' SHEIKH ABDUL MANNA N, J.---This judgment will dispose of W.P. No,10535 of 1992, W.P. No,10536 of 1992 and W.P. 11240 of 1992 against the respondents refusing admission to the petitioners in the first year M.B.,B.S. Class in any of the Medical Colleges.
2. Briefly stated the facts of the case are that applications were invited for admission in the first year M.B.,B.S. Class and the last date was fixed as 25-10-1992 but the applications of the petitioners were not entertained as by then result was not declared till 31st October, 1992. In view of this the respondents refused to entertain the application of the petitioners relying upon Rule 12(1) of the prospectus which is reproduced as under:--- "Applications submitted personally will be received at both the offices on all working days during the office hours from 8-00 a.m. To 1-30 p.m. And on Thursday up to 12-00 noon, against receipt. In case of applications submitted through Registered Acknowledgement Due mail, no separate receipt will be issued. No application will be entertained after the expiry of the last date."
' On the basis of the above rule, the respondents refused to entertain the applications of the petitioners as on or before 25th October, 1992 the result of the petitioners was not declared.
However, the same was notified on 31-10-1992. According to the petitioners their father received a secret communication from the Board of Intermediate and Secondary Education, Sukkur informing that one of the petitioners (Shazia Hadi) expected to secure 75 per cent. Marks and the other (Sobia Hadi) 76 per cent. Out of 1100 and this communication was presented to the respondent alongwith the applications on 25th October, 1992 but the same was not entertained being in contravention of the aforesaid rule. The case of the respondents mainly is that admittedly the result of the petitioners having been declared after 25th October, 1992, the last date fixed for the receipt of the applications, the petitioners were not entitled to apply and consequently, the refusal to admit them was justified in law.
3. We have heard the learned counsel for the parties and have also received the report of the respondents in these cases. As is stated above, the respondents reiterate their position treating the petitioners as ineligible to apply, the result in their case having been declared on 31-10-1992 and not on or before 25th October, 1992. This is, however, an admitted factual position and cannot be denied by either party.
4. One of the writ petitioners has obtained 865 marks and the other 852 marks out of 1100 marks and there is a statement of Dr. Muhammad Moazzam, Registrar Neuro Surgery appearing on behalf of the Principal, King Edward Medical College that students obtaining less than 834 marks have been admitted in various Medical Colleges on merit basis but they applied within the time limit.
5. A substantial question of law has arisen in these writ petitions as to whether the petitioners could be denied admission on the basis that their result was not declared on or before 25-10-1992 but on 31-10-1992. The respondents are relying upon the aforementioned rule while the case of the petitioners is otherwise and it is submitted that Rule 12(f) cannot take away the right of the petitioners for admission and this has to be interpreted in their favour particularly when they have obtained more marks than were needed for admission on merit basis. In this way they referred to the statement of Dr. Moazzam conceding that the girls with less than 834 marks have been admitted. Whatever may be the factual position the question would still arise if the petitioners can be non-suited in view of Rule 12 (f), aforementioned.
6. After hearing the parties at length we are of the view that the case of the petitioners is not hit by the rule in question and these writ petitions must succeed firstly on the ground that the right of the candidate for admission and his/her merit is to be determined on the date when the final selection was to be made and admittedly in this case this was finalized on 3-11-1992 after 31-10-1992 when the result of the petitioners was already there. This is so held in Habibur Rehman v. Government of Pakistan and others (1979 SCM R 121) Ghulam Murtaza v. Chairman Selection Board/Principal. K.E.
Medical College, Lahore etc. (1981 CLC 274) and Muhammad Ziaul Haq v. Admission Board of Medical Colleges of Punjab etc. (1991 M LD 1648). Keeping in view the above principle of law the respondents could not have refused admission on the ground that the result card was not there on 25-10-1992. The above principle of law was made applicable by one of us (Malik Muhammad Qayyum, J.) in Muhammad Tariq Raza v. Province of Punjab and others (1992 CLC 1181).
7. There is another legal aspect of the case and the petitioner cannot be denied permission on the ground that the result card was not produced on or before 25-10-1992. The publication of the result and issuance of the result card is not within the control of the petitioners but within the domain of Educational Authorities. In these circumstances the petitioners arc entitled to the maxim 'lex non cogit ad impossibilia "The law does not compel a man to do that which he cannot possibly perform". In Broom's Legal Maxims the author places three conditions for taking benefit and the same are reproduced as under: " In the first place, it must see that the nature of the necessity pleaded be such as the law itself would respect, for there may be a necessity which it would not. A necessity created by a man's own act, with a fair previous 'knowledge of the consequences that would follow and under circumstances which he had then a power of controlling, is of that nature. Secondly, that the party who was so placed used all practicable endeavours to surmount the difficulties which already formed that necessity, and which, on fair trial, he found insurmountable. I do not mean all the endeavours which the wit of man, as it exists in the acutest understanding, might suggest, but such as may reasonably be expected from a fair degree of discretion and an ordinary knowledge of business. Thirdly, that all this shall appear by distinct and unsuspected testimony, for the positive injunctions of the law, if proved to be violated, can give way to nothing but the clearest proof of the necessity that compelled the violation `(r)'."
' We have no doubt in our minds that case of the petitioners is fully covered within the ambit of aforesaid maxim and the petitioners are entitled to take benefit of it. The declaration of the result, as already observed, is beyond the powers of the petitioners and the same was notified by the relevant Board on 31-10-1992 when the final selection was not made by the respondents.
8. In Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) it has been ruled by the Hon'ble Supreme Court as under:-- "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history.
It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fides. Over a period of time this development of codes and rules led to the evolution of what is called "jurisprudence of conception" a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, rule 33 of the C.P.C. In regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. It was observed by Kaikaus, J. In Imtiaz Ahamd v.
Ghulam All (PLD 1963 SC 382) as follows :-- 'I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his'."
' In a similar context, Cornelius, C.J. As he then was, observed in Province of East Pakistan vs. Sirajul Haq Patwari (PLD 1966 SC 854) as follows:-- "It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of the High Court in interpreting and applying the relevant instruments including the Constitution to bear in mind the great maxim ut res mages valeat quam pereat that is to say, that the affair should prosper rather than be brought to destruction. It may be that the maxim that was borne in mind was rather fiat justitio rual coelum, that is to say let justice prevail though the heavens should fall."
' In Government of Balochistan and others v. Rifat Parveen (1981 SCM R 1002) it has been ruled by the Hon'ble Supreme Court as hereunder:-- "The status of the Rules or Regulations embodied in the prospectus could not, in any case, be placed higher than rules or bye-laws framed in exercise of delegated powers, or executive authority.
' Proceeding on this assumption, we have no hesitation in endorsing the view previously taken by this Court in the two recent cases mentioned above, to the effect that such a bye-law or rule can be struck down on the ground of unreasonableness."
In view of the settled legal position the plea of the respondents treating the petitioners as ineligible for admission on the basis of Rule 12(f), cannot prevail. The petitioners undoubtedly have obtained marks higher than the merit list and consequently are entitled to admission in one of the Medical Colleges.
9. The facts of Writ Petition No,11240/92 are similar to the aforementioned two cases. The petitioner obtained 826 marks in F.Sc. Examination and was entitled to seek admission on the basis of merit and by order dated 20-12-1992 of this Court respondents were directed to grant provisional admission to the petitioner forthwith. As the case of the petitioner is not different, her writ petition also succeeds.
For the foregoing reasons, all the three writ petitions are accepted and the respondents are directed to admit the petitioners without disturbing any other candidates already permitted admission. There is no order as to costs.