a Division Bench judgment has to take precedence over the judgment of the learned Single Judge in Writ Petition No. 229 of 1976. It was, however, conceded that but for the exclusion of the service of the father of the appellant and of petitioners in Medical Schools their service period is in excess of 10 years.
The learned A. A.-G., however, vehemently opposed the admission of the appellant and 'Mst.
Ghufrana Hasan petitioner No. 2 in Writ Petition No. 120 of 1981, on the ground that both of them were not eligible to apply, they being third divisioners, and, thus, hit by the provisions of para. 3 of the Prospecuts. It was urged by him that the condition of being a second divisioner has to apply to all reserved-seats of all categories and is of fundamental nature.
10. Having given consideration to the controversy involved we find that two questions fall for determination:
(a) Whether the service of a Doctor in a Medical School or an affiliated Hospital has to be excluded while computing the period of 10 years service as prescribed in para. 5(r') of the Prospectus or the same has to be included? And
(b) Whether para. 3 of the Prospectus governs all the reserved seats and the condition of being at least a second divisioner for applying against a reserved seat is of fundamental nature ?
11. In so far as the first question is concerned, it may be observed that the appellant's two sisters applied for admission in King Edward Medical College against the reserved seats under para. 5(r') of the Prospectus but the Selection Committee refused them admission on the ground that their father's service in the Medical Schools did not fall within the ambit of the said para. They filed a writ petition which was accepted.
The learned Advocate-General, Punjab who appeared for the respondents in the said writ petition (W. P. No. 229 of 1976) had stated while interpreting the import of the above para. That the Medical Schools have to be include ' in the provision.
The learned Chief Justice while dealing with the aforementioned writ petition held that Medical Schools were to be deemed to be included in para. 5.
We see no reason for the respondents to now put a different interpreta--petition than what had been placed by the learned Advocate-General then and which interpretation had all along been accepted and put into effect. We are also of the view that in the nature of the phraseology used in para. 5(r') Medical Schools or any other institution of same nature which imparts medical education has of necessity to be included in the para. Aforementioned-1 The framer's intention obviously appears to be to give concession of admission to the children of medical staff associated with imparting of medical education. Institutions imparting such education are variousl termed always and to exclude any institution which though admittedly of the same nature as those mentioned in para. 5(r') merely on the ground that it has not been specifically mentioned therein would obviously deflect the intention of the framer. The interpretation that we have placed on this para.. Is otherwise also equitable.
As regards the decision in I.-C. A. No. 9 of 1979/BWP, suffice it to say that the Supreme Court's judgment relied upon in the said L-C. A. Is not relevant to the controversy in hand and thus the decision in the I.-C. A. Aforementioned would not be applicable to the facts of the case in hand. We therefore hold that the appellant in the I: C. A. As also the petitioners in the writ petition could not be refused admission merely on the ground that their father's service was less than 10 years in medical institutions and hospitals attached therewith as admittedly this period of 10 years had been arrived at by excluding their service in medical schools.
12. As regards the second question, it would be seen that para. 3 of the Prospectus which reads as under: "The admissions against reserved seats is subject to the condition that all the admissions will be made from amongst those students holding at least second division in F. Sc. If no first and 2nd divisioner candidate is available against any of the reserved seats, the remaining seats will go to general merit quota." manifestly confines the admission against reserved seats to those candidates who have at least secured a second Division in their F. Sc. Examination. The Selection Board while admitting candidates against reserved seats would thus be controlled by the, provisions of para. 3 ibid and the appellant, as rightly contended by the learned Assistant Advocate-General, would not be entitled to admission against a reserved seat being admittedly a third divisioner.
The contention raised on behalf of the appellant that para, 3 would not govern the admission of such candidates who fall under para. 5 ibfd has no force.
Para. 3 relates to minimum qualifications as regards candidates for reserved seats. Its language is of perfectly general import and would therefore be applicable to all types of reserved seats regardless of the categories thereof as mentioned in the Prospectus. Candidates mentioned in para. 5 being undeniably of the category of reserved seats, the provisions of para. 3 will be readily attracted to them. The mere fact that the said condition given in para. 3 is not repeated over. Again in para. 5 will not detract from the generality of the provision of para. 3 and applicability thereof to candidates applying under para. 5.
Having regard to the general nature of the provisions of para. 3 as indicated above, repetition of the condition as to candidate being at least a second divisioner in para. 5 would have been redundant and if such redundancy finds place in paras. 8 and 9, that cannot operate to limit the scope of para.
3. It may well be that the condition was repeated in paras. 8 and 9 as a matter of abundant precaution when dealing withreserved seats on territorial basis as distinguished from seats reserved for groups of persons.
13. As regards the writ petition; the petitioners father being admittedly a Doctor whose service was more than 10 years if his period of service in Medical Schools is included could not be refused admission on this score. The learned Assistant Advocate-General had however, pointed out that petitioner No. 2 would not be entitled to admission against the reserved seats under para. 5(i) being a third divisioner in the F. Sc. Examination: No relief therefore can be granted to petitioner No. 2 as her case is on similar plans as that of the appellant in the Intra-Court Appeal and falls within the mischief of para. 3 of the Prospectus. The writ petition in so far as petitioner No. 2 is concerned has therefore also to be dismissed.
14. In so far as petitioner No. 1 is concerned, she was admittedly a second divisioner and would have been admitted but for the reason that her father's service fell short of 10 years by excluding the period for which he served in Medical Schools. We have already held above that the period of service in Medical Schools has to be included while calculating the period of 10 years mentioned in para. 5(i). Consequently petitioner No. 1 was entitled to admission and declaring the impugned decision taken by the Selection Committee as without lawful authority and of no legal effect we accept her writ petition and direct the respondents to give her admission in one of the Colleges to which she would be eligible to get admission according to the marks secured by her in the P. Sc.
(pre-Medical) Examina--petition. There will be no order as to costs in the writ petition as well.