Sunday, 21 February 2016

Victory of a MBBS Student in a Case

PLJ 1999 Peshawar 57 (DB)
Present: MIAN SHAIKRULLAH JAN AND SARDAR MUHAMMAD RAZA KHAN, JJ. RAZA HASSAN-Petitioner
versus CHAIRMAN JOINT ADMISSION COMMITTEE etc.--Respondents
W.P. No. 119 of 1998, heard on 16.7.1998.
 Constitution of Pakistan, 1973-
—Art. 199—Educational Institutions—Admission in First year of M.B.B.S.-- Petitioner had applied for admission on merits as also on self finance basis-Petitioners name appeared in list of candidates of category 'A' (of ""merit) as well  as categoiy  'C'  (on self finance basis)  and  he alsoparticipated in entry test whereafter only formality of interview was to be fulfilled when admission policy was changed-Petitioner claimed that such change of admission policy proved detrimental to his interest in the sense that had change in Admission Policy not been brought in after due date, petitioner would have been granted admission in First year M.B.B.S. class due to his better merit position over specified respondent- Petitioner admittedly had applied for admission on self finance basis before due date, had participated in entry test and was declared successful, thus vested right had accrued to him of which he had been deprived by way of change in prospectus and that too in view of letter issued by Health Department not in accordance with requirement, of law/procedure-Petitioner having given first preference of admission inKhyber Medical College, Peshawar, be was entitled to admission in said College-Constitutional petition was accepted to the extent that petitioner was directed to be admitted in first year of M.B.B.S. class-Order of his admission however, would not affect admission already granted to specified respondents.    [P. 59, 60, 61 & 62] A, B & C
1986 CLC 1056; PLD 1981 SC 335; PLD 1985 AJ&K 17. ref.
Mr. Yahya Khan Afridi, Advocate for Petitioner.
Mr. Fawad Saleh, Advocate for Respondents Nos. 1 to 3.
Kh. Azhar Rashid, A.A.G. for Respondents Nos. 4 & 5.
Mr. Safeerullah Khan, Advocate for Respondents Nos. 6, 7, 8 & 10.
Mir Qasim Shah, Advocate for Respondents Nos. 9,11 & 12.
Mr. Zeenat Khan, Advocate for Respondents Nos. 14 to 16.
Date of hearing: 16.7.1998.
JUDGMENT
Mian Shakirullah Jan, J.~The petitioner Raza Hassan has moved this Constitutional petition for issuing a writ to the respondents to admit the petitioner on one of the self finance seats in 1st year MBBS in Khyber Medical College, Peshawar according to merit and the rules with further directions not to include those persons in the list for self finance who had not applied on the target date.
2.        The case pertains to the selection of candidates, who had applied for admission on self finance basis for admission to 1st year MBBS Classes inKhyber/Ayub Medical Colleges of the Province for the session 1997-98, but later on the seats allocated to the self finance scheme were reduced at a time when even the result of the entry test had been declared by the concerned authorities and only interview was to be conducted.
3.    From the material available on file it is evident that the petitionerapplied for admission in one of the Medical Colleges of the Province with first preference of admission in Khyber Medical College, Peshawar, both on merit (Category 'A') as well as on self finance basis (Category 'C') in response to the advertisement in the press by the Chairman Joint Admission Committee of Khyber Medical College, Peshawar and Ayub Medical College, Abbottabad. The last date for filing of admission forms was 25.10.1997. List of the candidates with their respective categories was prepared and in the said list the petitioner was shown to have applied for admission on merit as well as self finance basis. The entry test was also held and result of the same was published in the newspapers on 12.11.1997. It was on 29.11.1997 whenin the light of letter No. SO-II(H)/2-2/97 dated 29.11.1997 issued by the Section Officer (Health-H), Health Department, Government of NWFP, the children of doctors were allowed to apply for admission on 12 self finance seats, curtailed from the total 57 seats to be filled-up on self finance basis, reducing the  number of self finance  seats  to  45  only.  Resultantiy, Respondents No. 6 to 17 (except Respondents Nos. 6 and 9, who had already applied for admission like petitioner on both the categories), who had not applied for admission on self finance basis on or before the target date were granted admissions in the 1st year MBBS class in the light of the directions contained in the letter dated 29.11.1997 of the Health Department. The instant petition has been filed on 17.2.1998 after diligent efforts of the petitioner till 10.2.1998 (Annexure-C) to get copies of the merit list and the letter of the Health Department dated 29.11.1997. The grievance of the petitioner, in these circumstances, is that his merit position was much better than Respondents Nos. 12 to 16 and if under the directions of the Health Department contained in letter dated 29.11.1997 the said respondents were not allowed admissions, he would have been selected for admission to 1st year MBBS Class due to his better merit.
