1. BASHARAT AHMAD SHAIKH, J.---Although the High Court has accepted a writ petition filed by her, the appellant is not satisfied with the judgment of the High Court and has appealed to this Court, after obtaining leave of the Court, with the prayer that the direction contained in the order of the High Court to the extent of remand of the case to the Nomination Board may be vacated.
2. The dispute in the present appeal relates to admission to M.B.,B.S. Course against one of the seats reserved for State Subjects in Medical Colleges in Pakistan. Appellant Sadia Shah filed a writ petition in the High Court to challenge a letter written by Secretary of the Nomination Board whereby he conveyed to the Ministry of Health Government of Pakistan, the decision of the Nomination Board taken in its meeting held on 1st of June, 1995 to cancel her nomination which had been made earlier on 19th February, 1995. It was stated in the order that appellant Sadia Shah was an American National and was not entitled to be nominated against one of the seats reserved for Azad Jammu and Kashmir. Through the letter under reference, a copy of which was also endorsed to the appellant, Ministry of Health was informed that Iran Shahzadi, who is respondent No.3 before this Court, had been found entitle on the basis of merit to get admission against the seat previously occupied b, appellant Sadia Shah. The High Court has accepted the writ petition and has after setting aside order of the Board, remanded the matter to the Nominatio Board to decide the matter afresh after providing an opportunity of hearing ti Sadia Shah. The High Court has held that the decision of the Board was bad u law because Sadia Shah was not heard before passing the order although the Nomination Board was bound to provide an opportunity of hearing to the appellant.
3. The High Court has also observed that the objections which were upheld by the Nomination Board should have put to the appellant verbally o in writing before passing the order against interest of the appellant.
4. Arguing the case on behalf of the appellant her learned counsel. Raj Muhammad Hanif Khan, vehemently contended that after reaching the conclusion that the rule of audi alteram partem, was violated by the Nomination Board, the High Court should have simply quashed the order passed by the Nomination Board and should not have ordered the Nominatio Board to decide the matter afresh. He submitted that violation of the rule natural justice renders the action taken by a public functionary as illegal an the case is involving gross illegality such as the cases in which a right is take away without affording an opportunity of hearing, should not be allowed to be re- opened. He relied on .The University of Dacca v. Zakir Ahmad PLD 19E SC 90, Messrs Everyday Pictures Ltd. v. Government of Pakistan PLD 1979 Kar.155, Crescent Sugar Mills and Distillery Ltd. v.
5. Central Board of Revent PLD 1982 Lah.1 and Muhammad Israil v. Azad Government of the State Jammu and Kashmir PLD 1982 Azad J&K 64 in support of his contention.
6. We have gone through the judgments cited by Raja Muhammad Hanif Khan and cannot help observing that in none of these judgments the principle advocated by the learned counsel has been laid down. In fact in all the; judgments rules of natural justice were found to have been violated but the concerned functionaries were allowed or directed to decide the matter after affording an opportunity of hearing. In leading case of Zakir Ahmad tl respondent was expelled by the authorities of University of Dacca for allege indiscipline and misconduct The High Court of East Pakistan accepted the plea of Zakir Ahmad raised in the writ petition, filed by him that before bee; pronounced guilty he should have been given as opportunity of hearing, a declared that the order of his expulsion had been passed without law authority, but the University was allowed to proceed de novo against the student. The University of Dacca tiled appeal before the Supreme Court which was dismissed. It was observed by the learned Judges of the Supreme Coy that the action of the University was so patently arbitrary that it could r possibly be upheld. However, it was made clear that University could take action against the student after fulfilling the requirement of rule of natural justice. The relevant portion of the judgment is as follows: -- .....We are, therefore, in agreement with the High Court that the order of the University must be set aside and the University should be directed to act in the manner indicated above, if it is still of the view that action should be taken against the respondent."
7. The case of Messrs Everyday Pictures Ltd. Relates to a dispute about certification of a film under the Censorship of Films Act, 1963. The writ filed b; Everyday Pictures Ltd. To challenge the order prohibiting the release of film and suspending the censor certificate was accepted by the Karachi High Court after holding that the relevant authorities had violated the principle of audi alteram partem and declared the impugned order to have been passed without lawful authority and of no legal effect. However, the. Court also issued the following directions: "The result of above declaration will be that the respondent No3's order dated 11-&1977 shall be deemed to have been pending before, the respondent No.1 who after sending for the relevant record and after giving an opportunity to the petitioner shall decide the matter in accordance with law."
8. We now turn to judgment of Crescent Sugar Mills and Distillery Ltd. The judgment cited before us was pronounced in an Intra-Court Appeal arising out of a writ petition' filed to seek exemption from payment of excise duty which had been dismissed by a learned Judge of the Lahore High Court.
9. Before the Appellate Bench it was argued that it was necessary for the concerned authorities in the Central Board of Revenue, the respondent before the High Court, to give an opportunity of hearing to the appellant-Company. The Intra-Court Appeal was accepted and the order of the learned Single Judge was set aside. It was declared that the order passed by the Central Board of Revenue was one without lawful authority. It was however further declared that:--- "....The application of the appellant shall be deemed to be pending and will be decided within a period of one month ...."
