1. NASIR-UL-MULK, J.---Muhammad Shahzad Qazi son of Dr. Fazal Mabood Qazi was admitted in 1st Year M.B.,B.S. Khyber Medical College in the sessions 1996-97 on one of the three seats reserved for the teaching staff of Khyber Medical College, referred to in the Prospectus as category 'B' seat. The petitioner was not otherwise entitled to the seat because of his lower merit but qualified after another candidate for the category 'B' seat, Saeed Yousaf son of Dr. Naveed Yousaf, surrendered his right in favour of Muhammad Shahzad Qazi, and opted for a seat reserved in Ayub Medical College, Abbottabad for the children of N.-W.F.P. doctors which has been referred to as category 'N' seat in the Prospectus of Ayub Medical College. The two candidates further gave undertaking to Joint Admission Committee that after thi pass their First Year Professional Examination, there will be a mutual transfer between the two so that Saeed Yousaf will migrate to Khyber Medical College and Muhammad Shahzad Qazi to Ayub Medical College. The undertaking was submitted to the Joint Admission Committee and was not only signed by the members of the Joint Admission Committee but by the respective father of the two candidates. However, as a result of this arrangement Muhammad Shahzad Qazi was admitted to Khyber Medical College, but Saeed Yousaf was declined admission in Ayub Medical College. The latter then went back to Khyber Medical College to claim his seat. Having higher merit than Muhammad Shahazad Qazi, Saeed Yosaf was admitted to Khyber Medical College resulting in the cancellation of admission of Muhammad Shahzad Qazi by Order No,1797, dated 27-3-1997. This order has now been impugned by Muhammad Shahzad Qazi.
2. 2.The impugned order was suspended by this Court on 4-4-1997 and the petitioner was allowed to attend classes provisionally at his cost and risk. The Principal Khyber Medical College, who is also Chairman of the Joint Admission Committee, filed his comments in pursuance to direction by this Court. Responding to the allegations in the writ petition that since the Joint Admission Committee was a party to the arrangement whereby the petitioner was granted admission in the Khyber Medical College the respondent is estopped from cancellation of the admission, the respondent, in the comments, explained that the adjustment was privately made by the candidates and not at the behest of the members of the Joint Admission Committee. However, it was not denied that the members of the Admission Committee had affixed their signatures to the joint written undertaking made by the candidates.
3. 3.The learned counsel in his submissions at the hearing of the petition in motion contended that once the petitoner was granted admission and issued roll number in pursuance to the decision of the Joint Admission Committee, attended by the members of both the Medical Colleges, the petitioner gained a vested right to complete his studies at the College, and therefore, the concellation of his admission was infringement of that vested right. The learned counsel placed reliance upon a recent judgment of the august Supreme Court in Chairman Selection Committee etc v. Wasif Zamir Ahmad (1997 SCM R 15).
4. 4.There is no doubt that the petitioner was admitted to, Khyber Medical College as a result of the decision of the Joint Admission Committee. Before commenting upon the validity of this decision, it would be appropriate to examine the background in which it was made. The entitlement to admissions in the two Colleges, which are the only ones in the N.-W.F.P., are determined from a joint list by the Joint Admission Committee headed by the Principal, Khyber Medical College with the Principal, Ayub Medical College as its Co-Chairman and comprised of nine other members. It is not disputed by the petitioner that he was not initially entitled to admission on merits in the Khyber Medical College on one of the three seats reserved for the Teaching Staff of the College but was granted admission only after Saeed Yousaf opted for a seat in the Ayub Medical College. Saeed Yousaf, whose father was a teacher in Khyber Medical College, with 623.7 marks was entitled to admission on category 'B' seat, the one reserved for the children of the teaching staff of Khyber Medical College as well as category 'N' seat reserved for the children of N.-W.F.P. doctors. In order to facilitate the admission of the petitioner, with 575.6 marks on category 'B' seat by an arrangement Saeed Yousaf agreed to accept the category 'N' seat, thus depriving another candidate, Nadia Nadir with 615-1 marks of category N' seat. The right of Saeed Yousaf to choose between the two colleges cannot be denied to him. But he wanted to study in Khyber Medical College, Peshawar and not Ayub Medical College, Abbottabad. Not only that he resides with his parents at Pehsawar but his desire and intention to study at Khyber Medical College is clearly revealed from the joint undertaking that he and the petitioner undertook by which the two agreed that Saeed Yousaf would return to Khyber Medical College, Peshawar after the first Professional Examination. The object of the admission of Saeed Yousaf in Ayub Medical College, seen in the light of the said undertaking, was to enable the petitioner to gain admission in a Medical College and consequently to deprive another candidate, Nadia Nadir, with higher merits than the petitioner, of a place in Ayub Medical College. By this arrangement the seats reserved for the children of the Teaching Staff of Khyber Medical College were indirectly increased from 3 to 4 at the cost.of the children of other doctors of N.-W.F.P., who were deprived of the sole seat reserved for them in Ayub Medical College.
