1. SARDAR SAID MUHAMMAD KHAN, C.J---As the above entitled appeals arise out of the same judgment of the High Court, we propose to dispose the same by the single order.
2. The brief facts giving rise to the present appeals are that the Nomination Board constituted by the Government called applications for admission to various professional colleges is Pakistan, including medical colleges. Muhammad Azhar Hussain, appellant No.2, was nominated for admission to Ayub Medical College against `special seat', reserved for Kel area, situated in Muzaffarabad District. Miss Zubina Nayyer, respondent No.l, also sought admission in some medical college and submitted two applications for that purpose: one for the admission against the special seat reserved for Kel area and other for her nomination out of reserved seats for Muzaffarabad District. It may be stated that Muhammad Azhar Hussain, appellant, on the basis of merit, is entitled to be nominated against the general quota of the seats reserved for Muzaffarabad .District.
3. However, the Nomination Board nominated him against the `special seat' of Kel area and in his place Mazhar--ul-Hussain, appellant No.l, was nominated for admission against the general quota of seats. Miss Zubina Nayyer, respondent, challenged the relevant order of Nomination Board on the ground that as appellant No.2, Muhammad Azhar Hussain, was entitled to be nominated against a seat out of general seats reserved for Muzaffarabad District on the basis of merit, he was not entitled to be nominated on special seat reserved for Kel area. She assailed the impugned order as being violative of relevant rules and mala fide because according to her, the Nomination Board nominated Muhammad Azhar Hussain from Kel area so as to enable Mazhar-ul-Hassan, appellant No.l to get a seat out of general quota of Muzaffarabad. The High Court accepted the writ petition filed by Zubina Nayyer, respondent, holding that Muhammad Azhar Hussain, appellant, could not be nominated for admission in Ayub Medical College against special seat because he could get admission on the basis of merit out of general quota of seats reserved for Muzaffarabad District. It is against the aforesaid judgment of the High Court that the above entitled three appeals have been preferred. Syed Mazhar-ul-Hassan and Muhammad Azhar Hussain, appellants, jointly filed appeal against the judgment of the High Court; Azad Jammu and Kashmir Government and Nomination Board also filed another joint, appeal, whereas Anjum Shahzad filed a separate appeal.
4. It may be stated here that after the selection by the Nomination Board an additional seat was made available by the Punjab Government and, thus, the number of seats in medical colleges was increased from eight seats to nine; consequently, Syed Mazhar-ul-Hassan, appellant, has also been nominated on the basis of his merit against the additional seat and, thus, his grievance stands redressed. As a result, the learned counsel for the appellants, Ch. Muhammad Ibrahim Zia, did not press his appeal so far as the relief sought by Syed Mazhar-ul-Hassan, appellant was concerned; he only argued the appeal on behalf of Azhar Hussain, who was nominated against the special seat of Kel area. The Azad Jammu and Kashmir Government and the Nomination Board have also assailed the judgment of the High Court on merits; besides, they have challenged the legality of the same on the ground that the High Court has incorrectly awarded the costs to the petitioner-respondent. However, Mr. Sardar Khan, Advocate-General, who appeared for Azad Jammu and Kahmir Government and Nomination Board, did not press his appeal on merits but only challenged the same to the extent of question of costs awarded by the High Court. Anjum Shahzad, appellant, who was one of the candidates for nomination to a medical college, was placed at No.9 of the merit list and, thus, initially he had no chance to get admission to any of medical colleges but as a result of the additional seat provided, he now has a chance of nomination out of the general quota, provided Azhar Hussain, appellant, retains the seat from Kel area and is not considered for nomination out of general quota of seats: Consequently, Anjum Shahzad supports the case of Azhar Hussain, appellant, to the effect that his nomination against special seat from Kel area is in consonance of the relevant instructions on the subject and the judgment of the High Court is not sustainable.
