1. GHULAM SAFDAR SHAH, J.-- This appeal by leave of the Court is directed against the judgment of a Division Bench of the Lahore High Court, passed in I.-C.A. No.88 of 1977, by which the appellants appeal against the order of a learned Single Judge, dated 8-8-1977, dismissing his Writ Petition No.1644/1977, was dismissed.
2. The background of the case is that the appellant, alongwith respondents Nos. 3, 4, 5, 6 and 7, as well as one Ghulam Shabbir Multani, were candidates for admission to a Medical College of the Punjab against the three seats reserved for the district of Dera Ghazi Khan. In so far as Ghulam Shabbir Multani is concerned, it is admitted on all hands that being superior in merit to all the other candidates he was granted admission against one of the three seats to which none of the parties herein has any objection. In other words, the contest between the parties is now confined to the remaining to seats and in order to see their inter se merit it would be useful to take note of the following table showing the respective marks obtained by them in the F. Sc. (Pre-medical)
3. Examination held in the year 1975:- 12345 Name Marks Marks Marks Total obtained awarded awarded S-- in the for securing for having examination First Division completed in the Matri-the National culation Ex-Guard Train ing. amination.
4. Amjad Parvez592520617 Zafar Iqbal611611 Muhammad612612 Yousaf Azhar Hussain593520618 Ilyas Ahmad592520617 Muhammad592520617 Afzal Now the admitted position is that First Division starts from 600 marks and since the appellant had secured the aggregate marks of 617 he pressed his claim for admission before respondent No. 2 on the ground of his superior right as against the rights of respondents Zafar Iqbal and Muhammad Yusaf, who had secured 611 and 612 marks, respectively. The record would show that respondent 2, relying on rule 27 of the Prospectus, issued by the Government of the Punjab. Health Department, for the year 1975-76 (which was admittedly applicable to the present case, as all the parties herein had applied for admission for the academic session of 1976-77) rejected the claim of the appellant on the ground that having secured Second Division in the F.Sc. (Pre-medical Examination) he could not compete with First Divisioners notwithstanding the fact that by having secured the additional 20 marks on account of training in the National Cadet Corps, the total marks obtained by him came to 617. In order to appreciate the said conclusion it would be useful to refer to the said Rule, which runs as under:- "17. Selection and admission will be strictly on the basis of merit of F. Sc./B. Sc.
5. The criteria for admission shall be in the following order:- (1)F. Sc. (Medical Group) First Division.
6. (2)B. Se. (with F. Sc. Pre-medical) First Division.
7. (3)B. Sc. (with F. Sc. Pre-medical) Second Division.
8. (4)F. Se. Pre-medical Second Division."
9. Now apart from the clear and uncomplicated language of this Rule, which no doubt supports the said view taken .By respondent No.
2. He also had the support of Muhammad Irshad and 3 others v Government of Sind and 6 others PLD 1976 Kar.. 124$. In &e event; which happened, however, the appellant challenged the order pass( by respondent No. 2 through a writ petition in the-High court. Durinc the pendency of the said writ petition, the High Court, in a similar case Miss Imrana Malik v. Chairman, Selection Committee for Admission in Medical Colleges and 2 others PLD 1977 Lah. 82'0, delivered its judgment and held that "the interpretation placed by the Selection Authorities not to treat the adjusted marks obtained by the petitioner as entitling her to compete for admission alongwith the First Divisionere has the effect of whittling down the advantage allowed by the statute which is in general terms and applicable in all situations. Moreover the concession is not confined to admission to Medical Colleges only but is applicable to all institutions of advanced studies. Thus, the pro--visions of the Prospectus of the Medical Colleges, which have only th4 status of rules, cannot make it nugatory.
10. Consequently note (i) o para. 27 of the Prospectus for working out the merit of candidates foe admission must be read subject to the provision of clause (c) of section 95 of the Act of 1973, as amended by the Ordinance of 1975, with th4 result that the said "note" shall be construed to mean that though th4 addition or deduction of marks may not change the Division of a candidate if his/her marks are increased or decreased due to adjustment, by the increase of 20 marks allowed by the provision of section 35 (c of the Act of 1978, a candidate obtains 60 per cent or more of th4 total marks, he/she will be entitled to get admission alongwith the candidate considered to have passed in the First Division".
