1. ' WAJIHUDDIN AHMED, C J.---These are connected petitions involving admissions in Medical Colleges in Sindh. From time to time we have been passing orders in such petitions, relevant portions in which, if we reproduce, would explain the parameters of the controversies. Thus, recounting the nature of the dispute in C.P. No,D-1641 of 1997, we passed the order dated 11-12-1997, which is as under: "This case pertains to admission in a medical college in Sindh. The petitioner claims that even though the petitioner was denied admission for the year 1996-97 on merit, a large number of persons, much lower on merit than her, have been favoured with admission in medical colleges in Sindh.
2. ' We enquired from the learned Additional Advocate-General, Sindh as to what precisely is the factual position. He stated that under our orders in C.P. No,D-1050 of 1997 a comprehensive list of such admissions, made on basis other than merits, since 1991 has been submitted. Relevant to the year 1996-97, the learned A.A.-G. Sindh has informed us that in the entire Province of Sindh 1649 students have been admitted on merit whereas, in addition, 464 students have been admitted otherwise than on merit. We have, accordingly, asked the learned A.A.-G., Sindh to state in writing as to under what law this has been done and who are the individual public functionaries under whose orders such admissions have taken place. Details of such officials with names and designations would be submitted together with the number of such candidates credited to each of those individuals. Besides, affidavits of these persons, no matter how high their ranks, would be placed before us justifying what is attributed to have been done by them and the authority of law under which they claim to have acted.
3. ' This is a very serious matter and we must clarify that the impediment of Article 248 of the Constitution would not apply in relation to this order because we are not asking anyone to appear before us at this stage but only determining responsibility for purported wrongdoings.
4. ' Put up on 23-12-1997 but for such date the office would take steps to issue and publish notices in terms of Order 1, Rule 8, C.P.C. Concerning those students who may, thus have been admitted to medical colleges in Sindh under the so-called Chief Minister's quota. The petition as regards such students admitted thus, during the last two years, would proceed in a representative capacity in accordance with the Order 1, Rule 8, C.P.C. Above."
5. ' On 23-12-1997, in the same petition, further proceedings in the under-noted terms ensued thus: "In terms of. The order dated 11-12-1997 the learned Additional A.-G. Says that he has available with him the statement of Section Officer, Abdul Aziz Memon (Health Department) which he may be permitted to file in office with a copy to the learned counsel for the petitioner. We inquired front the learned Additional Advocate-General as to why affidavits were not being filed in terms of the referred order and his answer was that the relevant acts of commission and omission took place prior to the term of the present Government and those persons, who were responsible, could not be contacted. Asked about the officials involved in such orders, his answer was that the two concerned Secretaries were no longer holding the relevant posts and one of them was not in Pakistan whereas the other was not available. Let compliance with such order be made in letter and spirit and unless that is done the Secretary, Health Department, shall be present in Court personally on the next date, which we fix for 15-1-1998. Regarding the proceedings in terms of Order 1, Rule 8, C.P.C. We have been informed that requisite notice in daily Nawa-e-Waqt was published on 19-12-1997 and a copy of the publication is on record. However, none has appeared in response to such notice. In the circumstances, we would like similar notices to be published in two newspapers one in Sindhi published from Sukkur/Hyderabed and the other newspaper in Urdu being published from Karachi but other than Nawa-e-Waqt and having substantial circulations."
6. ' These petitions were together taken up again on 15-1-1998 and the order appearing below was passed: "In the first place, the learned Additional Advocate-General, Sindh, says that due compliance with the order dated 11-12-1997 has been made and affidavit(s) statement(s) of the concerned officers in the Health Department, including the counter-affidavit of the then Health Secretary, Dr. Kamal Rajpar have been filed. Included is also a statement of Dr. A. Aziz Memon, Section Officer, Health Department. The present incumbent of the Office of Secretary Health has attended, according to the learned Additional A.-G., because affidavit of the then caretaker Chief Minister, Mumtaz Ali Bhutto, could not be obtained and the same applied to Dr. Shafi M. Qureshi, one of the previous Health Secretaries, as he is out of Pakistan for treatment. As soon as possible, the affidavit of the latter should be filed. We would examine all such replies in course of time.
7. ' At this stage and speaking tentatively, it seems to us that no admission in a medical college in Sindh could be allowed except in terms of the relevant prospectus, which itself has to be in consonance with the applicable law. Correspondingly, it is manifest that a large number of students have been allowed admissions in the purported exercise of powers which apparently were derived by the relevant functionaries upon so-called relaxation of the Rules. Because those, who did not qualify on merit benefitted from the exercise such, ex facie, may not be termed as anything other than conferring undue favours. No case of hardship or equitable implications is pleaded, let alone made out. In the result all such admissions may be found liable to be recalled and set aside. Because a large number of students, already admitted in this manner, were likely to be affected, we had directed the issuance of public notices in terms of Order 1, Rule 8, C.P.C. So that the possible affectees could appear and take their positions before us. None of this has happened.
