MUHAMMAD HALEEM, J.-In this petition, the petitioner has Impugned the selection of respondent No. 4 to a reserved seat in the Dow Medical College, Karachi for the First Year M. B., B. S. Class for the Session 1971-72.
2. The petitioner is the daughter of Lt.-Commander Qurban Ali Arbab, a serving awarded Sitara-e- Harb and Tamgha--e-Jang. The petitioner passed the Intermediate Examination (Medical Group) from the Karachi College for Women in 1971 and secured 58.4 % marks. The petitioner's father applied to the Naval Headquarters for the selection of his daughter for one seat reserved for the children of Pakistan Naval Personnel as provided in the Dow Medical College prospectus. However, contrary to para. 12 of the prospectus respondent No. 4 was selected for this one reserved seat on the criterion referred to in para. 4 of the counter-affidavit filed by Lt.-Commander Mumtaz Ali, Pakistan Navy, which reads as under :-- "4. That under direction of Ministry of Defence, Govern--ment of Pakistan, the Personnel Services Directorate, Naval Headquarters laid down the service criteria to determine eligibility for purposes of the cited nomination I say that the Commander---in-Chief Navy in pursuance to the said directions laid down the following formula for evaluating service merit for purposes of nomination :
3. According to the petitioner, respondent No. 4 obtained 48.6 % and though his father was also a serving Naval Personnel and had earned Tamgha-e-Jang yet could not be selected to fill this reserved seat as it had to be made on the basis of the criterion laid down in para. 12 of the prospectus and not other--wise and that this was a justiciable issue in contradistinction to nomination where discretion cannot be challenged. Respondent No. 1 has through the affidavit of Lt.-Commander Mumtaz Ali supported the selection . . . . . . . . . . . . . . . . . . .On the basis of the above formula and contends that "respondent No. 4 was found to be most eligible candidate suitable for nomination for admission as against the petitioner and other candidates". A legal contention was also raised as to the maintainability of the petition on the ground that "no right is vested in the petitioner and none has been violated". It was also averred that there was no transgression of any legal provisions or "regulations having the force of law". Respondent No. 4 also filed his counter- affidavit and supported his selection on the criterion above stated, namely :- "2. That my father had joined the Defence Services in the year 1943 as a Doctor and came to Pakistan in the year 1947 on creation of Pakistan. He actually served as parachutist and surgeon during the Second World War and was awarded War Medal and also Queens Coronation Medal in the year 1953.
3. That he continued in the Defence Service of Pakistan and took part In 1965 Indo-Pakistan War and was awarded Tamgha-e-Jang. He was also awarded Jamhooria Islamia Pakistan In the year 1956, Tamgha-e-Pakistan in the year 1957 and Sitarai-Khidmat in the year 1971.
4. That in contrast with the position held by my father, the position of the father of the petitioner is that he has only put in eight years of service and is only a Lt: Commander, which is three steps down in rank to my father and has only two awards to his credit, compared to six awards received by my father."
It was also averred that the criterion for selection is not the result of the examination and that such a selection cannot be challenged under Article 98 of the Constitution. It was also stated that he had obtained 49.1 %. Marks and not 48.6 %.
4. Mr. Khalid Ishaq, the learned counsel for the petitioner, assailed the selection of respondent No. 4 to the one reserved seat in the Dow Medical College on the ground that the Personnel Services Directorate. Naval Headquarters, Karachi had adopted a different criterion than what is specified in para. 12 of the prospectus qua the merit. There is no dispute that both the petitioner and respondent No. 4 have the same order of preference, namely the third as enumerated in para. 12 of the prospectus. The dispute is one of merit inter se. According to Mr. Nasim Ahmad Faruqui the learned counsel for respondent No. 1, the word `merit' in that paragraph refers to merit of the father of candidate which is as adopted by the Personnel Services Directorate and not the candidate himself while Mr. Khalid Ishaq has urged that merit has reference only to the candidate and not to the father. With a view to resolve the dispute it will be convenient here to reproduce para. 12 of the pros--pectus :- "12. Children of. Defence Forces Personnel.-The allocation for these seats will be made direct by the Central Headequarters and finalised within two weeks from the start of the academic session each year. A total number of seven seats (viz. 4 in Dow Medical College and 3 in Liaquat Medical College) in the Medical Colleges of Sind Province are reserved for the children of Defence Force Personnel on the basis of merit strictly in the following order of preference :-
(i) Children of `Shaheeds'.
