' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been preferred against the judgment of the High Court dated 19-9-1996, whereby the writ petition filed by respondent No,1 was accepted.
2. The brief facts of the case are that the appellant, herein, and respondent No,1 were both candidates for admission to any of the Medical Colleges in Pakistan against the quota of seats reserved for Muzaffarabad District. Initially, quota of five seats fell to the share of girls candidates from Muzaffarabad District which was exhausted but both the appellant, herein, and respondent No,1 could not get admission in view of their positions in the merit list. However, ten additional seats in Medical Colleges of Punjab were allocated to the candidates for the State on 27-3-1995 and, thus, one more seat became available to the girl candidates from Muzaffarabad District. The Nomination Board of Azad Kashmir was intimated to make nomination on additional seats as early as possible. The Nomination Board nominated the appellant, herein, for the admission on additional seat on 4-4-1995. The grievance of respondent No,1 was that as according to the merit list prepared by the Nomination Board, she occupied better position than the appellant, she should have been nominated against the additional seat and not the appellant, herein. It was further the case of respondent No,1 that she also submitted an application to the Nomination Board on 12-4- 1995 for her nomination on the additional seat but her representation was not heeded to and, thus, she was obliged to seek redress of her grievance by filing an appeal to the Government; her appeal was not decided and, thus, she filed a writ petition in the High Court. The High Court accepted the writ petition filed by respondent No,1 holding that she having better position in the merit list as compared to appellant, herein, should have been nominated against the additional seat. Consequently, a direction was issued to the Nomination Board for the nomination of respondent for admission on the additional seat. It may be also observed here that both the appellant and respondent, in alternative, had sought their nomination for B.D.S. Course, their first choice being for the admission to the Medical College. As respondent No,1 had better merit, she was nominated for B.D.S. Course on 17-1-1995 because no seat remained available for admission to a Medical College. Consequently, respondent No,1 joined B.D.S. Course where she is still studying.
The High Court has observed that although the respondent No,1 had joined B.D.S. Course yet she had not lost. Her claim for admission to M.B.,B.S. Course under Instruction 15 of the relevant Instructions which regulate the admissions to the professional colleges; because the appellant and the respondent had sought admission to B.D.S. Course in alternative and the B.D.S. Seat in Khyber College of Dentistry, Peshawar, was lost due to inaction of the Nomination Board and not any fault on the part of the respondent.
3. We have heard the arguments and perused the file. It has been argued by Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for the appellant that the impugned judgment of the High Court is against law and is not sustainable. According to the learned counsel no admission to the Dentistry College was possible after 10-4-1995, as is evident from Exh.D.C., the letter written by the Principal of the College in reply to the letter of Secretary, Nomination Board. Thus, according to the learned counsel for the appellant, even if it is assumed that the respondent did not abandon her choice for admission to the Medical College, no other candidate could be admitted on the seat which would have become available in the Dentistry College as a result of the nomination of the respondent to the M.B.,B.S. Course. The learned counsel submitted that the embargo stipulated in Instruction No,15 of Instructions is fully attracted if the seat vacated as a result of option of a candidate cannot be availed of by any other candidate. The learned counsel has referred to an authority reported as Javid Alam v. Nazam Hussain 1994 CLC 1632, wherein it has been held that as the petitioner was nominated for B.Pharmacy Course 1992-93 Session, his subsequent nomination for M.B.,B.S. Course against the reserved quota of seats for the Academic Session 1993-94 was without lawful authority because same offended against Instruction 15 of the relevant Instructions which reguate admissions to the professional colleges. The learned counsel has further submitted that the appellant, herein, has passed her first year's M.B.,B.S. Course and is now studying in the second year class. Thus, according to the learned counsel, the nomination of the respondent on the reserved seat of Academic Session 1995-96 cannot be made for the, simple reason that the academic session to which disputed seat belongs has come to an end. Therefore, according to the learned counsel for the appellant, it is paradoxical to issue a writ for nominating the respondent No,1 in place of the appellant on a seat of academic session which was no more in existence. The learned counsel has cited following authorities in support of his contentions: ' In case reported as Miss Rukhsana Rashid v. Principal, King Edward Medical College, Lahore 1983 SCMR 873, the High Court, without going into the merits of, the case, dismissed the writ petition on the ground that as the academic session in which the petitioner had sought the admission had expired three years earlier and the respondent was studying in 3rd year. Thus, it was not considered desirable to exercise writ jurisdiction in favour of the petitioner. A petition for leave to appeal was filed in the Supreme Court against the said order. The Supreme Court without specifically adverting to the grounds on which the High Court had dismissed the writ petition, came to the conclusion that the petitioner had no case on merits because the other candidates who fell in the relevant category of the directives/rules had secured more marks than the petitioner. The Supreme Court did not specifically express any view whether the High Court was justified in dismissing the writ petition merely because three years had elapsed since the end of Academic Session 1979-80 for which the petitioner was a candidate for admission to M.B.,B.S. Course.