5. We have heard the arguments and perused the file. It has been argued by Ch: Muhammad Ibrahim Zia on behalf of Azha Hussain, appellant, that the High Court has committed an error in holding that Azhar Hussain was not entitled to be nominated against the special seat of Kel area. He has maintained that he obtained highest marks from Kel area and, thus, he had a choice to seek admission against the aforesaid seat, irrespective of the fact that on merits he could be nominated out of the general quota of seats. He has stressed that in view of the contents of the telegram by which the special seat was created, Azhar Hussain, appellant was not obliged to apply for a seat out of general quota despite the fact that he was entitled to be nominated on the basis of merit from the general quota. The learned counsel has also argued that the seat of Kel area is a special seat and it also carries economic benefits, i.e., the education expenses of the student nominated against the aforesaid seat are to be borne by the Federal Government of Pakistan. The learned counsel has further contended that the said seat created in Ayub Medical College, Abbottabad, happens near to Muzaffarabad; as such Muhammad Azhar Hussain, being the best student from Kel area, had the option to apply for the said seat. The learned counsel has further maintained that as Azhar Hussain, appellant, did not apply for the seat out of general quota, he could not be nominated for admission out of the same and could be nominated only against the aforesaid special seat in the Ayub Medical College, Abbottabad. The learned counsel has referred to the relevant instructions which were issued by the Azad Jammu and Kashmir Government on 2nd April, 1986 which lay down the policy, conditions, mode and procedure for nomination to the professional colleges in Pakistan including the medical colleges. The learned counsel has submitted that as no violation of the aforesaid instructions has been committed by the Nomination Board while nominating Azhar Hussain, appellant, against the special seat from Kel area, the writ petition was not competent. He has further argued that as under Instruction No.20 of the aforesaid instructions, an appeal against the order of the Nomination Board could be preferred to the Government, the writ petition filed in the High Court was not competent as there was alternative adequate remedy available to Zubina Nayyer, respondent. The learned counsel for the appellants has submitted following authorities in support of his contention:
(1) Municipal Committee, Multan v. Bhai Kishan Chand (AIR 1927 Lah. 276).
(2) Gurdial Singh v. Central Board and Local Committee, Sri Darbar Saheb, Amritsar (AIR 1928 Lah.
6. 337).
(3) Dr. Muhammad Akram v. Allotment Committee, Mirpur Development Authority (PLD 1985 SC (AJ&K)113].
(4) Mir Alam Khan v. Mst. Afsar Jan (PLD 1982 SC.(AJ&K) 107).
(5) Mir Abdul Aziz v. Mirpur Development Authority (PLD 1986 Azad J&K 56]).
(6) Ch. Muhammad Anwar v. Ch. Muhammad Rashid (PLD 1987 SC (AJ&K) 41)).
(7) Bashir Ahmad Khan v. Mahmud Ali Khan Chowdhury (PLD 1960 SC 195).
(8) Province of West Pakistan v. Muhammad Afzal Khan (PLD 1962 Lah. 131).
(9) Syed Muhammad Alam v. Syed Mehdi Hussain (PLD 1970 Lah. 6).
7. The arguments advanced by the learned counsel for Azhar Hussain; appellant, were also owned by Mr. Ashfaq Hussain Kiyani, the learned counsel for Anjum Shahzad, appellant. He maintained that the order of the High Court is not sustainable in view of the relevant instructions on the subject. Mr. Sardar Khan, the learned Advocate-General, appearing on behalf of the Government and Nomination Board, merely maintained that as the Nomination Board allocated the seat to Azhar Hussain from Kel area according to the previous practice and there was no mala fide on its part, it was not the case in which the costs should have been awarded to respondent, Zobina Nayyer, by, the High Court.
