1. ' SAIYED SAEED ASHHAD, C.J.--- In this Constitutional petition the petitioners have sought the following reliefs:-- "(1) Declare that the impugned Office Order of the respondent No,2 in respect of the petitioner is inconsistent with the order of Honourable High Court mentioned therein.
(2) Declare that the words 'least qualified' in the part of the High Court order mentioned in the impugned office order necessarily include those who are ineligible, and not qualified at all at the first instance.
(3) Declare that the Principle of National Justice, audi alteram paltram, has been violated in the matter of the petitioner, who is condemned unheard, only due to the mistake of the respondents, and as such the office order adversely affecting the petitioner is void ab initio.
(4) Declare that without affording the petitioner an opportunity to look into the record of the students admitted under the list, Annexure `A-6' with the petition, the petitioner's vested right to defend his cause has been violated, and as such the order against the petitioner, given by the respondent No,2 is liable to be set aside/withdrawn with immediate effect.
(5) Declare that the office order of the respondent No,2, in respect of the petitioner, is unjust, unreasonable, violative of the principles of Natural Justice and as such is void and is of no legal effect.
(6) Direct the respondents to restore the admission of the petitioner in his 1996-97 Session (Batch- 25) wherefrom he was ousted in the impugned manner, and which seats in the said Session and Batch were not filled in by those students who had challenged the quota, they being rather awarded admissions in 1997-98 Session (Batch-26), by the respondent No,2.
(7) Grant the petitioner the costs of the petition.
(8) Grant any other relief or reliefs as this Honourable Court may deem fit and proper in the circumstances of the case."
2. ' The brief facts as stated by the petitioner are that he passed his intermediate Science (Pre- Medical) Examination from Sukkur Board of Intermediate and Secondary Education in 1996 and secured 569 marks. He applied for admission in Chandka Medical College but could not seek admission on merit. Subsequently, the petitioner came to know that on the recommendation of the Chief Minister of Sindh admissions were being made in the said courses in various medical colleges in Sindh and, therefore, he applied for such nomination and was provided admission on 18-6-1997 in the M.B.,B.S. First Year Class in 1996-97 Session.. The petitioner appeared in the First Year Examination, held in December, 1997 and January, 1998 and cleared subjects of Anatomy, Physiology and Bio Chemistry resulting in his promotion to the higher class. The petitioner's admission alongwith four others was cancelled in compliance of the order of this Court. The petitioner further submitted that the order of respondent No,2 in canceling his admission was not in consonance with the letter and spirit of the order of this Court and was also in disregard of the Rules of Administration contained in the Prospectus for 1996-97 Session. It was further, submitted that several students were provided admission though they were not qualified inasmuch as they had not passed their Intermediate Science Examination in Medical Group in the year 1996, which was a precondition for admission in 1996-97 Session. As the petitioner did not succeed in obtaining a favourable decision from the concerned Authorities he had no option but to approach this Court by way of this Constitutional petition.
3. ' Respondent No,2 filed his comments, wherein it was submitted that so may petitions were filed in the Circuit Bench at Sukkur. And Circuit Courts, Hyderabad and Larkana against the admissions of the students against the Chief Minister quota and all such petitions were called at the principal seat at Karachi and on 24-1-1998 this Court passed an order in C.P. No,D-577 of 1997 and eleven other petitions as under:-- "The admission of the least qualification of the students in the relevant medical Institutions standing inducted under the so-called Chief Minister quota shall stand cancelled and rescinded forthwith. Therefore, the petitioners qualified in the above terms would replace them provided always that they have fulfilled the necessary technical and other requirements."
4. ' It is submitted that in view of the above order the petitioner and some other students admitted on Chief Minister quota were effected and, hence cancellation of their admissions because they possessed least qualification. It was denied by respondent No,2 that the petitioner stood at No,15 at the consolidated list of candidates admitted against Chief Minister quota but that he was placed at No,182 out of the 184 so admitted. Respondent No,2 denied to have acted illegally or contrary to the provisions of law and rules and submitted that he had acted in accordance with the order of this Court and that there was no force in the petition and the same was liable to be dismissed.