8. Successive publications of due notices were effected through dailies Nawa-e-Waqt (19-12-1997).
9. Hilal-e-Pakistan (8-1-1998), Jasarat (8-1-1998) and Ibrat (12-1-1998). Requirements of law having thus been satisfied, all such challenged admissions have come up for claims to be set aside but we refrain from passing any orders as yet. An alternative, which has been convassed today before us is that such of the petitioners, as have approached this Court and as are better qualified than those who have been accorded admissions in the above questionable manner, may be allowed admissions because of their higher merits but only such of the admitted candidates may be displaced, as should suffice to accommodate the petitioners, who have agitated their rights in Court and who are better on merit. Relative to this aspect and such solution, the learned Additional Advocate-General, Sindh, who is instructed by the Secretary Health, seeks time. In the circumstances, stipulating that the same order would apply to all other petitions, involving identical facts, we adjourn these connected petitions to 24-1-1998 at 10-30 a.m. a Saturday, as 23rd instant is a closed holiday, being Jumatul Wida, these cases requiring urgency because if the better qualified students are to be adjusted no unnecessary time should be lost. Besides, we would like to have another set of identical notices issued, which would be cumulative notices under Order 1, Rule 8, C.P.C. In all the above petitions for such date, the notices this time being carried in dailies Jang and Dawn.
10. ' To come up as above."
11. ' Today, when we took up the aforesaid connected petitions, we were informed that necessary publications in dailies Jang and Dawn had taken place. None, however, has appeared from amongst those who are likely to be affected by the outcome in these petitions. Besides, several of such persons have been sued in their personal names and what is more processes have been issued to them from time to time. Inter alia, such has transpired in C.Ps. Nos. D-577 of 1997 (Hyderabad), D-578 of 1997 (Hyderabad), D-579 of 1997 (Hyderabad), D-737 of 1997 (Larkana), D- 938 of 1997 (Larkana), D-966 of 1997 (Karachi), D-980 of 1997 (Hyderabad), D-1525 of 1997 (Karachi) and D-1665 of 1997 (Hyderabed). Except for a few, the rest of the private respondents have not appeared in spite of personal service in such petitions as well. It is thus obvious that in spite of every conceivable opportunity none in the large body of persons who were given admissions under the so-called Chief Minister's quota have in any reasonable manner responded. The requirement of law as postulated by Order 1, Rule 8, C.P.C. And others pertaining to direct service having been satisfied, we proceed to pass orders of disposal of these petitions through a common order.
12. ' The learned Advocate-General Sindh, at the outset, states that the respondents are willing to allow admissions to the petitioners provided always that the petitioners were eligible to apply and qualify to be admitted for the session 1996-97. This, in turn, would mean and imply that the petitioners to be so inducted in the relevant medical institutions would be in addition to and not in substitution of any of these students who are already pursuing similar courses of study for the same period and the same session. This is impermissible. There are designated numbers of seats in medical colleges and such number is fixed after all necessary exercise, taking into consideration the facilities available, the requirements to be met and all other relevant factors. In this background, it was absolutely out of the ordinary and in retraction of all rules that the so-called admissions on the purported quota of the Chief Minister were allowed. One mode, as already stipulated in the above orders, would be to scrap all such admissions which have no legal sanction whatsoever but that may spell hardship to a large body of persons, all of that number belonging to the student community, not yet past the green years in life. The other alternative, disserted upon above, is to exclude only such number from the students admitted on the alleged quota of the Chief Minister as are equal to the students that may be accommodated on the basis of merit and their rights, consequent upon the institution of the above petitions. This course, being less onerous and more equitable, we are inclined to adopt in the present petitions. Resultantly, the admissions of the least qualified of the students in the relevant medical institutions standing inducted under the so-called Chief Minister's quota shall stand cancelled and rescinded forthwith. Thereupon, the petitioners qualified in the above terms would replace them provided always that they have fulfilled the necessary technical and other requirements. At this stage, we may add that this order would not furnish any precedent for such of the candidates seeking admission in medical colleges in Sindh who have not yet come up with their claims and who may be induced to do so at this belated stage when those who have already been admitted have completed the better part of one year in the pursuit of relevant course of study. Indeed, today itself, we have dismissed Constitutional Petitions Nos.D-1906 and D-2109 of 1997, where the concerned students had approached this Court belatedly, one in the month of October 1997 and the other in November 1997.
13. The foregoing, however, would not affect any of the pending petitions either at the main seat of the High Court or at any of its Benches where the facts and circumstances are identical to the petitions which are hereby disposed of and needless to add that those petitions would be governed by the same principles, which have been invoked in the decision of these petitions.
14. ' Before concluding, we may note here that while we were informed that the present administration was not responsible for any medical college admission in the context of the referred so-called quota, we have noted a deviation at least -in one case, namely. C.P. No, D-2109 of 1997, the relevant order wherein, we reproduce below, stipulating such to come up in these petitions as well: "However, we have noted with concern that an admission on 9-7-1997 and been allowed to one Chin Pao apparently by the present Chief minister of Sindh and the relevant document is available at page 49 of this file. Here what is to be noted is that proceeding in C.Ps. Nos.D-577 of 1997 and D- 1641 of 1997, together with several others, we had been informed by the relevant law officer, upon due instructions, on an earlier date that such admissions under the so-called Chief Minister's quota were made and granted only during the days of the Caretaker Government and the present Chief Minister was not responsible for any such nomination. The case that we have detected today, therefore, needs an explanation in writing and that explanation would be submitted within a period of 15 days both in this petition and in the petitions made mention of above."
15. ' Subject' to the above disposed of.
THE END