CHAUDHARY MUHAMMAD TAJ, J.--This appeal, by leave, is directed against the judgment and order passed by the High Court on 16-4-2003, whereby the writ petition filed on behalf of respondent No.1 was accepted.
2. The facts giving rise to the present appeal are that the Nomination Board of Azad Jammu and Kashmir, respondent No.2, invited applications for nomination for M.B.B.S./B.D.S: Courses against the seats reserved in Medical Colleges of Pakistan for Jammu and Kashmir Nationals. The appellants and respondent No.1 applied for their nominations to the said courses against the quota, of District Muzaffarabad for the year 2002/2003 and also appeared in the entry tests held by the Governments of the Punjab and N.-W.F.P. The Nomination Board of Azad Jammu and Kashmir prepared a merit list. The appellants were placed at Sr. Nos. 12, 14, 17 and 18 respectively. Out of 13 seats of M.B.B.S. Course allocated to Muzaffarabad District, appellant No. 1 was nominated in Ayub Medical College, Abbottabad. Appellant No.2 was nominated for B.D.S. Course. Twenty additional seats, ten each in the Provinces of Punjab and N.-W.F.P., are being provided for the Jammu and Kashmir Nationals. According to the quota four seats are to be allocated to Muzaffarabad District, therefore, appellants Nos.2, 3 and 4 are also entitled to be' nominated for M.B.B.S. Course.
3. Respondent No.1, Misbah Manzoor, placed at Sr. No. 19 in the merit list, filed a Constitutional petition in the High Court on the ground that the Nomination Board instead of preparing the merit list-on the basis of average score of both the entry tests, prepared the merit list on the basis of better of the two results of entry tests held in the Punjab and N.-W.F.P. The writ petition challenging the nomination on the aforesaid ground was accepted vide impugned judgment. Hence, this appeal.
4. Mr. Abdul Rashid Abbasi, the learned counsel for the appellants, raised the following points in support of the appeal:-- (i)That the learned Judge in the High Court has passed the judgment against law which is not maintainable whereby it was directed that the Nomination Board shall prepare a fresh merit list on the basis of aggregate marks obtained by the candidates in both the entry tests held in Punjab and N.-W.F.P. With the observation that the marks obtained by the candidates in N.-W.F.P. Were not taken into consideration.
(ii)That the writ petition was not tenable as no violation of any law was made therefore, the order in exercise of Constitutional jurisdiction was not correctly passed; (i.e)That the High Court passed an order for nomination in Medical Colleges in Pakistan on the basis of a fresh merit list for the candidates hailing from all the Districts of Azad Jammu and Kashmir and refugees settled in Pakistan, who were not parties in the proceedings as such were condemned unheard for loosing their nomination under the said order.
(iv)That the order recorded by the High Court offends the principle of natural justice as well. It was contended that the order under appeal was passed between the parties in the proceedings without impleading the other candidates nominated against the quota of District Muzaffarabad, therefore, there would be a discrimination in applying law laid down by the High Court and previously holding the field under which the Nomination Board prepared the merit list; and (v)That the order has been passed in the writ petition when nomination had already been made in the different colleges and there is a serious apprehension of loosing the seats on the implementation of the order passed by the High Court which may nominate the other candidates or change their allocated place of nomination. The learned counsel referred to a case reported as Azad Government v. Ch. Muhammad Mansha and 10 others 2002 SCMR 425 in support of his assertions.
5. Mr. M. Tabassum Aftab Alvi, the learned counsel for respondent No.1, while controverting the arguments addressed on behalf of the appellants, argued in the following manner: -- (i)That the order by the High Court was passed keeping in view the instructions issued by the Government of Azad Jammu and Kashmir and the admission policy prevailing in the respective colleges. It was forcefully argued that interest of justice demanded that aggregate marks obtained by the candidates in the entry tests held in Punjab and N.-W.F.P. Would have been considered to determine the merit; (ii)That the Nomination Board prepared the merit list on the basis of best marks obtained out of the two entry tests mentioned above which amounts to ignoring the marks secured by any candidate in the other entry test.