' In the case reported as Shahid Muhammad Fazal v. Principal, Quaid-iAzam College of Commerce and Business Administration, University of Peshawar 1992 CLC 2030, the petitioner in that case was a candidate for admission in the course of Bachelor in Business Administration on the reserved seat for Chamber of Commerce on which another candidate was admitted instead of the petitioner. The petitioner's allegation was that the order of concerned authority whereby admission was denied to him was without lawful authority. His contention was accepted. However, it was observed that if the admission was given to the petitioner by ousting respondent No,2 at that stage, that would put an end to the educational career of the respondent. It was observed that it was unequitable to deny the admission to the petitioner despite the illegal decision taken by respondent No, 1 . Therefore, it was directed that petitioner who had been already given provisional admission at his own risk should be given regular admission without ousting respondent No,2. In other words, despite the fact that the writ petition of the petitioner was accepted and the admission of respondent No,2 was held to be violative of law, she was not disturbed.
' In Suhail Malik v. Principal, Nishtar Medical College, Multan 1987 MLD 2552, the petitioner was nominated in Bolan Medical College on the basis of a forged F.Sc. Certificate. When the writ was decided, the relevant academic session had already expired and the respondent was studying in 3rd year's class of M.B.,B.S. It was observed that as the petitioner whose admission was cancelled on the ground of forged certificate was already studying in 3rd year, it would be improper to pluck him from the educational institute at that stage. It may be stated here that the petitioner twice appeared in F.Sc. Examination. Earlier he passed F.Sc. Examination obtaining 423 marks; subsequently, he appeared again in F.Sc. Examination for improving his division in which according to his forged certificate he got 639 marks. Still he was able to get relief from the Court in terms that he would not be disturbed.
' In case reported as Anjum Malik v. Mst. Majida Khanum 1991 CLC Note 271 at p.209, the writ petition filed by the petitioner seeking admission to Medical College was dismissed on the ground that firstly, the students who had allegedly secured lesser marks than the petitioner had not been impleaded as party to the writ petition and, thus, no adverse order could be passed against them in their absence; and secondly, as the petitioner had already got admission in another Medical College, his shifting to the college in question at that belated stage would disturb the admission in the Medical Colleges which would not be conducive to the public interest. Consequently, the writ petition was dismissed.
4. In reply, Raja Muhammad Hand Khan, Advocate, the learned counsel for respondent No,1, controverted the above reflected points canvassed by the learned counsel for the appellant. He has argued that the High Court has correctly held that the respondent did not abandon the first choice for nomination to the Medical College at any stage. He has argued that when she was nominated to join B.D.S. Course in Dentistry College, no seat was available for admission to M.B.,B.S. Course in Medical College. Thus, it is preposterous to suggest that she abandoned her choice of admission to Medical College merely because she had accepted the nomination to B.D.S. Course in Dentistry College, Peshawar. The learned counsel has submitted that the additional seat on which the appellant was nominated in M.B.,B.S. Course became available on 27-3-1995 and the nomination of the appellant for admission en that seat was made on 4-4-1995 while the respondent, herein, joined the Dentistry College much earlier on 17-1-1995. The learned counsel maintained that the proper course for the Nomination Board was to nominate Aisha Hameed, respondent, on additional seat on 4-4-1995 instead of the appellant because she had admittedly better merit than the appellant. But without intimating the factum of additional seat to the respondent surreptitiously nominated the appellant on the additional seat, despite the fact that the respondent was entitled to nomination on the basis of merit. The learned counsel for the respondent has submitted that it is absolutely incorrect that the respondent had either abandoned her choice for admission to the Medical College or the seat in Dentistry College was lost due to any fault on her part. The learned counsel submitted that the nomination of the appellant to the Medical College was made by the Nomination Board on 4-4-1995 whereas according to the letter of Principal of the Dentistry College, the seat, in the said college could be availed till 10-4-1995, which means that had the Nomination Board nominated the respondent for M.B.,B.S. Course instead of the appellant, the seat falling vacant in Dentistry College could be availed of by any other candidate, as still six days were left during which admission to Dentistry College could be made. The learned counsel has further maintained that after the nomination of the appellant for admission to M.B.,B.S. Course on 4-4-1995, there was no tangible reason for the Nomination Board to inquire from the Principal of the Dentistry College on 11-4-1995 as to whether any other candidate could be nominated in place of Aisha Hameed, respondent. The learned counsel maintained that this was a fake effort by the Nomination Board to lend validity to its illegal action by displaying its bona fides.