(ii) Children of Crippled personnel.
(iii) Children of those Defence Personnel who have actually been involved in the recent Indo- Pakistan conflict.
(iv) Children of those Defence Personnel who belong to the Defence Forces . . . . . . . . . . .
The prospective application from Army, Navy and Air Force are required to address their applications to the following authorities who will select the requisite number of suitable applications for allocation to the different medical colleges under the Government of Sind.
Army.-Welfare and Rehabilitation Directorate G. H. Q., Rawalpindi.
Navy.-Personnel Services Directorate Naval Headquarters, Karachi.
Air Force.-Assistant Chief of Air Staff (Training) Training Branch Air Headquarters, Peshawar.
Note.-The procedure regarding selection of Children of Defence Forces Personnel against these reserved seats will be published in respective service orders ; while issuing instructions for admission.
2. The minimum qualification for admission to the Medical College is F. Sc. 1 S. C. (Medical Group)."
5. What is stated in para. 12 is under the head "Children of Defence Forces Personnel". As the caption indicates, the allocation of the reserved seats must have reference to the Children of Defence Personnel and not to them. The qualification for the reserved seats is also plain from the language of this paragraph. Reference to it makes it clear that the expression "an the basis of merits" follows the expression "for the children of Defence Forces Personnel", which clearly implies that the former expression refers to the children and not to the Defence Forces Personnel. If it was intended that the expression "on the basis of merit" should apply only to the Defence Forces Personnel then there was no need for using the expression "for the children of" before the words "Defence Forces Personnel". It appears to be absurd to assume that it means the merit of the Defence Forces Personnel, for in the category they are described as Shaheeds, crippled personnel etc. And their merit cannot be assumed on that basis, for one Shaheed is as good as the other and there can be no distinction.
Equally the same principle applies to crippled personnel and to other personnel falling in the same category. Again the question of merit can only be considered between the candidates inter se who are placed in the same category. This result follow from the use of the word "strictly" before the expression "in the following order of preference" and after the word "merit", for it qualifies the former expression. If, therefore, there is a contest between the candidate's falling in the first and second category, the candidate in the first category will have preference to his selection to the reserved seat over the candidates in the second category even if he is not higher in merit. This is how the merit is taken into consideration. There are other features in the language which also point to the same result. There is reference to the prospective applicants and to the selection of the requisite number of suitable applications for allocation to the different Medical Colleges. The word `select' in para. 12 cannot refer to the parent but only to the candidate, for he cannot be deemed to be a suitable applicant for his allocation to a reserved seat. A note in this paragraph also refers to "the procedure regarding selection of children of Defence Forces Personnel against the reserved seats" and a minimum qualification for admission to the Medical College is also stated. In this context, merit can only refer to the children who are to be selected and possess the minimum qualification.
6. Mr. Nasim Ahmed Faruqui next referred to me paragraph 9 at page 17 of the prospectus to show that in the clauses under the head "Selection of Doctor's Children", only the qualification of the parents are given and that should be used as an index in construing paragraph 12. This is misconceived as merit will also be a governing factor while selecting the candidates falling in the same category otherwise there will be no other criterion. Moreover, what is stated in that paragraph is a qualification for the candidates falling under that head and it cannot be read in that context against the language of paragraph 12. There is, therefore, no force in the contention of M. Nasim Faruqui that the word `merit' has reference to the parent of the candidate and in that context the Personnel Services Directorate Naval Headquarters, Karachi, could adopt the criteria laid down by the Commander-in-Chief as stated above In the narration of facts. Moreover, Mr. Nasim Farooqui was unable to satisfy .Me that the criteria laid down by the Commander-in-Chief had any sanction and could override the instructions regulating the admission of candidates to the Medical Colleges. Mr. Khalid Ishaq also disputed the fact that they were made pursuant to any direction given by the Ministry of Defence. There is no material either way except the bare state-- ment in the counter-affidavit filed by Lt: Commander Mumtaz Ali. Whatever may be the truth behind it, this question does not require any consideration in view of what has been observed earlier.
