The captioned writ petitions filed under Article 44 of the Azad Jammu & Kashmir Interim Constitution, 1974 through which council's policy for admissions on vacant seats issued vide notification dated 16.02.2022 to the extent of principle No. 4 has been assailed, raised common questions of facts and law and can conveniently be decided simultaneously, hence were heard together and are decided as such.
Commons facts of the captioned writ petitions precisely stated are, petitioners in both the writ petitions are first class state subjects of Azad Jammu & Kashmir and hail from District Poonch. It is submitted that respondents invited applications from eligible candidates for admission in MBBS and BDS against the seats reserved for Azad Jammu & Kashmir nationals for the session of 2021-22.
The petitioners being eligible, applied for their admissions and after completion of all codal formalities, petitioner Hadiya Majeed was placed at Serial No. 45 and Ummara Hanif petitioner in writ petition No. 1621/2022 was listed at Serial No. 53 of the tentative list against the quota of district Poonch. The petitioners also applied against the self-finance seats, wherein petitioner Hadiya Majeed was listed at Serial No. 1 and Ummara Hanif was placed at Serial No. 2. It was contended that on 15.02.2022, a meeting of Medical and Dental Colleges Council was convened wherein admission policy on vacant seats was made and policy principles were laid down vide notification dated 16.02.2022. It, was further alleged that as per tenet No. 4 of policy principle, students who have filled seats, shall not be eligible to apply for admission on vacant seats: The main stance of the petitioners is that imposing of condition that students who have already admitted by any private or public college within the specified deadlines shall not be eligible to apply for admission against vacant seats is against the fundamental rights of petitioners, discriminatory, against natural justice and without jurisdiction.
Respondents contested the instant writ petitions by filing separate written statements wherein claims of petitioners have been refuted on the ground that petitioners have obtained admission on self-finance seats by their own choice, hence barred to be admitted on regular merit seats.
The learned counsel for the petitioners reiterated the facts and grounds already taken in the writ petitions and vehemently argued that petitioners applied for their admissions in pursuance of proclamation published by the respondents for inviting admissions in MBBS and were admitted against self-finance seats in the light of their merit position due to limited number of seats but much of the seats on merit remained available due to non-availability of candidates from other units, hence petitioners were expecting to be upgraded and shifted on merit seats, however, PMC vide its meeting dated 15.02.2022 imposed a ban on the students who have already been admitted in other available categories by any private or public college within the specified deadlines. The learned Advocate contended that condition imposed by the PMC is anomalous, arbitrary, fanciful, discriminatory and against the fundamental rights of the petitioners, hence entails to be set at naught. The learned Advocate further stated that PMC has got no jurisdictional competence to impose such condition because admissions are regulated by the concerned government and PMC can only make rules for admission and not policy, hence the notification dated 16.02.2022 is coram non judice and void ab-initio. The learned counsel in support of his submissions placed reliance on the following case laws:
1. PLD 1979 Note 80 Lahore;
2. PLD 1961 SC 403:
6. 1993 CLC 1675 Karachi 1677;
8. 1981 SCMR 267;
9. PLD 2010 SC 759.
The learned counsel for the Medical Colleges, Mr. Muhammad Aamir Qureshi, Advocate zealously solicited that petitioners have got admission on self-finance by their own choice and registered with PMC, and if the required practice shall be allowed to shift a student frequently by routine from one category to another it will ruin the whole registration system and colleges will remain busy in doing the job of admission in the whole year. The learned Advocate further submitted that Medical colleges are regulated by PMC, thus being regulatory authority, PMC has got ample statutory jurisdiction to provide a policy for admissions and all the Medical and Dental Colleges are bound to implement its policy and Azad Jammu & Kashmir government has already published a notification that guidelines of PMC would be the policy of Azad Government, therefore, it could not be claimed that PMC has no authority to issue instructions for admission against reserved seats. The learned Advocate also stated that petitioners have not applied for their admissions against vacant seats and after due process of law, private respondents have been enrolled on the said seats, hence petitioners do not come within the ambit of aggrieved persons and are estopped by their conduct to file the instant writ petitions by assailing the admission of private respondents.