(i.e)That the respondent filed a writ petition when it came to her knowledge that injustice was being done while determining the merit and was constrained to file a writ petition on refusal of Nomination Board, therefore, the plea of nominations already made in the respective colleges for the candidates would not make a valid ground for making nomination on the basis of order passed by the High Court; and (iv)That the matter has already been finally settled through a judgment passed by this Court in a case titled Suleman Ejaz Ahmad v. Azad Government and others (Civil Appeal No.37 of 2001 decided on 14-3-2001), therefore, the judgment passed by the High Court was in consonance with law. The learned counsel referred to the following authorities including the case of Suleman Ejaz Ahmad in support of his assertions:-- (1)Jalal Din v. Ata Muhammad and others 1986 SCM R 589.
(2)Alam Ali Khan v. Rehmat Ali and others NLR 1987 SCJ 24.
(3)Haroon Mirza v. Jawad Mir Muhammad and 14 others 1994 SCM R 2030.
5-A. Syed Nazir Hussain Shah Kazmi, the learned counsel for respondents Nos. 12 and 13, supported the arguments addressed on behalf of Mr. M. Tabassum Aftab Alvi and also cited a case reported as Miss Rabail Javed v. Principal, Jinnah College for Women, University of Peshawar and 5 others PLD 2002 SC 760 in support of his assertions.
6. Ch. Muhammad Ibrahim Zia, the learned counsel for respondent No.9 and Raja Muhammad Hanif Khan, the learned counsel for respondents Nos.2 to 4, adopted the arguments addressed on behalf of Mr. Abdul Rashid Abbasi, representing the appellants and also referred to a case reported as Rashid Ilyas and 4 others v. Sadia Ahmad Dar and 13 others 2000 YLR 795 in support of his assertions.
7. We have heard the learned counsel for the parties and also gone through the record. Before adverting to the merits of the present case it would be necessary to see as to how the nominations are made and what is the statutory backing while determining the merit for nominations. Before introduction of entry test the merit was to be determined keeping it, view the total marks obtained by a candidate, in consideration of quota reserved for any District in Azad Jammu and Kashmir and the refugees settled in Pakistan. Since the introduction of entry test, in consideration of the admission policy maintained by the Medical Colleges in Pakistan it was necessary that a candidate seeking nomination must pass both the entry tests held in Punjab and N.-W.F.P. The nominations are made in accordance with the merit determined by the Nomination Board subject to the Instructions maintained by the Government of Azad Jammu and Kashmir framed in 1986 and the merit determined by the Punjab and N.-W.F.P. After taking the entry test. Since inception of entry test it is also the policy of the Nomination Board to take into consideration the best marks obtained by any candidate out of two entry tests held in Punjab and N.-W.F.P. It may also be mentioned that initially the Medical Colleges in consideration of their admission policy determined that admission would be given to a candidate provided he passed any of the entry test but thereafter the policy was changed and it was declared mandatory for admission to pass the required entry test in the respective Provinces. However, the policy maintained by the Government of Azad Jammu and Kashmir remained unchanged in this regard. It would also be relevant to mention that the Government of Azad Jammu and Kashmir has to make nominations in colleges in different Provinces of Pakistan and before that it is not certain that which candidate would be nominated for which college of the Province. Therefore, the uniform policy was framed to avoid any confusion which required that entry test Punjab and N.-W.F.P. Shall be mandatory to be qualified and highest marks in any of the entry tests shall be considered for the nomination.
8. Now the first question arises whether the policy adapted by the Nomination Board in view of the instructions issued by the Government of Azad Jammu and Kashmir and prevalent at the time was against law as alleged by the respondent in her writ petition and held so by the High Court. The Government of Azad Jammu and. Kashmir through a notification issued on April 2, 1986, laid down nomination procedure which is called "The Instructions for nomination". The aforesaid Instructions do not visualize any such rule which may provide for the entry test or determining the merit in accordance with the best marks obtained in either of the two entry tests held in Punjab and N.- W.F.P. However, the fact remains which is not disputed between the parties that according to a pre- condition for nomination which is laid down in consideration of the admission policy maintained by the Governments of Punjab and N.-W.F.P. That a candidate must have to pass both the entry tests and the best marks obtained by him in either of the two entry tests will be considered for determining his merit.
9. It was held by the High Court that in absence of a policy, criteria or a rational approach, the manner adapted by the Nomination Board for determining the merit is arbitrary and against the rule of merit, therefore, is an arbitrary exercise of power and thus set aside the nominations made by the Nomination Board with a direction to make nominations keeping in view the aggregate marks obtained by a candidate from both the entry tests.
