1989 PLP 336 (CLC)

SALEEM AKHTAR, J.‑‑The petitioner is a Chinese national and having passed Intermediate examination from Board of Intermediate and Secondary Education, Karachi in the year 1986 applied for admission in Liaquat Medical College Jamshoro in First Year BDS class for Session 1985‑86 against the seates reserved for foreign students. According to Rules contained in the Prospectus for medical college of Sind for the year 1985‑86 issued by the Government of Sind the Ministry of Finance and Economic Affairs (Economic Affairs Division) the respondent No.5, was to nominate and admit against seats reserved for foreign students. The respondent No.5 admitted the petitioner and accordingly the respondent No.3 issued an order dated 21st/22nd January, 1987 admitting the petitioner in the First Year rdDS for the Session 1985‑86 and he was alloteed Roll No.52. A copy of this order was sent to the Secretary, Health Department/ Government of Sind and to the respondent No.5. Thereafter the petitioner regularly attended his classes and his examination was forwarded by the responoent No.3 to the University of Sind. The respondent No.l issued "Admit Card" allocating seat No.31 for the examination of 1988. He, therefore appeared in the examination, but his results was withheld. The petitioner made inquiries and also applied for issuance of eligibility certificate by the University of Sind. The Deputy Registrar of Sind University by letter dated 15‑9‑1987 informed the petitioner that as he had passed the Intermediate Sciene Examination from Board of Intermediate and Secondary Education, Karachi in the year 1986 he was not eligible for admission to the First Year BDS class during Session 1985‑86 and, therefore, the eligibility certificate could not be granted. In another letter addressed to the respondent No.l and a copy endorsed to the petitioner, it was stated that the petitioner's request for eligibility certificate has not been granted, although his examination form was forwarded duly counter‑signed by the respondent No.3. It was further stated that his provisional appearance on First Professional MDS examination under Seat No.31 was being cancelled for the said reason. The University of Sind addressed a detailed letter to the respondent No.3 dated 3‑1‑1983 reiterating the same stand and stating that as the petitioner was admitted without determining his eligibility and that his case for issuance of eligibility certificate was not forwarded to the University immediately after admission provisional appearance for examination is being cancelled. The respon ent No.4 sent a copy of this letter to the petitioner and responde No.

1. The petitioner then challenged the action of the respondent; Nos.l; 2 and 4 by this petition. A counter‑affidavit Ved been filed by the Deputy Registrar (G & A) of the Uiniversity of Sind on bahalf of respondents No.l, 2 and

4. The respondents Nos.3 and 5 have not filed any counter affidavit, nor appeared to oppose this petition. The respondents Nos.l, 2 and 4 have taken the plea that the respondent No.2 was never informed in time that the petitioner had passed Intermediate in the year 1986 from Board of Intermediate and Secondary Education, Karachi. Nor the respondent No.l was informed that the petitioner has been admitted in the Liaquat Medical College in MDS class for Session 1985‑

86. If such information would have been conveyed by the respondents Nos.3 and 6 in time then admission would have been opposed. It had been alleged that the respondent No.5 while giving admission to the petitioner were not aware about the eligibility of the petitioner for continuing studies in MDS according to the University Rules and as he is not eligible, the respondent No.l had taken the right action. Mr. Niaz Ahmed Khan the learned counsel for the petitioner had contended that the petitioner had applied for admission in BDs course for the year 1985‑86 and had submitted all the necessary documents had disclosed all the Rules on the basis of which admission was given to him and he continued his studies for about a year and appeared in the examination, therefore, at this stage no objection can be raised about the eligibility of the petitioner for taking admission in the college for BDs course 1985‑8.6 and appearance in examination. Mr: Kishanchand the learned counsel for the respondent has referred to the prospectus of M.B.,B.S. and MDS for Medical Colleges of Sind for the year 1985‑86 and pointed out that only those candidates who had passed that Intermediate Science Pre‑medical Annual Examination of 1986 were eligible to apply for admission in the First Year BDs 1985‑

86. He has contended that as due to disturbances the educational institutions had remained closed, the academic years are not running according to the calendar year and, therefore, the admissions for BDs course 1985‑86 were given to those candidates who had passed intermediate in the year 1985. It is an admitted position that the petitioner is a foreign national and had applied for admission from the reserved seats for BDS. According to Rule 1 of Chapter IV of the prospectus a candidate who had passed Intermediate Science (Pre‑medical Group) examination in the second division from Karachi, Hyderabad or Sukkur Board of Secondary and Intermediate Education was eligible for admission BDS course for the year 1985‑

