2009 PLP 2220 (YLR)

EJAZ AFZAL KHAN, J.

By this single judgment we propose to dispose of Writ Petitions Nos.713 and 1303 of 2008, wherein the petitioners have asked for the issuance of an appropriate writ directing the respondents to countenance their prayer for migration from Ayub Medical College, Abbottabad to Khyber Medical College, Peshawar.

2. Learned counsel appearing on behalf of the petitioner in Writ Petition 713 of 2008 contended that when the parents of the petitioner are living hand to mouth, they couldn't afford to bear the extra expenditure on his education in Ayub' Medical College. The learned counsel next contended that the petitioner couldn't have smooth sailing in his studies with, stress on his mind as ailing parents and sisters are in the lurch and there is none to look after them. The learned counsel next contended that where migration is allowed to the undeserving children of highups with utter disregard of merit, resort to constitutional jurisdiction would be the only course open before an aggrieved person.

3. The learned counsel appearing on behalf of the petitioner in Writ Petition No.1303 of 2008 contended that where the petitioner is suffering from recurrent urticaria and his ailment gets aggravated because of the inclement weather at Abbottabad, a case for migration from Ayub Medical College Abbottabad to Khyber Medical College, Peshawar, is made out. Ailing parents, the learned counsel added is another factor which constitutes a compassionate ground to justify his migration from Ayub Medical College, Abbottabad to Khyber Medical College, Peshawar, that too, when there is none to look after them in the absence of the petitioner. The learned counsel next contended that when all the migrations from one College to another have been made without any legal and moral jurisdiction, the case of the petitioners for being placed on a higher plank of merit calls for interference by this Court.

4. As against that, the learned counsel appearing on behalf of the Medical Colleges contended that none of the students has been allowed migration without jurisdiction and that where the college has already outgrown its sanctioned strength, neither the petitioner in Writ Petition 713/08 nor the one in Writ Petition No.1303 of 2008 can be accommodated.

5. The learned A.A-G. appearing on behalf of the Provincial Government contended that the Provincial Government comes into play only when the matter has been cleared with concurrence of the Principals of the respective Colleges. It, he added, does not take a decision on its own independently of the Principals of the Colleges.

6. We have gone through the record carefully and considered the submissions of the learned counsel- for the parties.

7. Though migration, on papers, is regulated by the provisions contained in Prospectus but the details as to the number of the students migrating from different colleges to the Khyber Medical College would show that except for one or two all the migrations have been allowed at the instance of the Government in derogation of the said provisions. When confronted as to what is the criterion for migration of a student from one College to another, the learned counsel for the Medical Colleges read out the relevant provisions of the Prospectus. When confronted as to how a student could be allowed to migrate from one College to another, when the College has exceeded its sanctioned strength, the learned counsel replied that it was done at the instance of the Government by relaxing the rules. This answer, to say the least, shows that neither the College nor the Government adheres to the provision of the Prospectus. They permit it, if and when their whim and caprice permit and they decline it if it is otherwise. Adherence to merit or the provisions of the Prospectus may be seen in clear words on papers but it cannot be seen even with microscope in practice. Semblance or even pretence of adherence to merit and the provisions of the Prospectus has become extinct' specie, if seen in the light of details mentioned above. If the provisions of the Prospectus mean something, they mean something for every body including Government. If none of the Colleges is required to accommodate even a single student over the above its sanctioned strength, how could the Government be an exception to that? Here lie the tragedy, the frustration of merit, the violation of the equality clause and cause for bad governance. Where an application for migration of a student from one College to another is decided by looking to a nod from above and not by looking into its merit, the Courts of law, quite naturally, would have to be thronged by the aggrieved persons. We have also been informed, during the course of arguments, about the number of applications awaiting concurrence of the Principals and decision of the Government respectively but what would be their fate is any body's guess.

8. Be all that as it may, once an application before the Principals of the Colleges or the Government is made, it is to be decided for reasons to be recorded in accordance with the provisions of section 24-A of the General Clauses Act. Such application is not to be sat and slept over for an indefinite period of time. It is to be decided with due regard to the merit of each case in the light of the grounds mentioned in the application as expeditiously as possible. We, too, were quite poised to decide the question of migration in the petitions before us but since many of the contentions raised by the learned counsel for the petitioners falling in the realm of factual controversy cannot be decided by us in the exercise of our constitutional jurisdiction, we instead of expressing our own view one way or the other at this stage, would direct Principals of the Colleges and the Government to decide their cases strictly in accordance with law for the reasons to be recorded as highlighted above within a month positively. These petitions, thus, stand disposed of. H.B.T./170/P?????????????????????????????????????????????????????????????????????????????????????? Order accordingly.