2008 PLP 1061 (CLC)

SARDAR MUHAMMAD NAWAZ KHAN, C.J.

This constitutional petition arises out of the following facts: The Azad Jammu and Kashmir Nomination Board invited applications for nomination against the reserved seats of AJ&K nationals in various professional colleges in Pakistan. The petitioner filed an independent application for her nomination against the seat of M.B.,B.S., reserved for Leppa Valley in Ayub Medical College Abbottabad, as disclosed in the advertisement inviting applications from the eligible candidates. Respondent No.4 also applied for the same seat as she also hails from Leepa Valley. Both the contestants appeared in the entry tests conducted by the Governments of Punjab and N.-W.F.P. and qualified the same. The petitioner credited 817 out of 1100 marks in F.Sc. and secured 62.45 marks in the entry test conducted by N.-W.F.P. Government and 69.00 marks in the entry test in Punjab. Respondent No.4 credited 806 out of 1100 marks in F.Sc. and secured 60.67 marks in the entry test conducted by N.-W.F.P. Government and 69.64 marks in the entry test conducted by the Government of Punjab. The case of the petitioner, as pleaded by her, is that she stands first for the. purpose of nomination against the reserved seat of M.B.,B.S. for Leepa Valley, therefore, while aggregating the marks from both the entry tests against the reserved seat for Leepa Valley in Ayub Medical College, she got higher marks as compared to private respondent No.4. The procedure for nomination, according to her, as laid down by the apex Court of AJ&K in different cases in the light of policy for nomination is that merit should be considered in aggregate manner in two Provinces and while doing so, the topper in aggregate position should be nominated. However, per case of the petitioner, the Nomination Board with mala fide intention and without following the procedure/policy on the subject of nomination to professional colleges, ignored the judgments of the Supreme Court in the cases like, Suleman Ejaz's case, Sheeraz Ahmed Bhatti's case and Sidra Batool Bukhari's case and 'nominated respondent No.4; thus, deprived the petitioner of her legitimate right to be nominated against the reserved seat in Ayub Medical College, Abbottabad for Leepa Valley. Her further case is that according, to prospectus and policy of the relevant college, she was the only candidate' who could be nominated against the seat reserved in Ayub Medical College because she obtained more marks than that of respondent No.4 and in view of aggregate position, it was only her right to be nominated against the said seat. The action of Nomination Board, to place the petitioner on Serial No.2, is without any legal backing, therefore, nomination of respondent No.4 is without lawful authority and it should be withdrawn. She further pleads that as the reserved seat has been allocated in Ayub Medical College, therefore, the criteria formulated by the said College and result of entry test in the relevant Province are to be considered and if it is done, she becomes at Serial No.1. The respondents, by ignoring the legal position, have wrongly nominated respondent No.4, therefore, by accepting her writ petition, the nomination of respondent No.4 in M.B.,B.S. course in Ayub Medical College Abbottabad should be declared illegal and against the rules and by doing so, the petitioner should be nominated against the seat in contest. This writ petition was initially dismissed in limine by my learned colleague Mr. Justice Ghulam Mustafa Mughal, however, on appeal, the apex Court set aside the judgment of this Court and while admitting the writ petition for regular hearing remanded the same for its decision. The leaned Judges while remanding the case observed as under:-- "We have heard the learned counsel for the parties and gone through the record made available. The appellant, herein, filed a writ petition in the High Court with a specific prayer that on account of overall merit she being ahead to respondent No.4 is entitled to be nominated by the Nomination Board against the seat reserved in Ayub Medical College, Abbottabad for the candidates belonging to Leepa Valley. It was not at all her case that the marks obtained in the entry tests of Punjab and N.-W.F.P. have wrongly been considered by the Nomination Board. The High Court did not attend to this point and after considering the ratio decidendi of this Court in different reports dismissed the writ petition in limine without considering the prayer of the appellant for direction to the Nomination Board to prepare merit list according to the result of N.-W.F.P. entry test. The High Court also failed to record its findings and address the proposition as to whether the final merit for nomination has to be made on the basis of aggregate marks and overall position of the candidates or only on the basis of highest marks secured in any of the entry test. The learned Judge in the High Court in fact decided the controversy only on the point of consideration of marks obtained in the entry tests and held that according to the judgments of this Court highest marks in any of the entry test are to be considered. Even if this finding of the High Court is accepted to be correct, the main contention of the appellant remains undecided whereby it was pleaded that overall merit should be determined according to laid down policy of the Government. We have ourselves gone through the merit position of the parties which reveals that the appellant is ahead to respondent No.4 as far the merit determined for admission in Medical Colleges N.