S. A. NUSRAT, J.-This judgment will dispose of Constitutional Petitions Nos. D-703 and 704 of 1978, which involve almost identical facts and common questions of law.
2. Brief facts involved in the Petition No. 703 of 1978, are that petitioner Miss Fozia Nasir, who has a domicile of Sanghar District, had applied for admission to Medical College of Sind for the academic year 1976-77 but was unsuccessful due to shortage of marks. In order to improve her position she again appeared in the Board of Intermediate and Secondary Education Examination for the year 1977-78, but was informed by the Board that she had failed to improve her division and was allowed to retain her previous marks. She again applied for admission in Medical College for the academic year 1977-78 on the basis of marks obtained by her during the previous year. She was interviewed by the Selection Board on 15-3-1978, but the Board refused to consider her marks of the previous year for the purpose of admission. From the Marks Sheet for the year 1977-78, which was sent directly to the College, the petitioner came to learn that she was marked absent in physics practical which was against facts. Accordingly she applied for rechecking and on scrutiny the Board announced correct result on 28-3-1978, according to which she had secured 615 marks and had passed in first division. She was also entitled to 20 marks under rule 18(b) (ii) according to prospectus of M. B., B. S. Miss Fozia Nasir made a written application to the Chairman Selection Board, Liaquat Medical College, Hyderabad for reconsideration of her case on the basis of her improved division and marks. The petitioner was accordingly selected by the Selection Board on the basis of merit and her name was displayed on the Notice Board on 4-4-1978, in the final list of selected candidates with the remarks "subject to verification from Board of Intermediate and Secondary Education, Hyderabad". However, by a letter dated 27th of April 1978, the petitioner was informed that the Appellate Committee in its meting held on 22-4-1978 had rejected her case for admission on the basis of her revised result, issued by the Board of Intermediate and Secondary Education on 28-3-1978, which was after the date of interview. It was said by way of consolation that the petitioner could apply for selection for the year 1978-79 under rule 13 of the Admission Rules as laid down in the pospectus of 1977-78.
3. The facts in the connected Petition No. 704 of 1978, filed by Miss Farhat Bano differ only in that she had not applied for admission in 1976-77 and had secured 673 marks and rest of the facts are identical in both the petitions.
4. These facts have not been controverted by the respondents Nos. 1 and 2 who did not file any counter-affidavit. As a matter of fact, the learned Additional Advocate-General made a statement, as is to be found in the Order-sheet of Petition No. 703/78 dated 23-5-1978, which was to the effect that "she did not propose to file counter-affidavit as the facts pleaded by the petitioners were not disputed." This statement applies to the connected petition also. In the circumstances, there is no dispute with regard to the facts as stated in the petition which have been reproduced above.
5. The petitioners have challenged the order dated 27th of April 1978, conveying the decision of the Appellate Committee rejecting their admission to the Medical College.
6. Mr. S. A. Wadood, learned counsel for the petitioners, contended that in the first place the impugned order was passed behind the back of the petitioners in violation of the principles of natural justice. The learned counsel further contended that the allegation contained in the impugned letter that the order was passed by the Appellate Committee was on the face of it incorrect. There exists no provision regarding filing of appeals and none had been filed whatsoever.
According to the learned counsel even the existence of any Appellate committee was foreign to the prospectus. The respondents Nos. 3 and 4 who were admitted in place of the petitioners, have filed Counter-affidavits and it is not alleged by either of them that they had appealed against the admission of the petitioners. Mr. Usman Ghani Rashid, learned Additional Advocate---General, also could not controvert this fact and we have ourselves examined the record which was produced by Mr. Usman Ghani Rashid, and not even any representation, much less any memo, of appeal, is borne on the record. In the circumstances, it follows that the action was taken suo motu by the Selection Board in colourable exercise of power which it did not enjoy and which was termed as power of appeal. The learned Additional Advocate-General was unable to point out any single provision from the prospectus which conferred such authority on the Board. Rule 15 of the prospectus, issued by the Health Department Government of Sind, provides for the display of list of the candidates according to the provisional merit at the announced centres of interviews for inviting objections which are to be filed with the Chairman of the Selection Board on or before the day of interview, after which objections are not to be entertained. Rule 17 lays down that the Chairman, Selection Board shall call the candidates for interview, in order of merit, and the candidates called for interview are to be considered and selected by the Board. In the instant case, the petitioners had been interviewed and, since their cases did not merit consideration initially, there was no question of displaying their names in the provisional merit list. Their names, therefore, were shown in the final list of selected candidates a copy of which has been filed alongwith the petition and the names of the petitioners appear at Serial Nos. 1 and 4.
8. The learned Additional Advocate-General contended that according to rule 2 only those who had passed Intermediate Science (Pre-Medical Group) Annual Examination of 1977 or Supplementary Examination of 1976, were eligible for admission for the academic year 1977-78.
According to him the Petitioners had no entitlement for applying for admission and, therefore, they had no vested right to question the impugned decision of the Selection Board. We are not impressed by this contention because both the petitioners had clearly mentioned in their Application Forms that they were applying on the basis of the result for the Intermediate Examination (Science), 1976-77. Both the petitioners had made applications after the date of interview to the Chairman of the Selection Board on 29th March 1978 for reconsideration of their cases on the basis of the result of the Board declared on 28-3-1978 showing their correct results.
These two applications are borne on the record, shown to us, and in the circumstances there can be no manner of doubt that true facts were fully brought to the knowledge of the Board and nothing was suppressed by the petitioners. We are perturbed to note that the Board of Intermediate and Secondary Education had been callous and thoroughly negligent in declaration of the result showing the petitioners absent in physics practical, which was absolutely incorrect.
The petitioners were made to suffer on account of negligence of the Board of Education and it would be height of injustice if they are allowed to suffer for the second time as a result of the impugned decision of the Selection Committee, more so, because the impugned orders suffer from complete lack of jurisdiction. There is no allegation of misrepresentation against the petitioners and we feel that substantial justice had been done to them earlier by the Selection Committee and in the circumstances we are not inclined to stand on any technicalities depriving them from admission in Medical College which they succeeded in securing in second attempt. The mention in the letter that the petitioners will be entitled to admission in the academic year 1978-79 was hardly any consolation to them because again they would have to compete with other candidates and one does not know if they could succeed.
10. In the circumstances, we would accept the petitions and set aside the impugned orders. The petitioners will be entitled to costs.