Muhammad Sheraz Kayani, J.--The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby , the petitioner has claimed the following relief:-- "It is therefore, very humbly prayed on behalf of the petitioner that an appropriate writ in favor of petitioner against the Respondents, may kindly be issued and declaring the Serial No.10 of Policy Notification dated 12.09.2017 as against law, against the fundamental right of state subject, having no legal backing and not applicable on the admission against vacant seat in Medical Colleges given to be on self Finance basis in pursuance of Notification dated 24.4.2013 and Respondents may dated kindly be directed to admit the petitioners in MBBS 1st year in any medical college of Azad Jammu and Kashmir against one of seat reserve for self finance scheme in accordance with merit position of the petitioner . Respondents be restrained from allowing admission to any other candidate against the seats available vacant due to non-availability of candidates from Indian Held Kashmir . It is further prayed that the nomination script dated 14.11.2017 may kindly be declared illegal, void-ab-initio and same may be struck down. It is further prayed that the decision of Respondents regarding authorization of principals medical Colleges MBBS Mirpur and Poonch dated 26.03.2018 and admissions given to Respondents No. 16 to 19 in Medical College, Poonch Rawalakot and two students in MBBS Mirpur may kindly be set aside and admissions against one of above seat on self finance basis may be ordered to be given to petitioner on the basis of merit. Any other relief which this Hon'ble Court deems fit may also be granted to meet the ends of justice."
2. Precise facts, culminating into filing of the above captioned writ petition are that petitioner-Fizza Murtaza Mughal, is 1 class State Subject of Azad Jammu and Kashmir holding domicile certificate of District Muzaf farabad. The petitioner being qualified as F.Sc. Pre-medical applied for admission against seats of MBBS in Medical Colleges of Azad Kashmir against unit wise Quota and self finance scheme as well. A merit list was prepared by joint admissionst Committee, in which, the petitioner obtain ed 78.6801% marks, who was placed at serial No. 226 of the same. It has been stated that as per the policy promulgated in 2015, three seats in each college have been reserved for students of Indian Held Kashmir . According to the said policy , the applications of those candidates can be considered, if received through Embassy , however , through another Government notification, it has been clarified that if any seat falls vacant against any reserved quota, then the same will be filled in, on self finance basis. It has been averred that Government-Respondent vide notification dated 12.09.2 017, amended the previous notification dated 24.04.2013, to the extent that nomination from Ministry of Foreign Affairs Government of Pakistan is not imposed upon the candidates of the State. The petitioner has also challenged Paragraph No.10 of Admission Policy for MBBS & BDS in. Medical/Dental Colleges of Pakistan and Azad Kashmir dated 12.09.2017, as based on mala-fide intension just to accommodate favorites of Respondents to deprive .the candidates of Azad Kashmir . It has been averred through amendment application that vide script dated 14.11.2017, the Respondents have nominated candidates, who, have never passed the entry test and some of candidates are refugees of 1990 and 1992, hence, the aforesaid script if bad in law. It has been alleged that Respondents due to mala-fide reasons and political involvements are going to accommodate the candidates of their own choice by ignoring law, hence, the instant constitution petition.
3. The writ petition has been resisted by Respondents through written statement, wherein, it is stated that nominations against 09 reserved seats have been received to Joint Admission Committee through Ministry of Foreign Affairs GoP, hence, writ petition is not maintainable. It is further .stated that according to Paragraph No. 7 of Admission Policy for MBBS & BDS in Medical/Dental Colleges of Pakistan & Azad Kashmir dated 12.09.2017, no vacant seat can be shifted on self finance basis pertaining to .the quota of Indian Held Kashmir . It is further stated that all the units comprising districts, refugees of 1947, 1989, destitute persons, sons of doctors etc. were entertained according to Admission Policy for MBBS & BDS Medical/Dental Colleges of Pakistan and Azad Kashmir dated 12.09.2017, therefore, no fundamental rights of petitioner has been violated. It is further stated that petitioner is not eligible for admission on self finance category because the last candidate was at Serial No.80 with marks as 83.89%, whereas, petitioner is at Serial No. 226 with marks 78.6801%, hence, submitted for dismissal of writ petition.
