AMIR-UL-MULK MENGAL, J.---The petitioners are students who sought admission in Balochistan Agriculture College, Quetta and are aggrieved of the orders passed by respondents cancelling their admissions to the aforesaid College. Since almost the facts and law in these petitions are common, except Constitutional Petition No,315 of 1990 which is slightly different from the remaining petitions, therefore, we propose to dispose of all the following petitions vide this common judgment:--
(1) Constitution Petition No,311 of 1990.
(2) Constitution Petition No,313 of 1990.
(3) Constitution Petition No,315 of 1990.
(4) Constitution Petition No, 2 of 1991.
2. The petitioners except in C.P.No,315 of 1990 directly submitted applications to the Chief Minister of Balochistan and other Ministers who without referring their matters to the Selection Committee ordered the respondents to admit them in the College. However, subsequently on the pointation of the Principal, that admissions so granted are against the established procedure, admissions of the petitioners were cancelled. Hence these petitions.
3. Heard Mr. Azizullah Memon, Mir Muhammad Nawaz Marri, Mr. H. Shakil Ahmad, and Muhammad Nawaz Khan Barakzai, Advocates on behalf of the petitioners and Mr.Muhammad Nawaz Ahmad for official respondents and learned Advocate-General and Assistant Advocate-General Balochistan on Court notice. Besides, the Principal and Vice-Principal who were present in the Court were also heard in person.
4. For seeking admission in the Balochistan Agriculture College, Quetta, Government of Balochistan made a prospectus regarding distribution of District-wise seats, mode of admission to the said College, manner of filing of applications as well as interviews etc. As per prospectus a Selection Committee was constituted which comprises of the following:--
(1) Chairman, Balochistan Public Service Commission.Chairman
(2) Secretary, Agriculture Member
(3) Secretary, Law Member
(4) Director-General Agriculture Member
(5) Director, Agriculture Engineering Member It is laid down in the prospectus that all the qualified candidates shall apply on the prescribed forms to the Selection Committee attaching therein different documents as prescribed in para. 18 of the Prospectus. The Selection Committee shall interview the candidates whereafter the successful candidates shall after depositing required fee etc. Get admission. Anyhow, as stated earlier, petitioners did not follow the said procedure but directly filed applications to the Chief Minister as well as Ministers.
5.In support of the petition the counsel for petitioners submitted that since a valuable right accrued to the petitioners after when they were allowed by the respondents to deposit fee and get admission, the cancellation of such admissions without notice to the petitioners and without hearing them offends the principles of audi alteram partem. It was secondly contended that since 17 seats were lying vacant and students who otherwise are qualified were given admission hence this Court should show clemency because otherwise the academic career of the petitioners would be at stake, who belong to a society which is already hit by high rate of illiteracy. The third argument advanced was that this Court should be lenient enough not to disturb the students who were allowed admissions even though technically speaking their admissions were not strictly in accordance with the prospectus because no other student shall be adversely affected. Reliance in this respect was made on the case of Chairman Selection Committee, Bolan Medical College v.
Miss Safia Hameed and others as reported in 1979 SCMR 529.
6.On the other hand learned counsel for respondents, learned Advocate-General and Assistant Advocate-General, Balochistan while opposing the petitions stated that the Government of Balochistan has made a prospectus regulating the admissions of students in Balochistan Agriculture College. It is provided in the Prospectus that the only forum which is competent to grant admission in the college is the Selection Committee. Neither the Chief Minister nor any other Minister has any authority to grant admission to any student, because they have not been empowered under the Prospectus to grant admission. If therefore, admissions are granted on political considerations, there will be chaos and political victumization in the student community and the deserving students shall lose the right of admission in the College and thus only those students who have some affinity with the Ministers shall get admission at the cost of qualified and brilliant students. Besides this, the Principal and Vice-Principal pointed out that in fact there is no first and 2nd semester and the petitioners if granted admission shall be admitted in third semester without clearing first two semesters which is a practical impossibility.
7.When the counsel for petitioners were confronted with this situation, they abortively attempted to argue that there have been instances in the past when during former regime, some students were granted admissions by the former Chief Minister in third semester without any objection from Principal or Vice-Principal of the College. Suffice is to observe that two wrongs can never make a right.
8.We have given our calculated consideration to the arguments so raised. There is no dispute that for admission in the Agriculture College Balochistan as in all other professional colleges, the Government of Balochistan has made a prospectus for regulating admissions to the said college.
For the aforesaid purpose a Selection Committee has been constituted which shall scrutinise the applications submitted to it alongwith other documents and interview the candidates. Only those candidates who appear in such interview and are selected by the Selection Committee shall be entitled to admission in the College. But in the instant cases (execpt C.P.No, 315 of 1990) all the remaining petitioners approached Chief Minister of Balochistan and other members of his Cabinet- and got orders of admission.