10. Similarly in Muhammad Israil's case a writ petition directed against the cancellation of licence for manufacturing and selling small arms was accepted by the Azad Jammu and Kashmir High Court after finding that it was passed without giving an opportunity of hearing, but the respondents were allowed to pass a fresh order Sardar Said Muhammad Khan, J. (as he then was] observed as follows:--- "In the light of what has been stated above, I accept the writ petition and hold that order of cancellation of licences dated 4-1-1981, is without lawful authority and of no legal consequence.
11. However, the respondent is at liberty to reconsider the matter of cancellation of licences, after providing an opportunity of hearing to the petitioner and considering reasons for proposed action."
12. The case-law cited by the learned counsel for the appellant shows that when orders were set aside in exercise of writ jurisdiction on the solitary ground of violation of natural justice the concerned authorities were directed or allowed to pass a fresh order after complying with the rule of natural justice. No case in which impugned action was simply quashed has been brought to our notice by appellant's counsel. A Court exercising a discretionary and equitable jurisdiction, which the writ jurisdiction admittedly is, is not bound to grant relief to a litigant even if it is found that the impugned order is bad in law. In fact it is a general rule that when an adverse order has been passed in violation of the rule of audi alteram partem it is desirable to allow the concerned 'authority to pass a fresh order. We may make a brief reference to a recently decided judgment of this Court delivered in Makadar Hussain Shah v. Board of Intermediate and Secondary Education 1995 CLC 1594 which has been cited by the learned counsel for the respondent, Mr. Ghulam Mustafa Mughal. The appellant in that case was a student who was proceeded against for alleged misconduct in violation of principle of natural justice and the action taken against him was found to be bad in law. While quashing the order passed against him this Court observed as follows:--- "For the reasons stated above we vacate the order passed by the High Court and order the acceptance of the writ petition filed by the appellant. The order of disqualification is held to have been passed without lawful authority and is of no legal effect. However, since the view we have formed in the case is based on the technicalities of law it would not absolve the appellant of the charge against him. The concerned authorities of the Board of Intermediate and Secondary Education may therefore proceed against him de novo in accordance with law, if so advised."
13. Arguably the rule may not be inflexible or universal but the present case is one in which the dispute is not only between the Nomination Board and the appellant but the rights of other candidates, who are aspiring for a seat in M.B.,B.S. Course, are also involved. If the appellant is ultimately not found entitled to a seat in the Medical College her place will be taken by one of the respondents before us. Therefore, if the appellant's prayer is accepted the right of one of the contesting students will be taken away because of the illegality committed by the Nomination Board. Such a course would defeat the ends of justice rather than advancing them.
14. We also find force in the submission of the learned counsel for the respondents that there existed no option in the present case except to remand the case to the Nomination Board. Facts show that at no earlier stage the Nomination Board had nominated the appellant for admission to Medical College. Previous papers attached with present record show that the Nomination Board received applications from deserving students but before it had taken a final decision the appellant filed a writ petition in the High Court which ordered the Board to forthwith nominate the appellant for admission. This order was initially passed on an interim application on 16th February, 1995 and was subsequently confirmed when the writ petition was finally decided on 5th of April, 1995. That order passed by the High Court was challenged before this Court in an appeal filed by Rahat Saeed Bukhari and Iram' Shahzadi, who are impleaded as respondents before us. The appeal succeeded and the order of the High Court was vacated on 17th of May, 1995. The operative part of the order was as follows: -- "The appeal is, therefore, accepted, the order of the High Court is vacated and the writ issued by the High Court is recalled. Consequently the Nomination Board will be free to decide the case of nomination of Sadia Shah in its discretion in light of the relevant law uninfluenced by any observation or direction of the High Court."
15. In pursuance of the direction given by this Court the Nomination Board considered the matter in its meeting held on 1st of June, 1995. In the letter written on behalf of the Nomination Board to the Ministry of Health, it is that Sadia Shah was not entitled to get nomination against a seat reserved for State Subjects as she was an American National. The disputed seat was awarded to respondent Iram Shahzadi. This is the decision which was challenged before the High Court resulting in the judgment under appeal. These facts make it clear that the nomination of the appellant was not withdrawn or cancelled by the Nomination Board; it rather stood cancelled by virtue of the judgment of this Court recorded on 17th of May, 1995. Thus, if in the judgment under appeal, the High Court had not directed the Nomination Board to decide the matter afresh a vacuum would have been created. Simple acceptance of the writ would have the only effect of unseating respondent Iram Shahzadi and then there was to be a dead end. Even the appellant herself was to derive no benefit from the situation created by judgment of High Court as her nomination made by the High Court had already been annulled. We, therefore, reach the conclusion that the High Court acted correctly in remanding the case to the Nomination Board.