4. Sardar M.R Khan, Advocate, appearing on behalf of petitioner , vehemently argue that against 09 seats reserved for students of Indian held Kashmir , Respondents have nominated the studen ts for admission pertaining to Refugees of 1947 and 1989. He further argued that for Refuges of 1989, @ 19% and 06% quota, respectively, have already been allocated, therefore, no further nomination could be made against the quota of Indian held Kashmir. The learned counsel pressed into service that candidate who have been selected for the seats in question, have not participated in the entry test. The learned counsel emphasized that as per Admission Policy for MBBS and BDS in Medical/Dental Colleges of Pakistan and Azad Kashmir dated 12.09.2017, admission can be granted by Joint Admission Committee, however, in the instant case relevant students were given admission by Ministry of Foreign Affairs, contrary to policy. He further contended that on the basis of Government notification dated 24.04.2017, necessary direction for nomination of petitioners may be given subject to self- finance as per tuition fee of Rs.6,00,000/- per annum and submitted for acceptance of writ petitions.
5. Sardar Shoukat Ali, Legal Advisor of Health Department, submitted that students, nominated through the Ministry against the vacant posts of the quota of Indian Held Kashmir have been granted admission after passing entry test as per law. He further argued that admis sions have been granted to the concerned students in accordance with Admission Policy for MBBS and BDS in Medical/Dental Colleges of Pakistan & Azad Kashmir dated 12.09.2017.
The learned counsel further submitted that petitioner's name is listed much below in the merit list determined for self finance admission, therefore, she is not aggrieved by any stretch of imagination. The learned counsel defended and supported the proceedings conducted by the Joint Admission Committee and submitted for dismissal of writ petition.
6. Assistant Advocate General and Syed Sayyad Hussain Gardezi, Advocates adopted arguments of Sardar Shoukat Ali, Advocate, and craved for dismissal of writ petition.
7. We have heard the learned counsel for the parties, examined the record, made available with the file and given due thought to the controversy , involved, therein.
8. The learned counsel for the Respondents have raised a preliminary objection regarding maintainability of the petition, on the ground that the petitioner's name is placed much below in the merit list, therefore, she does not fall within the definition of an aggrieved person, hence, not entitled to file the above writ petition. A perusal of the, file shows that the petitioner has also challenged the vires of the Admission Policy , particularly , para 10 promulgated through Notification dated 12.09.2017, which is applicable has the effect upon, not only the petitioner but also the public at large, specially , the State Subjects of Azad Jammu and Kashmir , so, it cannot be said that the petitioner was not competent to file the instant writ petition. Any restriction, which frustrate or impede the pursuit of a legal activity in the exercise of right conferred on a person by the Constitution would result him making an aggrieved party to challenge said restriction. A party who stands to loose or gain an advantage by observance or non- observance of the law is an aggrieved party . Reference can be made to the cases reported as; PLD 1988 SC 416, 2001 SCR 530 & PLD 2001 (SC) AJK 1 .
9. As stated above, the petitioner has specifically challenged clause 10 of the Admission Policy- dated 12.09.2017, which is usefully , reproduced, hereunder: "ADMISSIONS AGAINST RESER VED SEA TS FOR CANDIDA TES OF INDIAN OCCUPIED KASHMIR.
09 seats are reserved in three AJK Medical Colleges for candidates of Indian Occupied Kashmir . Nominating Authority has the right to nominate any student from Refugees in lieu of IOK in swap over arrangement , keeping in view the difficulties in obtaining NOC from Medical Council of India (MCI) and subsequent registration with MCI.
Admissions under this category shall be carried as per prevailing criteria of Pakistan Medical and Dental Council .
No direct application will be entertained. Notification dated 24.04.2 013 shall be amended to the extent that these seats can only be filled by the nominations from Ministry of Foreign Affairs GoP ."
(underlining is Ours)
10. The learned counsel for the petitioner has raised an objection regarding reservation of 09 seats for the candidates from IOK, however , this issue has been settled in another case titled, 'Isma Sharif v. Azad Govt. and others' Writ Petition No.95/2018, decided on 08.03.2018.
9. As far clause 10 of the Admission Policy , is concerned, the same was not challenged in the above referred case, specifically , nor findings have been given by this Court, regarding the validity and constitutionality of clause 10 of the policy .
10. According to the approved unit wise quota, 25% quota has been reserved for the refugees; i.e 19% for refugees of 1947 settled in an Pakistan and 06% for the refugees of 1989. Through the policy of Swap over', the vacant seats, available due to non-availability of any candidate from the said unit, to allot the same to the refugees, again is discriminatory and against the fundamental rights of the other state subjects, living in Azad Jammu and Kashmir .
