1992 PLP 2030 (CLC)

QAZI MUHAMMAD FAROOQ, J.‑‑‑The petitioner Shahid Muhammad Fazal, Gas through this Constitutional petition questioned the legality of the decision of the Principal Quaid‑e‑Azam College of Commerce and Business Administration, University of Peshawar, respondent No.1, herein, whereby he was denied admission in a course in Bachelor of Business Administration, Part I for the Session 1990‑91 on the seat reserved for Chamber of Commerce and Miss Sabahat Afzal Zia, respondent No.2 herein, was allowed admission and has prayed that the said decision as well as the admission of Miss Sabahat Afzal Zia be declared as illegal, without lawful authority and of no legal consequence with a direction to respondent No.1 to admit him on the said seat.

2. Briefly, the facts leading to this petition are that according to the Prospectus of Quaid‑e‑Azam College of Commerce and Business Administration, University of Peshawar one seat out of the total number of seats in Bachelor of Business Administration Part I stands allocated to the Chamber of Commerce. The petitioner is the son of an Industrialist who is a member of the Chamber of Commerce N.‑W.F.P. he passed F.Sc. examination from the Peshawar Secondary Board in the year 1990‑91 as a regular student of Islamia College, Peshawar and obtained 728 (adjusted) marks out of 1100 marks. Thereafter, he submitted three applications to the Principal of the said College seeking admission in Bachelor of Business Administration Part I on merit, on one of the seats reserved for sportsmen and on the seat allocated to the Chamber of Commerce. He failed to find a place on open merit as well as on the seats reserved for the sportsmen. He was also refused admission on the seat allocated to the Chamber of Commerce on the ground that it had been allotted to respondent No.2. Feeling aggrieved he filed this petition wherein he challenged the decision of respondent No.1 on the ground that although respondent No.2 was the daughter of a member of the Chamber of Commerce yet having obtained 683 (adjusted) marks out of 1100 marks she was lower on merit as compared to him and as such had been wrongly allotted the seat allocated to the Chamber of Commerce. He also prayed that the decision of respondent No.1 be declared as illegal, without lawful authority and of no legal effect and he be directed to admit him in the academic course in question in place of respondent No.2.

3. The petition was strenuously resisted by the respondents and the objections raised by them in their written statements are manifold. The Principal of the College, respondent No.1, took the stance that the dispute was not amenable to the writ jurisdiction of this Court as Miss Sabahat Afzal had been given admission in good faith pursuant to the nomination made by the Chamber of Commerce vide its letter dated 21‑11‑1990 while the application of the petitioner for admission was received on 30‑4‑1991. Miss Sabahat Afzal in her written statement contended that her father was a regular member of the Sarhad Chamber of Commerce whereas the petitioner's father was not a member at the time when the decision in regard to the allotment of the reserved seat was taken on 15‑11‑1990 as his membership had expired on 30‑6‑1984 and it was renewed on 16‑1‑1991. It was further contended that the petitioner had not submitted any 'application to Sarhad Chamber of Commerce for recommendation of his name for admission on the seat allocated to it and as such he had no locus standi to assail her admission. Respondent No.3 namely Sarhad Chamber of Commerce contended that they had received rive applications in the months of October and November 1990 from the children of the members and of them Miss Sabahat Afzal was selected by the Executive Committee in the meeting held on 15‑11‑1990 and nominated for admission against the reserved seat. It was also contended that at that time the petitioner's father was not a member of the Chamber of Commerce and the petitioner had also not applied for consideration of his name for the proposed nomination.

4. The admitted facts arc that in the Quaid‑e‑Azam College of Commerce and Business Administration, University of Peshawar one seat out of the total number of seats in Bachelor of Business Administration Part I has been allocated to the Chamber of Commerce, the petitioner and respondent No.2 are the children of members of Sarhad Chamber of Commerce and the petitioner had obtained more marks than respondent No.2 in F.Sc. However, three points for determination emerge from the contentions raised by the respondents in general and respondents Nos.2 and 3 in particular; first, that nomination of a candidate by the Chamber of Commerce is a condition precedent for admission on the seat allocated to it, second, that the petitioner had not submitted an application before the Chamber of Commerce for consideration of his name for the said nomination and the Executive Committee of the Chamber of Commerce had selected and nominated respondent No.2 for admission and third that the petitioner's father was not a member of the Chamber of Commerce on 15‑11‑1990 when respondent No.2 was nominated for admission.

5. The contentions raised by the respondents are more speculative than real as they do not enjoy the blessing of the Prospectus of Quaid‑e‑Azam College of Commerce and Business Administration, University of Peshawar. It is nowhere mentioned in the Prospectus that admission on the scat in question shall be made on the nomination of the Chamber of Commerce and as such the contention embodied in the first point for determination is a figment of the imagination of the respondents. No doubt the petitioner had not applied to the Chamber of Commerce for steering his case for admission but this omission is meaningless because according to the instructions contained in the Prospectus he was specifically required to submit his application for admission in the College office. The relevant instruction at page 5 reads as follows:‑ "Application Form for Admission can be obtained from the College office. It shall be filled by the candidate in his/her own handwriting and submitted by the due date to the college office." In so far as the nomination of respondent No.2 is concerned the least that can be said about it is that it leaves much to be desired. Her selection having been made without any publicity or notice to the members of the Chamber of Commerce and without inviting applications from the interested persons not only smacks of some kind of machination by a coterie but also offends against the principles of fairness and equal opportunity. The very instruction contained in the Prospectus requiring the candidates to file applications for admission in the college office goes a long way to suggest that it was the prerogative of the college to receive applications of the candidates seeking admission on the seat reserved for the Chamber of Commerce and forward the same to the Chamber of Commerce for scrutiny and recommendation and not vice versa. As regards the contention that the petitioner's father was not a member of the Chamber of Commerce on 15‑11‑1990 when the decision about the allotment of the scat in question to respondent No.2 was made it would suffice to say that it is remarkable in weakness only as the petitioner's father was admittedly a member of the Chamber of Commerce on 30‑4‑1991 when the petitioner had applied for admission according to the notified Schedule of Admission. The impugned decision of respondent No.1 is thus not sustainable. The matter, however, does not end here because the course over which the petitioner and respondent No.2 are locked in litigation has reportedly concluded and the Annual Examination is scheduled to be held in near future, therefore, if admission is allowed to the petitioner by ousting respondent No.2 at this stage it will indubitably put her educational career at stake. In any case it will be inequitable if she is punished for the imbroglio created by respondents Nos.1 and

3. We would, therefore, accept this writ petition, declare the impugned decision of respondent No. l as without lawful authority and of no legal effect and direct that the petitioner, who was provisionally admitted at his own risk and cost on the order of this Court, should be given regular admission in Bachelor of Business Administration Part‑I without ousting respondent No.2 namely Miss Sabahat Afzal Zia. Parties to bear their own costs. A.A./1376/P Order accordingly.