5. While dealing with the question as to whether the impugned judgment of the High Court is violative of law only because the Academic Session 1995-96 to which the disputed seat belongs had already come to an end, the learned counsel submitted that the mere fact that the period of relevant academic session had already expired and the appellant has been promoted to second year's class is not a valid reason to refuse the relief to the respondent. The learned counsel has cited following authorities in support of his contention: ' In case reported as Miss Rifat Parveen v. Selection Committee PLD 1980 Quetta 10, the writ petition filed by the petitioner was accepted and it was held that she was illegally denied admission to the Medical College. When the writ petition was decided, the Academic Year 1978 for which the petitioner was a candidate for nomination had already passed but all the same it was directed that she should be admitted in the current academic session. It was further observed that if there was no seat available in the current session, an additional seat should be created for accommodating the petitioner.
' In case reported as Abdul Sattar v. Government of Sindh PLD 1978 Karachi 59, the petitioner had sought admission to the Medical College for Academic Year 1975-76. However, due to the wrong action of the authority concerned, the petitioner was not able to get admission. It was observed that although the academic session had already passed but the petitioner could not be denied admission on that score. It was further observed that if there was no seat available in the current session in the Medical College, an additional seat should be created for accommodating the petitioner in the Medical College.
' In Ghulam Mustafa v. The Mehran University of Engineering and Technology, Jamshoro 1986 CLC 1056, it was observed that although the period of one year had already passed from the last date of admission, yet a direction should be issued because the petitioner was illegally denied admission to Mehran University of Engineering and Technology. A writ was issued to admit him in the 1st year class on the seat for which he had sought the admission.
' Identical view was taken in case reported as Muhammad Saleem Khan v. Principal, Ayub Medical College 1986 CLC 1425 the facts were that the academic session had started six weeks earlier and no admission could be given after the six weeks according to the Prospectus of the College. But despite the prohibition in the Prospectus of the College, the Principal of the College was directed to give admission to the petitioner observing that he could not be denied admission on the technicalities of the rules.
' In case reported as Mashood Ahmad v. Government of Balochistan 1987 CLC 20, it was held that as there was no condition that if the petitioner had already been admitted to another institution, he would not be afterwards admitted to the institution of his choice, the petitioner could not be refused admission to the institution of his choice.
' In Qamar Afzal v. Muhammad Ashfaq Khan PLD 1979 SC (AJ&K) 96, although the academic session for the disputed seat had already come to an end yet the writ petition filed by the aggrieved person in the High Court was accepted and a mandamus was issued to the Chairman, Nomination Board to nominate the petitioner in that case for the admission on the reserved seat in the Medical College. The appeal filed to the Supreme Court was also dismissed. However, the question of expiry of the academic session was neither considered by the High Court nor by the Supreme Court.
6. The learned counsel has also referred to the copies of some admission letters to substantiate his contention that admissions in the Dentistry College have been taking place even after 10-4-1995, which according to the Principal of College, was the last date of admission. The learned counsel has argued that it shows that even after the last date of admission, the time for admission was extended. Thus, the learned counsel argued that had the Nomination Board made a genuine effort, the seat in Dentistry College could be availed of even after 10-4-1995.
7. We have given our due consideration to the arguments raised at the Bar. Irrespective of the fact as to whether the seat in Dentistry College could be availed after 10-4-1995 or not, the fact remains that according to the letter of Principal of the Dentistry College dated 15-4-1995, the last date of admission to the College was 10-4-1995. Thus, had the Nomination Board nominated respondent No,1 for admission to Medical College instead of the appellant, the seat in the Dentistry College vacated by the respondent could be utilised by another deserving candidate because still there were, at least, six days available for that. It is admitted that both the appellant and respondent had applied for admission to a Medical College or a Dentistry College; their first choice being that of admission to Medical College. When the respondent joined the Dentistry College, the additional seat was not available and when the same becatne available, the respondent was never offered the choice to avail the additional seat after vacating her seat in Dentistry College; instead the Nomination Board nominated the appellant for admission to the M.B.,B.S. Course, despite the fact that her merit was inferior to respondent No,l. The stand taken by the Nomination Board that the respondent did not apply for admission on the additional seat before the nomination of the appellant is also without any substance because there is nothing on the record to indicate that the appellant, herein, made any fresh application for her nomination on the additional seat; no new applications were called by the Nomination Board for admission on the additional seat. Besides, the respondent was never offered the choice as to whether she intended to leave to Dentistry College and join the Medical College at Lahore. It is on the record that the respondents also submitted an application on 12-4-1995 to-the Nomination Board that she should have been nominated on the additional seat and not the appellant. Thereafter, she first filed an appeal to the Government and when the same was not decided she filed the writ petition in the High Curt which resulted in the verdict in her favour. It would be expedient here to reproduce below Instruction No,15:--- {{URDU TEXT}} ' It is evident from the above Instruction that the respondent could only be refused admission to M.B.,B.S. Course if the seat in the Dentistry College could not have been availed of due to any fault on her part and not merely because she had accepted her nomination for Dentistry College. But in the instant case, as has been stated above, the loss of the seat in the Dentistry College was due to the illegal order of the Nomination Board and not any fault on the part of the respondent.
