1997SCMR1845 (PLP)

RAJA AFRASIAB KHAN, J.‑‑‑In 1993, Riaz-ul‑Haq, the appellant herein applied for his admission to the first year of M.B.,B.S. in Bolan Medical College, Quetta on the ground that he was a bona fide resident of District Mastung, Province of Balochistan. On the strength of his domicile certificate, he claimed that he was entitled to be given the requisite admission against the reserved seats for district Mastung. His application was rejected by the Selection Committee, Bolan Medical College on 18th of December 1993 on the basis of the following minutes:‑ "The Deputy Commissioner Mastung verbally informed the Committee in its final meeting held on 3rd July, 1993 at Quetta that although the candidate's father was issued Domicile of District Mastung, then Kalat, but neither the candidate nor his family is physically residing at Sheikh Wasil, Mastung. Therefore, the committee decided that the candidate could not be considered for a seat of District Mastung." The appellant challenged the impugned order whereby he was refused to be accommodated in the first year of M.B,B.S. in Bolan Medical College through petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. A Division Bench of Balochistan High Court heard and dismissed the constitution petition on 19th of December 1993. On 23‑12‑1993, a learned Judge in Chambers passed an order giving interim relief to the appellant which was as fallows:‑ "The petitioner in person. The Deputy Commissioner Mastung has confirmed that petitioner is a bona fide resident of District Mastung. He is number 2 on merits. According to para 19 of the prospectus prima facie he was entitled to be selected. Provisional admission in Bolan Medical College till decision of main petition. Leave to appeal was granted by this Court on 16th of February 1994 stating:‑‑ "The claim of the petitioner which was supported by a certificate issued by the District Magistrate concerned that he was domiciled in Mastung District was rejected by the Selection Committee constituted for admission to Bolan Medical College. He filed a constitution petition in the High Court but it was dismissed. He now seeks leave to appeal from this Court.

2. In support of this petition it is, inter alia, contended that his three sisters had earlier been granted admission in the Medical Colleges on the basis that they were domiciled in Mastung District, it was, therefore. inconsistent on the part of the Selection Committee to reject his claim that he too was domiciled in that District.

3. The contention raised in support of this petition needs examination. Leave to appeal is granted. In the meanwhile the petitioner may be granted provisional admission in the Bolan Medical College, Quetta." Notices were issued to all the respondents. Despite service, the respondents Nos.2 to 7 did not appear to contest these proceedings. This being so, ex parte proceedings were initiated against all the respondents.

2. The appellant is present in person and has been heard by us at length. It is submitted by him that his three sisters namely, Abida Shabkadar, Surria Jabeen and Sajida Yasmin were given admission in the Bolan Medical College on the ground that they were the residents of District Mastung and as such, the appellant was also entitled to the admission against one of the reserved seats for the said District. The appellant has argued that he has been discriminated inasmuch as he has not been given the admission. He had a vested right to press for his admission to get education against one of the said reserved seats. As already mentioned above, provisional admission was given to the appellant in Bolan Medical College, Quetta pursuant to the order of this Court dated 23‑12‑1993. The appellant has brought to our notice that he has passed all his examinations and is now in the final year of the M.B.B.S. In the next year, he will sit to pass his final examination. The respondents, although, duly served with the notices sent to them, have wilfully failed to appear to contest these proceedings. This being the position, we have been persuaded to accept the contention of the appellant that he is entitled to be admitted in the College on the strength of his domicile certificate issued to him by the competent authority. There is nothing on record to doubt the validity of the plea of the appellant. He is, undoubtedly, a bona fide resident of District Mastung. As mentioned above, on 23‑12‑1993, provisional admission was given to the appellant by this Court. He has completed four years, of his medical career. He is now in the final year of his M.B.,B.S. He, therefore, cannot be deprived of his bright medical career at this stage. By an act of this Court referred to above, admission was given to the appellant. None from the respondent's side has come before us to challenge the act of the Court and as such, it has been treated final qua the appellant to complete his medical education. In identical situation, this Court in case of Hamza Khan v. Province of Balochistan (1995 SCMR 711) did not disturb the education career of the students (both petitioners and the respondents in the referred case) on the ground that the parties in the case had received education and completed one academic session. The said observations are as follows:‑ "No doubt that the appellant had obtained his education up to F.Sc. (Pre‑Engineering) outside Balochistan i.e. in Hyderabad Sindh and that under clause 2.12 of the Prospectus, the Selection Committee could waive for cogent reasons the requirement that the appellant should have obtained his education in Balochistan. However, we may point out that the Selection Committee did not reject the appellant's application for admission for non‑compliance of the above condition contained in clause 2.12 of the Prospectus but rejected the same for the reason reproduced hereinabove in para No.2 under clause 2.15 of the Prospectus. In this view of the matter, the High Court should not have non suited the appellant on a ground which was not even considered by the Selection Committee. It could have remanded the case to the Selection Committee for considering the above aspect. We might have done the same, but since the appellant has already completed his first academic year it will not be just and proper to remand the case at this stage. We, therefore, allow the above appeal and set aside the impugned order of the Selection Committee and the judgment of the High Court. The appellant shall be treated as having been granted admission against the open merit 12 seats. We would also like to observe that since the private respondents have also already completed one academic year, their admissions will not be disturbed." Somewhat similar view was expressed by this Court in the case reported as Miss Salma Mughal v. Selection Committee, Bolan Medical College (1993 SCMR 2023) in which one of us (Mr. Justice Saiduzzaman Siddiqui) speaking for this Court dealt with the controversy in the following words:‑ "We accordingly allow the appeal, set aside the impugned order passed by the High Court and declare the order passed by the Selection Committee of respondent No.2 as without lawful authority and of no legal effect. We would have normally remanded the case to the Selection Committee for consideration of the case of the appellant in the light of the above observation but as the appellant was allowed admission to 1st year M.B.,B.S. classes by virtue of the leave granting order dated 11‑2‑1992 and she continued her studies for over one year, and we have reached the conclusion that in view of the un‑controverted facts referred to above, she is a bona fide resident of Lasbella, therefore, instead of remanding the case to respondent No.2 we direct that her provisional admission will be treated as regular admission to the M.B.,B.S. classes. Respondent No.4 who was allowed admission against the reserved seat for the girl student from Lasbella may have to give way on account of the above order. However, keeping in view the fact that respondent No.4 has also continued his studies in the M.B.,B.S. classes for over one year, the authority may favourably consider his case and if it found possible he may be allowed to continue his studies in the college instead of dislodging him. In the circumstances of the case, we will make no order as to costs." We do agree with the dictum laid down in the above cases which is in consonance with the principles of justice, equity and fairplay. The appellant was entitled to get admission in the College in his own right against the reserved seats of District Mastung to which he belonged in lieu of local certificate already issued to him by the concerned competent authority. Similarly, the respondents, if any, shall also continue to get their education uninterrupted in the said College. In these circumstances, we accept this appeal and set aside the judgment of the High Court dated 9‑12‑1993 and the order dated 18‑9‑1993 of the Selection Committee of the Bolan Medical College, Quetta to the extent of the appellant. The appeal succeeds and is allowed with no order as to costs. A.A./R‑7/S Appeal accepted.