7. Mr. Nasim Ahmed Faruqui next argued that the instructions in the prospectus have no legal sanction and therefore even where a different criterion has been adopted, it cannot be given effect to. The genesis of similar instructions was considered in Nasim Mehmood v. Principal, King Edward Medical College, Lahore and others (PLD 1965 Lah. 272), and it was observed as under :- "The institutions being Government institutions and their Heads being Government employees, not much argument is needed to see that the Provincial Government clearly retains a right to control and guide the affairs, including the question of admissions, of these Colleges. The Heads of these institutions cannot claim to be independent of Government control. We consider, therefore, that the Provincial Govern--ment has authority to lay down a policy in the matter of admissions to the various Government Medical Colleges under its control, so long as the Governing Bodies contemplated by Central Ordinance XIII of 1961 do not start functioning."
One of the contention in that case was whether the instructions were violative of paras. 12(3), 12(6) and 15 of the Constitution so as to impugn the scheme of tagged areas. While deciding this contention against the petitioner the rules were regarded as having the force of law in the context of the above observa--tions. In Petition No. 39/69 a Division Bench of this Court gave relief on reaching the conclusion that there was a violation of the instructions contained in the prospectus.
To the same effect is the judgment of this Court in Petition No. 183/70. I am accordingly bound to follow the view taken in the above citations and it is now too late in the day to emphasise that the instructions can be disregarded and a different criterion can be adopted for selecting a candidate.
Mr. Nasim Faruqui cited, Satwat Yousaf v. The Government of Punjab through the Secretary, Ministry of the Health Department, Lahore (PLD 1971 Lah. 641), to impress that even if there was a violation of an instruction, no petition under Article 98 can lie to impugn it. The point for consideration in this case was whether the mere right to apply for admission to an educational institution carries with it a legal right to be admitted which can be enforced under Article 98 of the Constitution. This question arose in the following circum--stances. A number of girl students claimed a right to be admitted to the Medical College on the basis of the merit alone against their number specified in the prospectus. It was held that "the girl students did not have any public or private right to claim admissions to any Medical College in pursuance of the applications submitted in that behalf and the orders fixing the number of seats for the various categories of students to be admitted to the institutions concerned has not injured any legal right inherent in them." This ratio decidendi cannot apply to the instant case as the petitioner has questioned the selection on the basis of the violation of para. 12 of the prospectus and not that that she is claiming admission to the Medical College on the basis of a mere application. This case can, therefore, be of no assistance to the above contention. It is accordingly repelled.
8. Mr. Nasim Ahmad Faruqui again emphasised that the discretion exercised by the Personnel Services Directorate, Naval Headquarters, Karachi, in selecting the candidate, cannot be impugned.
While raising this contention his attempt was to place it on the same stand as nomination. This is again misconceived. The instructions themselves make a distinction between nomination and selection. Reference in this connection may be made to para. 9 at page 11 of the prospectus where the word `nominations' has been used and no qualification is prescribed, whereas in para. 12 the qualification is prescribed and the word 'select' has been used which imports, "choice, or exclusion of what is inferior". Clearly, the intention is to exercise choice according to the qualification in contradistinc--tion to nomination, which means right of nominating for appointment and an exercise of absolute discretion vide Inayatullah v. Pakistan through the Secretary of Ministry of State and Frontier Region, Islamabad and 8 others (1970 SCMR 668). No such absolute discretion can be spelt out from the word "select" and accordingly it cannot be treated at par with nomination.
The exercise of choice in terms of the qualification would thus be justiciable.
9. Mr. Nasim Faruqui argued against maintainability of the petition. For this he relied on Article 98(3)
(a) of the Constitution and in particular to the expression "in respect of any matter arising out of his service" in it. What 4the learned counsel meant was that the petitioner derived her entitlement to a reserved seat from the service of her father, which was a pre-requisite, and that this was a matter covered by the above expression. In this connection he Invited my attention to three applications sent by the father of the petitioner, out of which the fist one is undated while the other two are dated 26th December 1971 and 1st January 1972. In the undated application an interview was asked with the Commander-in-Chief and in the second, the basis of selection was impugned and in the third a reply was asked for as to his representation. This was to impress that the entitlement was also a matter of service and that it was hit by the above expression. While raising this submission Mr. Nasim Faruqui lost sight of the fact that the petitioner has not asked for any relief in the petition in respect of any matter originating out of the employment of her father. "Service" has not been defined but it means employment. The pronoun "his" before it shows that the matter must have relation to his employment and it must originate from it. The scope of entitlement has reference to the eligibility of the candidate and cannot be termed as a matter originating from the service of the petitioner's father. What has been impugned in the petition is the violation of para. 12 of the prospectus and on that basis the entitlement has relevance. This contention of the learned counsel is accordingly misconceived.
