IHSAN-UL-HAQ CHAUDHARY, J.- The petitioner through this Constitutional petition has prayed for declaration that the order of cancellation of her admission to MA. Fine Arts is without lawful authority and for direction to the respondents to allow her to attend classes. The relevant facts are that the applications were invited for admission to different departments of the Lahore College for Women. The petitioner had done her graduation. She applied for admission to MA. Fine Arts in the prescribed proforma. The test was taken on 11.10.1993 while interviews were scheduled for 14.10.1993.
The first merit list of IS candidates, who were granted admission was notified, whereby the students were asked to pay their dues from 31st October, 1993 to 4th November, 1993. Thereafter second list was notified and 6 successful candidates were directed to dear their dues between 6.11.1993 to 10.11.1993. It is added that the petitioner was informed by a class mate that she has also been granted admission. She accordingly went to the College, collected the deposit slip and paid the dues. This was done on 16.11.1993. The petitioner was allocated Roll No. 405 and she started attending the classes. It is added that on 17.11.1993 Mrs. Akhtar Saeed took petitioner to her office and informed that the petitioner has been granted admission by mistake, therefore, she should leave the College.
Thereafter the petitioner was taken to the office of the respondent No.1 where the respondent No.3 was also present. The respondent No.1 allegedly shouted at the petitioner and asserted that she has been admitted by mistake, therefore, her admission has been cancelled. The respondent No.1 further remarked that she had to make place for another girl who has been recommended by the Minister. The petition was admitted to hearing and notices were issued to the respondents, who have appeared and contested the petition.
2. The learned counsel for the petitioner in support of the petition argued that once the admission was granted, the dues were deposited and petitioner started attending classes the respondents could not rescind, recall or withdraw the admission order because the decissive steps have been taken and they had lost right to repent. In this behalf, the learned counsel has referred to Pakistan, Through , The Secretary, Ministry of Finance Vs. Muhammad Himayatullah Farukhi (P.L.D. 1969 S.C.
407). It is added that the petitioner neither made mis-statement nor withheld any material information from the respondents while seeking admission and she cannot be thrown out of College. In this behalf, the learned counsel has referred to Chief Secretary, Government of Sindh and another Vs. Sher Muhammad Makhdoom and 2 others (PX.D. 1991 S.C. 973) and Muhammad Bilal Vs. The Principal National College of Textile Engineering Faisalabad (N.L.R. 1991 Civil 553). It is submitted that the principle of locus Poenitentiae proceeds on the basis that there was some mistake and since the individual is weak as against the State, therefore, the purpose was to safeguard the rights of the individual against the State.
3. On the other hand, the learned counsel for the respondents No.1 and 2 argued that according to prospectus as well as the notice published in the newspaper inviting the applications for admission it was made clear that the applicant should not only had done their graduation in 2nd Division but also must have to her credit 2nd Division marks in the subject in which admission was sought. It is added that although the petitioner has done her graduation in 2nd Division yet in the Fine Arts she had not obtained 90 marks i.e. From where the second division starts. It is added that she had only 84 marks to her credit, therefore, she was basically not qualified for admission. It is submitted that since there were large number of students, who took written examination, therefore, the petitioner could not be checked. However, it is maintained that the staff at the gate repeatedly announced that the students with 2nd Division can only take the exam. The next submission is that the petitioner has to take exam as well as to appear in interview to qualify for admission but as per her own showing she was not interviewed, therefore, she was not entitled to admission on this score, also. The next submission in continuation of the second argument is that the petitioner has only 31.93 marks to her credit in accordance with the merit list, therefore, she could not be granted admission. The learned counsel, in this behalf, has placed on record tabulation which is hereby marked as 'Z/l'. It is submitted that when the mistake basis of the order is patent then order can be withdrawn. In this behalf, the learned counsel has referred to The Engineer-In-Chief Branch through Ministry of Defence, Rawalpindi and other Vs. Jalaluddin (P.L.D. 1992 S.C. 207). The arguments are summed up with the submission that the admission to a College is not a vested right, therefore, the petitioner cannot maintain Constitutional petition. In this behalf, the learned counsel has referred to Abdul Qadir Bhatti and another Vs. Government of Sind through Secretary, Ministry of Health, Karachi and another (P.L.D. 1976 Karachi 1102) and Samar Pervaiz Vs. Board of Intermediate and Secondary Education, Lahore and another (P.L.D. 1971 S.C. 838).
