M. Tabassum Aftab Alvi, J.--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 the petitioner:- "It is very humbly prayed that in the light of above pleadings an appropriate writ may be issued in favour of the petitioner in the following manners:--
(a) That the merit list prepared for admission of Muzaffarabad Medical College against the quota reserved seats for the Overseas has been issued without lawful authority, against the PMDC Rules, capricious, which has been accepted as guideline in the minutes of the meeting dated 20.02.2012 and same may kindly be struck down. Moreover the private respondents who are not eligible to be considered as the sons of Overseas Kashmiris/State Subjects under PMDC Rules as well as minutes of meeting dated 20.02.2012, their admissions may kindly be declared illegal, have been issued without lawful authority and same may kindly be struck down;
(b) That the official respondents may kindly be directed to prepare a merit list for the admission against the reserved seats of Overseas/State Subjects in accordance with PMDC Rules as agreed by AJ&K Government, afresh and the respondents may kindly be directed to allow the petitioner being a qualified candidate;
(c) (c) That the official respondents may kindly be directed to act according to law;
(d) Any other relief which this Hon'ble Court deems proper may also be granted to the petitioners."
2. Precise facts giving rise to the instant writ petition are that Government-respondent was pleased to establish two Medical Colleges, one at Mirpur and the other at Muzaffarabad in months of October and November, 2011. After obtaining permission from PM&DC an advertisement for admission in MBBS, 1st year was published in 'Daily Jang' on 27.12.2011. The last date fixed for receipt of application was extended vide advertisement dated 04.01.2012 followed by another extension published in 'Daily Nawa-e-Waqat' on 13.01.2012. It is alleged that no Statutory Rules were framed by AJK Government for administration of the above Medical Colleges, however, in this regard a meeting of high level committee was held, whereby admission policy for students in Medical Colleges was approved on 29.12.2011, It is averred that again another committee was convened by Government-respondent on 05.01.2012, which discussed and decided allocation of seats in the said Colleges under Item No, 1 of the agenda. In this meeting no seat was reserved for overseas Kashmiris. It is alleged that in order to satisfy will of the upper class of the society, again the matter was discussed and this time quota for overseas Kashmiris was reserved vide notification dated 13.01.2012. It is claimed that thereafter another meeting of Executive committee was held on 20.02.2012, in which under Item No, 9 clause (h) criteria of admission against the reserved seats for overseas Kashmiris was approved. It is further stated that the petitioner who was fulfilling all the above-mentioned requirements laid down in admission policy dated 20.02.2012, applied against the reserved seats for overseas Kashmiris. It is further alleged that private respondents, who were granted admissions were not fulfilling the above-mentioned criteria of admission against reserved seats for overseas Kashmiris, coupled with clause 9 of PM&DC Rules, which were adapted in the minutes of meeting dated 20.02.2012. It is averred that admission committee, firstly prepared a provisional list of successful candidates for academic session 2011-2012, in which name of the petitioner was placed at Serial No, 13, however, thereafter names of Jawad Zahoor and Sina Tariq, whose applications were received after expiry of the prescribed date were added. It is alleged that condition of dual nationality was also inserted in the policy to accommodate private respondent Basit Mukhtar, whose father is serving as Doctor in AJ&K Health Department since 1990 and he was not fulfilling the qualification of overseas Kashmiris alongwith two other private respondents who were specifically, granted admissions contrary to the admission policy dated 20.02.2012 and Rule 9 of PMDC Rules, 2010. It is alleged that, the petitioner, who was fulfilling all the requirements was deprived of admission with mala-fide reasons and by colourable exercise of powers.
3. The petition was contested by all the respondents except No, 10, 13 and 15, through detailed written statements, wherein it is stated that the petitioner while accepting terms and conditions of advertisements, notification dated 30.01.2012 and minutes of meeting of the Executive Committee dated 20.02.2012 applied against the seats reserved for overseas Kashmiris, hence, after accepting the procedure of admission, due to principle of acquiescence and estoppel cannot file the instant writ petition. It is further stated that as the petitioner could not obtain merit position, therefore, he was not granted admission against seats reserved for overseas Kashmiris. It is further stated that parents of the petitioner had died who were serving in Saudi Arabia and after their death he shifted to Pakistan and passed his F.Sc. from Board of Intermediate and Secondary Education, Mirpur, however, despite the above fact application of the petitioner for admission against reserved seats for Overseas Kashmiris was considered. It is alleged that neither any policy nor PM&DC Rules on the subject were violated by the official respondents while granting admissions to the private respondents. It is claimed that Respondent No, 11 was holding qualification e.g. graduate from ST Paul's Primary School on January 25, 2005. It is averred that father of Respondent No, 11 is although in the service of AJ&K Government, however, he was allowed private practice and has been practicing outside the country after obtaining ex-Pakistan leave.