11. In view of the said judgment, which was delivered on 14-2-1977 the High Court called upon respondents 1 and 2 to submit their comment; as to the writ petition filed by the appellant. On 31-3- 1977, the said respondents submitted their comments in which they expressed the willingness to consider the case of the appellant in the light of the principle laid down in Miss Imrana Malik's case (supra), saying: "Th4 decision has been pelt up by the Government for implementation and according to the judgment of the Court the petitioner will be considered alongwith other candidates." The appellant, in view of the said under taking given by the respondents, evidently felt satisfied and consequence writ petition was disposed of by an order dated 6-4-1977 "as having borne fruit".
12. After a while, the appellant addressed an application I respondent No. 1, reminding him that his case was still pending, an( consequently the same may be disposed of in the light of the judgment of the High Court in Miss Imrana Malik's case (supra), as well as the undertaking given by him in that behalf in the writ proceedings. B) his letter, dated 15-6-1977, however, the said respondent rejected the case of the appellant on the ground "that after taking into account 20 marks of N . C . C . According to the decision of the Lahore High Court, Lahore, there are three candidates higher in merit than yet who were not considered for admission against the three seats reserved for D. G.
13. Khan District as they were basically F.Sc. 2nd Division likE you". Faced with this situation, the appellant filed a second writ petition, bearing No. 1644 of 1977, in the High Court. But the same was dismisses in limine by a learned Single Judge, vide his judgment dated 3-8-1977 The view taken by the learned Judge was (1) that since the admission had Already been finalized, the same could not be re-opened, and (2; in any event the principle laid down in Imrana Malik's case (supra) was of no help to the appellant, as merit wise he stood lower than the rival candidates.
14. The appellant, who was dissatisfied with the said judgment, filed against it an inter-Court Appeal, but the same also was dismissed, vide the impugned judgment. The main contention urged by him in the appeal was that the learned Single Judge was not quite right to hold that the rival candidates in the field possessed superior merit, as it was not unlikely that at least some of them may not have been interested to seek admission, and in that event the chances of his getting admission could not altogether be ruled out.
15. The learned Judges of the appellate Bench, before whom the said findings were assailed, disagreed with the learned Single Judge who had taken the view that the admissions having already been finalized could not be reopened. But as to the merit of the claim of the appellant they agreed with the view taken by him observing that "None of these three candidates was impleaded .As a party in these proceedings. The respondents were asked to contact the three candidates to find out if they were desirous of getting admission against the reserved seats during the session in dispute in case the question of admission is reopened. The respondents in pursuance of the direction of this Court contacted the three candidates. i.e. Azhar Hussain Sehrai, Ilyas Ahmad and Muhammad Afzal. A further report has been placed on record pointing out that the three candidates are still desirous of seeking admission against the reserved seats. It, therefore, stands established that the appellant is not to gain even if, at this stage, a direction is issued to strictly comply with the principle laid down in Imrana Malik's case. However, in our equity jurisdiction we cannot lose sight of the fact that respondents Nos. 3 and 9 have by now completed their first year of study and are about to appear in the First Professional examination. It would be unfair if they are expelled from the College, at this stage under orders of this Court."
16. In granting leave to appeal in this case, vide order, dated 6-7-1978, above difference of opinion between the Sind and the Lahore High Court was noted. However, the appellant raked on Miss Imrana Malik's case, and contended that in view of the principle laid down in Abdus Sattar v.
17. Government of Sind PLD 1978 Kar.. 59, the High Court should have directed the respondent herein to create an additional seat for the appellant, as his earlier seat had unjustifiably been allotted to respondent Zafar Iqbal or respondent Muhammad Yusaf. It was noted, however, that the appellant had not impleaded Messrs Azhar Hussain, Ilyas Ahmad and Muhammad Afzal, and so he was directed to isplead them as respondents, vide order, dated 20-1-1978 and this is how they now appeared as respondents in the present proceedings.
18. We have heard the learned counsel for the parties. Ch. Muhammad Ismail, the learned counsel for the appellant reiterated before us the same contentions, which he had urged in appeal before the High Court. Before dealing with his said contentions however, it is imperative to attend to and resolve the difference of opinion, which exists between Muhammad Irshad and 3 others v.