-W.F.P. is concerned. Respondent No.4 is ahead to the appellant if merit list prepared by the Nomination Board of Azad Jammu and Kashmir for Punjab is considered. In such an eventuality the proper course for the High Court was to record clear-cut finding keeping in view the comparative score of the appellant and respondent No.4. We, therefore, hold that it was a fit case for admission of the writ petition for regular hearing. As the written statement has not been filed by the respondent No.4 and final adjudication on moot point has not been recorded by the High Court, we are left with no option except to remand the case to the High Court. We, therefore, order the admission of writ petition and direct the High Court to decide the controversy after hearing the parties." After remand of the case, the respondents were directed to submit their written statements and they have done so. The learned counsel for the petitioner mainly relied upon Suleman Ajaz's case, Sheeraz Ahmed Bhatti's case and Sidra Batool's case, decided by the Supreme Court of AJ&K. By relying upon the aforementioned cases, the learned counsel argued that merit for nomination was to be made on the basis of aggregate marks and overall position of the candidates in view of law laid down by the Supreme Court, but the Nomination Board, by ignoring the judgments of the Supreme Court and nomination policy by the Government, deprived the petitioner of her legitimate right by nominating respondent No.4 against the reserved seat. According to him, legal and right course was to consider the overall merit position while preparing merit order for nomination; but they prepared the merit on the best of two entry tests formula which, in view of judgments of .the Supreme Court and the admission policy, was a wrong action needing rectification by nominating petitioner against the seat in contest. Conversely the learned counsel for the respondents while supporting the nomination of respondent No.4, contended that the cases referred to and relied upon by the learned counsel for the petitioner were re-considered by the Supreme Court in Ambreen Zeb and three others v. Misbah Mauzoor and 12 others' case and dictum of the Supreme Court in the precedent case still holds the field, therefore, nomination of respondent-No.4 has been made in accordance with law laid down by the Supreme Court in Ambreen Zeb's case. It has been further argued that respondent No.4, after her nomination, is undergoing the studies in Ayub Medical College for couple of months, therefore, a vested right has accrued in her favour. After hearing the learned counsel for the parties, the record made available with pleadings along with the case-law has been taken into consideration. The petitioner and respondent No.4 admittedly belong to Leepa Valley and are contesting for the reserved seat of M.B.,B.S. course available in Ayub Medical College, Abbottabad. Both the contestants appeared in both the entry tests conducted by the Government of Punjab and the Government of N.-W.F.P. The marks obtained by the petitioner in the entry test in N.-W.F.P. are 62.45 whereas in Punjab she secured 69.00. Her aggregate marks are 131.45.??????? On the other hand, respondent No.4 obtained 60.67 marks in the test in N.-W.F.P. and 69.64 in the entry test conducted by the Government of Punjab. Her aggregate marks are 130.31 which shows that petitioner's aggregate marks are more than that of respondent No.4, but respondent No.4 is ahead to the petitioner in the entry test conducted by the Government of Punjab whereas the petitioner is ahead to respondent No.4 in the test conducted by N.-W.F.P. Government. Before deciding the fate of this petition, it is felt advisable to have a brief survey of case-law available from the Honourable Supreme Court of AJ&K jurisdiction. The cases on the subject of nomination are (i) Suleman Ejaz Ahmed's case (Civil Appeal No.37 of 2001, decided on 14-3-2001 (ii) Ambreen Zeb's case 2003 YLR 3130 (iii) Sheeraz Ahmed Bhatti's case 2004 YLR 1644 and Sidra Batool's case (Civil Appeal No.43 of 2005, decided on 14-7-2005). After perusal of judgments of the Supreme Court, passed in different times, it becomes clear that the view taken in Ajaz Suleman's case has been re-considered in Ambreen Zab's case 2003 YLR 3130 and Sheeraz Ahmed Bhatti's case 2004 YLR 1644 and it is held that the Government of AJ&K has to make nomination in the colleges in different Provinces of Pakistan and before that it is not certain that which candidate would be nominated for which college of the Province therefore, the uniform policy was to avoid any confusion which required that entry test in Punjab and N.