5. ' Respondent No,2 has also filed additional comments, wherein he stated that in pursuance of the order of this Court, dated 24-1-1998 admissions of five students, who were least qualified were cancelled and in their place five others were admitted in the year .1997-98 Session because the order of this Court had been made after more than one year. He further submitted that according to rule 5 of the prospectus relating to the policy of Admission only vacant seats were to be filled in within six months period from the date of commencement of the classes for 1996-97 Session, whereas all admissions of students admitted/accommodated on the seats falling vacant on account of cancellation of the least qualified students admitted on the Chief Minister's quota were admitted after complete one year.
6. ' We have heard the arguments of Mr. Shamsuddin Khalid, Advocate for the petitioner, Mr. Sarwar Khan, learned Additional Advocate-General, Sindh on behalf of the respondents and have perused the material on record as well as the relevant provisions of the law. It was agreed by the learned counsel for the parties that the petition would be decided finally at the Katcha Peshi stage, if need be, after admitting the same to regular hearing.
7. ' Mr. Shamsuddin Khalid submitted that respondent No,2 in his comments has tried to confuse the issue of cancellation of the admission of the petitioner on the basis of the order of this Court, dated 24-1-1998 in Constitutional Petition No,D-577 of 1997, whereby it was ordered that the admissions of the least qualified students admitted in Chandka Medical College against the Chief Minister's quota were to be cancelled and in their place students, who had secured more marks than the least qualified students, were to be provided admissions. He further submitted that respondent No,2 had failed to appreciate the importance of the order of this Court and had wrongly interpreted it to mean that the admission of the five least qualified students was to be cancelled irrespective of the fact whether they were still students of the First Year M.B.,B.S. Or after clearing the examination of the First Year M.B.,B.S. Had been promoted to the Second Year M.B.,B.S. And whether the five students who were to be admitted on the orders of this Court were to be provided admission in the Session of 1996-97 or of 1997-98. Elaborating his arguments he submitted that by the time order, dated 24-1-1998 was passed by this Court the five least qualified students whose admissions were ordered to be cancelled had already been promoted to the Second Year M.B.,B.S. Class, whereas as per order of this Court the five students who had better percentage than those five students whose admissions were cancelled had been provided admissions in the First Year M.B.,B.S. In the year 1997-98 Session in altogether a different Class/Batch. Mr. Shamsuddin Khalid further submitted that, in view of the above facts and circumstances cancellation of the admission of the five least qualified students was not at all required as they had already been promoted to the Second Year M.B.,B.S. Class wherein no admissions were to be made. Against the seats to be vacated by cancellation of their admissions and the five students who were to be admitted on the order of this Court were provided admissions in the First Year M.B.,B.S. In a different Class/Batch No,26, which had no relation with the cancellation of admission of the five affected students as the said five students were not part of Batch No,26 but were admitted in Batch No,25 in 1996-97 Session and after clearing the First Year M.B.,B.S. Examination had been promoted to Second Year M.B.,B.S. And no admissions were to be provided in Second Year M.B.,B.S. Against their seats/admissions.
8. ' Mr. Sarwar Khan vehemently challenged the admission of the five students in the Session of 1997- 98 in Batch No,26 to the First Year M.B.,B.S. On the ground that according to the rules governing the admission to the medical colleges a student was entitled to be admitted in a Session corresponding to the year in which he cleared the Intermediate medical group examination. He further submitted that the five students who were provided admissions on the order of this Court had passed their Intermediate Medical Group Examination in 1996 and they could have been admitted only in the Session of 1996-97 and once they had not been provided admissions in the aforesaid Session they could not be admitted to a medical college in Sindh in any other Session unless they reappeared in the Intermediate Medical Group Examination. In support of his above contention, he placed reliance on the case of Miss Humaira Kaukab v. Punjab Government and others reported in 1992 CLC 446. He further submitted that the order of this Court, dated 24-1-1998 directing the respondents to provide admissions to the five students was not consistent with the admission policy of the Government and had provided uncalled for benefit to the five students, who were admitted on the orders of this Court in the Session of 1997-98.
9. ' We have considered the arguments advanced by the learned counsel for the parties and have also perused the material on record. Mr. Sarwar Khan was very vocal in challenging the admissions of the five students who were admitted on the order of this Court purportedly against the seats to be vacated by the five least qualified students admitted against the quota of Chief Minister. The reason for this was that according to the prospectus issued for the admissions in the medical colleges a student was entitled to be admitted in a Session corresponding to the year in which he cleared the Intermediate Examination. In the present case the five students in question had passed their Intermediate Examination in 1996 and according to the admission policy they could have been admitted to a medical college in Sindh in the Session of 1996-97. After the end of the Session of 1996-97 it is doubtful as to whether they could have been admitted in the Session of 1997-98.