19. Government of Sind and 6 others, and Miss Imrana Mailk v. Chairman, Selection Committees for Admission in Medical College, Lahore and 2 others (supra). Now the difference of ,opinion between the said to High Courts is in respect of the true scope and purport of section 29 (c) [and section 35
(c) which is identically worded, but applies to female students] of the National Guard's Act, 1973 (Act LXI of 1973), as amended by Ordinance IV of 1975, which runs as under:- "29. Concessions.--On successful completion of training, a person shall be entitled to the following concessions, namely:-
(a) ..................................................
(b) ..................................................
(c) Shall, for the purpose of admission to any institution of advanced studies, be awarded twenty marks in addition to the marks obtained by him in the examination held for the purpose of such admission or, if no such examination is held, in the examination on the basis of having qualified in which he seeks such admission. "
20. The view of the Lahore High Court as to the construction of this provision has already been noted and so it would suffice to take note of the view of the Sind High Court in that behalf which is to the following effect:- "17. The other aspect of the question to which our attention was invited is whether or not a student who has passed Intermediate Science examination in Second Division and whose percentage by addition of 20 marks is raised to more than 60$ will be entitled to admission to, the Medical College in preference to a First Divisioner having lesser marks. The argument was that under the Prospectus a First Divisioner in Intermediate Science Medical Group has the first preference; a First Divisioner in B. Se. With Intermediate Science in Medical Group, has the second preference, and a Second Divisioner in Intermediate Science has the third preference, in selecting the candidate for admission and that these preferences cannot be ignored. In other words, a Second Divisioner entitled to the benefit of 20 marks will be higher in merit list in his own division but will not displace a First Divisioner. The answer is provided by the Prospectus itself which after giving the order of preference as aforesaid provides that: "A candidate would be considered to have secured the Division that has been conferred on him/her or declared for him/her by the Board/ University. However, the actual merit of the student within the Division awarded shall be fixed at the level of the adjusted marks according to the formula given in the following paras."
21. These paras. Are the Rules for working the merit of candidates, para. 2 which states that addition of 20 marks shall not alter the Division of the candidate."
22. The learned counsel for the petitioner in that case, however, argued that since in the National Guards Act it had clearly been provided to add to the marks obtained by a candidate, in the qualifying examination 20 marks for having completed the prescribed training, the said intention of the Legislature must be given effect to, notwithstanding the contrary provisions contained in the Prospectus. The learned Judges however, rejected the said contention holding. The learned counsel would have been certainly right if there was irreconcilable conflict between` the Act and the Prospectus. The Legislature was not unaware of the preferences created in the Prospectus, and that the adjustments by addition of marks will be made within the division secured by the student.
23. In other words, the addition of marks will not jeopardise a genuine First Divisioner. If the Legislature intended that this provision in the Prospectus should not be given effect to it should have so affirmatively provided at least in the amending Ordinance. By the omission to so provide, the intention, to our mind, appears to be not to disturb the preferences, which even otherwise appears to be fair and reasonable.
24. A little earlier in the judgment however, while rejecting the contention of the learned counsel for the respondents that section 29 of the National Guards Act being in conflict with Articles 22 and 25 of the Constitution, was void, the learned Judge relying on George Maralits v. City of Chicago 83 A L R 1222 recorded the finding that "In the present case in my humble view there is quite clearly a relationship) between the military training obtained by the students and their admission to an institution of advanced studies. We have for long clamoured for compulsory military service for students. National Guards Act, 1973 is in fact an admirable effort to encourage young men to obtain military training and thereby not only become disciplined citizens but be equipped to answer the call of the Nation in case of emergency. The training and the discipline acquired under the Act will have considerable influence on the acquisition of higher knowledge. A disciplined mind and an able body are vital possession in pursuit of higher knowledge, say, the life itself. If, therefore, the Act with a view to encourage the students to obtain military training gives an incentive not only in the larger interest of the country itself, but to better equip such students to pursue their further studies, it cannot be said that there is no nexus between the classification made and the object sought to be attained".
