' Faisal Bashir is son of Dr. Bashir Ahmed, Medical Officer in Mirpur city. He applied for his admission in M.B.,B.S. Course against the solitary seat reserved for doctors' sons. He secured 680 marks out of 1100, in Pre-Medical Examination, in 1992-93 Session. He was First Class State Subject, as such, prima facie, eligible to seek his nomination. Miss Saadia Malik also applied for the said seat. She was also First Class.State Subject. Her father and mother both were doctors. Her mother was a Dental Surgeon in Government service, posted at Mirpur. She secured 819 marks in F.Sc. (Pre- Medical) Examination held in 1993-94. The Nomination Board, respondent No,1, considered the case of the parties and found the petitioner suitable for his admission. He was allocated a seat in Ayub Medical College, Abbottabad, against the reserved seat for Azad Jammu and Kashmir. The decision was communicated to the Ministry of Health, through the Secretary, Health Department, Government of Punjab, Lahore and Secretary, Health Department, Government of N.-W.F.P., Peshawar, on November 16, 1993. The petitioner was informed on November 8, 1993.
2. Miss Saadia Malik, on knowing of the aforesaid position, submitted an appeal before the Prime Minister on November 8, 1993. The appeal was disposed of on November 10, 1993, in the manner that in view of the Prime Minister, the definition of term "Doctor" included all categories of doctors inclusive of doctors (M.B.,B.S.), Dental Surgeon (B.D.S.), Eye Specialists and Surgical Specialists. It was held that by virtue of this position, sons of doctors were equally eligible for their admission on the basis of their merit. Thus, admission on merit was valid and not otherwise. The observation was sent to the Secretary Nomination Board. On receipt of the observations of the Prime Minister, respondent No, 1, recalled its decision on December 14, 1993. The petitioner feeling aggrieved of the aforesaid order of respondent No, 1, and the observations of the Prime Minister listed above, invoked the jurisdiction of this Court, in order to seek annulment of these orders. The respondents contested the claim of the petitioner by supporting the impugned order.
3. Raja Muhammad Siddique Khan, the learned Counsel for the petitioner, raised the following points:---
(i) that the order of Nomination Board passed on December 14, 1993, was invalid as the petitioner alone was qualified and eligible for his nomination against the seat reserved for the sons of the doctors. The order of respondent No, 1 passed on December 14, was based on an illegal order passed by the Prime Minister on November 10. The Prime Minister not being competent authority, passed the impugned order without jurisdiction. Thus, both the orders were invalid;
(ii) that the order of Nomination Board was assailable under Rule 20 of the Instructions followed by the Nomination Board for nomination of the students against the reserved seats. Under this rule, a decision of the Nomination Board was appealable only before the Government and not the Prime Minister. Reference was made to PLD 1987 SC (AJ&K)
60. Rule 10 of the Rules of Business was also relied to establish that all orders of Government were to be issued. In the name of the President.
The impugned order not having been passed in the name of the President, was violative of the Rule; and
(iii) that the petitioner was deprived of vested right by securing nomination against the reserved seat. Thus, the impugned order having been passed without providing an opportunity of hearing was hit by the rule of audi alteram partem'.
' Mr. Mujahid Hussain Naqvi, attorney of respondent No, 5, controverted the aforesaid points. It was emphasised that the term "doctor" included a Dental Surgeon, Reference was made to Dictionary meaning. On merit, it was argued that respondent No, 5 having secured more marks than the petitioner, enjoyed superior position for her nomination against the reserved seat. It was argued that under section 12 of the Azad Jammu and Kashmir Interim Constitution Act, the term "Government" was defined to include the Prime Minister with his Ministers. Thus the status and position of the Prime Minister being higher to a Minister, the principle of law enunciated in PLD 1987 SC (AJ&K) 60, was not attracted in the present case. It was urged that the petitioner deserved no right of hearing as the order passed in his favour was void ab initio. Reference was made to Muhammad Rashid's case PLD 1987 SC (AJ&K) 60; 1983 CLC 219, 3136 and 1986 CLC 54 (e). Mr. Naqvi also referred to reserved seats in Punjab for the sons of the doctors, whereby the seats were allocated to different categories of doctors and medical staff and tried to distinguish the present case from Punjab as here only single seat was reserved for the sons of the doctors.
