CH. IJAZ AHMAD, J.-- I intend to decide C.R. No. 574/2000 and W.P. No. 17293-98 by one consolidated judgment having similar facts and law.
2. The brief facts giving rise to these cases are that petitioner appeared in FSC Annual Examination 1995 under Roll No. 808 held by respondent-Board. The result was declared and the petitioner obtained 812 marks; the respondent-Board issued certificate No. 1154 to the petitioner on 21.10.1995.
The petitioner on the basis of aforesaid certificate filed an application for admission in Medical College in Self Finance Scheme. The petitioner got admission on the basis of merit in Punjab Medical College Faisalabad in one of the reserved seat is Self Finance Scheme. The College Authorities allotted Roll No. 295 to the petitioner. Respondents No. 1 and 2 sent aforesaid certificate to the Board for verification. The Board submitted reply to respondents No. 1 and 2 that petitioner obtained 802 marks instead of 812 marks. The respondents cancelled admission of petitioner on 20.10.1997 without providing personal hearing to petitioner. The petitioner being aggrieved tiled suit for declaration with mandatory injunction that respondents No. 1 and 2 be directed to allow the petitioner, to attend the classes. Respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the following Issues were framed:- ISSUES. (1) Whether the plaintiff has got no cause of action and locus stand! to file this suit? OPD.
(2) Whether the plaintiff has not come to the Court with clean hands? OPD.
(3) Whether this suit is not maintainable in its present form? OPD.
(4) Whether the suit is had for non-joinder of necessary party? OPD.
(5) Whether the suit is barred by law? OPD.
(6) Whether the defendants are entitled to special costs u/S. 35-A CPC? OPD.
(7) Whether the plaintiff is a regular and bona-fide student of 2nd year M.B.B.S. Sessions 1996-97 against roll No. 295 in Punjab Medical College, Faisalabad and the office order endorsement No. 44/2993-3020/PMC/97 dated 20.3.1997 issued by the defendant No. 1 in accordance with the defendant No. 2 letter No. 2743/KEMC/97 dated 16.2.1997 vide which admission of the plaintiff has been cancelled and the dues paid by him forfeited is illegal, against facts, biased, malafide, collusive, ultravirus, without lawful authority and as such is void ab initio, inoperative, ineffective qua the rights of the plaintiff and are liable to be set aside and the plaintiff is entitled to carry on his studies in the Punjab Medical College till the completion of five years time? OPP
(8) Relief.
The Trial Court dismissed the suit vide judgment and decree dated 22.1.2000. The petitioner being aggrieved tiled appeal before the learned District Judge, who dismissed the same vide judgment and decree dated 9.3.2000; hence the present revision petition.
2. Petitioner's counsel submits that judgments of both the Courts below are result of misreading and non reading of record; that there is no allegation by respondents against petitioner that he obtained aforesaid certificate from the respondents by using any unfair means. The stand of respondent-Board is that certificate was issued inadvertantly i.e, 812 marks instead of 802 marks; that petitioner got admission on the self finance scheme; that judgments of both the Courts below are not in accordance with law laid down by the superior Courts. The petitioner is entitled to get the certificate of 802 marks but this fact was not considered by both the Courts below.
4. Learned Legal Advisor of respondent No. 3 submits that both the Courts below have given concurrent findings of fact against the petitioner after proper appreciation of evidence; that revision petition is liable to be dismissed. He summed up his arguments that judgment of both the Courts below are in accordance with law laid down by the superior Court.
5. Learned Addl A.G. Supported the contention of learned Legal Advisor of respondent No. 3.
6. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that petitioner is entitled to get the certificate with 802 marks as per principle laid down in Summar Pervez's case (PLD 1971 S.C. 838). The aforesaid proposition of law was subsequently also considered and approved by the Hon'ble Supreme Court in Faiza Malik's case (PLD 1992 SC 324).
It is pertinent to mention here that respondents No. 1 and 2 sent the certificate to respondent No. 3 for verification. Respondent No. 3 sent reply to respondents No. 1 and 2 that certificate be treated as valid to the extent that petitioner has obtained 802 marks instead of 812 marks. It is proper to mention here that there is no allegation against petitioner that he obtained the said certificate by using unfair means. This fact is borne out from the record of Courts below as respondent No. 3 did not allege any allegation of fraud or misrepresentation against the petitioner. Respondents No. 1 and 2 were directed to produce list of candidates who obtained admission in self finance scheme; they produced original record which reveals that respondents have allocated 130 seats for self finance scheme; pout of which 23 candidates did not deposit requisite fee to respondents No. 1 and
2. The petitioner has already deposited Rs. 2 lac to respondents No. 1 and 2 coupled with the fact that the petitioner is studying in the final year and has to appear in forthcoming Examination. There is no illegality in the judgments of both the Courts below. The judgments of Courts below are upheld to the extent that petitioner obtained 802 marks. In the interest of justice and fair play to save the career of petitioner on account of subsequent events that petitioner has deposited Rs. 2 lac and the respondents utilized the same till date. The petitioner is studying and has also passed all the Examinations and now he has to appear in the final Examination. There is no allegation against the petitioner that he got certificate by using any unfair means. The case of the respondent No. 3 is that it was inadvertently wrong committed by the official of the Board in grand total.
The respondents failed to make fresh offer to other candidates who were on the merit list of Finance Scheme qua 23 seats which had become vacant on account of non deposit the requisite amount, therefore, 23 seats remained vacant till date, meaning thereby respondents did not offer these seats to other eligible candidates, therefore, petitioner is entitled to get one of the aforesaid seat which was vacant and did not offer by the respondents to the other eligible candidates. The petitioner cannot be penalized by the in-action of public functionaries who did not offer the said seats to other eligible candidates on the merit list of finance scheme as the principle laid down in Ahmed Laifs case (PLD 1994 Lah 3).