25. This, with respect, seems to us to be the correct analysis of the policy of legislature contained in section 29 of the above Act. But the learned Judges declined to extend the benefit of it to the petitioners, notwithstanding the fact that by adding the prescribed 20 marks to the marks obtained by them in the examination their total marks came to be more than the marks obtained by the First Divisioners. In this behalf the learned Judges were clearly influenced by the prospectus as if the same had the force of a statute or had been framed under some statutory instrument. But evidently this assumption was incorrect. In fact this question has already been decided by this Court in Muhammad lqbal Khan Niazi v. Chancellor, University of the Punjab, etc. PLD 1979 SC 1 from which the following dictum (appearing at page 891) would seem to be relevant:- "However, as submitted by learned counsel, it is possible that the learned Judges took the view which they did, because they were of opinion that the prospectus had to be construed in accordance with the principles for the construction of statutes. I regret my inability to agree with this view, because the prospectus has not been framed by any Legislature. It has not even been approved by any Legislature, and it is not known whether the Legislature was even informed of its existence. As this was not disputed by the learned Assistant Advocate-General, we enquired whether the prospectus had been framed under the Statutes of the University. His answer was in the negative and he could not even make a statement from the Bar that the prospectus had been framed under the powers conferred by some Legislation. Therefore, as indicated earlier it does not appear to have any statutory sanction and it is probably nothing more than an offer by the Government of the conditions under which it would admit students to the colleges run by it."
26. Now the principle laid down in this passage would equally apply to the prospectus of the Dow Medical College, as in the above judgment of the Sind High Court, there is no indication that the same had been framed under any legislative instrument, or for the matter of that approved by the Legislature. It would, therefore, follow that the law laid down in Muhammad Irshad and 3 others v.
27. Government of Sind and 6 others (supra) cannot be approved and the one laid down in Miss Imrana Malik's case (supra) must be approved as having laid down the correct law.
28. Now reverting to the contentions urged by the learned counsel for the appellant, it may be mentioned that respondent Azhar Hussain, after he was served with the notice of this appeal, has filed an affidavit to the effect that he has already secured admission in Allama Iqbal Medical College, as on the 2nd attempt made by him he secured 655 marks in the F. Sc. (Pre-Medical)
29. Examination. In this view, the contest for the to remaining seats in this case is narrowed down to the appellant on one side and respondents Zafar lqbal, Muhammad Yusaf, Ilyas Ahmad and Muhammad Afzal on the other. We agree with the view taken by the High Court, however that to dislodge them now when they would be preparing for their 2nd Year Examination, would be not only inequitable but of no tangible benefit to the appellants as in the order of priority, which will presently be seen, the said to seats should have gone to respondents Ilyas Ahmad and Muhammad Afzal.
30. Now in Abdus Sattar v. Government of Sind PLD 1978 Kar.. 59, the High Court had directed the official respondents in the case to create an additional seat for the petitioner, as he was found to have originally been wrongfully deprived of his seat against which another candidate had been given admission. The main reason for which the said direction was given by the High Court was that the petitioner could not be allowed to suffer for the wrong decision of the said respondents and consequently he should be compensated. With that principle laid down by the High Court, which in evidently bated on the considerations of equity, fair play and justice, we respectfully agree in fact that the learned A.A.G. Appearing for respondents Nos.1 and 2 also espoused the said principle. But contended that the to seats, which will now be created by the official respondents would go to respondents Ilyas Ahmad and Muhammad Afzal, as being older in age than the appellant, their right in that behalf is guaranteed under. Rule 27 (note 5) of the prospectus.
31. The learned counsel for the appellant did not dispute this position. However, contended that respondents Ilyas Ahmad and Muhammad Afzal have not evinced any interest in seeking admission against the said to seats, except when they were made respondents in the present proceedings, first on the order of the High Court, and subsequently by the order of this Court, and consequently it would be futile to order their admission against the said to seats. The difficulty in the way of the learned counsel, however, is that both these respondents are present, and have reiterated their claim to the said to seats saying that they had every intention to seek admission to a Medical College. In this view of the matter, all that can be said that the appellant should keep his fingers crossed and wait for the opportunity when the said to respondents are found to have declined or failed to seek admission against the said to seats. In fact the learned Assistant Advocate-General gave an undertaking that the said to seats would be created by the official respondents in the forthcoming session of the 1st Year M.B., B.S. Classes, and after their creation they would first be offered to respondents Ilyas Ahmad and Muhammad Afzal. However, if they failed to accept the said offer within 15 days they would be deemed to have forfeited their claim, and in that event the appellant would be admitted to one of the said to seats.
32. With these observations, this appeal fails and is dismissed, but under the circumstances the parties would bear their own costs.