RASHEED A. RAZVI. J.--- The petitioner who claims to be a permanent resident of Nawabshah.
Sindh has preferred this Constitutional Petition impugning the acts of respondents Nos.1 and 2 in refusing her admission in the 1st year M.B.,B.S. for the session 1995-96 in Liaqat Medical College, Jamshoro and the further acts of respondents Nos.l and 2 in giving preference to the respondents Nos.3 to 6 in the matter of admission over the petitioner.
2. The case of the petitioner is that she is holder of National Identity Card bearing No, 431-76-285917 which was issued by the D.R.O. Nawabshah; that her father was also a permanent resident of District Nawabshah and is retired Principal of Sachal Sarmast College, Nawabshah; that the petitioner passed her Secondary School Examination and Intermediate Examination from the Hyderabad Board in the years 1992 and 1995. respectively; that she obtained a total of 793 marks as against 1100 marks (inclusive of NCC marks) in her intermediate examination and. therefore, applied for admission in the medical college in 1st year M.B.,B.S. for the session 1995-1996. It is further case of the petitioner that when the provisional list for admission of candidates was released her name appeared at Serial No,39 and that the respondents Nos.3 to 6 had lesser marks than her, but, despite that, when the .final list was issued by the respondent No,1 her name was deleted, hence she has approached this Court with the following relief:--
(a) To declare that the petitioner is entitled for admission in 1st year M.B.,B.S. Class for the Session 1995-1996.
(b) To declare that the petitioner has obtained higher marks as disclosed in the provisional, list than the respondents Nos.3 to 6 and as such she is entitled for admission.
(c) To declare that the selection made by the selection committee headed by the respondent No,1 is illegal against the law and without any basis while ignoring the documents filed by the petitioner in support of her case regarding admission in 1st year M.B.,B.S. Class for the Session of 1995 to 1996.
(d) To declare that under the facts disclosed above the petitioner is entitled for selection and admission in 1st year M.B.,B.S. Class in Session of 1995-96.
(e) To declare the petitioner be allowed to attend the classes at her own risk at the session which has already started after selection.
(f) ...........................
(g) ..................................
3. We have heard Mr. Mirza Abdul Rasheed, Advocate for petitioner and the learned A.A.-G. Sindh and Mr. Hakim Ali Siddiqui, Advocate for respondents. Before entering into discussion of the merits of the case, it is pertinent to note that on 2-4-1996 when this matter came up for Katcha Peshi, pre- admission notices were issued to the respondents as well as to the Advocate-General, Sindh. The respondent No,1 was directed to file para wise comments positively within two weeks. Thereafter, on 24-4-1996 this petition was admitted for regular hearing. However, on two subsequent dates of hearing time was again sought by the learned A.A.-G., Sindh for filing comments but till the date of final hearing no such comments were filed. None of the other respondents i,e, Nos.3 to 6 have filed. any counter-affidavit of objections to this petition. In view of these circumstances, there is no reason available on the record as to why the petitioner was not granted admission despite the fact that she obtained more marks than the respondents Nos.3 to 6.
4. Mr. Mirza Abdul Rasheed, Advocate has argued that the petitioner was verbally informed that since she is not a permanent resident of Nawabshah, her name was removed from the final list of successful candidates. In support, the petitioner has filed copies of her National Identity Card, Certificate of Domicile of her father, her domicile certificate as well as the permanent residence certificate which all indicate that her father as well as the petitioner are permanent residents of District Nawabshah. It was argued by Mr. Mirza Abdul Rasheed that the ground of rejection of petitioner's form on the basis that she is not a permanent resident was, therefore, illegal and unjustified. He has stressed on the argument that the respondent No,1 is not competent to reject the admission form merely on technical ground. He has referred to the following cases:--
(i) Aziz Ahmed v. Government of Sindh 1995 CLC 1884,
(ii) Hama Khan v. Province of Balochistan and others 1995 SCM R 711, and '
(iii) Miss Zubeida Bibi v. Selection Committee, Bolan Medical College, Quetta and others PLD 1996 SC 163.
