SALAHUDDIN PANHWAR, J.---Through instant petition, the petitioner Tarique Ahmed has prayed for following relief (s):-- a) Declare that the petitioner is eligible and entitled to seek admission on merit basis if none of the 11 candidates ahead to the petitioner have joined in department of physiotherapy, LUMHS, Jamshoro; b) Direct the respondent to convert the admission of petitioner from self finance into merit list in the department of Physiotherapy LUMHS, Jamshoro being eligible and entitled for the admission on the merit basis; c) Any other relief which is Hon'ble Court may deem fit and proper under the circumstances.
2. Per petitioner, during academic season 2013 he applied for admission in the Doctor of Physiotherapy; secured 12th position in merit list from Sanghar District but since he was desperate And keen to join field of Physiotherapy so he also submitted separate form / application on self- finance basis. In response thereto (self-finance application), the respondent No.4 sent a letter to petitioner And in pursuance thereto he paid admission fee, however, petitioner was not put on notice about seats, reserved on merits. Later, petitioner learnt that none of 11 candidates, ahead to him, joined admission hence petitioner became eligible for same sote requested in writing to respondent No.4 to convert admission of petitioner from self-finance to merit quota which was declined with a reply that once admitted in University the same cannot be converted in Any other group.
3. On notice(s), the respondents appeared; the respondents Nos.2 to 4 also filed their para-wise comments wherein denying entitlement of petitioner but admitting facts, pleaded by petitioner.
4. The learned counsel for the petitioner argued that petitioner was entitled for conversion of his admission from self-finance to merit.
5. On the other hand, counsel for respondents argued that petitioner himself had opted his admission on self-finance hence per Rule-V of Rules of Admissions is not entitled for the relief claimed.
6. Heard And perused the record.
7. At the very outset, we would say that the Universities are not merely institutions to enter And throw masses out with certain papers but it is believed that the Universities are seats of learning And centers of excellence which not only enable the future generations to equip themselves with degrees/practical tools to earn livelihood but also enrich them with learning, with wisdom And with visions for practical lives. Normally, the highest degree is provided by Universities to one under a belief least hope that he shall not only bring success for himself but shall also prove himself to be a 'diamond' enlightening number of masses to society at large. The importance of education shall stand evident And clear from a reference to relevant portion of the case of Aamer Raza Ashfaq v.
Minhaj Ahmed Khan (2012 SCM R 6) whereby the 'right to education' was affirmed as a 'fundamental right'. The relevant portion, available at page-31 of judgment (supra), reads as:-- "33. Right to education is a fundamental right as it ultimately affects the quality of life which has nexus with other Fundamental rights guaranteed by the Constitution under Articles 4 And 9 of the Constitution of Islamic Republic of Pakistan. Awareness of rights And duties, growth of civic consciousness in a society, enjoyment of Fundamental Rights guaranteed under the Constitution And legal empowerment of people depend to a great extent on the quality of education. People cannot be free in real sense unless they are properly educated. In Ahmed Abdullah v. Government of Punjab (PLD 2003 Lahore 752 at 791), a case decided by a Full Bench of the Lahore High Court And wherein one of us (Tassaduq Hussain Jillani, J.) authored the judgment, it had been held as under:--
26. The fundamental right of 'right to life' recognized in the entire civilized world and enshrined in Article 9 of our Constitution has been given expanded meaning over the years.
With................
University, no doubt, can frame policies for running its affairs but cannot act or omit in a manner which is likely to prejudice the 'merit quota' which is solely aimed to ensure free education to those who prove their eligibility by succeeding in Entry Test.
8. The para-6 of the parawise comments, furnished by the respondents Nos.2 to 4, makes it clear that University did went downward when person, listed at top of merit list, did not respond to the notice for her admission. For ease the para-6 is reproduced hereunder:-- "Regarding para (6) of the petition, it is submitted that the student whose name appeared at S.No.01 in the Merit List of District Sanghar was issued Selection Letter dated 14.2.2013 (Mark-VII) requiring her to deposit fee but she failed inspite of issuance of Reminders-I & II (Marks-VIII & IX respectively).
Consequently, after cancellation of admission of S.No.1 (Mark-X) the next student on merit was offered admission (Mark-XI) but he also failed to deposit fee upto the prescribed time. In the meantime a period of 30 days prescribed for admission after start of classes was expired and resultantly the seat reserved for District Sanghar stands forfeited, as per policy of the University. In any case, there were other 9(nine) Students ahead of the Petitioner on Merit list of District Sanghar, who were not offered admission due to expiry of time shown above, he was not entitled for admission on merit seat."
(emphasis supplied)
9. Mere lapse of time should not be An excuse to 'terminate' a 'right' in name of procedure or policy even because the rule of propriety And practice cannot operate as a bar for granting a right because, the former is relatable to exercise of discretion while the former is relatable to the grant of right. In the case of Shahista Bibi v. Superintendent, Central Jail, Mach PLD 2015 SC 15 it is held:-- Even otherwise, for doing substantial justice in a true sense in hardship cases like the present one, technicality of law And rule shall not operate as An absolute bar in the way of the Court because giving preference to the technicality of law would defeat substantial justice And denial of justice to a person entitled to it, would be worst kind of treatment to be meted out to him And that too by the apex Court of country.
10.Besides, reserved merit-quota is not meant for a single individual but for the 'District' therefore, this distinction must always be kept in mind And things should not be left at the of one, stood top in the merit list but positive efforts must be shown that the 'District' was attempted to give its due. Therefore, we cannot accept the excuse of lapse of time alone as sufficient for declining a right to 'District' towards its reserved merit-quota.
11.It is also a matter of record that the petitioner had submitted a written request for conversion of his admission while referring to merit-list of his 'District'. Such request could be declined only by giving admission to one higher in rank in merit list And not otherwise as has been done in the instant matter. The reference to Rule-V of 'Rules of Admission' is also of no help because again it relates to policy while the issue, involved, is one of 'right of a District' And even the petitioner first had applied for his admission on merit.
12. Accordingly, in view of above discussion the petition in hand was allowed by short order dated 31.10.2016. In consequence thereof the admission of the petitioner on self-finance was converted into merit-list, reserved for District Sanghar for all purposes And intents. Accordingly amount deposited on self-finance shall be returned back to the petitioner after deduction the requisite fees on merit, as well petitioner would be liable to pay future fees on merit basis.
13. While parting, we feel it proper And justified to say that in future, the Universities must come forward with a mechanism that such reserved seat should not go forfeited merely for reason that one, listed at top of merit list, lost his interest because there can be no denial to the fact that a 'District' must receive its due merit-quota even if all the persons of merit list except the last one do not opt to avail.
Copy of this order shall be sent to all Registrars of Universities for compliance.