8. The next question which falls for resolution is as to whether respondent No,1 should not have been given relief because the Academic Session 1995-96 had already expired. We have already reached the conclusion that the order of the Nomination Board was illegal. For quashment of this illegal order made on 4th of April, 1995, the respondent moved the High Court by filing a writ petition on 3rd of May, 1995. In the intervening period she moved an appeal before the Government against the order of the Nomination Board but the Government did not take any expeditious action.
It is, therefore, clear that the writ petition was promptly filed. However, the writ petition, for one reason or the other, could not be decided by the High Court till 19th of September, 1996 which has resulted in the situation that the Academic Session 1995-96 has expired. In these circumstances there is no question of condoning the illegality challenged by the respondent. As a broad principle if a writ petition has been promptly filed, the High Court cannot refuse to quash an illegal order on the ground that the situation has changed during the pendency of the writ petition. The High Court can refuse to issue a writ in a case in which there are laches on behalf of the petitioner or there is equity in favour of the respondent. No such situation exists in the present case.
9. Apart from that it is evident from the authorities referred to above that relief to an aggrieved candidate for admission to an educational institution cannot be refused merely because the academic session for which he or she was candidate has expired. If the grievance of an aggrieved candidate who was illegally refused admission was found genuine, the direction was issued to the concerned authority to nominate or admit him in the academic session for which he was a candidate despite the delay, if possible, or if the session had already expired, direction was issued to admit him in the current session. However, in some cases, the candidates who had already been given admission were not disturbed. Therefore, the contention of the learned counsel for the appellant that the respondent could not be admitted to Medical College because the Academic Session 1994-95 for which she was a candidate had already expired and the appellant has been promoted to second year of M.B.,B.S. Class is not tenable.
10. The learned counsel for the appellant has also submitted that during the pendency of the writ petition, Mst. Iram Shahzadi and Mst. Nasira Qadeer were given admission to the Medical College as a result of some judicial pronouncements. He has argued that it was necessary for the respondents to implead the aforesaid two nominees in the writ petition but she failed to do so and, thus, the writ petition entailed dismissal as being incompetent. The learned counsel has maintained that he submitted an application in the High Court on 21-9-1995 that the writ filed by the respondent should be dismissed not only because the relevant term of the academic session had expired but also because Iram Shahzadi and Nasira Qadeer, who obtained lesser marks than the appellant had been given admission to the Medical College but they have not been impleaded as party in the writ petition by the respondent. This application was not heeded to by the respondent and she did not array the aforesaid two nominees as party in the present writ, despite the fact that she was made alive to the illegality.
11. In reply, the learned counsel for the respondent has argued that the application dated 21-9-1995 was not pressed at any stage by the appellant. He has further submitted that the present dispute between the appellant and the respondent is as to which of them was entitled to be nominated on the additional seat in view of their merit. Thus, neither Iram Shahzadi nor Nasira Qadeer is necessary parties in the present writ petition because none of them were nominated on the additional seat; in fact they had not been admitted to Medical College when present writ was filed.
The learned counsel has further submitted that the point was not pressed by the appellant in the High Court or even in her written arguments which were filed by her in the High Court. Thus, she cannot be permitted to argue at this stage that writ petition was not properly constituted.
12. We have given consideration to the above-reflected question in the light` of arguments advanced at the Bar. It may be stated that from the record and written arguments filed by the appellant in the High Court, it transpires that the point of non-impleadment of ram Shahzadi and Nasira Qadeer was not pressed in the High Court. Besides, the present dispute pertains to the additional seat and Iram Shahzadi and Nasira Qadeer were nominated out of the quota of five seats which were originally available; they had been not admitted to Medical College when present writ petition was filed. Thus, they were necessary party in the present writ petition. The appellant, if feels aggrieved by their admission, may seek the redress of her grievance against them in proper forum through appropriate means. Therefore, the contention of the learned counsel for the appellant that writ petition was not properly constituted has no force and is hereby repelled.
' In the light of what has been statedabove finding no force in this appeal, it is hereby dismissed. In view of the circumstances of the case we make no order as to the costs.