2000 PLP 2280 (YLR)

Raza Hussain v. Chairman, Joint Admission Committees 1999 MLD 1469; Huma Rafiq Khan v. Government of Sindh 1988 MLD 2098 and Naeem Mirza v. Government of Sindh 1987 CLC 1487 distinguished. Abdul Latif Yousafzai for Petitioner. Wasimuddin and Syed Asif Ali Shah for Respondents. Abdul Sattar Khan, Addl. A.‑G. Date of hearing: 9th June, 2000. NASIRUL MULK, J.‑‑‑By this common judgment, W.P. No. 188 of 1999, W. P. No. 932 of 1999 and W. P. No. 1234 of 1999 are disposed of as in all these writ petitions the notification, dated 28‑1‑1999 issued by the Government of N.W.F.P. has been challenged. By this notification, the requirement of entry test for admission to Medical and Dental Colleges on seats reserved for Azad Jammu and Kashmir, Northern Areas and Children of Armed Forces Personnel was dispensed with for admissions for the Session 1998‑99.

2. The grievance of the petitioners in W.P. No.932 of 1999 and W.P. No. 1234 of 1999, Miss Shahzadi Nadia and Miss Shahzadi Saima Hussain, is common. Both the petitioners applied for open merits seats, self‑finance seats as well as for the seats reserved for the children of Armed Forces Personnel. The petitioners as well as respondents Nos. 5, 6 and 7, who also applied for the seats reserved for the children of Armed Forces Personnel, passed the entry test. Respondents Nos.5, 6 and 7 were however, nominated by G. H. Q. for admission on the reserved seats. They were accordingly admitted. The two petitioners who failed to get nomination from the G.H.Q. however succeeded in admission on the self‑finance seats. The grievance of the petitioners is that according to the weight age that is to be given to the results of the entry test as laid down in the, Prospectus of the Khyber Medical College, the petitioners had better merits than respondents Nos.5, 6 and 7 and, therefore, the petitioners and not the respondents, should have been admitted on the reserved seats.

3. W.P. No.188 of 1999 relates to the seats reserved in the medical colleges for students from the Northern Areas. The petitioner, Miss Naseera Hanan and another candidate, Miss Ambarin Rubab, were the only two students from Northern Areas who had appeared and passed the entry test held by the Khyber Medical Colleges. Miss Ambarin Rubab is stated to have been admitted in Ayub Medical College as she was also nominated by the nominating authority of the Northern Areas. The grievance of the petitioner is that respondents Nos.7 to 13, who were admitted on the seats reserved for Northern Areas had not appeared in the entry test at all and, therefore, were not eligible for admission under the clear terms of the prospectus.

4. The question common to the 3 writ petitions is whether the impugned notification issued by the Government of N.W.F.P. dispensing with the requirement of entry test for certain categories of reserved seats could be given effect detrimental to the rights of the petitioners to be admitted to Medical College. The two writ petitions relating to the reserved seats for the children of Armed Forces Personnel involve an additional question as to whether regardless of the impugned notification, the nomination of respondents Nos.5 to 7 was in accordance with the prospectus as the said respondents did appear and passed the entry test.

5. The learned counsel appearing for the petitioners contended that the entry test was held in December, 1998 and the impugned notification was issued more than a month later on 28‑1‑1999, by which time valuable rights had accrued to the petitioner to be admitted. That, therefore, the impugned notification cannot affect the vested right already created in favour of the petitioner. The learned counsel referred to various provisions of the prospectus to contend that the passing of entry test was a pre‑condition for admission in the Medical Colleges of N.W.F.P. and the respondents having either not qualified the test or having lower merit marks than the petitioner as a result of such test could not be admitted to the Medical Colleges. Reliance was placed on Raza Hussain v. Chairman, Joint Admission Committee (1999 MLD 1469), Huma Rafiq Khan v. Government of Sindh (1988 MLD 2098) and Naeem Mirza v. Government of Sindh (1987 CLC 1487).

6. The learned counsel representing the private respondents, the learned Additional Advocate‑General, and the learned counsel representing the Khyber Medical College relied upon Note No.3 appearing on page 2 of the Prospectus for the year 1998‑99 and maintained that the Government of N.W.F.P. was authorised to bring about changes in the prospectus after its publication. The learned counsel for the Federation referred to the Special Pakistan Army Order, dated 27‑4‑1986 and pointed out that the Armed Forces have its own criteria for nominating candidates for admission to the medical colleges. The learned counsel appearing for the students who had been admitted on the reserved seats for the Northern Areas additionally submitted that all the candidates from the Northern Areas submitted their application forms alongwith testimonial to the Education Department of the Northern Areas which then process these applications for admission and nominated the candidates on merits. It was argued that all the students admitted from Northern Areas had better merits than the petitioner Miss Naseera Hanan.