5. The adjustment, as the parties put it, <u>clearly smacks of mala fide.</u> The Joint Admission Committee knowing the purpose of the adjustment/arrangement ought not to have approved it in the fijst place. This adjustment could have successfully been challenged by Nadia Nadir had she not been subsequently admitted.
6. ' The contention that the admission of the petitioner in Khyber Medical College has invested him with a legal right to complete his studies is without force. The admission to the petitioner was granted as a result of an arrangement/adjustment that was brought about for ulterior motive, the validity of which was questionable and would, therefore, confer no legal right on the petitioner.
7. Refusal by the Principal, Ayub Medical College to grant admission to Saeed Yousaf and the admission of the latter to Khyber Medical College resulting in the cancellation of the petitioner's admission only rectified on illegality committed earlier. Thus, even if the order of cancellation of the petitioner's admission is considered to have been made not by competent authority no writ can be issued to strike down the decision, as to do so would restore an unlawful order of the Joint Admission Committee and perpetuate the petitioner's illegal admission in the Khyber Medical College. Courts obviously will not exercise its equitable Constitutional jurisdiction in aid of injustice.
8. Even on the facts of the case, the ends of justice would be properly met if the impugned order is maintained. The controversy relates to two seats, one in Khyber Medical College and the other in Ayub Medical College, with 3 candidates, namely, the petitioner, Saeed Yousaf and Nadia Nadir.
9. Out of the 3, the petitioner has the lowest marks. Courts always lean in favour of the candidate with higher merits. In fact by the terms of the undertaking between the petitioner and Saeed Yousaf, signed by the members of the Joint Admission Committee, the admission of the former in Khyber Medical College and that of the latter in Ayub Medical College was temporary as they had to swab their places after the first Professional Examination. This meant that the permanent admission of the petitioner was in Ayub Medical College and that of Saeed Yousaf in Khyber Medical College.
10. Thus considering that the petitioner's permanent admission was in Ayub Medical College, he was not entitled to the same in the presence of Nadia Nadir who had better merits. Looked at from any angle the petitioner have deserved to be admitted to either the Khyber Medical College or Ayub Medical College.
11. 6.Even otherwise, the admission of the petitioner in Khyber Medical College was provisional as the office order whereby the petitioner was admitted would reveal. According to the conditions laid down in the order, the petitioner's admission was liable to be cancelled if it was found that he was not entitled for admission under the rules or that he was not so entitled in preference to another candidate who had also applied for admission. The petitioner's admission being provisional, did not confer upon him a vested right to stay at the college when Saeed Yousaf with better merit reclaimed his seat. We are canscious of the fact that Saeed Yousaf is equally blameworthy for entering into an unlawful arrangement with the petitioner but his edge over the petitioner is his better marks.
12. 7.The rule laid down by the Supreme Court in the case of Chairman, Selection Committee v. Wasif Zamir Ahmad that the admission of a candidate in a Medical College, which was implemented in letter and spirit, canters upon him a vested right, is inapplicable to the facts of the present case. In that case the candidate whose admission was in question, gained admission due to mistake committed by the computer resulting in the exclusion from admission of another candidate with better marks. The mistake was rectified and the admission of the first candidate was cancelled. He approached the High Court which granted him provisional admission and ultimately accrued the writ petition on the ground that a vested right had been accrued to him to continue his studies at the Medical College. At the same time, it was ordered that the admission of the candidate with better merit would not be affected. The Chairman, Selection Committee questioned the judgment of the Lahore High Court before the august Supreme Court. The order of the High Court was upheld on the grounds inter alia, that the respondent gained admission for no fault of his and cannot be allowed to suffer for the negligence of the Admission Committee and therefore his admission created a vested right in him to complete his studies. In the case before us, the petitioner was not only at fault but was instrumental in gaining admission through an unlawful adjustment/arrangement. Such admission would not create any vested right in the petitioner.
13. Furthermore, the judgment of the arguest Supreme Court is silent as to whether the admission of the respondent in the case was provisional and liable to cancellation as in the present case.
8. The foregoing discussion leads us to the only conclusion that the petitioner's admission was rightly cancelled as he never was entitled to it. Consequently, the impugned order cannot be set aside. The writ petition is therefore, dismissed in limine.