-W.F.P. shall be mandatory and to be qualified and highest marks in any of the entry test shall be considered for the nomination. The Honourable Supreme Court directed the Nomination Board to formulate their policy in view of dictum of the Court, so as to make it transparent. This dictum of the Supreme Court remained unimplemented, rather the Government of AJ&K issued a notification dated 20-10-2004 which reads as under: The perusal of this notification would show that it has been issued in contravention of the dictum of the Supreme Court given in Ambreen Zeb's case. The Honourable Supreme Court is found to have directed the Government to incorporate the view taken by the learned Judges in the Supreme Court in the precedent case; but unfortunately the respondents, by ignoring the judgments of the apex Court, issued the aforesaid notification which runes counter to the judgments of the Supreme Court. This Court, during previous round of litigation, in the present case, took the notice of this contravention and directed the respondents to amend the notification, dated October 20, 2004, in order to make it in line with the dictum of tile Supreme Court in Ambreen Zeb's case; but the directions by the Supreme Court and the High Court went unnoticed by the respondents which resulted in another controversy like Sidra Batool's case (Civil Appeal No.43 of 2005). In the said case, it was observed by the Honourable Supreme Court that as the notification dated 20-10-2004 is till in existence, therefore, nomination of Sidra Batool, the appellant therein, was rightly made. The notification dated 20-10-2004 would show that in order to get admission in a professional college in Pakistan, the candidate should at least pass entry test in Punjab. It means that a candidate, without having passed entry test in N.-W.F.P., may contest for his/her nomination on the basis of entry test in Punjab. On the other hand, as stated earlier, the apex Court of AJ&K has held that eligibility for nomination to any professional college would be passing of entry tests both in Punjab and N.-W.F.P. and nomination shall be made in view of best of two entry tests formula. The close examination of the precedent judgments of the apex Court would reveal that the view initially taken in Suleman Ajaz's case was re-considered in a subsequent case of Ambreen Zeb, as stated earlier. The latest judgment of the Supreme Court is in case of Sidra Batool. The learned counsel for the petitioner relied upon Suleman Ajaz's case and Sidra Batool's case decided by the apex Court and a case of this Court titled Muhammad Ajaz Qamar v. Nomination Board etc. decided on April 9, 2008. In Sidra Batool's case, the Honourable Supreme Court, on the basis of notification dated 20-10-2004, allowed the appeal with the following observation: "This notification which is at page 50 of the paper book of this Court was also challenged by respondent No.1 in the High Court but a perusal of the judgment of the High Court shows that the same has not been cancelled or declared against the dictum of this Court and the learned Judge in the High Court has directed the Nomination Board to amend the notification, dated 20-10-2004 which has not been amended till the hearing of this case, therefore, the legal position at present is that under law only requirement for admission in any institution of Pakistan for M.B.,B.S. or B.D.S. courses is passing of entry test of at least of the Province of Punjab and this law or rule is very much on the statute book. In the case in hand the appellant has qualified the entry test of Punjab securing 72.83 marks, therefore, the Nomination Board is under legal obligation to nominate the appellant for B.D.S. course as according to the merit list, she is at Serial No.1. " In Muhammad Ajaz Qamer's case, the learned Judge of this Court by following the view taken by the apex Court in Sidra Batool's case, made the following observation:- "The contention of Sardar Abdul Sami Khan, the learned Advocate fen the petitioner that it was necessary for nomination of a candidate that he should qualify both the entry tests conducted i.e. by the Punjab and Frontier Governments in view of the rule of law laid down in the afore-stated case, is devoid of any force. No doubt, in Salman Ijaz's case, the apex Court approved the nomination of Sabeen Arif which was made on the basis of aggregate marks but in the subsequent 2 cases, specially, in Sidra Batool's case, the view was reviewed. His contention that in Ambreen's case, it was ruled and approved that for nomination of the candidates, the best marks obtained by a candidate in the entry tests should be made basis for his nomination and the best of the two tests, "formula" cannot be applied until a candidate appears in both the entry tests but the fact remains that in Sidra Batool's case, this contention was repelled, hence, this Court is unable to agree with the learned Advocate. By now the law is well-settled that in case of conflicting judgments, the law declared in a subsequent decision has to be followed." The judgment in Sidra Batool's case would show that the Honourable Supreme Court did not reconsider the view taken in Ambreen Zeb's case; but on account of peculiar facts of Sidra Batool's case, they allowed the appeal. As is evident from their Lordships observation recorded hereinabove, the appeal was allowed on the grounds like entry of the respondent therein for B.D.S. course at a belated stage through a wrong channel, non-impleadment of necessary parties in the writ petition by the respondent therein and her filing of writ petition not with clean hands. Moreover, it was observed by the Honourable Supreme Court Judges that as the notification, dated 20-10-2004 has not been cancelled, therefore, the nomination of appellant therein was justified in view of