It is also settled that the IOK (Indian. Occupied Kashmir) is an integral part of the State of Jammu and Kashmir and all the subjects of the State are equal in the eye of law. Article 4(15) & (17) of the Interim Constitution, 1974, dealing with the equality of all the subjects and safeguarding against discrimination, are usefully reproduced, hereunder:-- "15.Equality of State Subjects.--(1) All State Subjects are equal before law and, are entitled to equal protection of law.
(2) There shall be no discrimination against any State Subject on the basis of sex.
(3) Nothing in this article shall prevent the State from making any special provision for the protection of women and children.
17. Safeguard against discrimination in services. No State subject otherwise qualified for appointment in the service of Azad Jammu and Kashmir shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, residence, sex or place of birth.
Provided that in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex.
Provided further that under representation of any class or area in the service of State may be redressed in such manner as maybe determined by an Act of Assembly ."
13. It may be observed here that when, all the subjects have been granted equalit y before law, to give preference to one unit or subject over another unit or person is glare discrimination.
14. Furthermore, admissions in MBBS and BDS courses are regulated by an Act of the Assembly , known as 'the Azad Jammu and Kashmir Medical Colle ges (Governing Body) Act, 2014 (section -14) and relevant regulations of PMDC have been provided with the sole purpose that the admission shall be in a uniform manner and all the admissions in the Medical Colleges of Pakistan including Azad Jammu and Kashmir shall be transparent and merit based and for this purpose, a mechanism has been provided and criteria has been given that the merit shall be determined by awarding the marks, after calculating the marks obtained by the candidate in SSC/matriculation at the ratio of 10% and F. SC-pre-medical will be given 40% weightage and entry test of the equal marks, i.e 1100 have been given 50% share, and then, the merit list shall be prepared. Thereafter , the admission shall be made in accordance with law, merit positions of the candidates but in the impugned clause, an unrestricted power has been given to the Foreign Office of Pakistan to nominate any candidate for admission and then, the admission committee is bound to comply with the nomination of the Foreign Office, which is not only contrary to the law and constitution but also against the norms of justice. Under the relevant regulations of PMDC, there is no scope that any candidate , who does not secure merit position, can be admitted against any vacant post. Regulation No.9 (20) of the Regulations for MBBS & BDS of 2018, clearly postulates that no admission shall be made in any medical or dental institution, in violation of merit or regulations. Relevant provision is reproduced, below:-- "9.Medical and dental institutions admission test .
(1) .............................
(2) .............................
(3) .............................
(20) The admission to MBBS and BDS course in a medical and dental institution shall be made strictly on the basis of merit and in accordance with these regulations. Any Admission made in violation of merit or on the basis of donations or kick back or unauthorized and unlawful payments in any form shall constitute grave violation of these regulations entailing penal action/ criminal proceedings and withdrawal of recognition under the Ordinance/Law ."
(Underlining is ours)
15. Regulation 10(10) of the said regulations clearly mentions that if a student, after joining, due to some reasons, leaves the institution and the seat becomes vacant, the next student from the waiting list shall be granted admission against the vacant seat in accordance with merit. Relevant provision reads as under:-- "10(10). Where a student who has paid the fee and joins classes and thereafter leaves the medical or dental institution within three months of the admission, such student shall be entitled to refund of fee after deduction of fee for study period availed in terms of month s in that medical or dental institution and the seat shall be considered as vacant. No fee shall be refunded after three months of commencement of session. A student from waiting list may be admitted against such vacant seat in accordance with merit. Such occurrence and subsequent admission is to be brought to the knowledge of the Council by the Admitting University ."
(underlining is ours)
16. According to regulation 8(4) of the said regulations, when a seat, pertaining to the foreign quota or self Finance Quota becomes vacant, the same shall stand transferred to open merit quota. For proper appreciation, relevant regulation is reproduced, which reads as under:
4. Where any seat of foreign or self-finance quota remains vacant due to unava ilability of eligible candidates or otherwise, it shall stand transferred to open merit quota and the student shall be charged fee and charges prescribed for open merit seat. An ineligible candidate shall not be admitted against such seats."