4. The learned counsel for the respondent No3 argued that since the petitioner was lacking the basic qualification for admission as she had not obtained 2nd Division marks in Fine Arts, therefore, she was not entitled to even apply for the admission. It is submitted that the admission obtained fraudulently cannot be protected and no vested right is created. In this behalf, the learned counsel has referred to Abdul Qadir Bhatti and another (Supra), Muhammad Imtiaz Ahmed Shaikh Vs. Principal and Chairman, Academic Council, Chandaka Medical College, Larkana and another (P.L.D.
1976 Karachi 1154) and Muhammad Razaq Vs. Province of Baluchistan through secretary Health, Quetta and 6 others (P.L.D. 1976 Quetta 64). It is added that the admission wrongly granted could be withdrawn and the principal of locus Poenitentiae is not involved. The learned counsel has referred to the cases of the Engineer-In-Chief Branch through Ministry of Defence, Rawalpindi and another (Supra), Samar Pervaiz (Supra) Humera Satwat Yusuf Vs. The Government of the Punjab through the Secretary of the Health Department, Lahore (P.L.D. 1971 Lahore 641), Muhammad Yaqoob Vs. Zahir Alam and 10 others (P.L.D. 1976 Quetta 77) and Miss Shazia Tabassum Vs. Selection Committee Constituted for Selection of Candidates for Bolan Medical College, Quetta and 3 others (P.L.D. 1993 Quetta 9). It is added that the prospectus of an Institution has force of law. In this behalf, he has referred to Zubeda Bibb Vs. Selection Committee for Bolan Medical College, Quetta and 3 others (P.L.D. 1993 Quetta 14) and added that it was for the candidates to observe the rules etc. Governing the admission. In this behalf, he has referred to Shamshad Ahmad Vs. Government of Sind and others (1980 S.C.M.R. 440). It is added that when mistake is apparent on the face of record then even show cause notice is not necessary before taking action. In this behalf, he has referred to Pakistan Mineral Development Corporation Ltd. Vs. Pakistan Water and Power Development Authority and 2 others (P.L.D. 1986 Quetta 181)r and Government of Pakistan through Secretary, Education and 2 others Vs. Shahid Afzal and another (1981 S.C.M.R. 101).
5. The learned counsel for the petitioner while summing up the arguments submitted that admission to an Institution once granted cannot be withdrawn because on the one hand it creats a vested right and on the other hand, the petitioner would be deprived of education at least for the current year for no fault of her. It is explained that it is not possible for her to obtain admission in another Institution or in another faculty at this time of year. In this behalf, he has referred to Shazia Bashir Vs. Government of Punjab and others (1989 M.L.D. 1881). The arguments are concluded with the submission that the right of the petitioner is to be seen on the last date. In this behalf, the learned counsel has referred to Muhammad Tariq Raza Vs. Province of Punjab and others (1992 C.L.C. 1181).
6. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The admitted position on record is that the students who passed their graduation in 2nd Division and also had 2nd Division marks (45%) to their credit in the subject in which they wanted to do the MA. Could apply. The petitioner had obtained 84 out of 200 marks in the Fine Arts, therefore, she could not apply for the admission to MA. Fine Arts in accordance with the prospectus of the College and the advertisement. I wish the matter would have ended here but due to the sheer negligence and inefficiency of the respondents this inherent defect in her qualification was not noticed. In this behalf, before proceeding any further it is relevant to refer here to the schedule of admission process as appeared in the Daily 'Nawa-i-Waqt' dated 19.9.1993, which reads as under:-
(i) last date for making applications 27.9.1993 till 2.00 p.m.
(ii) date for written test 11.10.1993
(iii) date of interview 14.10.1993
(iv) date of notification of first list on merit without a date but probably on 30.10.1993.
It is clear from the above schedule that there were more than two weeks intervening between the last date for receipt of the admission forms and the written test. This was obviously justified and the purpose must have been to scrutinize the applications. In preliminary objection No.1 it was urged that since the number of students was so large and the time given was \very short, therefore, it was not possible to check result card of each and every student so repeatedly announcement was made that the students only passing BA. Examination as well as the subject in 2nd Division should enter the Examination Hall.
7. The learned counsel for the respondents No.1 and 2 was asked to intimate this Court as to the total number of applications received by the respondents for admission to MA. Fine Arts. The total number according to Annexure 'Z/l' comes 41 out of which 9 were absent. This could not be by any standard termed as so large and unmanageable crowd. The respondent No. 3 had categorically stated in her explanation annexure 'Z/2' submitted by the respondent No.1 alongwith her statement that she was not aware that the required minimum marks in the subject are 45%. This also falsifies the plea of the repeated announcement outside the hall because if the announcements were made the respondent No.3 must have learnt about the basic qualification.
This is not all. There, as already noted, more than two weeks intervened between the written test and the submission of the forms. It was the duty of the respondent No.1 to get the application forms checked up and get a list of eligible candidates prepared and notified. This was not done. I have failed to understand the purpose for the gap of two weeks when nothing was to be done. This is not all. The petitioner has not cheated. She admittedly had appended with the admission form correct copy of the provisional certificate, therefore, this is first step where the respondents are guilty of gross inefficiency and indifferent to their duties.
8. The interviews were held as per schedule on 14.10.1993. The petitioner alleged that although she appeared at her turn yet she was not interviewed. This was the other stage where the respondent No.1 should have known of the marks obtained by the petitioner in the Fine Arts in her BA. The members of Interview Board must have complete data of the candidates before them. There cannot be any explanation for failure on the part of the respondents particularly respondent No.1 and 2 in this behalf except that they were indifferent towards the admission process or it was just a formality.
Now coming to the Annexure 'Z/l'. The name of the petitioner appeared at serial No.37 and in the interview column a line has been put to show that she was not interviewed. This is the document on the basis of which the learned counsel for the respondents vehemently argued that she was not qualified to be admitted to the College because she was not interviewed. While this point was being argued with reference to this annexure, I expressed my doubts as to the genuineness of this document but the learned counsel maintained that she was awarded zero mark and thus she had only 31.93 marks to her credit, therefore, was not entitled to admission on merits as well. On the other hand, the learned counsel for the petitioner argued that this document is a forged and fabricated document introduced with purpose to make out a plausible defence otherwise the petitioner was granted 5 marks in the interview and if these 5 marks are added to her total appearing in this document then petitioner was entitled to admission on merits. The learned counsel, in this behalf, referred to Annexure 'R/5' with the written statement. This is an explanation submitted by the respondent No.1 to the Secretary Education on the complaint lodged by the petitioner. The relevant portion reads as under: - "...... Subject who according to the explanation of the head of department managed to tamper with the proforma by hook or crook and added 5 marks in the blank column of interview to enable her to qualify for the aggregate of III merit list and unluckily the teacher on duty signed her admission slip in ignorance".
This prima facie supports the contention of the learned counsel for the petitioner because even in accordance with respondent No. 1's own showing the petitioner had 5 marks to her credit in the interview. The leamed counsel for the petitioner further added that the plea is false on the face of it because according to the respondent No.2 she only looked at the total marks obtained by the petitioner. The relevant portion of her version reads as under:* "... .The staff member who had made the original list was on leave and the staff member who was asked to make the admission and prepare the challan forms did not realize that the candidate was not eligible for admission and just looked at the grand total...."
It is another matter that in the total the 5 marks of the interview have not been added. The learned counsel vehemently argued that the tabulation annexure 'Z/l' and copy of its page appended with the written reply are forged and fabricated documents. On the basis of this material it was forcefully argued that the respondents No.1 and 2 are not only inefficient and guilty of dereliction of the duty but they can go to any extent and come down to any level to justify their action.
9. It is interesting to note that the merit list prepared has neither been signed nor initialed by the respondent No.1 and members of the Board. What authenticity can be attached to this list and what is its effect would be discussed towards the conclusion of this judgment. Be that as it may, this is the third occasion where the respondent No.1 failed to handle the affairs.
10. Before switching over to the next point it is worthwhile to refer to the procedure adopted by the respondent No.1 for granting admission to the students at least to the M A. Classes as there is nothing on record as to what havoc is being played to the rights of the students of first Year and Third Year classes. The procedure adopted is inflagrant violation of the merit policy. The written test carries 25 marks which is arranged by the head of the department with the assistance of the other staff while there are 10 marks reserved for interview and respondent No.1 is the Chairman of Interview Board. This way the respondents No.1 and 2 carry 35 marks in their pockets which arm them with more than sufficient power to grant admission to the students of their own choice. In the manner the merit list is tabulated has been discussed in foregoing paragraph. No authenticity can be attached to the tabulation made by the respondents No.1 and 2. The students to the top professional Colleges especially Medical Colleges and Engineering University are granted admission in accordance with their performance in the F.Sc Pre-medical Engineering or other examinations but perhaps it does not suit all concerned as it would take away their power of exploitation in the matter of admission but now when the fundamental rights are in force they cannot be constitutionally and legally allowed to conduct the affairs in the manner it suits them.
