' MIR HAZAR KHAN KHOSO, J.--By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner Mashood Ahmad has challenged the Notification No.7-I/84-E-GEN: /VOL. VIII/5676/815, dated 15-4-1986 issued by Government of Baluchistan the respondent No.1 whereby on recommendation of the Selection Committee, the respondent No.2 Shabir Ahmad, the respondent No.4 was nominated against the reserved seats of Diploma Associate Engineers and granted admission in the University of Engineering and Technology Peshawar and the petitioner was declined to have it.
2. The brief facts giving rise to this petition are that the petitioner and the respondent No.4 having successfully cleared Diploma of Associate Engineers Course from the Polytechnic Institution applied for admission for Engineers Institution against reserved seats for Diploma-holders. The petitioner though had more marks at his credit yet the respondent No.2 approved the respondent No.4 for admission and rejected the candidature of the petitioner on the ground that he had already been nominated against a reserved seat for B-Tech course where he had actually taken admission in July 1985. The decision reads as under:.- "The Committee was informed that Mr.Khalid Hussain was nominated for B.Tech course in Punjab against a reserved seat of Baluchistan but as per record available at the level of Directorate of Education (Colleges), he had not taken admission in the course for which he was nominated. In this way next candidate was nominated against the seat vacated by him. The case of Mr. Mashood was different. He had taken admission in July 1985 and at this stage his seat could not be awarded to anyone else. In addition to this the Committee felt it necessary to discourage such practice where candidates once nominated for one professional position/seat were seeking admission in another at the cost of first. The Committee discussed the case in detail and observed that Mr. Mashood has already availed of one opportunity as he was studying against a seat of B.Tech course. As such his nomination to an engineering seat at this stage would result in the loss of seat where he was presently studying as a nominee of Baluchistan."
' On recommendation of the respondent No.2 the respondent No.1 vide its Notification referred to hereinabove granted admission to the respondent No.4. Finding no other adequate and efficacious remedy the petitioner has filed this Constitutional Petition before this Court.
3. Mr. Shakeel Ahmad, Advocate appeared for the petitioner and Mr. Yaqub K. Yousufzai, the learned Advocate-General appeared for respondents Nos.1 and 2. Respondent No. 3 was ordered to be proceeded with ex parte on 23rd July, 1986. Mr. Iftikhar. Muhammad, Advocate represented the respondent No.4.
4. In support of his petition Mr. Shakeel Ahmad the learned counsel for the petitioner has urged:-
(i) That on the same facts and grounds one Khalid Hussain Hashmi who too had taken admission in B-Tech. Against a reserved seat was given admission in the Engineering College in the year 1985, hence refusal on the part of respondents Nos.1 and 2 amounts to indiscrimination.
(ii) That there is neither any law nor rule whereby a student once having been admitted to an institution cannot be admitted to any other institution of better future on a reserved seat.
(iii) That respondents Nos. 1 and 2 has acted against the policy of admission made under the Notification, dated 27th December, 1984.
(iv) That the decision of the respondent No.2 is in violation of Article 4 of the Constitution of Pakistan.
' In support of his contentions the learned counsel relied upon the cases reported in:- 1983 CLC 1788; 1985 CLC 2549 and 1979 CLC 1.
5. It may be pertinent to note that the learned counsel for the respondents Nos.1, 2 and 4 candidly conceded that there is no bar either under any law or under the policy where a candidate once admitted in an institution of choice can not be admitted in any other institution of his choice against a reserved seat. But however they urged that having once got an opportunity of being admitted to an institution of his choice he cannot claim as a right for reserved seat in any other institution, hence refusal of admission to the petitioner has caused no injustice to him; but on the contrary if the petitioner would have been nominated and given admission injustice would have been done to respondent No.4, (ii) that the Government had already incurred huge expenses for petitioner s studies in B-Tech. Which would go waste, (iii) that no one else could be admitted in place of the petitioner as the year has passed and he has already completed a year, (iv) that the case of Khalid Hussain is quite distinguishable from that of the petitioner as in that his seat was allocated to some other candidate though not utilized, (v) petitioner has come with salined hands he as such is not entitled to discretionary relief.
6. Besides Mr. Muhammad Yaqoob Yousufazai the learned Advocate- General further agitated that:
(i) as no law was violated the case of the petitioner would not fall within the ambit of Article 199(1)
(a)(2) of the Constitution of Islamic Republic of Pakistan, (ii) and this Court may not interfere in policy matters in its constitutional jurisdiction.
7. In support of their contentions the learned counsel relied upon the cases:- 1978 SC MR 367; 1983 SC MR 168; PLD 1984 Kar. 462; PLD 1978 Kar. 934 and PLD 1974 SC 139.
' It may be pertinent to observe that the Notification No.7-16/80-E-Gen:/ 39155-95, dated 27th December, 1984 regularises admission in the Engineering Institutions against the reserved seats for the candidates of the Province of Baluchistan. The copy of the same has been enclosed as Annexure 'E' at page 73 of the file. With dexterous assistance of the learned counsel for the parties we have gone through the same. No where we find that it puts any embargo on a candidate who if once has sought admission in an institution against a reserved seat cannot beseach for admission in any other institution of his choice. In absence of such embargo in the policy we are certain that the respondent No.1 had no authority vested in them to have refused admission to the petitioner on this ground. But it appears that the respondent No.2 has taken the circumstances which in fact are--extraneous to those provided in the policy made by the respondent No.1 by rejecting candidature of the petitioner who otherwise was eligible for admission on merits in place of respondent No.4. Obviously the conditions laid down under the above said policy have been flagrantly violated by the respondent No.2 and approved by respondent No.1 in providing admission to respondent No. 4 and refusing to have it to the petitioner. It may be observed that the respondent No. 2 is not an independent statutory body--to enjoy independent views but constituted under the policy and has only limited jurisdiction to deal with the admissions of the students subject to the conditions laid down under the policy. In no way it could exercise an authority which has not been specifically vested in them under the policy. In such view of the facts we have no hesitation to agree with the contentions raised by the learned counsel for the petitioner that in absence of any provisions in the policy in that respect the respondents Nos. 1 and 2 have acted illegally and without jurisdiction in awarding admission to respondent No.4 and declining the same to the petitioner.
8. As the petitioner had the right to be allocated a seat reserved in Engineers Institution it could hardly be said that he had come with unclean hands and is not entitled to discretionary relief. In any case B if the petitioner says good-by to his studies in B-Tech. Then under the agreement he is bound to return the expenses incurred on him by the Government of Baluchistan. In such case the Government would not suffer any loss.
9. The respondents Nos. 1 and 2 having failed to act within the scope of the rules laid down under the Notification, dated 27th December, 1984 the petitioner's case would, therefore, fall within the ambit of Article 199 of the Constitution of Pakistan and amenable to constitutional jurisdiction of this Court. Hence the contention raised by Mr. Yakoob K. Yousufzai the learned Advocate-General in that respect has no force and repelled accordingly. The authorities relied upon by the learned counsel for the respondents strengthen their case in no way. Finding the decisions of respondents Nos. 1 and 2 as having been passed illegally and without lawful authority we, therefore, set aside their decisions and direct that the petitioner be admitted in the Engineering Institution in place of the respondent No.4. The parties are left to bear their own costs.
10. This is the reasoning of our short order announced in .Open Court on 29-7-1986.