AJMAL MIAN, J.-The petitioner in the above petition has prayed for the following reliefs.
"Prayer.-(I) To declare that the admission of Respondent No. 1 in the 1st Year M.B.,B.S. Class of Liaquat Medical College, Jamshoro, for the Session 1977-78 is illegal, void and ma la fide one.
(2) To declare that the petitioner is entitled to be transferred to Liaquat Medical College, Jamshoro from Chandka Medical College, Larkana, as being duly selected candidate and admitted to the 1977/78 Session and direct Respondents Nos. 2 and 3 to transfer the petitioner from Chandka Medical College, Larkana to Liaquat Medical College, Jamshoro, being the rightfully selected candidate.
(3) To pass any appropriate order or direction to the Respondents Nos. 2 and 3 in favour of the petitioner which this Honourable Court deems fit and appropriate in the circumstances submitted hereinabove."
2. The brief facts leading to the filing of the above petition are that the petitioner after having passed Intermediate Examination in First Division in the year 1977 having secured 65.8 % (adjusted marks) applied to Respon--dent No. 2 (i.e. To the Administrator, Liaquat Medical College Jamshoro) for admission in the First Year M.B.,B.S. Class of the Liaquat Medical College, Jamshoro. It seems that in the above year there were 136 seats for Hyder--bad Division and the petitioner was shown at Serial No. 136 in the list of successful candidates pasted on the college notice board. It has been averred that when the petitioner went to Respondent No. 2 to deposit his admission fee, it was not accepted on the plea that his name was struck of from the approved list of the candidates and in his place the name of Respondent No. 1 was inserted. However, the petitioner was given admission in Chandka Medical College, Larkana instead of Liaquat Medical College. The petitioner at present is a student of III year in the above college at Larkana, whereas Respondent No. 1 is a student of III year in Liaquat Medical College. The petitioner being aggrieved by Respondent No. 2's above action to remove his name from the list of the successful candidates for admission in Liaquat Medical College and to substitute the name of Respondent No. 1 in his, place, filed the above petition on 13-6-1979.
3. It may be pertinent to observe that Respondent No. 1 had also applied for admission for the year 1976-77. He was not granted admission. He filed Constitutional Petition No. 462/77 alleging therein that the authorities concerned had not granted 20 marks, which Respondent No. 1 was entitled for having completed NCC training in that year. The above writ petition was allowed by a Division Bench of this Court through a judgment dated 4-10-1977 directing the authorities to reconsider Respondent No.1's case and to grant him 20 additional marks. It seems that one of the respondents in that aforesaid Petition No. 462/77 filed a Review Petition in the said petition alleging therein that the NCC certificate produced by Respondent No. 1 was a forged document. Upon the above review application an order, dated 16-11-1977 was passed and the authorities were directed to enquire into the above allegation. It further seems that Respondent No. 1 did not contest the correctness of the above allegation that he had produced forged NCC certificate in the year 1976-77. Consequently, he was not granted admission in that year. However, Respondent No. 1 applied for admission in th6 year 1977-78 after improving his division as per statement of Mr. Nooruddin Sarki, learned counsel for Respondent No. 1. It further seems that in this year also he claimed 20 marks on account of NCC training, which he was allowed.
4. (a) Mr. Abul Khair, learned counsel for the petitioner, .Has urged that as Respondent No. 1 had produced forged NCC certificate for admission in the year 1976-77, he was not entitled to admission in the year in question also, whereas it has been contended by Mr. Nooruddin Sarki that at the most Respondent No.1 was disqualified for getting admission in the year 1976-77:
(b) It may be pertinent to observe in paras. 6 and 8 of the petition the petitioner has made the following averments:- "6. Petition.-That the Respondent. No. 1 applied for admission in the 1st Year M.B.,B.S. Class for the academic year 1976-77, but he was not selected, for the admission in the 1st Year M.B.,B.S. Class against which he filed a Constitutional Petition No. 462/77 in this Honourable Court. Respondent No. 42 in the said Petition Mr. Munir Alain s/o Sultan Alain opposing his Petition had stated in his counter-affidavit that the NCC (National Cadet Corps) Training Certificate produced by Respondent No. 1 as Annexure was forged one as the NCC Certi--ficate was not issued by the authorities concerned in 1976, but in 1977 and Respondent No. 1 altered and tampered with the year on the Certificate making official document by interpolating year 1976 for the figure 1977, thereby showing it to read as 1976. To qualify as a successful candidate. Photostat copies of the same are filed herewith marked G-1, G-2, H, H-1, H-2, I-1 to 1-7.