4. According to the prospectus for the year 1997-98 of Ayub Medical College, Abbottabad, the Board of Governors can change any or all the rules and regulations given in the prospectus without prior notice whenever considered necessary. Similar are the provisions with regard to change in the Prospectus of Khyber Medical College, Peshawar except that instead of the Board of Governors the right to change the rules/regulations of the Prospectus is with the Government of NWFP. The Governor of NWFP is the Chairman of the Board of Governors, Ayub Medical College. Both the Prospectuses at Page No. 13 to 64 clearly provides that no application after the given date and time will be entertained. The amendment in the Prospectus whereby the children of doctors, who had not filed applications for admission on self finance basis on or before the notified date i.e. 25.10.1997 were allowed to contest on self finance seats obviously amounts to change of rules/regulations in the Prospectus with regard to the admission policy and its effectiveness over the right of the petitioner is an important factor for determination in this case. Admittedly, the petitioner had applied for admission on self finance basis before the last date for filing of application. The petitioner also appeared in the entry test and passed thesame. At the relevant time i.e. on the last date of filing applications or before that or even before the entry test, no meeting of the Board of Governors was held for the alleged change in the Prospectus and it was after the completion of the above-mentioned process when the required approval was accorded at much belated stage probably due to the issuance of the letter of the Health Department wherein the Section Officer concerned had communicated the decision of the Competent Authority simply in a letter from and not in a proper from of a notification to be published in the Official Gazette. No doubt, the Section officer is empowered to sign an order or instrument of Government under the Rules of Business, but where an order amounts to change of the rules/regulations of the Prospectus, then it is the responsibility of the department concerned to have circulated the order in form of a notification and not as a letter of ordinary routine. The petitioner's name appears in the list of candidates of category 'A' as well as 'C' and he also participated in the entry test whereafter only the formality of interview was to be fulfilled when the admission policy was changed through letter dated 29.11.1997 followed by the approval of the Board of Governors, both after the relevant date i.e. 25.10.1997 for filing the admission forms, as aresult of which some of the candidate-respondents, who had not applied for admission, having less marks than the petitioner were allowed admissions in 1st year MBBS Class and thus a vested right of admission, which had accrued to the petitioner, stood infringed by such modification in the admission policy after the crucial date and the argument of the learned I counsel for the respondents that mere application for admission does not 1 create a vested right in favour of a candidate is not worth acceptance in this ' case, as the admission policy was changed at a time when the process for ! admission in the two Medical Colleges of the province had nearly been : completed and only the interview was to be held and moreover through the said change, those candidates who had not applied for admission on self ',finance basis were made eligible for admission contrary to the clear cut i provisions of the two prospectuses of the said Colleges and which change ! proved detrimental to the interest of the petitioner in the sense that had the
change in the admission policy not been brought in after the due date, the i petitioner would have been granted admission in the 1st year MBBS Class I due to his better merit position over-respondents Nos. 12 to 16. In Ghulam \Mustafa vs. The Chairman University of Engineering and Technology,Jamshoro and 7 others (1986 CLC 1056) it was observed as under:-"The determination of such date is necessary as once a vested right is created any amendment in the admission Rules affecting such vested right cannot be allowed. The admission policy is announced by publication of the prospectus. On the basis of such prospectus the applications are invited upto a particular date. These applications are considered and scrutinized immediately on the expiiy of the last date for their submission. The applicants are thaninterviewed and selected for admission. In this process for admission the moment date for submission of application expires the applicant becomes entitled to be considered for admission. This seems to be a reasonable and proper approach to the problem. After the expiiy of the last date no one can apply for admission. The applicants are to be considered on the basis of conditions, categories and criteria laid down in the prospectus or rules of admission. If the concerned, authorities are allowed to amend the rules or policy after the last date and at any time before the admission process is completed, then it is likely to result in serious abuses, malpractice, manipulation and favouritism. Even if the authority honestly and bona fide amends during this period it is likely to be viewed with suspicion and will injury the reputation and prestige of august bodies like Syndicate. Amendment after the expiiy of the date for submission of application is fraught with , serious consequences and likely to cause mistrust. The possibility cannot be ruled out that after scrutiny if it is found that in the normal course a candidate is not likely to be admitted, then to accommodate him the Rule is changed to the detriment of other applicants who on the basis of unamended Rules were likely to get the admission. Such uncertain situation creating atmosphere of suspicion and mistrust should be avoided by public bodies 
................... The candidates thus acquired a vested right to be considered for the admission on the basis of admission policy/rule existing on the expiry of the last date for filing the application The learned counsel for the Respondents Nos. 1 and 2 contended that after lapse of about one year the petitioner cannot be granted admission. The present petition was filed without delay and as it was necessitated due to the unlawful and un-authorised act of the Respondent No. 1, it cannot take shelter on this technical ground. In Munir Ahmad vs. Government of Baluchistan PLD 1981 SC 335 in similar situation appellant was declared entitled to admission.The learned counsel then contended that if the petition is allowed it will cause displacement of some respondents as new seat cannot be created. This submission amounts to stating that petitioner may be substituted for Respondent No. 12. Such a prayer made to the Court in Munir Ahmad v. Government of Baluchistan PLD 1981 SC 335 was refused."Like above, petitioner had applied for admission on self finance basis before the due date, had participated in the entiy test and was declared successful and thus a vested right had accrued to the petitioner of which he has been deprived by way of change in the prospectus and that too in view of a letter issued by the Health Department not in accordance with the requirement of law/procedure. The objection of the learned counsel for the respondents that sufficient time has elapsed since the closing of the admissions for the session 97-98 is also without any force, as the petitioner has deligently pursued his cause throughout and in view of the judgment reported in 1986 CLC 1056 cited above.
5. Relying upon an authority in the case of Syed Muneeb Nazir Shah vs. Azad Kashmir Government through its Chief Secretary and another (PLD 1985 Azad J & K 17) the learned counsel for the respondents candidates urged that a vested right has also accrued to Respondents Nos. 6 to 17 because they have been nominated for admission and have also started studying in the 1st year MBBS Class on such nomination and nearly one year has already elapsed, therefore, it would not be fair to disturb their studies at this stage of the proceedings. Keeping in view the dictum laid down in the above said authorities and also alive to the extreme hardship that may becaused to the respondents, who are studying in the 1st year MBBS Class on Self Finance basis, we find ourself in agreement with the contention of the learned counsel for the respondent candidates that their admission should not be disturbed at this stage. However, it was brought to our notice that though in the session 1997-98, almost one year has elapsed, but still, according to the learned counsel for the petitioner, the supplementary examination of the First year MBBS has not been held. It means that the opportunity of taking part in the supplementary examination could be availed by the petitioner. As the petitioner had given first preference ofadmission in Khyber Medical College, Peshawar, therefore, he is entitled to admission in the said college.
6. For the aforesaid reasons, this writ petition is accepted to the extent that the petitioner is directed to be admitted in the first year of MBBS corresponding to Session 1997-98. The order of his admission would not, as such, affect the admission already granted to Respondents No. 6 to 17. No orders as to costs.
(T.A.F.)                                                                          Petition accepted.

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