10. However, they were admitted in the Session of 1997-98 on the order of this Court. The order of this Court, dated 24-1-1998 in C.P. No,D-577 of 1997 was not challenged and has attained finality. In view of the above, the question of the legality or otherwise of the admissions of the five students purportedly admitted against the seats to be vacated by the five least qualified students admitted against the quota of Chief Minister cannot be questioned in this petition. In this petition the petitioner has challenged the order of respondent No,2 cancelling his admission to provide admissions to some students in First Year M.B.,B.S. Regarding the cancellation of the admission of the petitioner it is to be observed that he was one of the five least qualified students admitted against the quota of Chief Minister whose admission was cancelled on the orders of this Court, dated 24-1-1998 so as to make room for admissions to the five students who were secured higher marks. As has already pointed out those five students were never admitted in the year 1996-97 Session in the Class/Batch No,25 in which the petitioner and four others were admitted against the Chief Minister's quota. The Class/Batch No,25 in which the petitioner and four others were admitted was altogether a different class or Batch and the five students who were to be accommodated on the seats which were to fall vacant on cancellation of the admissions of the five least qualified students including the petitioner were admitted in a different Class/Batch No,26 and in a different Session, i,e, 1997-98. It is thus, clear that the admissions to the five more qualified students were not provided on the seats which were to fall vacant on cancellation of the admissions of the five least qualified students as by the time the admissions had been provided to the five more qualified students, the five least qualified students had already been placed in Second Year M.B.,B.S. No doubt, that in pursuance of the order of this Court, dated 24-1-1998 in C.P. No,D-577 of 1997 and others the admission to the petitioner and four others was to be cancelled but it is to be observed that the admission to the petitioner and four others was to be cancelled in order to provide admission to five more qualified students. If admission to the five more qualified students had been provided without in any manner canceling or removing the five least qualified students then strict observation and operation of the order of this Court, dated 24-1-1998 would not result in justice and fair play but would act adversely and to the prejudice of the five least qualified students inasmuch as without cancellation of their admissions the five more qualified students have been accommodated and cancellation of the five least qualified students would be a mere technicality. It is an admitted principle of law that no person or party should be made to suffer adversely or injustice be caused to it by an order of a Court. The order of this Court, dated 24-1-1998 if strictly complied with would result in injustice and very adversely affecting the future lives and careers of the five least qualified students admitted on Chief Minister's quota, who after successfully qualifying the examinations have reached the fourth year of M.B.,B.S. In the case of The State v. Asif Adil and others reported in 1997 SCM R 209. The Supreme Court pronounced that a party should not be made suffer on account of an act or omission on the part of Court or other State functionaries. A similar observation was made by the Supreme Court in the case of Muhammad Mansha and others v. Sabir Ali reported in 1999 SCM R 1782. In the case of Sherin and others v. Fazal Muhammad and others reported in 1995 SCM R 584, the Supreme Court has dilated the above legal position in detail and has quoted the following extract from the judgment of the Privy Council in the case of Jai Behram v. Kedar Nath reported in 1922 PC 269:-- "One of the first and highest duties of all Courts is to take care that the act of the Courts does not cause injury to any of the suitors and when the expression 'the act of the Court', is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case."
11. 'Keeping in mind the observations made by the Supreme Court in the afforested cases and applying the principles to the facts of this case we find that strict compliance of the order of this Court, dated 24-1-1998 in C.P. No,D-577 of 1997 would result in causing injustice and severe punishment to the petitioner as his admission would be cancelled but corresponding gain would not be provided to anybody inasmuch as the person, who was to gain by cancellation of the admission of the petitioner has already been accommodated by providing admission in M.B.,B.S. Class. In the circumstances, we are of the view that respondent No,2 was not justified in ordering cancellation of the admission of the petitioner and we hold that the petitioner will continue to be a student of M.B.,B.S. Class of Chandka Medical College and would be legally entitled to pursue his studies.
12. ' Upon the above discussion we find that this Constitutional petition merits consideration.
13. Accordingly, we admit it to regular hearing and allow it. The petitioner would continue to be a student of Chandka Medical College and no hindrance or obstacle would be created in his pursuing medical studies and appearance in examination.