' AMIR-UL-MULK, MENGAL, J.---Doda Khan, a candidate seeking admission in University of Engineering and Technology, Khuzdar (hereinafter referred to as the "University") has filed this Constitutional petition as his application for admission in the said University has been rejected by the Selection Committee vide order dated 11/12th October, 1994.
2. Brief facts for filing of the petition are that the petitioner is a local belonging to BIJARANI Marri Tribe of Kohlu District. Initially he took admission in St. Frances Grammer School when he was selected/nominated by the Federal Government under the Scheme "Education of Talented Students from Rural/Under Developed Areas of FATA, FANA, AJK and.Balochistan in Cadet Colleges/Public Schools" vide Ministry of Education Letter No, F4- 16/83-C&G dated 26-3-1984 and was admitted in Class VIth in Army Burn Hall College, Abbottabad. The petitioner continued studying in the said institution till 21-3-1989, when the Federal Government through Ministry of Education allowed migration to the petitioner from Army Burn Hall College Abbottabad to Public School Hyderabad in Class IXth due to seating arrangements.
3. Petitioner Doda migrated to Public School, Hyderabad as a nominee of the Federal Government and he passed his Matriculation as well as F.Sc. (Pre-Engineering) Examinations from Public School, Hyderabad. He obtained 621-A marks in Matriculation and 788 marks in F.Sc in the year 1993. He then applied for admission in the University against one of the reserved seats of Kohlu District. It is to be noted that besides him respondent No, 4 Asghar Khan and respondent No, 5 Muhammad Naseem also applied amongst others for the said seats.
4. The Selection Committee held interviews at Sibi and Quetta where the petitioner appeared. It is the case of the petitioner that neither any private respondent raised any objection to his candidature nor Members of Selection Committee ever asked him about his taking of education from outside the Province. However, astonishingly he came to know that he has been rejected by the Selection Committee under Para. 2.12 of the Admission Policy of Balochistan Engineering College, Khuzdar. He at once approached the concerned authorities but he was verbally informed that his case has been rejected. Hence this petition.
5. Heard Mr. M.S. Rakhshani for petitioner, learned Advocate-General Balochistan for official respondents and Mr. H. Shakil Ahmad for private respondents.
6. The counsel for petitioner vehemently urged that the rejection by the Selection Committee of the application for admission was totally devoid of the admission policy and against the principles laid down by the superior Courts in this regard. Learned counsel took exception to the observations made in the rejection order particularly to the fact that candidate had manipulated his migration to Public School, Hyderabad for securing higher marks from Hyderabad Board. So much so that an observation has been made without any valid basis that such migration was a cover up to the manipulation by the said institution. Furthermore an observation has been made that Hyderabad Board has become notorious for giving higher marks to a candidate. Learned counsel emphatically urged that these observations were totally uncalled for as there appears to be no legal basis for such observation. Another argument advanced was that the Selection Committee has nominated Muhammad Yousuf who has also taken education from outside as a nominee of the Federal Government, thus there has been a clear discrimination with the petitioner Doda Khan.
7. Mr. H. Shakil Ahmad appearing on behalf of private respondents raised a preliminary objection that the documents attached with the petition had not been produced before the Selection Committee, therefore, the same may not be considered by this Court. It was contended that the Selection Committee is a fact finding forum or a tribunal before whom all the material ought to have been produced for coming to a correct conclusion. Had the documents been produced the Selection Committee might have selected the petitioner. It was next contended that the respondents have taken admission in the University in March, 1995 and substantial period has elapsed, therefore, a valuable vested right has accrued to the respondents. This Court, therefore, in exercise of its discretion may not award or grant relief at this belated stage.
8. We have also perused the comments filed by Director of Education Colleges on behalf of official respondents in which it has been contended that the case of petitioner was thoroughly discussed in the light of Clause 2.12 of the Admission Policy. The Selection Committee had come to the conclusion that Army Burn Hall College was a prestigious Institution, whereas Public School, Hyderabad is a notorious institution, therefore, the petitioner has been rejected. As regards discrimination why respondent No, 4 studying and passing his F.Sc. From Public School, Hyderabad was taken and the petitioner was rejected, no plausible reasons have been mentioned.
9. Before proceeding further we would like to reproduce clause 2.12 of the Admission Policy under which the application of petitioner for admission has been rejected. It reads:-- "2.12. A candidate who has passed Matriculation/F.Sc. (Pre-Engineering) from outside Balochistan and fails to satisfy the Selection Committee about reasons being beyond his control for not studying in Balochistan shall be ineligible, provided that it does not adversely effect the students regularly studying in the Institutions in other Provinces."
10. It may be observed in the first instance that Clause 2.12 has already been interpreted, its object explained and the import of the words given have been elucidated by the superior Courts in many cases. In C.P. No, 66 of 1995 it has been clearly held as under:-- "In view of above discussion we have come to the conclusion that the amended provision of Clause 2.12 under which a candidate was only required to explain the reasons for getting education outside the Province of Balochistan or in Sukkur or Hyderabad Boards does not confer any restriction upon the petitioners to state that they had been studying in Cadet College Razmak, rather in our opinion petitioners have/had already explained cogent reasons that they got admission in Public School, Hyderabad as Federal Government nominees. In this regard nomination of the petitioners has already been referred hereinabove, therefore, the reasons for rejection of their candidature by the Selection Committee are contrary to the Admission Policy."