8. It is learnt that during the enquiry of the said case Mr. Munir Alam (Respondent No. 42) in the aforesaid Petition represented to Respon--dent No. 3 and the concerned authority of the College regarding forgery committed by the Respondent No. I after receipt of Notice issued by said concerned authority to him as well to the Respondent No. 1 and during the course of investigation when the Respondent No. 1 found that as the certificate produced by him was a forged one, he made an application for withdrawal of his name, to be a candidate for admission in the 1st Year Session 1976/77, as it is a part of his petition.- It appears that the Respondent No. 1 in order to save himself from the prosecution and facing other consequences withdrew himself apprehending penal action. The Rules of the Prospectus at Gage 22 of 1976/77 in clauses 20, 21 and 22 which are reproduced below."
It may be observed that no counter-affidavit has been filed by Respondent No. 1 to refute the above averments, nor the official respondents have filed any counter-affidavit to refute the above allegation contained in the above --quoted paras.
(a) It may be pertinent to refer to rules 21 and 22 of the prospectus for the year 1976-77 which read as follows :- "Prospectus 1976-77 : Clause 21.-A candidate, who for the purpose of getting admission in a medical college, furnishes or relies upon a certi--ficate or any other document or information which is incorrect or false or which he knows or believes to be incorrect or false, shall cease to become eligible for admission in any Medical College of Sind and also shall be liable for prosecution for perjury.
Clause 22.-If at any stage it is found that any student has obtained admission by furnishing incorrect or false certificate or information he shall be expelled from the college and all fees paid by him or her shall be forfeited and he/she shall have to pay to the Government the money spent on him/her and shall also be liable to be prosecuted for furnish--ing false evidence."
It may be noticed that the above-quoted rule 21 provided that a candidate who, for the purpose of getting admission in a medical college, furnished or relied upon a certificate or any other document or information which was incorrect or false which he knew or believed to be incorrect or false shall cease to become eligible for admission in any medical college and also shall be liable for prosecution for perjury, whereas rule 22 deals with a case where such forgery or incorrect information was to be discovered after granting of admission.
(d). We bad asked Mr. Ibrahim Memon, learned Additional Advocate --General, to produce the official record of the above case. Letter No. 502/ CERTS/NCC/5 dated 15th December 1977, issued by the Head Quarters NCC and W. G. University of Sind c/o Station Headquarters Hyderabad, indicates that in fact the NCC certificate which was produced by Respondent No. 1 for getting admission in the year 1976-77 contained forged year, that is, instead of June 1977, June 1976 was mentioned.
(The photostat copies of the above letter and the NCC certificate are placed on record). It may be observed that it is not necessary for us to rely upon the above document, as Respondent No. 1 has not refuted the petitioner's averments contained in the above quoted- paras. 6 and 8 of the petition during the last more than 2 years since the filing of the above petition, and, therefore, the above averments are deemed to have been admitted by Respondent No. 1. It may also be mentioned that we have perused the official record, which indicates that Respondent No. 1---s application for admission for the year in question i.e. For 1977. 78 contained an endorsement on the first page of the application red ink to the following effect.
"Debarred vide rule No. 21 of Prospectus 1977-78. "
'However, there is nothing on record, to show that Respondent No. 2 or the Admission Committee has adverted to this aspect. We are not inclined to agree with the contention advanced by Mr. Sarki that the disqualification referred to in rule 21 in the prospectus for the year 1976-77 was confined to one year only, that is, the year in which Respondent No. 1 attempted to obtain 20 .Marks on the basis of a forged NCC certificate. If we were to w--- accept Mr. Sarki's above contention, it will lead to absurdity inasmuch as Respondent No. 1 in spite of his above illegal act has not been punished in any manner. It may be observed that in the year 1976-77 Respondent No. I was not granted admission not because of the production of the forged NCC Certificate but because on merits, he did not have requisite marks. In other words, he was not deprived of admission on account of above-quoted Rule 21 of the prospectus.
5. We are inclined to hold that the removal of the petitioner's name from the l1st of the successful candidates for admission for 1977-78 in the Liaquatl8 Medical College, and insertion of Respondent No. 1's name in his place was not warranted by law as Respondent No. 1 was not entitled to admis3ion in[ preference to the petitioner. We, therefore, allow the petition and declare the Respondents Nos. 2 and 3's above action was without lawful authority. We also direct Respondents Nos. 2 and 3 to allocate Respondent No. 1's present seat to the petitioner. However, we may observe that since Respondent No. 1 has already completed 3 years, it - will be open to the authorities to take lenient view in the matter and to accommodate him either in the same college or in any other College.