86. Therefore, any candidate who had passed Intermediate Examination Pre‑medical Group from these Boards was entitled to be admitted in the medical colllege By Rule 2 an additional restriction had been imposed that such candidate should have passed Intermediate Annual Examination in the year 1985. There fore, in effect there is no inherent lack of educational qualification which may debar the petitioner from being admitted in the medical college. According to Rule 2 of Chapter VI of the Prospectus foreign nationals were required to submit their applications through Economic Affairs Division, Federal Government of Pakistan which were to make selection and allocation. Therefore, the entire exercise for admitting a foreign national was to be made by the Federal Government and after scrutiny of the application and document the applicant was granted admission and such information together with documents was conveyed to the Principal, the respondent No.3 as well as to the Government of Sind. Mr. Kishanchand had clearly stated that the University or respondents Nos.l, 2 and 4 were not concerned with the admission to the medical college. They were only to examine the students. The petitioner was admitted after scrutiny of all documents and allowed to study. This state of affairs continued for about one year. When the examination was to be held all necessary information with regard to the petitioner were sent to the respondent No.l and he did not take any obejction to the eligibilty of the petitioner to be admitted in the medical college. The respondent No.l even issued admit card" and allotted Roll number. Even if the respondent Nos.l, 2 and 4 had not been informed about the admission of the petitioner such infermation was convened ' to them when examination forms were forwarded to them. No specific date has been given by the respondents Nos.l and 2 about the receipt of information, but one can assume that as the admit card had been issued, the information would have been conveyed much before the examination. Instead of taking objection and requiring' him to obtain eligibility certificate they issued "Admit Card" and allowed the petitioner to appear in examination. Now these respondents cannot turn round and by their impugned action completely nullify the admission granted to the petitioner. According to Mr. Kishanchand in terms of Rule 22 of Chapter IV of the prospectus all admissions are provisional subject of verifi cation of documents and correct observation of Rules and if there is any misstatement or student had been admitted against the rules of admission, the Principal shall cancel his admission immediately after due notice to him. It has been contended that as the petitioner was admitted in violation of Rule 2 of Chapter IV, it is liable to be cancelled. According to the prospectus under Rule 22 the respondent No.3 is competent to cancel the admission. It is noteworthy that although the respondent No.l had brought this fact to the knowledge of respondent No.3 he had not taken any action. The respondents Nos.l, 2 and 4, therefore, cannot enforce action as contemplated by Rule

22. Mr. Kishanchand the learned counsel for the respondent during the arguments had referred to a circular issued by the University of Sind to the Principals of all the affiliated Colleges intimating them about the requirement of eligibility certificate. According to hire this circular is issued every year and the circulars for the years 1984 and 1987 have been placed on record. The latter circular is in a detailed form according to which any candidate who has passed the immediate lower examination from a University or Board other then the Board of Intermediate and Secondary Education, Hyderabad is required to obtain eligibility certificate from the University. It was also stated that if a student migrates to this university from other Board he should be advised to obtain eligibility certificate from this university within a period of one month from the date of their admission failing which no case of eligibility certificate shall be considered and such admission made by the Principal will be treated as cancelled. From this circular regarding eligibility certificate it is clear that it is intended for such students who have passed the qualifying examination from any other Board or University. The admitted position is that the petitioner was never informed of this requirement either through the prospectus or the application form which he had filed for admission in the medical college. There is nothing on record to show that even the principal or the University had at any time or in any manner informed the petitioner about this requirement. This requirement cannot be termed as a condition for admission to medical college. All the terms and conditions are to be framed by the Provincial Government which has issued prospectus to that effect and does not require production of an eligibility certificate. Therefore, on the basis of failure to obtain such an eligibility certificate the petitioner's admission cannot be cancelled. Even if it is a requirement which should have been complied with by the petitioner, in the facts and circumstances of the case due to lapse of long time and inaction by the respondents is would be deemed to have been waived. 1, therefore, declare the impugned action taken by respondents Nos.l, 2 and 4 as without lawful authority, and direct the repondents to allow the petitioner to continue his studies and appear in examination, as provided under law without production of eligibility certificate. The petition is allowed with no order as to cost. M.Y.H/S‑261/K Petition allowed.