' Similarly in C.P. No, 234 of 1994 in similar circumstances petitioner Nazir Ahmad, who was a nominee of the Federal Government to get education in Cadet College had migrated from said institution to Public School, Hyderabad with permission from Ministry of Education, Islamabad, it was clearly held that the bar as envisaged in clause 2.12 of the Admission Policy shall not apply.
This judgment was confirmed by Supreme Court of Pakistan vide judgment in Civil Appeal No, 81-Q of 1994 announced on 21-12-1994.
11. We want to make it further clear that if a student is nominated by the Federal Government, Ministry of Education and is admitted in a better educational institution outside the Province it cannot be said that he has gone out of Province for the sole reason and with mala fide intention to obtain more marks. It is the right of any student to get better education and obtain more marks from an educational institution of the country and no mala fides could be attached to him unless it is proved that discontinuing of education from the Provincial Educational Institutions, was aimed at a belated stage by private efforts in order to join an institution of his choice with mala fide intention to get higher marks in order to deprive those who are continuously getting education in the Province. In other words the object of clause 2.12 of the Admission Policy appears to be to protect the rights of students of this Province who have no educational facilities which otherwise are available in the institutions outside the Province. But simultaneously if talented students of the Province are nominated by the Federal Government in better educational institutions on purely merit basis at the initial stage of education, it would not debar such students of this Province to get admission in professional colleges, of the Province. Thus while accepting or rejecting a candidate who has passed his F.Sc. Examination from an institution outside the Province, great caution and care has to be exercised by the Selection Committee. We have seen cases where students at F.Sc.
Level have discontinued education from Provincial Educational Institutions without any rhyme and reason on their individual efforts joining an educational institution out of the Province of equivalent educational standard with sole object of getting higher marks, in such cases the Selection Committee was right in rejecting their applications for admission in professional institutions of the Province. But as regards students who, at the initial stage of education have been nominated either by the Provincial Government or by the Federal Government, under established educational scheme to get better education in prestigious institutions of the country, the embargo contained in clause 2.12 of the Policy shall not apply and such students may not be deprived to get admission in the professional colleges of the Province. This view is supplemented by clause 2.12 of the admission policy where the Government clearly added that it does not adversely effect the students regularly studying in the Institutions in other Provinces. (Underlining is ours).
12. As far as present case is concerned, the petitioner has been nominated by the Federal Government to get education in the prestigious institution like Army Burn Hall College, Abbottabad.
We note with regret that the Selection Committee has declared Hyderabad Public School as a notorious institution; but simultaneously selected respondent No, 4 who has passed his F.Sc. From the said institution i,e, Public School, Hyderabad (the so-called notorious institution).
13. It is thus clear that the Selection Committee has committed clear discrimination between petitioner and respondent No, 4.
14. Be that as it may, the case of the petitioner was that he migrated from Army Burn Hall College to Public School, Hyderabad both educational institutions run by Federal Government) with prior permission of the Federal Government and not on his own. This migration has been made at a time even when the petitioner has not passed his Matriculation examination. Thus on no criteria or en any principle it can be said that he has done so to get higher marks in his F.Sc. Examination. He has, therefore, been illegally rejected. The Selection Committee had no lawful authority to have rejected him under Clause 2.12 of the Admission Policy because he was a nominee of Federal Government right from Class VIth. We therefore declare that petitioner was a candidate who ought to have been given admission in the University. He has obtained from Public School, Hyderabad 788 marks in F.Sc. As against Muhammad Naseem who has obtained only 471 marks.
15. The respondents' contention that substantial time has since elapsed, therefore, he may not be disturbed, suffice is to observe that mere passage of time, would not bestow a right upon respondent who otherwise had lesser marks than the petitioner and as such was not entitled to be nominated in the University. The second objection that the documents as produced before us had not been produced before the Selection Committee, has in fact, no relevancy because the Selection Committee was aware of the fact that the petitioner was a nominee of the Federal Government and it has been clearly laid down in the impugned order that his migration has been manipulated on the basis of seating arrangements. This clearly shows that the members of the Selection Committee were full well aware of entire facts. Both the arguments are thus devoid of any force.
16. Since the petitioner has been nominated by the Federal Government under an established education policy and on basis of pure merit to get education in a Federal Institution hence on this score he could not have been deprived of a seat in the University, on the mere ground that Public School, Hyderabad is a notorious institution; particularly so when one of the respondents Asghar Khan having passed his F.Sc. From Public School, Hyderabad has been allowed admission.
17. In such view of the matter we are of the clear opinion that order of the Selection Committee rejecting application of petitioner for admission in the University has been passed on extraneous considerations and thus is without lawful authority and is of no legal effect. Resultantly we allow this petition and direct official respondents No, 1, 2 and 3 to admit petitioner Doda Khan in the University against one of the seats reserved for Kohlu District in place of respondent No, 5, who has got lesser marks than the petitioner. However, since respondent No, 5, has taken admission as back as in March 1995 and has continued studying in the said University, therefore, it will be appreciated if the official respondents allow him as well, to continue studying in the said institution if possible.
We leave the parties to bear their own costs.