4. The learned counsel for the petitioner, Sardar K.D. Khan, Advocate, while reiterating the grounds of writ petition, submitted that vide admission notice published in 'Daily Jang.' dated 27.12.2011, last date for filing applications was fixed as 5th January, 2012, however, the same as extended twice through advertisements dated 04.01.2012 and 13.01.2012 for mala-fide reasons, to accommodate the kith and king of State functionaries including certain bureaucrats. The learned counsel further submitted that various applications of the private respondents were received after the last date of receiving applications in order to accommodate them by colourable exercise of powers. The learned counsel emphasized that according to admission policy discussed and finalized in the minutes of meeting of Executive Committee on 20.02.2012, for admission against Overseas Kashmiris students, five conditions were laid down but all the private respondents who were not fulfilling the above conditions, were granted admissions by violating the above policy, which may be struck down as such. The learned counsel while referring to Regulation No, 9 of the Conditions for Admission in MBBS Course and House job Regulations, 2010 submitted that the above- mentioned regulation was also violated by the official respondents while granting admissions to the private respondents. The learned counsel further submitted that the petitioner was fulfilling all the conditions laid down in para 9 (b) of admission policy dated 20.02.2012 whose name was firstly inserted at Serial No, 13 of provisional merit list, however, while issuing final merit list of candidates, he was not included in the merit list for mala-fide reasons.
5. The learned counsel for Respondents No, 1 to 7 and 11, Raja Muhammad Haneef Khan, Advocate while controverting the arguments of the learned counsel for the petitioner submitted that as both the Medical Colleges were newly created, therefore, date for receipt of applications was extended time and again in good faith and due to the above extension no right of the petitioner was violated.
The learned counsel pressed into service that applications of all the private respondents were submitted within prescribed period, therefore, allegation of accepting applications after the prescribed date was against true facts. The learned counsel further submitted that father of private Respondent No, 11 is serving in grade B-20 in the Health Department of AJ&K; however, while obtaining ex-Pakistan leave he practices outside the country, hence, has not violated any statutory law of the land. The learned counsel, vehemently argued that while accepting the terms and conditions of the advertisements, relevant notifications and minutes of meeting of Executive Committee dated 20.02.2012, the petitioner applied for admission, hence, on the ground of estoppel he cannot file the instant writ petition. The learned counsel also submitted that as the petitioner could not fall in the merit, therefore, he was not granted admission in the Medical College against reserved seats for Overseas Kashmiris.
6. The learned counsel for Respondents No, 8, 9, 12, 14, 16 and 17, Mr. Sakhawat Hussain Awan, Advocate adopted the arguments, advanced by Raja Muhammad Haneef Khan, Advocate, however, he added that as the petitioner is not an aggrieved party, therefore, his writ petition merits dismissal.
7. After hearing the learned counsel for the parties at length we have perused the contents of writ petition and examined the record with our utmost care. We have also sent for the relevant record pertaining to Omissions of the private respondents in view of the allegation levelled by the petitioner that the applications of the private respondents were received by the Colleges authorities after the date prescribed for the purpose.
8.First of all we deal with preliminary objection of the petitioner that applications of some of the private respondents were received by the authorities after the prescribed date fixed in the advertisement. It is worth while to be observed here that vide advertisement published in daily `Nawa-e-Waqat' dated 13.01.2012 last date for receiving applications was extended till 16.01.2012. A glance perusal of record reveals that all the applications were received before 05.01.2012, therefore, the allegation of receiving applications after the prescribed date is misconceived. The contention of the learned counsel for the petitioner that time could not be extended by the Colleges authorities is also baseless as the authority which fixed the time can also extend the same, hence, the contention is baseless, which is hereby repelled.