5. Mr. Hakim Ali Siddiqui, learned counsel for the respondents Nos.3 to 6 has opposed the maintainability of this petition on the grounds that the petitioner has not approached this Court with clean hands and that her name was rightly deleted from the final list of candidates. In alternate, it was argued by Mr. Hakim Ali Siddiqui that in case of this Court comes to the conclusion that the petitioner is entitled to the relief then the admissions of respondents Nos.3 to 6 are not liable to be disturbed as they were legally and bona fidely granted admission and have joined their session/classes. Learned Additional Advocate-General, Sindh has adopted the arguments of Mr. Hakim Ali Siddiqui. Following cases were cited on behalf of the respondents:--
(i) Miss Khursheed Bano v. Chairman Selection Committee and Principal Liaquat Medical College, Hyderabad 1982 CLC 499,
(ii) Miss Khursheed Bano v. Chairman Selection Committee and Principal Liaquat Medical College, Hyderabad 1982 SCM R 106,
(iii) Ahsan Ali v. Secretary to Government of the Punjab, Health Department 1982 CLC 2144,
(iv) Muhammad Imtiaz Ahmad v. Province of Sindh and 3 others 1982 CLC 1079,
(v) Khalid Sher v. Principal and Chairman Academic Council, Selection Board and others PLD 1987 Kar. 255,
(vi) Masood Ahmed v. Government of Sindh and 4 others PLD 1994 Kar. 370, and
(vii) Syed Amanullah v. Additional City Magistrate No,2, East, Karachi and another PLD 1978 Kar. 934.
6. In the case of Khursheed Bibi 1982 CLC 499, a Constitutional petition was summarily dismissed by a Division Bench of this Court on the grounds that though Rule 12 of the prospectus for the relevant year required that all the candidates must submit their relevant documents at least at the time of interview but the petitioner did not file the same within time and that the domicile certificate of her guardian did not include her name. However, the petitioner went before the Supreme Court through petition seeking leave to appeal which was dismissed and the order of this Court was upheld; 1982 SCM R 106. The other reported cases are on the point that where petitioner was granted relief for admission by the Court, it was held that it is not proper to disturb the admission of the respondents. The case cited at serial No, (iii) Above as well as the cases cited by the petitioner's counsel support this view. The case cited at serial No, (iv) above does not advance the respondents' case. The facts of the case Khalid Sher PLD 1987 Kar. 255 are that the petitioner's admission form was rejected because his mother's domicile was not of the same district. it was held that the decision of respondent No,1 in refusing admission to the petitioner was unlawful and was of no legal consequence. In view of the fact. that the respondent No,3 was already granted admission due to misinterpretation of rules and was attending classes for one year. no relief was granted by this Court against the said respondent and the matter was left with the respondent No,2 to decide his case according to the principle of natural justice and equity. In the case of Masood Ahmed PLD 1994 Kar. 370 which is a judgment of a Division Bench of this Court authored by my learned brother Wajihuddin Ahmed, J., it was held that on principle and authority. a student should not be made to suffer for something which in all likelihood, cannot be laid at his door step by way of a mistake or fault. The petitioner was permitted to be admitted in the current session subject to availability of seat in the ordinary course. The last cited case Syed Amanullah PLD 1978 Kar. 934 relates to the proposition as to how Constitutional jurisdiction should be exercised by a High Court. Facts of the said reported cases are quite different from the facts of the present case.
7. In the case of Aziz Ahmad 1995 CLC 1884 which has been relied upon by the learned counsel for the petitioner, this Court after referring to the case of Khalid Sher v. Principal and Chairman.
