This relevant facts in the background giving rise to this constitution petition are that Muhammad Hussain petitioner did his matriculation from the Federal Board of Intermediate and Secondary Education, Islamabad in Grade-B in the year 1994. He obtained Higher Secondary School Certificate from the same Board in the year 1996. He secured 644 marks out of 1100 marks in the Higher Secondary School Education. Additionally, he having taken part in the National Cadet Corps, on completion of training obtained N.C.C. 20 marks and total marks secured by him would 664. The copy of N.C.C. Certificate (No.NCC-715778) issued to the petitioner on 30th November, 1995 has been placed on the record.
2. The petitioner applied for admission in the University of Engineering and Technology at Taxila under Self-Financing Scheme introduced by the University and deposited an amount of Rs.2,50;000 as per admission policy declared by the respondents under the said scheme through publication in the daily 'The News' dated 28-2-1997. The candidate securing 60 % of the total marks were entitled for admission. The admission form of the petitioner was notentertained on the ground that he having obtained only 644 marks in the Higher Secondary School Examination did not qualify to be a candidate for admission. Out of 23 seats reserved under the said scheme, admission against 22 seats have been given and the last candidate admitted secured 665 marks in the Higher Secondary School Examination: One seat reserved under the Scheme is still available.
3. The claim of the petitioner is that his merit for admission was to be worked out not only on the basis of marks obtained by him in the F.Sc. Examination but with the inclusion of 20 marks of N.C.C.
Given to him on completion of successful training. According to the petitioner, N.C.C. Marks being part of educational studies and career, no student can be deprived of the credit of these 20 marks for the purpose of admission for the advance studies in the University.
4. Learned counsel for the petitioner contends that denial of concession of 20 marks for the purpose of admission in the University under section 29(c) of National Guards Act, 1973 (Act XLI of 1973) (as amended through Ordinance IV of 1975) amounts to refuse the admission to an educational institution in violation of constitutional mandate. He submitted that with addition of 20 N.C.C. Marks, the total marks of the petitioner increasing to 664 being more than 60 % , he would be entitled to get admission as per criteria fixed by the respondent. He argued that the statutory concession of addition of 20 marks of N.C.C. Cannot be refused through the regulation or policy framed by the University. Reliance has been placed on Miss Imrana Malik v. Chairman, on Selection Committee for Admission in Medical Colleges, Lahore and 2 others (PLD 1977 Lahore 820).
5. Learned counsel appearing on behalf of the respondents argued that the petitioner having obtained less than 60% marks in the F.Sc. Examination was not qualified for admission. According to him, the 20 marks of N.C-.C. Were to be added after the initial criteria for determination of merit is fulfilled. Learned counsel with reference to the advertisement made by the respondents for admission read with clause 27.1 of the Prospectus, argued that the petitioner was not entitled to be given admission.
6. Learned counsel for the petitioner referring to clause 26-6 of the Prospectus submitted that the benefit of 20 marks of N.C.C. Training was essential to be allowed to a candidate, if entitled, and claimed through the certificate issued by the concerned Authority.
'7. I have heard the learned counsel for the parties and gone through the record. The sole point involved for consideration is whether 20 marks of N.C.C. Are to be added for the purpose of 60 % marks for the admission in the University or the condition of 60% marks is confined to the examination on the basis of which admission in the University is being sought. The count of 20 marks of N.C.C. For the purpose of admission being permissible, the dispute raised was that same are not accountable for the purpose of initial merit, but for the benefit of higher merits to compete the admission in case, the seats are less in number to that of the candidates entitled for admission.
This is noticeable that withholding the benefit of 20 marks of N.C.C. For calculating the merit of candidate, who has not obtained 60 % marks in the examination would change the legal obligation of Selection Authority into its discretion.
Section 29(c) of National Guards Act, 1973 provides as under:-- "(c) shall, for the purpose of admission to any institution of advanced studies, be awarded twenty marks in addition to the marks obtained by him in the examination held for the purpose of such admission or, if no such examination is held, in 'the examination on the basis of having qualified in which he seeks such admission."
8. Clause 27.1 in Prospectus runs counter to clause (c) of section 29 of Act, 1973, which reads as under:-- "27.1. The applicant should have, however, obtained at least 60 % marks in the examination on the basis of which he seeks admission."
According to the statutory provisions, 20 marks of N.C.C. In addition to the marks obtained by a candidate in the examination will be accounted for the purpose of admission, therefore, the deviation from the basic law by inserting a conflicting clause in the Prospectus amounts to deny the admission and to deprive a candidate, who fulfiling the criteria is entitled for the admission. The above-referred clause in the Prospectus being not in conformity with the provisions of law on the subject, has no force to be given effect. The rule/policy of admission given therein and calculation of marks given therein, having subordinate position is controlled by the provisions of section 29 of the Act XLI of 1973 and, therefore, no rule/policy in conflict to the said provisions dealing with the subject can be inserted or incorporated in the. Prospectus. Section 29(c)(ibid) being not controllable or whittle down by the rules, part of the Prospectus framed by a subordinate authority, the concession available by virtue of said provision of law cannot be withheld. The concession of 20 marks to a student for the purpose of admission in an institute of advance studies in addition to the marks obtained by him in the examination was made available purposely. The wisdom behind was that student while participating in the N.C.C. Training may not loose his position in his educational career and that in case of deficiency in the studies, if any, he can be compensated.
The N.C.C. Training having considered part of education, the benefit of 20 marks was given to a N.C.C. Trainee not as grace but as of right.
9. The interpretation placed by the Selection Authority not to include the 20 marks of N.C.C. To determine the merit of a candidate for admission amounts to whittle down the advantage available under law. The rule on the subject in the Prospectus negating the prevision of law to deprive a candidate from his entitlement is of no consequence and effect. The petitioner with the addition of 20 marks of N.C.C. Would be entitled to get admission in the University by securing more than 60% marks in F.Sc.
10. The upshot of the above discussion is that the petitioner shall be given admission against the seat available as per his entitlement. This petition is accordingly allowed with no order as to costs.