9. It may be observed that this Court has all regards for the representatives of the public who have been elected through a democratic process. At the same time a duty is cast upon the Court if its Constitutional jurisdiction is invoked by an aggrieved party to see whether any authority while exercising power, has done so in accordance with law or rules in order to check discrimination in selecting the students to different professional colleges. A deserving candidate should not lose a seat in a professional college if he is otherwise qualified and fulfils the conditions as laid down in the Rules/Prospectus and seclected by Selection Committee merely because he has no personal affiliation to a Minister or a Chief Minister. If the Government frames Rules and prescribes a procedure for admission to professional college, such Rules should have uniform application and effect to the students irrespective of their personal affiliation to any member of the cabinet because otherwise it would lead to an anomalous situation as a result of which there would be chaos and no balance could be preserved and the rules so framed shall lose their sanctity. The object for which prospectus has been formulated by the Government is to regularise admissions to Balochistan Agriculture College. The Government has not withdrawn or rescinded this prospectus.
Thus the only procedure for getting admission in Balochistan Agriculture College is the one as prescribed in the prospectus. Neither the Chief Minister nor any other Minister figure anywhere in the prospectus, nor they have been given authority under the prospectus to select a student for taking admission in the said College. On the contrary a Selection Committee has been constituted to call for interviews and to select suitable deserving candidates. Any deviation from this procedure would create a confusion amongst the students who, in that case, rush to the Cabinet members in order to get admission using personal affiliations and extraneous considerations.
10.Seen in the light of the aforesaid observations, it becomes clear that the petitioners were selected for admission by persons having no lawful authority. This proposition could not be controverted by the counsel for the petitioners. However, they unanimously urged that since all the seats were lying vacant and no body was adversely affected by such a selection, therefore, the Court should not interfere even if the petitioners have been erroneously selected. In this regard our attention was drawn to 1979 SCM R 529. It was argued that in the said case respondents 2 to 6 were allowed admission in Bolan Medical College on erroneous grounds but the Hon'ble Supreme Court did not interfere to disturb them for the reason that they should not suffer for the fault of the Selection Committee. Having all respect for the observations of the Hon'ble Supreme Court, it may be pointed out that in the aforesaid case the respondents had appeared before the Selection Committee after filing applications and appearing in the interview. But the distinguishing feature in cases of present petitioners is that they did not apply at all to the Selection Committee, rather, they directly filed applications either to the Chief Minister or to the Ministers for getting admission, ignoring the prospectus and bypassing the Selection Committee which is the only competent authority under the prospectus to select a candidate for admission. Besides, in the case referred to above, Selection Committee had the authority to select a candidate for admission and therefore the Hon'ble Supreme Court observed that erroneous decision on the part of the Selection Committee should not disentitle respondents. In the instant cases the conduct of the petitioners was sceptical and they were not altogether innocent because they intentionally adopted a short- cut method of getting admission by approaching the Cabinet members on the basis of personal affiliations and ignoring to file applications to the Selection Committee. Thus in our view they are not entitled to any concession upon humane considerations, as was held by the Hon'ble Supreme Court in case reported in 1979 SCM R 529.
11.We now proceed to determine the principal argument advanced by the counsel for the petitioners. It was contended that after when petitioners were admitted in the college it was incumbent upon the authorities to have given them an opportunity of hearing before cancelling their admission. By not doing so, it was argued, the universally accepted principle of audi alteram partem has been violated.
12. It may be observed that undoubtedly the rule of audi alteram partem is now well founded in our legal system and generally no person should be condemned unheard and no vested right should be taken away without prior notice and without giving an opportunity of hearing to such a person.
But there are exceptions to this rule as well, particularly when such a right has accrued on account of a void order because a void order or an order without jurisdiction does not create any vested right. Reliance, if any, may be made to the case of Allah Ditta etc. v. Member, Board of Revenue etc.1983 CLC 219. As stated earlier the petitioners got admission by persons who were not lawfully authorised to have granted them admission, thus they cannot claim that any vested right accrued to them on the basis of void orders passed by the Chief Minister or Ministers. Even otherwise in the given circumstances of present cases, if we set aside the order of cancellation no fruitful purpose shall be served, because again the petitioners have no alternative but to appear before the Selection .Committee through the prescribed manner. In such view of the matter we are not inclined to interfere in the exercise of our constitutional jurisdiction.
13. We now take up the case of petitioner Shamsul Haq in C.P. No, 315 of 1990. Shamsul Haque appeared before the Selection Committee and was interviewed. He then found his name in the list of the candidates who were declared successful and as such he got admission. However, his admission has been cancelled on the ground that his name was enlisted because of a typographical mistake. We find sufficient force in the contention of Mr. Azizullah Memon that the Principal of the College is not competent to cancel the admission of a student who has been selected for admission by the Selection Committee and against whom there is no allegation that either he got admission through misrepresentation or through production of forged documents.
Para. 7 of the prospectus empowers the Principal to cancel the admission of only those students who have got admission through misrepresentation or by producing forged documents. Therefore the order of cancellation of the admission of petitioner Shamsul Haq in C.P.No,315 of 1990 was passed in violation of the principles of natural justice and against the provisions of the prospectus.
The orders cancelling his admission are, therefore, declared as having been passed without lawful authority and thus are of no legal effect. He shall, therefore, be allowed admission in the first semester as and when it starts. However, in the end we may observe that the petitioners shall not be prejudiced if, they seek admission afresh by filing applications to the Selection Committee, and the Selection Committee shall interview them in accordance with the provisions of the prospectus.
The present petitions are thus dismissed except Petition No, 315 of 1990 which is allowed. There, shall, however, be no orders as to costs.