2004 PLP 1160 (CLC)

MALIK HAMID SAEED, J.‑‑‑This Court, except in exceptional circumstances, does not often interfere in matter relating to higher educational institutions for these enjoy complete freedom to take decisions in their own matters, but we feel sorrow to say that each time the concerned authorities least bother to take care of the observations of this Court made in this regard. For example, in the past, one Raza Hassan, a student admitted on self‑finance seat in the medical institution of this province was annoyed of the Admission Policy, which was later on altered by the Joint Admission Committee in the light of the instructions of the Health Department so as to reduce the self‑finance seats and the allocation of such seats to the doctors' children, thereby affecting the admission of Raza Hassan. He filed a writ petition in this Court. The same was accepted and the candidate was ordered to be admitted in Khyber Medical College. The judgment of this Court was assailed before the Honourable Supreme Court of Pakistan by the Chairman, Joint Admission Committee, Khyber Medical College, Peshawar and others, but leave was not granted by the august Supreme Court with the following observations in para.5 of the judgment reported in 1999 SCMR 965:‑‑ "Although we are fully, conscious that Universities in Pakistan enjoy complete freedom to take decisions in their own matters and interference by the Courts in such matters would‑be the least desirable except for exceptional circumstances. But in the present case, it would not be out of place to observe that for this litigation the petitioners have only themselves to blame. Even if the petitioners have power to amend or alter any rule embodies in the prospectus, such action appears to be completely ill- advised after the process of admissions had already commenced. Again the Admission Policy, 2001‑2002 for N.‑W.F.P. backward areas seat in the Medical Institutions of the Province was modified by the Provincial Government, due to which a candidate namely Shamsul Alam could not get admission, hence he filed Writ Petition No. 1488 of 2001 before this Court. The same was decided on 4‑7‑2002 and the respondents were directed to consider him for admission on one of the seats reserved for. District Shangla. This Court while deciding the case, placed reliance on the aforesaid judgment of the Honourable Supreme Court of Pakistan and a judgment of the Sindh High Court reported in 1986 CLC 1056. The relevant portion of this judgment of this Court runs as under:‑‑ "

7. The above discussion makes the observation of the Honourable Supreme Court in para.5 of the judgment, reproduced above, obiter. But it is now well‑settled that even obiter dicta of the Honourable Supreme Court would be a precedent. The Health. Department of the Provincial Government, who had changed the Admission Policy, was subject to criticism by the Honourable Supreme Court for making the change. Once again the same Department has altered the Policy after the commencement of the process of admissions, not heeding to the pronouncement made by the Honourable Supreme Court.

8. The same question was squarely answered by the Sindh High Court in the case of Ghulam Mustafa v. The Mehran University of Engineering 1986 CLC 1056 where the Court while striking down as illegal, change in the admission policy by the Syndicate of the University to the detriment of the petitioner during the admission process, held that amendment in the policy after the expiry of the date for submission of applications is fraught with serious consequences and likely to cause mistrust. The Court went on to add him the rule is changed to the detriment of other applicants who on the basis of un-amended rules were likely to get admission. It was however, clarified that by these observations it was not meant that the amendment in that case was motivated by such reasons but it is likely to be perceived that it was because of manipulation or frivolousness.

9. In view of the foregoing discussion, we are of the considered view that the notification of 22‑11‑2001 could not have been issued so as to change the rules after the admission process had commenced." Again, for the Session 2002‑2003, the Admission Policy was changed through a corrigendum as in the original Policy two seats were reserved for District Bunair and only female candidates were made eligible to apply for. Through corrigendum the male were also held eligible to apply for such seats, which annoyed Miss Naz Gul and thus, filed Writ Petition No.51 of 2003 before this Court. The writ petition was accepted on 3‑4‑2003, as the corrigendum in question was found to had been issued on 15‑1‑2003 whereas the candidate/respondents therein were granted admissions on 6‑1‑2003 i.e. prior to the issuance of such corrigendum and moreover the same was issued during the pendency of the writ petition.

2. The corrigendum notification, dated 15‑1‑2003 pertaining to the Admission Policy 2002‑2003 is again subjudice in this writ petition by Ayesha Fida, petitioner and the situation is quite more interesting than the situations aforesaid. Ayesha Fida being bona fide resident of District Bunair, applied for her admission in the 1st year M.B.,B.S. Class. In response to the advertisement made in the Daily Mashriq, Peshawar requiring the female students to apply against the reserved seats for Bunair, in case they have passed their entry tests. The petitioner having passed entry test, thus, applied and was accordingly selected for admission in First Year M.B.,B.S. Class in Ayub Medical College and was directed to deposit the requisite fee. After deposit of requisite fee she also joined her class in the college, but in the meanwhile vide office order, dated 8‑3‑2003 her admission against Backward Area seat for Bunair was cancelled, already on the same pretext of change in the Admission Policy brought through Corrigendum Notification dated 15‑1‑2003.

3. The answer of the respondents now is that after issuance of the corrigendum a meeting of the Joint Admission' Committee was convened on 19‑2‑2003, which desired re‑advertisement of the seats and accordingly respondent No.7 Muhammad Hamayun and respondent No.8 Ziaullah were accommodated having better merit score than the petitioner.

4. Not only that the corrigendum in question could not have been issued by the respondents at a time when the admission process had already commenced, but the documents available on record further creates an impression of mala fide intention of the respondents behind the action taken, as the so‑called meeting of the Joint Admission Committee was held on 19‑2‑2003 in which it was decided that the two seats reserved for Bunair District should be re‑advertised due to Corrigendum No. SO(ME)H‑2‑1/2002‑2003/Vol.III, dated 15‑1‑2003 and thereafter by way of another advertisement in the Daily "Aaj", all candidates (male and female) from Bunair District having passed. their SSC and F.Sc. (Pre‑Medical) examination from inside the District were directed to appear for interview in the office of Chairman, Joint Admission Committee/Principal, Khyber Medical College on Saturday the 1st March, 2003 at 10‑00 a.m., but the office order in respect of the admission of respondent No.8 Ziaullah reveals that it was issued on the following day i.e. 20‑2‑2003 of the alleged meeting of the Joint Admission Committee on 19‑2‑2003 without waiting for the appearance of students before the Chairman, Joint Admission/Committee on 1‑3‑2003, the date already given in the advertisement.

5. As the petitioner through the interim relief granted by this Court is continuing her studies in the college and similarly the student admitted in her place is also continuing his studies for the last one year, therefore, we have every sympathy with him if his admission becomes disturbed because of the acceptance of this writ petition but as stated above this situation is emerging only due to the fault of the respondent/departments, therefore, this time we leave it to them to favourably decide the fate of the affected respondent, but so far as the petitioner is concerned, her cancellation of admission in the college is totally illegal for the reasons stated above.

6. The writ petition in hand is, therefore, accepted and the petitioner is allowed to continue her medical education in Ayub Medical College, Abbottabad against one of the reserved seats for District Bunair. No order as to costs. H.B.T./78/P Petition accepted.