8. In reply, Mr. Ghulam Mustafa Mughal, the learned counsel for Zubina Nayyer, respondent, maintained that it is not legally correct to suggest that there was no violation of the instructions in nominating Azhar Hussain, appellant, against the special seat of Kel area. He has maintained that it is clearly laid down in the relevant instructions that firstly a list on the basis of merit is to be prepared out of general quota of seats. Thus, the Nomination Board was bound to prepare a merit list for the general quota of seats reserved for Muzaffarabad and the merits of Azhar Hussain, appellant, should have also been considered but while preparing merit list for general quota of seats for Muzaffarabad District, Azhar Hussain was not , considered at all by the Nomination Board and, thus, a violation of the instructions on the subject was committed. He particularly made a reference to Instruction No.13 of the aforesaid instructions which stipulates a merit list against general quota. The learned counsel further argued that the special seat for Kel area could be allotted only if a candidate could not be nominated against general quota on the basis of merits because purpose of creation of special seat for Kel area was to remove backwardness of its residents in the education field. He has maintained that if a candidate from Kel area who is able to get nomination out of general quota of seats from Muzaffarabad District is allowed to opt for special seat of Kel area, it would frustrate the very purpose of special seat, because in such eventuality, the object of providing special scat to the residents of Kel area would not be achieved.
9. He has further maintained that mere fact that special seat provided for Kel area also carries economic benefits would not entitle a candidate from Kel area or for that matter Azhar Hussain to opt for the seat. So far as the competency of the writ petition in the High Court is concerned, it is maintained that the High Court has rightly held that the remedy provided under Instruction No.20 of the aforesaid instructions is not adequate especially so when the Government has supported the case of Azhar Hussain, appellant, and the order of the Nomination Board, as is also evident from the memorandum of appeal filed by the Government in this Court. He has supported his contentions by an authority reported as Novelty Enterprises Limited, Tariqabad, Mirpur v. Deputy Collector, Excise and Taxation/Sales Tax Officer (1993 CLC 1165).
10. We have given our due consideration to the matter. The moot point in the case is as to whether a candidate who can be nominated on the basis of merit out of quota reserved for Muzaffarabad District can opt for special seat according to his own choice. It may be stated that instruction issued for regulating the conditions, mode and procedure for admission to professional colleges were issued in the year 1986 whereas the special seat in question for Kel area was created in the year 1985 as is evident from the copy of telegram which was sent by the Kashmir Affairs and Northern Affair Division to the Azad Kashmir Government. The contents of the said telegram are reproduced below:-- "Health and Social Welfare Department Government of N.-W.F.P. vide their telegram No. SOII (TECH)
11. 2-9/85, dated 4th September, 1985 (copy enclosed with by post copy for ready reference) has pleased to sanction as a special case creation of one reserved seat in M.B.;B.S. 1st year in Ayub Medical College, Abbottabad with immediate effect session October 1985 for Azad Kashmir for the best F.Sc. (Pre-medical students) from Kel area in .Neelam Valley at the Federal Government expenses (.) It is requested that nomination against this seat keeping in view the criteria mentioned in the telegram may kindly be furnished to this Division alongwith other nominations for N.-W.F.P. Medical Colleges (.)"