(Underlining is ours)
17. In the above rules, no swap-over policy has been adopted nor it has been provided that in case of any vacancy of any seat, that shall be allocated to any specific unit, as has been done through the impugned clause of admission policy dated 13.09.2017, whereby , the unfilled seats reserved for IOK candidates, swapped over to only refugees of Jammu and Kashmir , who are already availing their allocated quota, according to their respective share.
18. Under the principle of analogy and keeping in view the principle provided for other vacant, seats mentioned, hereinabove, if a seat reserved for IOK candidates, becomes vacant due to unavailability of eligible candidate, that should also be transferred to open merit quota or for all the eligible candidates of the State and the same cannot be given to any particular unit, in excess of its share, discriminately by excluding and depriving all the other eligible students of the State.
19. Previously , the Foreign office was given powers as nominating authority regarding nominations from the candidates of IOK because, under the Constitution of 1974, the Foreign matters are dealt by the Foreign Ministry of Pakistan and that was logical but when a seat becomes vacant, then, the role of Foreign Office becomes irrelevant due to the reason that such vacant seat shall not be filled in by allocating the same to the foreign students or the students from IOK rather that shall be filled from the other class of candidates living within Pakistan or in Azad Kashmir . For the sake of argument, if the seats are allocated to the said class, i.e Refugees settled in Pakistan, even then, it is not logical to grant or sanction admission through the Foreign of fice.
20. Under the law, when, any rule, regulation, policy or Notification is, against the law or any provision of Constitution, the same is liable to be struc k down that shall be considered as void. The impugned clause 10 of the admission policy is not only contrary to the PMDC Rules and Regulations but also derogatory to the fundamental rights of the other subjects of the State of Azad Jammu and Kashmir .
21. There is another point to be resolved that vide Notification dated 30.08.2018, the Governing Body has delegated the powers of admissions to the principals of the respective medical colleges, instead of the Joint Admission Committee. The said Notification, also being contrary to the provisio ns of the relevant law, entails abrogation as no relevant regulation has been referred under which, the function of the respective Committee could be delegated to a single person.
22. As far the question of admissions granted to the private Respondents, by the Foreign office, on the basis of the policy , impugned before the Court is concerned, it may be observed here that the incumbents have joined the session and a considerable time period has elapsed and reversal of their nominations, will also not be helpful to the case of petitioner , rather detrimental to the accrued rights of the concerned students, particularly , when, they were nominated by the Foreign Office, when, impugned clause was in the field and the same was not declared by any competent forum as contrary to law , therefore, their admissions are hereby protected.
23. So far as the petitioner's admission is concerned, she is admittedly domicile holder of District Muzaf farabad, who applied for admission against seats of MBBS in Medical Colleges of Azad Kashmir against unit wise quota as well as self finance scheme. The petitioner namely; Fizza Murtaza Mughal, secured merit position, determined for self finance admission, by obtaining 78.68% marks and placed at Serial No. 226. The last candidate who was granted admission on self-finance scheme secured 83.89% marks, while petitioner's name is listed much below in the merit list, even for admission on self-finance basis, hence, she is not entitled to seek direction to the Respondents for admission and to this extent, the instant writ petition fails to succeed.
24. Before parting with the case, this Court would like to observe and order that in case, in future, such an eventuality arises and some seats pertaining to IOK unit of the State becomes vacant for any reason, the same shall stand transferred to the open merit quota, for all the State Subjects including the two categories of the Refugees of Indian Occupied Kashmir .
25. Flaying made above observations, we are of the view that:-
1. clause 10 of the admission policy , promulgated through Notification dated 12.09.2017, being contrary to the law, constitution and fundamental rights of the other State subjects, is hereby declared as void and non-existent.
2 Delegations of powers of admission to the Principals of Medical Colleges, through Notification dated 30.08.2018, also being repugnant to the Provisions of the relevant Regulations, entails reversal, therefore, the said Notification is hereby set aside with immediate ef fect.
3 Prayer of the petitioner to the extent of her admission, being much below in the merit list, is hereby denied.
4: The Respondents are directed that in future, in case of becoming vacant any seat reserved for the students of IOK, the same shall stand transferred, automatically to the open merit quota for all the State Subjects including the refugees of IOK, settled in Pakistan and the refugees of 1989 as well, which shall be filled according to general order of merit, determined from the already , prepared waiting list.
The instant writ petition stands accepted, partly , in the manner indicated above.