4. It is evident from the record that the petitioner and respondent No, 5 both applied to the Nomination Board for their nomination against the reserved seat for the sons of the doctors in Azad Jammu and Kashmir. It is undenied that the single seat has been reserved out of the general seats reserved for Azad Jammu and Kashmir, in M.B.,B.S. Course in different Colleges in Pakistan.
5. Miss Saadia Malik, respondent No, 5 secured 819 marks, whereas Faisal Bashir secured 680 marks in their Pre-Medical Examinations. Dr. Bashir Ahmed, father of the petitioner, is in Government service presently posted at Mirpur. Likewise, Lady Doctor Mrs. Nighat Malik, mother of respondent No, 5 is in Government service. She is also posted at Mirpur. Her service is more than 15 years. The father of respondent No, 5 is also highly qualified doctor. He is registered as Medical Practitioner, running his private Clinic in Mirpur city.
6. Vide Notification of April 2, 1986, the Government has constituted the Nomination Board. It consists of 8 members. The instructions issued by the Government for the functioning of the Nomination Board are available on record. Under section 17 of the said Instructions, it is postulated that a seat is reserved for doctors' sons for M.B.,B.S. Course. A candidate against such seat shall be such whose father or mother was in Government service as doctor, for not less than 10 years. The seat shall be awarded to one of the candidates having secured highest marks. Under the instructions, in order to avail the seat reserved for doctors' son, it was a condition-precedent (i) that father or mother of the candidate must be a doctor, (ii) that he must be in Government service for not less than 10 years; and (iii) in case of more than one candidate, the one who secured highest marks, shall avail the nomination.
7. In the present case, it is admitted that Miss Saadia Malik was daughter of doctors (her father and mother both being doctors). She secured highest marks (819). Dr. Nighat Malik, mother of respondent No, 5, was in Government service for the last more than 15 years. Prima facie, she was qualified for her nomination against the reserved seat. Nevertheless, the dispute arose as the mother of respondent No, 5 was a Dental Surgeon. It appears that the Nomination Board was impressed from the Degree of Dr. Bashir Ahmed who was M.B.,B.S. And was serving as Medical Officer. Such an impression led the Nomination Board to the conclusion that the petitioner alone was eligible to secure the seat. It was rightly pointed out by Mr. Naqvi that the term "doctor" in Dictionary meaning, includes, among others, the Dental Surgeon. Raja Muhammad Siddique Khan, the learned Counsel for the petitioner agreed to this position. In Blakiston's Medical Dictionary, II Edition, at page 220, the term "Doctor" was defined as:--- "doctor.
1. One licensed, usually after special study, and qualifying by examination, to practice medicine, dentistry, or veterinary medicine.
2. Recipient of an academic title signifying competence in special branch of learning.
3. Treat medically. Colloq."
' Mr. Hafeezullah Khan, Assistant Secretary, Pakistan Medical & Dental Council, Islamabad, vide a letter of January 3, 1994, intimated that the word "Doctor" included those who were registered to practice "medicine or "dentistry" with the Council. Mrs. Nighat Qureshi, mother of respondent No, 5, was registered with the Medical and Dental Council. The certificate of registration was appended with the written statement. It was also certified by the Health Department that she was serving in Government service w.e.f. January 22, 1976. This position leads to the conclusion that respondent No, 5 is a daughter of the doctor and was duly qualified to seek her nomination against the reserved seat for doctors' sons.
8. It was argued on behalf of the petitioner that nomination of the petitioner on November 7, 1993 and intimation to him on November 8, was only appealable to the Government under Instruction No, 20 of the Nomination Board and not to the Prime Minister. Since no appeal was preferred to the Government, the appeal before the Prime Minister and decision on it, were illegal for want of jurisdiction. Likewise, the decision of respondent No,1 whereby the nomination of the petitioner was recalled was also illegal. The term "Government" was defined under the Azad Jammu and Kashmir Interim Constitution Act, 1974, in section 12. It was postulated that the Executive Authority of Azad Jammu and Kashmir shall be exercised in the name of the President by the Government, consisting of Prime Minister and the Ministers which shall act through the Prime Minister who shall be the Chief Executive of the Azad Jammu and Kashmir. It was evident that the power of the Government was to be exercised by the Prime Minister and the Ministers. The Executive Authority was exercisable in the name of the President. The provisions relating to an appeal to the Government against the I order of the Nomination Board lead to the conclusion that the appeal was to be preferred to the Government. It was disposable by the Government in the c name of the President as postulated under section 12 read with Rule 10 of the Rules of Business. In Muhammad Rashid's case PLD 1987 SC
(AJK) 60, the impugned order was passed by a Minister, whereas it ought to have been passed by the Government, for grant of Ithalsa' land. It was held that an order passed by the Minister could not be construed as an order of the Government, as such it was invalid. On this analogy, it was proposed by Raja Muhammad Siddique Khan, that the order of the Prime Minister may also be declared invalid.