16. Another argument raised by the learned counsel for the appellant is that the Nomination Board has already expressed its opinion about merits of the case and thus the High Court should not have remanded the case to the Board. It was further submitted by the learned counsel that the Nomination Board took a firm stand in the High Court against the appellant in the written statement. He submitted that the tenor of the Nomination Board in the written statement was such that the remand order seems to be idle because the Nomination Board has a closed mind so far as the claim of the appellant is concerned. In this connection the learned counsel relied on a judgment of this Court in Sh. Atta Ullah v. Mian Riaz Ahmed (Civil Appeal No.15 of 1994, decided on 12-7-1994) in which, while dismissing an appeal against an order of the Service Tribunal whereby the case had been remanded by the Service Tribunal to the Selection Board, this Court issued the following direction: -- "As directed by the Service Tribunal the matter will be reconsidered but in the interest of justice we direct that those members of the Selection Board who participated in the meeting in which the disputed recommendations were formulated will not participate in the de novo proceedings. To carry out this direction the Government may, if necessary, constitute a Special Selection Board for that purpose."
17. The argument is met by Mr. Ghulam Mustafa Mughal, the learned counsel for the respondent, by vehemently contending that as the Nomination Board is the only authority which can deal with the matters of nomination. He submitted that the Board has been set up under a Government Order and has been entrusted with all functions of deciding about the merit of students seeking nomination to the professional and other colleges of Pakistan where seats for State Subjects have been reserved. It was, therefore, contended that if a remand order has to be passed there was no legal option available to the High Court except to remand it to the Nomination Board. In our view the position taken by the learned counsel for the respondent is correct. If the case has to be remanded it has to be remanded to the Nomination Board and to no other authority. It is open to the appellant to move the Government if, there exists any valid reason, agitating that the Nomination Board, as presently constituted, shall not be able to decide the matter independently.
18. We do not want to make any observation on the point whether any such justification exists or not. It is for the appellant to make out a case before the Government. So far as the judgment of Sh. Atta Ullah is concerned the facts of that case are peculiar. On the recommendation of the Selection Board Sh. Atta Ullah was promoted as Apple Coordinator, in B-18. This promotion was set aside by this Court on the ground that the case of respondent Mian Riaz Ahmad had not been brought under consideration. Consequently the Selection Board was directed to reconsider the case in light of the observations of this Court. Whet the matter was reconsidered by the Selection Board the case of Mian Ria: Ahmad was brought under consideration but it was declared that the previous decision was correct and the Board ratified its previous decision. However Mian Riaz Ahmad was also approved against an existing vacancy in B-18. Mian Riaz Ahmad again filed an appeal before the Service Tribunal which came to the conclusion that the order of this Court had not been implemented by the Selection Board. The Tribunal held that it was a clear violation of the judgment of this Court that instead of giving a fresh decision it had ratified the decision already given. When appeal was filed with this Court, the view taken by the Service Tribunal was upheld. It was brought under consideration whether action should be initiated for violation of subsection (3) of section 42- A of the AJ&K Interim Constitution Act which requires all the executive and judicial authorities of Azad Jammu and Kashmir to act in aid of the Supreme Court. But action was not initiated because it was thought that it may adversely affect the correct decision about the rights of the contesting parties. However, in the interest of justice following direction was issued---- "As directed by the Service Tribunal the matter will be reconsidered in the interest of justice we direct that those members of the Selection Board who participated in the meeting in which the disputed recommendations were formulated will not participate in the de novo proceedings. To carry out this direction the Government may, if necessary, constitute a Special Selection Board for that purpose."
19. That order was passed in peculiar circumstances of that case but the fact remains that the case was remanded to the Selection Board. It was left to the Government to set up a Special Selection Board. It is also clear that reconsideration by the Selection Board was not dispensed with. In the present case the plea of the appellant is that the matter should not go to Nomination Board at all.
20. For that we do not find any legal warrant.
21. Raja Muhammad Hanif Khan also addressed arguments on the merits of the case. For instance he contended that the fact that appellant is an American National did not take away her right to be nominated against a seat reserved for the State Subjects. He also argued that she was not required by the relevant rules to pass the subjects of Islamyat and Pakistan Studies in the F.Sc.
22. Examination. However, we do not want to advert to the merits of the case in view of the fact that the High Court has remanded the dispute to the Nomination Board for fresh decision and, therefore, did not advert to the merits of the case.
23. Before parting with the case we may mention that Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, raised an objection at the very outset that appeal had become infructuous because, as brought to our notice, the remand order had been acted upon and the Selection Board had meanwhile taken a fresh decision in the matter. We repel this contention. . The appeal has been filed against that part of the judgment in which the High Court ordered the remand of the case to the Nomination Board. The decision of the Board owes its existence to the remand order passed by the High Court. C If the appeal had succeeded the order passed by the Nomination Board would have been rendered redundant. It may also be observed that this judgment will not preclude the appellant from challenging the fresh decision of the Nomination Board.
24. For the view we have taken in the matter the appeal stands dismissed with costs.