9. A contemplate perusal of written statement filed by the contesting respondents reveals that parents of the petitioner were serving in Saudi Arabia where they had died and after their death the petitioner shifted to Pakistan and passed F.Sc. premedical from Board of Intermediate and Secondary Education Mirpur. The above-mentioned assertion was admitted by the petitioner through replication filed on 07.05.2012. The claim of the petitioner is that on the basis of resident permit (Annexure-PF/3) he is entitled to reside in Kingdom of Saudi Arabia till 10.08.2017, therefore, is included in the definition of overseas Kashmiris. The above -mentioned document did not allow the petitioner to reside in Saudi Arabia till the year 2017 as alleged by him. A perusal of (Annexure PF), however, reveals that the petitioner is holding National Identity Card of Overseas Pakistanis issued by Government of Pakistan on 11.08.2007 which is likely to expire on 10.08.2017. The petitioner failed to produce Visa which is basic document for stay abroad, therefore, we are of the considered view that after death of the petitioner's parents, he was not fulfilling the criteria laid down in para 9(b) of the conditions of the Executive Committee dated 20.02.2012 which are reproduced as under:-- "b. Nomination against overseas seats.--For the nomination against the overseas students, the criteria of nomination against such reserve seats for other medical colleges in Pakistan to be consulted as guideline and following documents will be mandatory:
(1) Overseas Pakistan card;
(2) A bank draft of US$ 4000.
(3) The copy of the passport of parents with resident visa/work permit/proof of second nationality.
(4) Proof of tangible fund remittance by the parents from abroad.
(5) Proof of AJK nationality (State Subject Certificate)."
Condition No, 3 of para 9(b) above relates to passport of parents with resident visa/work permit/proof of second nationality. After death of the petitioner's parents, the validity of their passport with resident visa was no more in existence. Similarly, proof of tangible fund remittance by the parents from abroad as laid down in Condition No, 4 of Para 9(b) above was also missing, hence, the petitioner was not fulfilling the above conditions, therefore, was not entitled to seek admission against the reserved quota of overseas Kashmiris. As on the basis of the above policy no relief can be extended to the petitioner, therefore, he is not an aggrieved party within purview of Section 44 sub-Sections (1) and (2) of the Azad Jammu & Kashmir Interim Constitution. Act, 1974.
The same point came under consideration before this Court in an unreported case i,e, Writ Petition No, 103/2012 titled Farwa Batool and others Vrs. Azad Government and others decided on 24.01.2012.
The facts of the above case were that the petitioners, therein, challenged district wise quota and prayed for admissions in two Medical Colleges i,e, Azad Jammu & Kashmir Medical College Muzaffarabad and Muhtarma Benazeer Bhutto Shaheed Medical College Mirpur, on the basis of open merit. This Court after deep deliberation came to the conclusion that all the petitioners were much below in both the merit lists i,e, of district quota and open merit, therefore, it was held that they were neither aggrieved nor their vested or tangible right was infringed. Their writ petition was dismissed on the ground that they were not aggrieved.
10. The petitioner through the instant writ petition has solicited writs of certiorari and mandamus. A pre-requisite for issuance of the above writs is that petitioner who has invoked the jurisdiction must be aggrieved within purview of sub-Sections (1) and (2) of Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, which reads as under:--
44. Jurisdiction of High Court.--(1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law.
(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law:--
(a) on the application of any aggrieved party, make an order:--
(i) directing a person performing functions in connection with the affairs of Azad Jammu & Kashmir or local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or
(ii) declaring that any act done or proceedings taken by a person performing junctions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or
(b) on the application of any person, make an order:--
(i) directing that a person in custody in Azad Jammu & Kashmir be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person holding or purporting to hold a public office in connection with the affairs of Azad Jammu & Kashmir to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council and the Government, exercising any power or performing any function in, or in relation to, Azad Jammu & Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act.
A bare reading of clause (a) of sub-section (2) of Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 makes it crystal chear that writs of mandamus and certiorari can be issued on the application that any aggrieved party and not as a pro bono publico. As observed earlier, that the petitioner himself was not fulfilling the criteria prescribed for admission against seats reserved for overseas Kashmiris, therefore, he is not an aggrieved party and no writ can be issued on his move. Following case law can be relied upon in support of our conclusion.
In case titled Abdul Razzaq Vs. Muhammad Qasim and another (1996 CLC 1123], it was observed that it is well settled by now that a person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused him something or wrongfully affected his title to something. It was held that the petitioner ' as neither suffered a legal grievance nor wrongfully deprived of something nor his title was affected, as such, he could not be declared as aggrieved party and, therefore, had no locus standi to invoke the extraordinary jurisdiction of the High Court, which is to be exercised with great circumspection.