10. The learned Judge m the High Court was mainly persuaded to reach the conclusion that the Nomination Board only considered the marks obtained by the candidates in Punjab test which appears at page 10 of the impugned judgment and reads as follows:-- " ------------.Nominations on the basis of the single entry test i.e. Punjab in my opinion, is an arbitrary. Exercise of power and is also against the policy followed in Pakistan."
It may also be mentioned that the learned Judge while making above observation overlooked the important fact that the Nomination Board considered the marks obtained by the candidates in the entry test held in Punjab only for the simple reason that the candidates in that entry test secured more marks the test held in N.-W.F.P. Therefore it was not the case that the Nomination Board only considered the result of the entry test held in Punjab. To appreciate the observation made by the learned Judge in the High Court it would also relevant to see whether the policy adopted by the Nomination Board though not incorporated in the Notification of 1986, commonly known as the 'Instructions', was against the law and therefore, injustice was done. It would be sufficient to mention that the aforesaid policy in view of the circumstances prevailing as such it was not known for which Province the candidate had to be nominated, made a uniform policy for all the candidates that they had to qualify both the entry tests and best marks out of them would be considered for determining the merit which was applicable for all the candidates. No illegality or discrimination was found. It follows that the important fact escaped the attention of the learned Judge in the High Court and thus did not exercise the correct jurisdiction under the Constitution.
Reliance in this regard may also be placed on a case titled Azad Government v. Ch. Muhammad Mansha and 10 others 1998 PLC (C. S.) 1173 wherein it was held:-- "In the light of what has been stated above, we are of the opinion that no violation of 'law' has been committed-- by allocating Rs.5,09,000 for the construction of primary school building at Nehala and, thus, the impugned judgment of the High Court is not sustainable "
11. It is also worth-mentioning that the learned Judge in the High Court made reliance on two citations Muhammad Younis v. Provincial Government of the Punjab and others 1995 CLC 1834 and Azad Government v. Haji Mir Muhammad Naseer and 10 others 2000 SCR 109. The facts of both the cases were not only different but the observations were made absolutely in different eventualities.
The facts of the former authority were that the Lahore High Court in writ jurisdiction quashed the selection process of the Selection Committee which had arbitrarily reserved 20 marks out of 100 for the interview and thus held that the selection made by the Committee was not objective where maximum marks have been reserved for interview which gives arbitrary power and unguided discretion to its members for an arbitrary selection. Similarly, the other case relied upon by the learned Judge was also decided in a different background where amendment was made in the Azad Jammu and Kashmir Directorate of Schools Service Rules, 1989 by which marks for interview were raised to 25 marks and it was held that allocation of 25 marks for interview gave undue advantage for which there was no objective criteria. It was also held that those in power could easily influence the subordinate authorities to allot more marks in the interview to their favorite ones. We are unable to hold that the law laid down in those cases can be relied upon for holding the present process of nomination as illegal and arbitrary.
12. Mr. M. Tabassum Aftab Alvi, representing respondent No. 1, laid a stress that law stood settled that nomination shall be made taking into consideration the aggregate marks obtained by the candidates in both the tests held in Punjab and N.-W.F.P. Through a case titled Suleman Ejaz Ahmad v. Azad Government and others (decided by this Court on 14-3-2001). It would be relevant to know the facts of that case to ascertain the ratio determined therein. One Sabeen Arif was nominated against the reserved seat for Doctor's son/daughter in Ayub Medical College, Abbottabad, N.-W.F.P. Aggrieved by the aforesaid nomination, Suleman Ejaz Ahmad filed a writ petition in the High Court claiming therein that the particular seat was in the N.-W.F.P. As such the marks obtained in the entry test held in N.-W. F. P. Should have been considered alone and not the best out of two tests held in Punjab and N.-W.F.P. By the Nomination Board. The writ petition was dismissed by the High Court by approving the policy adapted by the Nomination Board of Azad Jammu and Kashmir whereby the best marks out of the two entry tests were considered. The judgment titled Suleman Ejaz Ahmad v. Sabeen Arif and others was passed on 6-2-2001 in Writ Petition No.51 of 2001. An appeal was, preferred before this Court which was decided through Civil Appeal No.37 of 2001 on 14-3-2001. This Court held that under paragraph 9 of the Admission Policy dated 2-4-1986 formulated by the Azad Jammu and Kashmir Government the criteria fixed by the relevant college/ university was to be taken into consideration. However, N.-W.F.P. Government or for that matter the relevant college recognized that a candidate from Azad Jammu and Kashmir who qualified the entry test held by any of the Provinces and obtained 60% marks in F.Sc. (Pre- Medical) or equivalent examination would be entitled to seek admission which means that it was not necessary for the Nomination Board under paragraph 9 of the Admission Policy to consider alone the marks obtained by respondent No.4 (Sabeen Arif) in the entry test held by the N.-W.F.P.
