1. JAVED IQBAL, J.---This is Constitutional petition preferred under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) on the following prayer:--- "It is accordingly respectfully prayed that it may be declared:---
(I) that order dated 12-10-1993 passed by the Board on the findings of Disciplinary Action Committee and order dated 28-11-1993 passed on the basis of findings given by Appellate Committee have been passed without lawful authority and consequently of no legal effect;
(ii) that the order dated 15-12%993 passed by respondent/Selection Committee refusing admission to petitioner and granting admission to private respondent in preference to petitioner is illegal, void, arbitrary, capricious, discriminatory, in violation of admission Policy and has been passed in exercise of jurisdiction not vested in respondents, therefore, is of no legal effect.
(iii) that the petitioner has lawfully passed his F.Sc. Examination and is eligible and entitled to admission in Engineering College and respondents Nos.1 to 4 be directed to grant him admission in the Engineering College, Khuzadar.
(iv) Any other relief as may be deemed fit and appropriate in the circumstances of the case may also be passed along with costs of the petition."
2. 2.Briefly stated the facts of the case are that petitioner is permanent resident of Mastung, who passed Matriculation in the year 1989 by obtaining 486 marks and took admission in Government Science College, Quetta, as a regular student of F.Sc. (Pre-Engineering) for the Session 1989-91 and passed his F.Sc. Examination from the Board of Intermediate and Secondary Education in the year 1991 and obtained 602 marks plus 20 marks, secured on the basis of N.C.C. It is further averred that the petitioner while he was studying in F.Sc. Also got admission in Government Poly Technic Institute on 1-3-1990 and secured 'Diploma of Associate Engineer" (D.A.E.) by obtaining 1946 marks out of 3450 marks. The admissions in Engineering College for Sessions 1993-94 were announced and being eligible the petitioner also applied for admission against one of the three allocated seats for District Mastung. The petitioner according to merit list was placed at S.No,2. The candidature of the petitioner was, however, objected on the ground that he was simultaneously in possession of D.A.E. And F.Sc. Certificates, and resultantly the matter was referred to Board. It is, however, stated that petitioner himself submitted an application to Board, explaining the position for having two Certificates simultaneously, which according to him was due to lack of knowledge, but in good faith. The petitioner also requested for cancellation of his D.A.E. Certificate, but the Disciplinary Action Committee in its meeting dated 2-101993 cancelled the result of F.Sc.
3. Examination and informed the petitioner accordingly vide letter dated 12-10-1993. The appeal filed in this regard was also rejected by the Appellate Committee vide order dated 28-11-1993. The above state of facts were also brought to the notice of Selection Committee and consequently the petitioner could not get admission in Engineering College and decision of the. Selection Committee communicated to the petitioner on 15-12-1993, hence this petition.
3. It is mainly contended on behalf of the petitioner by Mr. Tariq Mehmood, Advocate, that the cancellation of petitioner's F.Sc. Result was in violation of the law and rules and no such jurisdiction was vested in the Board to make such a decision and the result once announced could not have been recalled. It is emphatically urged that the result of F.Sc. Was cancelled without affording a proper opportunity of hearing, which is in violation of the principle of natural justice. It is also argued that the Disciplinary Action Committee and Appellate Committee had violated their domain of jurisdiction and passed an illegal and unlawful decision which caused grave miscarriage of justice to the petitioner. It is also pointed out that as per the prevalent rules in order to be eligible to appear in Intermediate examination a candidate must have passed not less then two years previously the Secondary School Certificate Examination. The petitioner passed his Matric in 1989 and Intermediate in 1991 and thus he was not suffering from any disqualification and as such the Disciplinary Action Committee and Appellate Committee could not question both the certificates obtained by the petitioner in lawful manner and more so, that his result could not have been questioned as he appeared in his Intermediate examination in 1991 and passed Matriculation in 1989 and thus the requisite gap of two years was available to him. It is further submitted that his D.A.E. Certificate could have been cancelled in the interest of the future of petitioner and to save him from hardships. It is also pointed out that Selection Committee had acted illegally and failed to consider that petitioner's D.A.E. Certificate stood intact as per requirement of 2.11 of the Admission Policy and the Committee did not apply its mind properly to the factual and legal aspect of the matter. A few instances have also been quoted of certain candidates to whom admission was granted in similar conditions.