7. There can be no two views that under the Prospectus of the Khyber Medical College for the Session 1998‑99 entry test was made a pre‑condition for admission to Medical Colleges in the N.W.F.P. This condition was equally applicable to candidates applying for the reserved seats. A clear statement to that effect appears on page 17 of the Prospectus in paragraph VIII/3 under the heading, 'entry test'. The authority conducting the entry test was to send the names of the candidates from Northern Areas who had passed the entry test to the Director Education Northern Areas. The Federal Government was then to select candidates from those who had qualified the entry test. Similar provision is made for students who were to apply for seats reserved for the children of the defence personnel. These provisions appear on pages 14 and 15 of the prospectus.

8. There is no dispute that the impugned notification had been issued by the competent Authority. Note 1 on page 2 of the prospectus provides that the Government of N.W.F.P. reserves the right to change any or all the rules and regulations given in this Prospectus without previous notice whenever considered' necessary. Note 3 further provides that any change/addition/modification in the rules and regulations after publication of the Prospectus shall also be applicable to all applicants/students. There is no doubt that in very clear terms the Government of N.‑W.F.P. has retained the authority to bring about changes in the Prospectus and such changes shall be binding on all students applying the admission. The impugned notification was, therefore, competently issued. Consequently students applying for reserved seats for Northern Areas and children of the Armed Forces Personnel were not required to appear and pass the entry test. It is, however, to be seen whether any vested right to be admitted to Medical Colleges accrued to the petitioners before the impugned notification was issued. 8‑A. We shall first examine the case of Miss Naseera Hanan, from the Northern Areas and see whether by passing the entry test she ought to have been admitted on the seats reserved for the Northern Areas. The Khyber Medical College only holds the entry test, the result of which is sent to the authorities in the Northern Areas, which then prepares merit list and nominates the candidates according to the merits. Admittedly the petitioner was not nominated by the relevant authorities for the seats reserved for the Northern Areas. She also does not claim that she has better merits than any of the candidates admitted on these reserved seats. She seeks admission not on her merits but only on the ground that those admitted were not qualified for admission because they had not passed the entry test and she alongwith another candidate being the only person who passed the entry test should be admitted. Mere passing of entry test would not per se create a vested right in the petitioner. She had to be nominated by the relevant authorities on the basis of her merits and only thereafter she could b:, admitted to the medical college. The case of Raza Hussain v. Chairman, Joint Admission Committee relied upon on behalf of the petitioner is not relevant to the facts of this case. In that case, the petitioner had challenged the change in the Prospectus whereby the seats reserved for admission on self Finance. Here reduced from 37 to 45 and the 12 seats taken out from the self finance were allocated to the children of doctors. Because of this reduction, the petitioner was unable to gain admission in the medical college. The Court allowed the petition holding that the order whereby the change in the prospectus was brought about was not made in accordance with the rules of business as there was no formal notification and secondly by passing the entry test and having better merits than the respondents a vested right had been created in the petition because he only had to go through the formality of appearing in the interview when the impugned change in the prospectus was brought about. In the present case, the petitioner could not gain admission on the basis of entry test alone. She had to be nominated by the Federal Government on the basis of merits. Thus, no vested right had accrued to the petitioner before the impugned notification was issued. Thus, she can neither challenge the admission of the answering respondents as they had been admitted on account of validly issued impugned notification nor can she be granted admission on the claim of creation of a vested right.

9. The case of Miss Shahzadi Saima Hussain and Miss Shazadi Nadia is on a weaker footing than that of Miss Naseera Hanan. Respondents Nos.5, 6 and 7 have like the petitioner also passed the entry test. Thus their case only is that had the specified weight age of the result of the entry test been given the petitioners they would have gained admission to Medical College in preference to respondents Nos. 5, 6 and

7. Para. 8 on page 18 of the Prospectus provides the weight age factors for the determination of final merit list, which includes 40% weight age for the entry test. As for the students applying on the, seats reserved for the children of defence personnel only the result of the entry test is sent to the relevant authorities, which nominates the candidates. Para. IV (3) on page 15 only puts two conditions on nominations for the defence personnel seats. Firstly, that the candidate must have passed the entry test and secondly he or she must have obtained 60% unadjusted marks in the F.Sc. Both these conditions have been fulfilled by respondents Nos.5, 6 and

7. The weight age factors given at page 18 is in applicable to students to be nominated on the defence personnel seats. As regards the criteria on which the nominating . authority nominates the candidates on the reserved seats is given in the Special Pakistan Army Order, dated 27‑4‑1986. It is not the case of the petitioner that the petitioner, even according to the criteria laid down, is entitled to admission in preference to respondents Nos.5, 6 and

7. Thus, regardless of the impugned notification, the petitioners have failed to establish their preferential right to be admitted vis‑a‑vis respondents Nos.5, 6 and 7.

10. For the foregoing reasons, the three writ petitions are dismissed. Miss Shahzadi Saima Hussain, Miss Shahzadi Nadia are already studying on the basis of self‑finance however, Miss Naseera Hanan was granted provisional admission by this Court. Since her writ petition stands dismissed, the admission is recalled. The college authorities, however, are at liberty to allow her to continue her studies. There shall be no orders as to costs. Q.M.H./M.A.K./161/P Petitions dismissed.