12. This is correct that there is no specific mention of special seat of Kel area in the said instructions but the fact remains that the relevant instructions stipulate that the nominations to the professional colleges in Pakistan including the medical colleges are to be made according to the said instructions. For convenience, the opening para. of the Notification is reproduced as under:-- It is evident from the above extract that the instructions deal or, at least, support to deal with all kinds of seats including special seat of Kel area. Thus, it was imperative under instruction No.13 of the aforesaid instructions to prepare a merit list of the candidates for the purpose of nomination out of general quota of seats. For convenience, Instruction No. 13 is reproduced as under:-- It is evident that under Instruction No.13, the Nomination Board has to prepare a merit list; it implies that Azhar Hussain, appellant, should have been considered by the Nomination Board on merits against general quota of seats, irrespective of the fact that his application was for nomination against the special seat of Kel area. There is no provision in the relevant instruction for separate applications for seats of general quota and special seat. No separate applications were called for special seat in proclamation which was published in the newspapers. Therefore, the application of Azhar Hussain, appellant, did not debar the Nomination Board to consider his nomination against general quota of seats under Instruction No.13. A close perusal of the instructions would reveal that although a candidate may make choice for admission to a certain college but all the same the Nomination Board is not bound by such choice and is at liberty to nominate a candidate to another college of which he did not make any choice. Thus, the High Court has rightly held that Azhar Hussain, appellant, should have been nominated against a seat of general quota as he was entitled to it on merits, and not against special seat of Kel area which should have been allotted to a candidate who could not be nominated against general quota on merits. If the arguments advanced by the learned counsel for the appellants that Azhar Hussain had a choice to seek admission in medical college against special seat, it would not only violate the provisions of Instruction No.13 but .would frustrate the very purpose of creation of special seat which was in nature of a concession to Kel area in view of its educational backwardness. Obviously, if Azhar Hussain was entitled on the basis of merit from general quota of seaets reserved for Muzaffarabad District, he could not claim a choice against special seat merely because the same carries some economic benefits, especially so when no rules or instructions empower him to make such an option. The contents of the telegram sent to Azad Jammu and Kashmir Government by the Kashmir Affairs Division in connection with the creation of special seat for Kel area, show that the seat was a special seat in addition to the general quota of seats available to Muzaffarabad District including Kel area. Thus, the special seat would be available for the best student from the Kel area who could not be nominated on merits against general quota. The telegram cannot be interpreted to mean that even if a student is entitled to be nominated out of the general quota of seats he is to be nominated against special seat at his option. The expression `best students' implies the best `student' out of the `students' who could not get seat on merits from general quota. The purpose of the telegram was to intimate the Azad Jammu and Kashmir Government that a `special seat' has been made available for Kel area.. Had the Azad Kashmir Government intended that special seat could be allotted to a candidate from Kel area at his option, it would have made specific provision to that effect in the relevant instructions. Thus, it cannot be said that Azhar Hussain was entitled to make a choice for the special seat depriving the second best candidate from Kel area, i.e., the respondent No.l from nomination againsthe said seat. So far as the authorities submitted by the learned counsel for theappellant in support of his contention that a Court of law cannot fill in the lacuna in rules or a statute by supplying the words or phrases are concerned, we have no quarrel with the proposition enshrined in the authorities relied upon by the learned counsel for the appellant. But when we say that Muhammad Azhar Hussain, appellant, should have been considered against general quota of seats while preparing merit list in view of the instructions governing the matter, the principle enunciated in the said authorities is not violated. We do not supply any word or phrase to the said instructions but only apply the provision contained in the said instructions to the case in hand. The argument that under the instruction, Muhammad Azhar Hussain, appellant, was not obliged to submit an application against the general quota of seats is not tenable because the relevant instruction does not postulate that separate applications for special seat and the general quota were necessary. Thus, the argument that if the judgment of the High Court remains intact it would tantamount to supplying the words or phrases to the instructions is not tenable and is hereby repelled.
13. So far as the argument that as the alternative remedy was available by way of appeal under Instruction No.20 of the instructions the writ was not competent is concerned, we are of the view that in the instant case, the remedy provided under Instruction No.20 cannot be regarded to be efficacious, speedy and appropriate because the Government all along supported the case of the appellants and, thus, it cannot be said that the respondent had an efficacious remedy at her disposal by way of appeal to the Government.
14. So far as the question of the Government's appeal regarding the cost is concerned, we are of the view that in the circumstances of the case, the High Court was not justified in awarding costs to the respondent in the instant case. Thus, the appeal of the Government and Nomination Board is partly accepted to the effect that respondent, Zubina Nayyer shall not be entitled to any costs of the writ petition borne by her in the High Court.
15. In the light of what has been stated above, except for the modification of the judgment of the High Court regarding the award of cost to the respondent, the above entitled three appeals are hereby dismissed with no order as to costs of this Court.
16. The judgment shall be sent to the Registrar, Supreme Court at Muzaffarabad who shall announce the same in presence of the counsel for the parties.
17. MIRPUR, (Sd.) CHIEF JUSTICE 27-3-74. (Sd.) AD HOC JUDGE: