1983 PLP 185 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑Leave to appeal was granted in this case against the judgment, dated 28‑10‑1981 of the Peshawar High Court, in 9cder to examine the question whether paragraph (xv) of the so‑9411e4 "Important Notes" of the Prospectus of Khyber Medical College, Peshawar. for the Academic Session of 1980‑81 has a controlling effect on the sub stantive provisions of the Prospectus, as also the question whether the University of Peshawar has accepted the degree obtained by the appellant viz. B. Se., Medical Technology from the Jinnah Post‑Graduate Medical Centre of the University of Karachi, as sufficient qualification for seeking admission to M. B., B. S. First Year Medical Class.

2. The facts forming the background of this appeal are that the appellant passed his F. Sc. (Pre‑Medical Group) Examination in 1971 securing Second Division. Thereafter, in 1980, he obtained the degree of the Bachelor of Science (Medical Technology) securing 83 % marks, from the Faculty of Science, University of Karachi. On the strength of his qualifica tions, heretofore mentioned, the appellant applied for admission in the Medical College and in his consolidated Nomination Selection List, the Commissioner Dera Ismail Khan Division recommended his name as one of the four candidates of the Provincial Government from the Federally Administered Tribal Areas for admission in the First Year M. B., B. S. in the colleges shown against their names, placing the appellant at the top of the list on the basis of merit, against the seats reserved for Bannu Frontier Region. Government of Pakistan, in the State & P. R. Division, how ever, while forwarding nominations of the candidates to various Princi pals of the medical colleges in the country, did not include the appellant's name, as only three candidates' names were forwarded, including the names of respondent Hidayatullah and Afsar Ali (respondents 4 and 5 respectively) for admission in the Khyber Medical College, Peshawar. Being dissatisfied with the refusal of the Government to recommend the name of the appellant although he considered himself well‑qualified for admission to a Medical College on the strength of his own merits, in preference to respondent's and 5 who were selected for admission in the Khyber Medical College, Peshawar, the appellant filed a writ petition in the Peshawar High Court challenging the nomination of these respondents and seeking a direction that he be given admission in the College for the academic session referred to above. The respondents (except respondent No. 4) contested the petition and contended that according to the priorities laid down by the Pakistan Medical and Dental Council, second priority is given to a candidate who passes B. Sc. (Biology Science Examination in First Division) that as ten male candidates, including the appellant,, had applied for admission from Bannu Frontier Region against two seats reserved for boys and the appellant on merits being at 10th position, was not selected for admission. The Government of N.‑W. F. P. further contended that in view of sub‑para. (xv) contained at page 42 of the Prospectus, the appellant was considered vis- -vis the other candidates on the basis of marks obtained by him in the F, Se. (Pre‑Medical) Examination, and not ‑ on the basis of marks obtained by him in the B. Sc. Medical Technology Examination. In this way the appellant was considered lower in position on merits than respon dents 4 and 5.

3. After hearing the parties, the learned Judges of the High Court came to the conclusion that the appellant "cannot claim admission in the college on the basis of the marks obtained by him in the B. Sc. Medical Technology Examination. He can claim admission only on the basis of the marks obtained by him in the F. Sc. (Pre‑Medical) Examination". In this view of the matter, they compared the respective merits of the appellant on the one hand and respondents 4 and 5 on the other, and came to the conclusion that the appellant could be given third preference in the prioritiC9 prescribed in paragraph 8 of the "Important Notes" attached to the prospectus, whereas respondents 4 and 5 were both entitled to first pre ference on the basis of their marks obtained in F. Sc. (Pre‑Medical) Exa mination. The learned Judges, 'therefore, dismissed the writ petition filed by the appellant by the impugned judgment, dated 28‑10‑1981.

4. Now paragraph 2 (d) of Part 2 of the Prospectus provides as under :‑ "(d) The applicant must have passed the Intermediate Science Exami nation (Medical Group) of a Board of Intermediate and Secondary Education or a University in Pakistan in the first or at least Second Division. B. Sc. Examination of a Pakistan University with any group of subjects provided he/she has passed the Intermediate Science Examination in Medical Group. Only those students are eligible to apply who have passed in 1st or IInd Division." In para. 7 of the Prospectus after the main provisions follow what are entitled "Important Notes" containing clauses indicated by Roman numeri cals which may be referred to as `clauses'. On clause (xv) much controversy has arisen in this case, which reads as under :‑ "(xv) A candidate who has passed B. Sc. Medical Technology is eligible to apply for admission on the basis of his; her F. Sc. (Pre Medical) Marks."

4. Then follows para. 8 which lays down the criteria for admission and reads as under :‑ "The Criteria for admission into first year M.B., B.S. class shall be as under The order of preference in selecting the candidates, as laid down by the Government shall be as under :‑ (a) 1st preference ... To students who obtain in Inter Science (Medical Group) Examina tion adjusted marks 600 and above. (b) 2nd preference ... To students who obtain in B. Sc. Examination (with Inter Science Medical Group) adjusted marks 300 and above. (c) 3rd preference , ... To students who obtain in Inter Science (Medical Group) Exami nation marks 450 and above. (3rd Division is not eligible for admis sion). (d) 4th preference ... To students who obtain in B. Sc. Examination (with Inter Science Medical Group) marks 225 and above. (3rd Division is not eligible for admission). Merit for admission shall be determined on the total number of marks secured in Inter Science or B. Sc. Examination, as the case may be, subject to the adjustment in the following manner."

