' The facts culminating into the present petition, briefly stated are that petitioner, Sadiya Shah filed her first Constitutional petition before this Court on February 14, 1995, wherein she prayed that Chairman, Nomination Board and its Secretary be directed to nominate her for admission in M.B.,B.S. Course in the light of her academic qualifications and merit list prepared by them wherein she had been shown at Serial No,4. She further prayed that a letter written by the Secretary, Nomination Board to the Principal, King Edward Medical College Lahore, seeking clarification about the certificate of educational qualifications of the petitioner who has obtained her education in United States of America, may be declared to have been written without any lawful authority.
2. This writ petition was originally decided in her favour by this Court vide order passed on April 5, 1995. However, on appeal, the order was vacated by the Supreme Court on April 15, 1995 and the case was remanded to the Nomination Board to decide the same in the light of the relevant law uninfluenced by any observations or directions of this Court.
3. After the remand order, the Nomination Board issued the impugned order.
4. In this case, the Nomination Board, through advertisement published on September 14, 1994 in Daily "Nawa-i-Waqt" invited applications from candidates for admission in M.B.,B.S. Course against the reserved quota of seats for Azad Kashmir Nationals in various Medical Colleges of Pakistan.
Alongwith some other candidates, the present petitioner also applied for her admission against reserved quota of seats of District Muzaffarabad. She, alongwith her application, filed State Subject and Domicile Certificates issued in her favour by District Magistrate, Muzaffarabad on September 1992 and October 4, 1992 respectively. As she had obtained education up to the standard known as "Graduates of Wester Villee North High School", as such she applied to Inter-Committee of Chairman (hereinafter referred to as the I.B.C.C), for the issuance of equivalence certificate which was issued in her favour, whereby on the basis of conversion formula, she was declared to have obtained 768 marks.
5. In the light of the documents made available to Secretary, Nomination Board by the candidates who applied for their nomination against quota of reserved seats for Muzaffarabad District, a tentative merit list was prepared by him. In this merit list, the petitioner was shown at Serial No,4. In the meantime, despite production of equivalence certificate by her, the Secretary, Nomination Board, wrote different letters to different Medical Colleges of Pakistan and also to I.B.C.C. Seeking inquiries about the petitioner's qualifications. Last letter was written by him on February 14, 1995 to the Principal, Fatima Jinnah Medical College, Lahore which has been placed on this file as Annexure 'D'. On the same date i,e, on February 14, 1995, the petitioner filed her first petition before this Court.
6. Through the impugned order, the petitioner has been declared as American Nationality-holder as such her admission has been rescinded.
7. Raja Muhammad Hanif Khan, the learned counsel for the petitioner has argued that petitioner is a State-Subject and domicile of District Muzaffarabad. She has been wrongly declared as American national. The impugned order has been passed at the back of the petitioner without providing her reasonable opportunity to explain her position before the impugned order, affected her career was passed against her. He further argued that a valid equivalence certificate was issued in her favour by I.B.C.C. Which is a competent authority in this regard. According to him, the State- Subject and Domicile Certificates issued in favour of the petitioner have not been so far challenged by any person as such there was no justification for the Nomination Board to ignore them. Explaining his view point, he emphasized that the petitioner accompanied her father during the period he was temporarily serving in United States of America. During her stay with her father in U.SA., she got education there up to the standard known as "Graduate of Wester Villee North High School" which is equivalent to F.Sc. Pre-Medical in Azad Kashmir and Pakistan. According to the learned counsel, the Nomination Board has ignored the 'Notification issued Vide No,I-L/84, dated April 20, 1927, wherein all Immigrants from Jammu and Kashmir State to Foreign Territories have been held to be State-Subjects for next two generations. He relied on PLD 1982 Lah. 1, PLD 1979 Kar.