the said notification. The learned Judges while passing judgment in Sidra Batool's case, are not found to have re-considered/reviewed the view taken in Ambreen Zeb's case; rather they observed that the precedent case was not helpful to the respondent therein in view of the facts of the case, as disclosed hereinabove. Thus, in my estimation, the view taken by the Honourable Supreme Court in Ambreen Zeb's case still holds the field and has not been reviewed or re-considered in Sidra Batool's case. The position which, therefore, emerges out is that at present there is a dictum of the Supreme Court in Ambreen Zeb's case on one hand and on the other hand a Government notification, dated 20-10-2004. The question arises as to which out of, dictum of the Supreme Court or the notification dated 20-10-2004, is to be followed while making the nomination to professional colleges. The answer is that the dictum of Supreme Court which has been given in proper exercise of jurisdiction should prevail as it is a law of the land under the Interim Constitution Act, 1974 which is binding on executive as well as on judicial functionaries. The respondents were legally obliged to amend the notification/instructions of 1986; but unfortunately, they instead of doing the needful, issued the notification dated 20-10-2004 which runs counter to the dictum of the Supreme Court. They are therefore, directed to do the needful within two month's time, failing which the nominations to professional colleges in future shall be made in view of the principle laid down by the Supreme Court of AJ&K in Ambreen Zeb's case. Coming to the case in hand, it may be observed that the view taken in Suleman Ajaz's case has been re-considered/reviewed in Ambreen Zeb's case and the principle laid down by the Honourable Judges of the Supreme Court in Ambreen Zeb's case still holds c the field according to which, the nomination is qualified with the passing of entry test both in Punjab and N.-W.F.P. and a candidate shall be nominated in view of best of two entry tests formula and not on the basis of aggregate formula or on the strength of notification dated 20-10-2004. Another objection raised by the learned counsel for the petitioner is that when the seat against which she is seeking nomination is reserved in Ayub Medical College, the marks obtained in the entry test conducted by Frontier Government should have been made basis for nomination and not the best of two formula. He while elaborating his viewpoint contended that as the petitioner and respondent No.4 were contesting for a seat reserved for Leepa Valley in Ayub Medical College, therefore, application of best of two entry tests formula has wrongly been applied by the Nomination Board. This proposition also came before the Honourable Supreme Court in Sheeraz Bhatti's case 2004 YLR 1644 in which the following observation was made:-- "It may be mentioned that the said judgment lays down the law in the light of the instruction issued by the Government with regard to the nomination and also keeping in view the admission policy maintained by the respective Medical Colleges in Pakistan. However, Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, has drawn our attention towards this aspect of the case that the seat is reserved in Ayub Medical College. Abbottabad, N.-W.F.P., therefore, the policy adapted by the Nomination Board is against the admission policy of Ayub Medical College. We are unable to agree with the learned counsel for the appellant for the simple reason that in view of the facts that it is not certain that a candidate would be nominated for which college of the Province of Pakistan and sometime special seats reserved in a particular college in absence of any candidate also go to the general pool and nominations are made in accordance with the merit. Conversely the candidates apply against the general seats and special seats as well, therefore, a uniform policy was framed for all the candidates whereby it was held mandatory that all the candidates shall appear in both the tests i.e. Punjab and N.-W.F.P. and would be nominated on the basis of the best out of two entry tests and thus, it was applicable for all the candidates whether applying for a special seat or general quota reserved for a particular district or refugees settled in Pakistan. Therefore, the question of discrimination does not arise at all. The judgment of this Court in Suleman Ejaz's case was also discussed and taken into consideration while passing the judgment in appeal of Ambreen Zeb and others v. Misbah Manzoor and others (Civil Appeal No.59 of 2003, decided on 30-6-2003). The case-law referred to by the learned counsel in the circumstances is not required to be discussed." The perusal of the observation given by the Honourable Judges in the Supreme Court would reveal that the ground taken by the petitioner for her nomination with regard to admission policy of Ayub Medical College and her marks in N.-W.F.P. entry test is not tenable in the light judgment of the Supreme Court.???? The result, therefore, is that both the grounds taken by the petitioner in this writ petition are meritless in view of the judgments of the Supreme Court in the above stated cases, hence it is hereby dismissed. H.B.T./6/H.C.(AJ&K)???????????????????????????????????????????????????????????????????????? Petition dismissed.