5. After reading the relevant provisions of the Prospectus we find that in view of the categorical provisions contained in clause (xv) of paragraph 7, Chapter 2, of the Prospectus, the appellant having passed his B. Sc. (Medical Technology) was eligible to apply for admission. The controversy has mainly arisen because of the words "on the basis of his/her F. Sc. (Pre‑Medi cal) marks" occurring in the said clause.

6. The respective merit position on the basis of marks in the list of recommendees prepared by the Commissioner was as under :‑ (1) Muhammad Tayyib (appellant) = 1982 (B. So. Medical Technology). (2) Hidayatullah (respondent No. 2) = 323 (B. Sc.) (3) Afsar Ali (respondent No. 5) = 580 (F. Sc.) The argument on behalf of the respondents before the High Court was that the intention of the policy makers by having regard to clauses (xiv) and (xv), was clearly that neither the F. Sc. (Medical Technology) nor the B. So. (Medical Technology) Examination could be recognized as a qualification on the basis of which a candidate could seek admission in the College for the session in question ; and therefore, if the B. Sc. (Medical Technology) Examination is taken out of consideration, the appellant having lower merit in relation to the F. Sc. Examination would fall in a lower stage of priority vis‑a‑vis respondents 4 and

5. The High Court has accepted this argument and has held :‑ "The cumulative effect of these two clauses, in our view, is that a candidate who may have passed the F. Sc. (Medical Technology)' Exa mination and a candidate who may have passed the B. Sc. (Medical Technology) Examination are not eligible to apply for admission on the basis of the result of these examinations. These clear and care categorical provisions laid down in the relevant Prospectus under the head ing `IMPORTANT NOTES' so indicate the admission‑policy in respect of the said college. This being the case, the provisions relied upon by the learned counsel for the petitioner, in our view, cannot override the intention made manifest in clauses (xiv) and (xv) aforesaid. The petitioner, therefore, cannot claim admission in the college on the basis of the marks obtained by him in the B. Sc. (Medical Technology) Examination. He can claim admission only on the basis of the marks obtained by him in the F. Sc. (Pre‑Medical) Examination."

7. After carefully considering the arguments advanced by the learned counsel for the parties and impugned judgment, we are, however, not able to endorse the view taken by the High Court. The various clauses appended to paragraph 7 ‑of the Prospectus as "Important Notes" come under the heading "Documents to be submitted alongwith the Admission Form", whereas paragraph 8 specifically deals with the "Criteria for Admis sion". Clause (b) of paragraph 8 dealing with the second preference in the order of preference prescribed in the paragraph, lays down clearly that the basis for determining the inter se priority or preference among the applicants, in the case of students who have passed B. Sc. Examination with Inter Science Medical Group, will be the adjusted marks of 300 and above. The plain reading of this provision leaves no doubt whatsoever that the marks secured in the B. Sc. Examination will be taken into consideration. It is, therefore, clearly fallacious to argue that in the case of candidates applying on the basis of B. Se. (Medical Technology), the criteria would be the marks secured by such candidate in the Inter Science Medical Group Exa mination. Placing such an interpretation on clause (b) referred to above, would also result in unreasonable consequence, namely, that a candidate who has passed his B. Sc. (Medical Technology) Examination with Inter Science Medical Group, would be placed in the category of applicants in the first preference. Therefore, the construction contended for is wholly repugnant to the clear. intention expressed in the various provisions con tained in paragraph 8 if they are read as a whole. This conclusion is further reinforced by the language of sub‑clauses (c) and (d) (on page 43 of the Pros pectus), which provide for deduction of marks in case a candidate ap pears in B. Sc. Examination for the second time in order to improve his division or fails to clear his B. Sc. Examination within the minimum period required for that Examination after F. Sc. Reading clause (xv) in this context, it is clear to us that the framers of the Prospectus only intended to provide that B. Sc. (Medical Technology) would be a qualifying Examination for eligibility to apply for admission if the candidate has passed his F. Sc. (Pre‑Medical) while pursuing that course. Thus the basis on which the appellant was rejected out of competition with respondents 4 and 5 was wholly misconceived and based on the wrong interpretation of the provisions of the Prospectus for 1981‑82.

8. In this view of the matter, the appellant was entitled to relief in the High Court. However, it is contended on behalf of respondents 4 and 5 that they have already completed two years of study and it will be harsh upon either of them if their admission is cancelled as a result of the decision of this case. In the circumstances, it is submitted that the appellant may be considered for admission on the basis of this decision in the present or future academic years. We appreciate the force of the submission that res pondents 4 and 5 should not be made to suffer for no fault of theirs and further we are unable to put the blame entirely on the college authorities in view of the ambiguous language in Which clause (xv) of paragraph 8 of the Prospectus has been couched which presents apparent difficulties for lay people to interpret the effect of this language in the context of other provisions of the Prospectus. However, the appellant himself realising the difficulties involved in his being placed, at this stage in the First Year M. B., B. S. Class states that he would be satisfied if his entitlement to admission as interpreted by this Court is taken into consideration for the ensuing acade mic year. or thereafter, since he has already repeated his application for admission. In view of the above, we allow this appeal and set aside the impugned order of the High Court, directing that the appellant shall be considered for admission in the light of this judgment for the ensuing or future academic years but subject to other provisions of the relevant Pros pectus. The appeal is disposed of is these terms with no order as to costs. Appeal allowed.