155 and PLD 1982 Azad J&K 64. In "Muhammad Israil Khan v. Azad Kashmir Government" PLD 1982 Azad J&K 64, two licences for the sale and manufacture of arms were issued to the petitioner therein on April 8, 1967 and April 4, 1970 respectively. The District Magistrate, Poonch made a recommendation for the cancellation of the said licences on the ground that petitioner therein was not a fit person to hold the said licences. On this recommendation, the licences were cancelled by the Azad Kashmir Government. The petitioner availed right of review which was also dismissed on April 23, 1981 without hearing him. This order was assailed before the High Court. The High Court after reviewing the case-law, relating to the principle of audi alteram partem, held that principle of natural justice is to be read in every law until and unless its application is expressly excluded. The other two authorities which have been relied by the learned counsel for the petitioner also bear the same principle of law.
8. On the other hand, Mr. Ghulam Mustafa Mughal, the learned counsel for the non-petitioners argued that petitioner has taken self-contradictory stand for securing admission against seats reserved for District Muzaffarabad. According to him, on one hand, the petitioner contends that she being American Nationality-holder, was not required to qualify subjects of Pakistan Studies and Islamiyat. But contrary to this stand, she claims her admission on the ground that she is a State- Subject and domicile of Muzaffarabad District. According to him, a domicile of District Muzaffarabad can claim admission, only if he or she has passed the subjects of Pakistan Studies and Islamiyat. The petitioner, admittedly has not passed these two subjects, therefore, in both the cases, was not eligible for nomination against the reserved quota of seats for Muzaffarabad District.
9. I have considered the respective arguments of the learned counsel for the parties and have gone through the entire record made available with the petition.
10. In the present case, through the impugned order, the admission allowed to the petitioner in Fatimah Jinnah Medical College, Lahore was recalled because of the fact that the petitioner was American Nationality-holder. In the written statement, the Nomination Board has taken the stand that the petitioner has not qualified the subjects of Pakistan Studies and Islamiyat, as such is not eligible for admission in M.B.,B.S. Course. The stand taken by the Nomination Board in the impugned order has not been pleaded before this Court.
11. There is no denial of the fact that the admission of the petitioner was recalled by the Nomination Board without observing the rule of natural justice through the impugned order. In cases where any right is created in a person, even in pursuance of an administrative order, of any functionaries like the Nomination Board, before that right is rescinded, service of a notice is a condition precedent.
There is a chain of authorities on the subject. However, I would like to mention only PLD 1965 SC 90.
Their Lordships have held at page 103 as under:--- "What these principles of natural justice are it is not possible to lay down with any exactness, for, they have been variously defined in various cases, as was pointed out by the judicial committee in the case of the University of Cylon v. Fernando Fuker, L.J. Said in Russel v. Duke of Norfolk (1949) All ER 109 'the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rule under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth.' Nevertheless the general consensus of judicial opinion seems to be that, in order to ensure the `elementary and essential principles of fairness' as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and "
12. From the survey of case-law on the subject, and particularly the above-referred authority of the Supreme Court of Pakistan, it is crystal clear that all the functionaries who deal with the rights of persons whether the proceedings are judicial, quasi-judicial or administrative in form, are required to observe the principle of natural justice.
13. It is an admitted fact that the petitioner had supplied all the documents to the Nomination Board which, under law, she was required to provide. In the light of these documents, she was nominated for M.B.,B.S. Course in Fatimah Jinnah Medical College, Lahore against one of the reserved quota of seats for District Muzaffarabad. She was also informed that she has been nominated for the said Course. Therefore, it would be absurd to contend that the nomination of the petitioner did not create any right in the petitioner.
14. In the present case, particularly in the light of the remand order of the Supreme Court, the Nomination Board was bound to provide an opportunity of being heard to the petitioner. I also agree with the contention of the learned counsel for the petitioner that objections which were considered weighty by the Nomination Board should have been put to the petitioner for her verbal or written explanation before passing any order against her interest. The denial of right of hearing to the petitioner has vitiated the validity of the impugned order as it is clearly in violation of cardinal principle of natural justice.
15. In the circumstances, I am constrained to set aside the impugned order and remand the case once again to the Nomination Board to decide the same expeditiously after providing an opportunity of being heard to the petitioner. Keeping in view the peculiar circumstances of this case, I pass no order as to costs.