4. 4.The above explained position has been controverted strenuously by Mr. K.N. Kohli, Advocate, who appeared on behalf of private respondents and submitted that no illegality or irregularity whatsoever has been committed by the Selection Committee and a fair opportunity of hearing was afforded to the petitioner, who was not eligible to take admission keeping in view the provisions as contained in para. 2.11 of the Admission Policy. It is argued with vehemence that the petitioner has concealed the factual position and failed to approach this Court with clean hands, and therefore, petition deserves dismissal. It is also mentioned that being a Government servant he is not eligible to take admission in Engineering College, Khuzdar.
5. Mr. Yaqoob Khan Yousafzai, the learned Advocate-General also opposed this petition on the ground that the impugned order of the Selection Committee being free from any infirmity or illegality may be kept intact. It is also argued that the petitioner got the present employment on the basis of his D.A.E. Qualification as Sub-Engineer in Public Health Engineering Department and being a Government servant, the question of admission in Engineering College, Khuzdar does not arise.
5. 6.Mr. Khadim Ali, Advocate remained present on behalf of Board of Intermediate and Secondary Education, Quetta (respondent No,5) and apprised the Court regarding the irregularities committed by the petitioner and his fraudulent conduct and to substantiate his version produced the Admission Forms whereby it was stated on affidavit by the petitioner that he was not a student of any other College or Institute. He also supported the decision of Disciplinary Action Committee and Appellate Committee.
6. 7.We have carefully examined the contentions as adduced on behalf of the parties in the light of relevant record, admission policy, the verdict of Selection Committee and the proceedings of Disciplinary Action Committee and Appellate Committee. The striking feature of the matter is that the petitioner has concealed his employment as Sub-Engineer in Public Health Engineering Department and on this score alone he could have been knocked out from the competition on the simple ground that no Government Servant is eligible to take admission in Engineering College. The said conduct also depicts that this Court has not been approached with clean hands. The principle "He who seeks equity must do equity" has been violated. We have also examined the decision of Selection Committee, which runs as under:-- NAME REMARKS Niaz Ahmed son of Malik Abdul Razzaq.Vide this office Notification No, 1230-1300. Result of F.Sc.
7. (Ann.) Exam. 1991 bearing Roll No, 5774 cancelled.
8. In the light of above decision taken by the BISE, the Committee rejected the candidature of Mr. Niaz Ahmed son of Malik Abdul Razzaq under clause 2.11 of the Admission Policy."
9. 8.A bare perusal would show that plausible justification was available to derive the arrived at conclusion. The petitioner was admittedly not having the Certificate of F.Sc. Which is a mandatory prerequisite before applying for admission in Engineering College as per provisions contained in para. 2.11 of the Admission Policy, which is reproduced hereunder for ready reference:--- "2.11. The minimum qualification for admission to 1st Year Engineering class is F.Sc. (Pre-Engineering) of the Board of Intermediate and Secondary Education, Quetta or any other equivalent examination of any recognised Board or University or three years Diploma of Associate Engineering from any recognized Institutions."
10. 9.No doubt that Diploma Holders are eligible to take admission, but the petitioner never applied for admission on the basis of his Diploma and hence it would be a futile exercise to examine that as to why he was not admitted on the basis of Diploma. We have also perused the Admission Form produced by Mr. Khadim Ali, Advocate, who appeared on behalf of respondent No,5, submitted by petitioner to appear in different examinations. We have observed with grave concern that even an incorrect and false affidavit was filed to conceal the factual position that he was not appearing in any other examination and not a regular student of any other Institution. This fraudulent conduct cannot be ignored lightly. It is worthy to note that if the Diploma is treated as concealed, he would not then remain eligible to continue his service, which was obtained on the basis of said Diploma.
11. We cannot allow the petitioner to take advantage from Diploma for Government service and simultaneously use his F.Sc. Certificate to have admission in Engineering College and that, too, through this Court in exercise of its Constitutional jurisdiction. Had the petitioner been fair in getting cancellation of his Diploma, he would have resigned from service which was not done. In such circumstances the question of equitable relief does not arise. In so far as the question of cancellation of Diploma of other students is concerned, no comments can be offered adverse to their interest as they have not been impleaded party and more so, we are not supposed to decide controversial questions while exercising our Constitutional jurisdiction. We have, however, considered the assurance of respondent No,5 sufficient to take appropriate action against all those, who are sailing in the same boat but could not be detected.
12. In the light of what has been stated above, in our view the decision made by the Selection Committee being free from any illegality or irregularity does not call for any interference and consequently the petition is dismissed.