9. It is an accepted rule that an action has to be carried in accordance with the scheme of rules, instructions or directions, regulations, as the case may be. In the present case, the scheme of instructions to be followed by the Nomination Board suggests that the decision of the Nomination Board was appealable to the Government and the Government alone was competent to dispose it of. The disposition of the appeal was to take place in accordance with the scheme of law. In this view of the matter, the appeal before the Prime Minister and its disposition was violative of the instructions applicable to the Nomination Board.
10. In the present case, the nomination was made by the Nomination Board, therefore, in absence of any express exclusion of jurisdiction, it was competent, in the light of the provisions of the General Clauses Act (Section 21) to recall its order. Therefore, irrespective of the appeal of respondent No, 5 to the Prime Minister and its disposition, respondent No, 1 was within its competence to recall the order of nomination of, the petitioner provided by the time, the order was not given an effect. It was permissible to recall the order suo motu, on the information of any person or information received otherwise. This view finds support from Miss Uzma Ishaque's case PLD 1986 AJK 112. The relevant observation is reproduced:--- "It is by now well-acknowledged that an authority or Government is empowered to recall, withdraw, cancel or reverse its action till in consequence of such order or action, a decisive step was taken.
Under section 21 of the General Clauses Act, it was provided that the power conferred on an authority by an Act, Regulation, Notification, orders, Rules or bye-laws, included a power exercisable in the like manner and subject to like sanction and conditions to add to, amend, vary or rescind any notification, order, rule or bye-laws so issued. Under the general rule of locus poenitentiae as well as under the provisions of section 21 of the General Clauses Act, the consensus is that an action or order of the Government or authority cannot be retrieved or recalled provided in consequence of such order or action, a decisive step was yet to be taken. In the present case, as well in my view, the Board by virtue of rule of locus poenitentiae, was vested with power of rescinding or changing its decision till a decisive step was taken in that direction."
' It is accepted that the nomination of the petitioner was not given a critical effect by allowing him admission in the Medical College, before passing of the impugned order by the Nomination Board.
Therefore, action of the Board was protected by the provisions of section 21 of the General Clauses Act.
11. It is evident from the impugned order of December 14, 1993 that the Nomination Board revised its decision, in the light of the observations made by the Prime Minister. The observation was made in an implied manner, suggesting thereby that the term "doctor" included a Dental Surgeon, as such, the nomination may be made in consideration of the merit of students. The observation was made in correct perspective and it was not in the shape of a direction or decision, tantamount to annul the previous order of the Nomination Board. Therefore, the observation of the Prime Minister, though made on the appeal of respondent No, 5, was not in the nature of an order passed in exercise of appellate jurisdiction. The objection to that extent is not found sustainable.
12. Ordinarily, it is an accepted rule that no one should be condemned unheard. But right of hearing is not always a necessity. Denial of right must be accompanied by tangible injustice. In absence of bias and injustice, an omission in providing opportunity of hearing is not fatal. In the present case, as suggested by Raja Muhammad Siddique Khan, the learned Counsel for the petitioner, the petitioner was not heard at the time of recalling of order of the nomination. Factually, it was correct but it is to be seen as to whether hearing of the petitioner would have rendered an assistance to appreciate his position in different perspective. The answer is no. The actual position on merit has already been analysed elsewhere. Therefore, in presence of the representation made by the petitioner, through his previous applications, his case was already presented lucidly. Therefore, failure to provide an opportunity of hearing is not found to have caused him any bias. Since the earlier decision was wrong, in absence of any prejudice, an omission to provide an opportunity of hearing, was not, strictly speaking, violative of rule of `audi alteram partem'. No other point was canvassed in support of the petition.
13. The petition merits no consideration. It is, therefore, dismissed. No order as to costs.