Academic Council, Selection Board and others PLD 1987 Kar. 255, held, inter alia, that the petitioner should not have been condemned unheard and his name should not have been excluded from the final list on the ground that the domicile certificate was not submitted. It was further held by this Court that submission of a domicile certificate alongwith the application form is for the purpose of supporting the evidence of the status and eligibility of the candidate and, therefore, it does not relate to unwarranted qualification to be admitted. In further support of this view. the case of Aasia Ishaque v. Selection Board for admission in the medical colleges of Sindh and others 1986 M LD 2079 was referred. The petition was granted to the extent of prayer declaring entitlement of the petitioner in the 1st year M.B.B.S. Class but no relief was granted in respect of the respondents Nos.3 to 7 who were granted admission: Recently a Full Bench of the Honourble Supreme Court in the case of Hamza Khan v. Province of Balochistan and others 1995 SCM R 711 has also held that where an applicant is entitled to admission against open merit seats, omission on his part to apply for it and to seek admission against some other reserved seat is not sufficient ground to deny his admission, which he is otherwise entitled to. Again in the case of Zubeda v. Selection Committee, Bolan Medical College, Quetta and others PLD 1996 SC 163 where the appellant was disallowed admission in 1st year M.B.,B.S. on the ground that she failed to produce domicile certificate of the said District, it was held that the view of the respondent was hypertechnical. It was further held as follows:-- The object of reservation of seats for various districts of the Province seems to be that the students from various districts should have admission in the Medical College on equitable basis. It will not be out of context to mention that the appellant's elder sister and other family members were granted admission in the professional colleges and employment in the Government service of Balochistan on the strength of the appellant's fathers aforesaid domicile certificate that they were domiciles of Pishin District. ..."
7. We have given our anxious consideration to the factum that the appellant as well as respondent No,4, Rubina Shah, are in the Fourth Year M.B.,B.S. and if respondent No,4 is dislodged at this stage, it would not only be a loss to her but would be loss to the public money which has been spent on her above education. We would, therefore, observe that respondents Nos.1 to 3 may sympathetically consider her case and to allow her to continue with her studies as observed by this Court in the earlier cases, namely, in the case of The Chairman, Selection Committee, Bolan Medical College, Quetta and others v. Miss Safia Hameed and others 1979 SCM R 529 at page 533 in the case of Miss Salma Mughal v. Selection Committee, Bolan Medical College, Quetta and others 1993 SCM R 2083.
8. In the instant case, neither the respondents Nos.1 nor 2 have filed any parawise comments nor the other respondents have filed any counter-affidavit and/or objection. In absence of any opposition or rebuttal, we are left with no alternate but to treat the contents of the petition as admitted. (For any reference see the cases of Muhammad Rafiq Gazdar v. Additional Commissioner, Karachi PLD 1972 Kar. 119 and Muhammad Gul Kakar v. Province of Balochistan PU 1979 Quetta 66. In para. 4 of the petition it is averred that the sisters of the petitioner were also given admission in the same college on the basis of domicile of Nawabshah District and that the petitioner as well as her father are permanent residents of Nawabshah, Sindh. It is further claimed in the petition that the petitioner has got a total number of 793 inclusive of N.C.C. marks which number is over and above the marks obtained by respondents Nos.3 to 6. In this view of the matter, we do not see any reason why the petitioner's name was removed from the final list of the successful candidates. If as pleaded by the learned 'counsel for the petitioner, that her name was removed for non-submission of domicile certificate within time, then, in such circumstances, we are inclined to hold that the acts of respondents Nos.1 and 2 in deleting the name of the petitioner from the final list of the successful candidates without affording her an opportunity to show cause, is illegal and unauthorized. On this ground the petition is entitled to succeed.
9. The petitioner has not claimed any relief against the respondents Nos.3 to 6 who were granted admission after deletion of petitioner's name who apparently have joined the present session.
Accordingly, it is directed that the petitioner be given admission without disturbing the admission given to the respondents Nos.3 to 6. With the above observation, this petition stands disposed of.