10. Mr. Iqbal Kazi, the learned counsel for respondent No. 4, adopted the submissions of Mr. Nasim Faraqui and further contended that the petition was not maintainable on the ground that the aggrieved person is not the petitioner but her father who had applied on her behalf for a reserved seat and whose application was rejected. It is correct that the petitioner's father had applied but it cannot be denied that the petitioner is an aggrieved person for it is her selection which is the subject matter of dispute in this petition. The learned counsel for the petitioner cited Mian Fazal Din v. Lahore Improvement Trust and another (PLD 1969 SC 223) and Muhammad Ashraf v. Board of Revenue, W. P. (PLD 1968 Lah. 1155). To support the maintainability of the petition. I am convinced that this ground of attack has no substance in view of the settled law on this point. Mr. Iqbal Kazi cited Ismail v. Principal, Dow Medical College, Karachi (PLD 1957 Kar. 493) to impress that once a candidate was nominated to the College and admitted, his admission cannot be cancelled except in accordance with the instructions in the prospectus. In that case, a candidate was provisionally admitted and his admission was cancelled on an unofficial reference from the Government. The ratio decidendi of the case is that the cancellation of the admission was not in accordance with the Ordinance which regulated his provisional admission and he could not have been deprived of a status otherwise than as provided by the University Act and it was, therefore, that the impugned order was quashed. This analogy cannot be applied to the instant case, for the admission is subject to the instructions in the prospectus and if there is a violation in the matter of admission then this Court has jurisdiction, to declare it as without lawful authority. Mere recourse to the instructions for cancelling the admission is not necessary. In this connection reference may be invited to Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another (PLD 1971 SC 838) and in particular to the following observations of their Lordships of the Supreme Court .
"The learned counsel for the appellant drew our attention to para. 26 of the prospectus of the King Edward Medical College, Lahore, for the year 1967-68, for the contention the appellant's name could have been struck off during the first year in the college and not afterwards even if he was found guilty of securing admission through illegal means. The; argument appears to canvass that even where admission is obtained by dishonest representation or fraudulent means it receives immunity after the lapse of one year. Lapse of time does not sanctify an action based on fraud and mis--representation."
In my view, these observations also apply mutatis mutandis to a case of the violation of instructions.
11. The learned Advocate-General appearing for respondents 2 and 3 supported the case of the petitioner, in that that according to him the selection was not in accordance with para. 12 of the prospectus and contended that the selection should be declared as without lawful authority.
12. The learned counsel for the petitioner urged that a declaration should also be given in terms that "the petitioner is entitled for admission to the First M. B., B. S. Class in the Dow Medical College 1971/72 Session for the seat reserved for the children of the Pakistan Navy Personnnel" and further to "direct the respondent No.1 to select the petitioner for the reserved seat for children of Pakistan Navy Personnel for admission in First year M. B. B. S. Class in Dow Medical College, Karachi, 1971/72 Session." The contesting respondents disputed the higher merit of the petitioner vis-a-vis the other candidates. In this view of the matter, it is not possible to grant relief in terms stated above. It will be open to the Personnel Services Directorate, Naval Headquarters, Karachi, to select a suitable candidate on the criterion laid down in para. 12 of the instructions, but for the present I am of the view that the petitioner had a higher merit than respondent No. 4 in the same category and her selection was wrongfully refused. I would accordingly grant the declaration to the effect that the selection of respondent No. 4 for admission to the First Year M. B . B. S. In the Dow Medical College for the Session 1971/72 is without lawful authority and of no legal effect. The petition is allowed with no order as to costs.
A. Every completed year of Commissioned Service in the case of officers and man's time in the case of CPOs/Sailors Inclusive recalled service.1 point.
B. Every completed year of Service as a Sailor CPO for Branch List Officer/ Ex-Branch List Officer .-- point.
C. For each campaign medal, Civil Award/ mentioned in despatches.1 point.
D. C-in-C's Commendation Certificate 2 points.
E. Participation in Inter-Service or National Teams. 2 points.
F. Extreme Compassionate ground at the discretion of the C- in-C, PN.1 to 2 points.
G. Merit.1 point for every addl. 20 marks above 450 marks (II Division Commence--ment)."