The admission should be absolutely on merit in accordance with the performance of students in the previous examinations held by the statutory bodies like Board of Secondary Education and Universities. The conditions of over all second division and also second division in the subject are justified while the written test and interview by the College Authorities surely furnish basis for nepotism, favouritism and corruption. It of course suits the College Authorities because on the one hand they have assumed absolute and arbitrary powers in the admission matters and on the other hand, provided them ample opportunity to oblige their superiors which is necessary to maintain their high position. In the present case out of 82.5. Marks the respondents have 35 marks in their pockets which are sufficient to exclude the students entitled to admission on merit, therefore, this provision in the prospectus is declared unconstitutional and illegal I am fortified in my view by the judgment reported as Ajay Hasia etc. Vs. Khalid Mukin Sehravardi and others etc. (A.I.R. 1981 S.C.
487).
11. The learned counsel for the petitioner seriously and vehemently argued that the respondent No.1 is guilty of malpractices in the admissions. It is not for this Court to hold an enquiry. I wish that the Secretary Education should have probed into the complaint of the petitioner beyond sending for explanation of respondent No.1. The learned counsel for the petitioner submitted that this was not done because the respondent No.1 has vast powers and she has been obliging her superiors, therefore, the Secretary Education could not proceed against her.
Be that as it may, it is not for this Court because this is out of the scope of this writ petition. There is another issue which requires to be dealt with. The petitioner when complained to the Secretary Education the respondent No.3 took up the stand that the admission was granted on account of a mere over sight and human error on the part of staff members of the Fine-Arts Department. In the end she regretted for the human errors of her staff members. It is very easy to shift blame to the others and especially to the subordinates. The respondent No.1 was Chairman of the Interview Board. How she can absolve herself of the responsibilities of not going through the personal data of the students to be interviewed. She was directly involved at least at this stage. This is beside her liability for the lapses as head of the Institution. She is responsible for all and every lapse committed by her staff because that would show that she has no grip on the administration and lack of interest in the affairs of the Institution. It is not possible to believe all this. The statement of respondent No.3 is also appended with Annexure 'R/5', which as a whole and particularly paras 5 and 8 of it tried to prove the above observations about respondents No.1 and 2. It seems that she has refused to become party to the misdeeds of respondents No.1 and 2. This is also evident from the argument of the learned counsel for the respondent No.1 and 2 that on account of her lapse she has been adversely reported. If that is so then it is most unfortunate and unfair. The anxiety of the respondents No.1 and 2 seems to be to save their own position and to shift the burden to somebody else and for that junior most in the hierarchy is always the best suitable person.
12. The action against the respondents No.1 and 2 for deliberately making mis-statements and producing forged and fabricated documents is not being initiated and it is deemed sufficient that a copy of this judgment be sent to the Secretary Education for information and necessary action especially in respect of future admissions to the Institutions as such instances and policies mar the reputation of prestigeous institutions. A copy also to be placed on the ACR Dossier of respondents No.1 and 2 because this will help their Reporting Officers and Countersigning Officers to assess their performance.
This petition was liable to be accepted but during the pendency of this writ petition petitioner moved Crl.Orgl.. No.241-W/94, wherein it was alleged that the respondent No.1 had not allowed the petitioner to deposit the examination fee and admission form to take M A. Part I Examination. The notice of the same was issued to the respondent, who submitted reply and explained that the petitioner failed to qualify send up examination for MA. Part I. Thereafter she alone with other students was given another chance to qualify the send up examination but this time the petitioner was found cheating and she confessed her guilt in writing. Now if this petition is allowed the respondents can set at naught the order passed by processing the case of unfair means. The Court should not pass an order which can be circumvented or set at naught by the respondents, who in this case, are capable of going to any extent as is evident from the preceding paragraphs of this judgment.
13. The upshot of this discussion is that this writ petition is dismissed with no order as to costs.