In case reported as Muhammad Boota and others Vs. The Commissioner Sargodha Division and others (PLD 1973 Lah. 580], it was held that only an aggrieved person can maintain a petition under Article 98. The petitioner cannot move the Court pro bono publico nor can the Court pronounce upon the validity of laws or notifications suo mote. The memorandum was issued by the Commissioner introducing uniform procedure for grant and renewal of beef licences. No action was, however, taken under the memorandum. The petitioners apprehending some adverse order being passed against them challenged the vires of the memorandum. It was held that the petitioners were not aggrieved persons and the Court's function is not to decide abstract, hypothetical or contingent question. The writ petition was held to be incompetent. It was also observed that the sole function of the Court is to pronounce for or against the litigated right or liability by determination of the law applicable to the facts. Any one who challenges the vires of a law or the validity of an order must raise a case to show that an action taken in pursuance of the said law or order had adversely affected his rights or interests, or that it would result in the loss of some personal benefit to the curtailment of a privilege to him.
In case of Raja Iqbal Rasheed Minhas, Advocate Vs. Mad Jammu & Kashmir Council and 3 others (P14 2002 SC (AJK) 182], at page 191 it was held as under:-- "It may also be pointed out that there is a wide difference between a writ of certiorari and a writ of habeas corpus or a writ of quo warranto. Except the writ of habeas corpus and the writ of quo warranto which can be invoked any person the other writs can be prayed for only by an aggrieved person. It may be stated generally that an aggrieved party is not in a writ of prohibition whose rights are threatened, in writ of mandamus whose rights are being denied and in writ of certiorari whose rights have been affected by a decision. The word "right" is not used here in strict juristic sense. It is sufficient if the person alleging to be an aggrieved has a personal interest in the performance of a legal duty which if not performed would result in the loss of some personal advantage. A party who stands to lose or gain an advantage by observance or non-observance of law is an aggrieved party. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived to him of something. The petitioner being not falling in any of the categories, mentioned above, had no competence to lodge either the writ petition or an appeal in this Court against the impugned judgment of the High Court. "
In case titled Syed Shaukat Hussain Oillani Vs. Abdul Rehman Abbasi and others [1993 SCR 70], at page 72 it was held by their lordships as under:-- "We have given our due consideration to the arguments. Irrespective of the controversy regarding the application of the rules, we are of the view that the question of correct application of the rules in the instant case would arise only if the appellant shows that he had right to be considered for promotion as Naib Tehsildar. The fact that quota in case of Ministerial staff and the Field staff had always stood exhausted, none of the contending parties could claim promotion as Naib 'Tehsildar as of right. Thus, we are not persuaded by the arguments advanced by the learned counsel for the appellant that promotion of the respondents should be set at naught, despite the fact that the appellant had no right to be considered for promotion as Naib Tehsildar. Under Section 4 of the Service Tribunal Act 1975, a civil servant is competent to prefer an appeal only if he is found to be an aggrieved person. At least a civil servant challenging the appointment of another civil servant should prima facie, show that he had a chance to be considered for appointment against the civil post at the relevant time. If he is not found to be qualified for appointment either by initial recruitment or otherwise, he cannot be permitted to challenge the appointment of another civil servant on the ground that although he was not qualified to be considered for the appointment yet his rival was also suffering from the same disqualification. The civil servant who invokes the jurisdiction for redressing his grievance must show that he was an aggrieved person as envisaged under the relevant law."
11.The learned counsel for the petitioner vehemently argued that father of Respondent No, 11 is serving as Doctor in Grade B-20 in Health Department of Azad Jammu & Kashmir who by obtaining ex-Pakistan leave has been practicing outside the country, which is serious violation of statutory laws of the land, therefore, necessary direction be issued to Azad Government and others to initiate proceedings against him. This issue is not directly involved in the case. Moreover, we have already held that the petitioner is not an aggrieved party, therefore, the arguments on the above and all other points raised on behalf of the parties need not be attended for academic purpose.
12. Before parting with the case we may observe that both the Medical Colleges were established in Azad Jammu & Kashmir through a notification and policy for admission has also been issued by an Executive Committee, consisting of different persons. In order to make admissions fair and transparent, it is necessary to provide a legal cover, hence, we direct that same legal cover be provided to the establishment of Colleges and the Rules for admission shall be made in line with the policy followed by the PM&DC before the next session.
For the reasons listed above, finding no substance in the instant writ petition, the same is hereby dismissed with no order as to costs.