The learned counsel for PMC, Chaudhary Zaffar Mehmood, advocate adopted the arguments advanced by the learned counsel for Medical Colleges and submitted that written statement filed on behalf of PMC may be treated as his arguments.
The learned counsel for the private respondents vehemently argued that petitioners are not aggrieved from admission of the private respondents because they are not eligible to apply against vacant seats after taking admission by their own choice. They submitted that they have no objection if the petitioners are upgraded and shifted to normal merits seats without disturbing private respondents.
I have heard the learned counsel for the parties and gone through the record of the case with utmost care and caution.
A perusal of regulation 4 (11) of the notification dated 04.06.2021 through which Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Regulations, 2021 have been published, postulates that any allocated seats of college if remains vacant after completion of admission shall be filled in by transfer of an admitted student. For ready reference, regulation 4(11) is reproduced as under: "(11). Any allocated seat of a college which may remain vacant after the completion of admission shall remain vacant subject to being available for an admitted student who may seek a transfer and where such transfers shall be permitted after 1st March of each year and the admitted student having received their registration from the Commission subject to any applicable rules of the affiliating university."
The above reproduced provision of law provides guideline to fill in a seat which remains vacant in public colleges after completion of admission and envisages that the same shall be filled by transfer. Through the impugned policy notification dated 16.02.2022, PMC has restrained the students who are already admitted in any private or public college to apply for admission on vacant seats of other category, hence Condition No. 4 of policy notification dated 16.02.2022 is against the regulations published vide notification dated 04.06.2021. For proper appreciation of controversy Condition No. 4 of the notification dated 16.02.2G22 is reproduced as under: "4. All admissions submitted and uploaded by any private or public college within the specified deadlines of 31st January (general admissions), 11th February (delayed results admissions) and 11th February (Dental admissions') (inclusive the widows allow between 12th and 14th February to assist in uploading) shall be locked and secured and students who have filled such seats shall not be eligible to apply for admission on vacant seats under the Vacant Seats Policy."
The above-reproduced guidelines create a right in favour of petitioners to be transferred against vacant seats after completion of admission but respondents by transgressing Regulations, 2021 imposed the impugned condition which is also violative of the said regulations, hence not sustainable. The supra listed case laws relied upon by the petitioners are of divergent facts, hence need not to be discussed. The Peshawar High Court Peshawar in a writ petition No. 930P/2022 titled Muhammad Awais khan and others v. Government of Pakistan & others decided on 17.06.2022 also took a view regarding Regulation 4(11) reproduced herein above and observed as under:- "The vacant seats which remained unfilled after the completion of admission shall be available only to an admitted student, who may seek a transfer."
Peshawar High Court Peshawar while considering impugned policy notification dated 16.02.2022 observed in para No. 24 of the judgment as under: "It appears from record that in this regard, the PMC while directly admitting the students through different criteria as notified under the impugned Notification dated 16.02.2022 has acted illegally and without jurisdiction, however, we would exercise restrains by annulling the criteria in totality as it would have far reaching effect because the admission in various medical colleges have already been closed, however, the said criteria is not sustainable and is liable to be struck down only to the extent of the vested rights of the present petitioners depriving them of their choice to transfer their enrolment from the Medical & Dental College to another Medical & Dental College where the said seat has become vacant/occurred."
In another writ petition titled "Mahnoor Khatak v. Government of Khyber Pakhtunkhwa" decided on 05.08.2022, in the light of judgment dated 17.06.2022 respondents therein were directed that after re-adjustment of students, if any seat occurs in public sector colleges, the same should be offered to petitioners therein. Similarly in judgment rendered in writ petition No. 1126-P/2022 titled "Mehreen Khan and others v. Government of Pakistan & others", decided on 17.06.2022 Peshawar High Court Peshawar declared notification dated 16.02.2022 as being coram non judice.
As the impugned policy to the extent of disallowing the petitioners to apply for vacant seats after completion of admission is coram non judice, anomalous and sine lawful authority, therefore the instant writ petitions are hereby accepted and respondents are directed to transfer the petitioners against vacant seat of their choice within a period of two months.