Government because the same lays down that a candidate from Azad Jammu and Kashmir may qualify any entry test by any of the Provinces: It follows that this Court did not hold that only the aggregate marks shall be considered for determining the merit. The matter would be further clarified that at the relevant time it was not necessary that a candidate must qualify both the tests as at the present requirement is Therefore, by holding that the marks obtained by the relevant candidate from Punjab which were higher would be considered for determining the merit as compared to contesting candidate whose merit was less than her opponent would show that insistence of nomination on the basis of aggregate marks was not here. Additionally, this Court did not set aside the principle laid down by the High Court discussed above. Though the Court in view of the particular circumstances held that taking into consideration the marks in both the tests for determining the merit by the Nomination Board was proper. Incidentally the candidate had higher marks in Punjab test and also on the basis of aggregate marks. This observation was made keeping in view the submission made by' the then counsel representing the relevant respondent appearing at page 9 of the judgment. The submission was made under the impression that the Nomination Board made nomination in view of the aggregate marks though it was against the record and was in fact nobody's case. Therefore, we do not find that this Court conclusively resolved that only the aggregate marks could be considered for nomination. The authority lays down law in particular circumstances as discussed above. Therefore, the observation made by the learned Judge in the High Court was not a correct appreciation of proposition.
13. The case-law referred to by the learned counsel for respondent No.1 in view of the distinct facts is not applicable to the case in hand. Reference may be made to Shah Muhammad and another v.
Muhammad Hussain and another 1994 SCM R 2030 referred to by the counsel. The entire judgment in the petition for leave to appeal is reproduced:-- "(1)The questions raised in this petition stand already answered by this Court. There is no force in this petition.
(2)Request on behalf of Dr. A. Basit for adjournment at the time of hearing was made. But after carefully going through the record we find that as the questions arising in this case stand concluded by the pronouncements of this Court. The request for adjournment of the case at this late stage is not, in all the circumstances, in the interest of proper administration of justice.
(3)Dismissed. "
Another case referred to by the learned counsel is Alam Ali Khan v. Rehmat Ali and others NLR 1987 SCJ 24. The complete judgment is reproduced:-- "We have heard the learned counsel for the parties. The judgment of the High Court is consistent with the dicta of this Court in Shah Nawaz and others v. Member, Board of Revenue PLD 1978 SC 266, Ch. Sadiq Ali v. Imtiaz Ahmad Khan and others PLD 1980 SC 222 and Barkat Ali and others v. Syed Shahzad Nazir and others 1981 SCM R 693.
No ground for interference with the judgment of the High Court, therefore, exists.
This petition is dismissed. "
The observation made in third case relied upon by the learned counsel titled Jalal Din v. Ata Muhammad and others 1986 SCM R 589 is in the following words:-- "In the present case, the plea of fraud/fabrication etc was considered by this Court and it found that said plea was not established. The respondent had been tried by a Criminal Court on these allegations and acquitted. The attempt to resusticate the same matter through a suit is highly regrettable and cannot be countenanced. The Courts below had the suit and the order of the learned Additional District Judge and the High Court rejecting the appeal and revision are manifestly correct.
This petition, therefore, has no force. Since the respondent has appeared to oppose it, by filing a Caveat, he must also have his costs:
14. In view of the above discussion the admission policy adopted by the Nomination Board of Azad Jammu and Kashmir is not found illegal or otherwise arbitrary and the same is maintained with approval whether competing for any reserved seat or general seats by the candidates against the quota reserved for Azad Jammu and Kashmir Districts and refugees settled in Pakistan. However, we would like that the Nomination Board shall incorporate the policy adopted in respect of entry tests held in the Punjab and N.-W.F.P. In the Notification issued by the Government of Azad Jammu and Kashmir in the year 1986 known as "The Instructions" to make it transparent. We, therefore, set aside the judgment, passed by the High Court by accepting the appeal with no order as to the costs.