2004 PLP 1644 (YLR)

(iii) that the learned Judge in the High Court has declared that the appellant does not deserve any relief on the ground that the appellant has himself appeared in both the entry tests, i.e. Punjab and N.‑W.F.P., therefore, he cannot take inconsistent position for evaluation of merit. The finding has been given by the learned Judge beyond the pleadings of the parties; (iv) that the judgment of the learned Single Judge is based on the misreading of record because the appellant has been declared disentitled to relief on the ground that he cannot object to the evaluation of the merit on the basis of aggregate marks; and (v) that the ratio of the judgment of the apex Court in a case titled Suleman Ejaz v. Azad Government of the State of Jammu and Kashmir and others (Civil Appeal No.37 of 2001 decided on 14‑3‑2001) has not been properly appreciated by the learned Single Judge in the High Court. The learned counsel for the appellant relied upon the following authorities:‑‑ (1) Dr. Khawaja Mushtaq Ahmed v. Azad Government and 5 others 2001 SCR 170; (2) Raja Muhammad Sohrab v. AJ&K Government and 6 others 2002 PLC (CS) 1138; (3) Azad Government and 3 others v. Genuine Rights Commission AJK and 7 others 1999 MLD 268; (4) Umar Hayat v. Azad Government and 3 others 1999 PLC (CS) 93.

4. Raja Muhammad Hanif Khan, the learned counsel for respondents Nos. 1, 2 and 7, opposed the contentions of the learned counsel for the appellant on the following grounds:‑‑ (i) That the Nomination Board keeping in view the nomination instructions and admission policy nominated respondent No.7 to a particular Medical College on the basis of merit. The aforesaid merit was determined on the basis of best of the two positions obtained by the candidates from two entry tests i.e. Punjab and N.‑W.F.P.; (ii) that if aggregate marks secured by the appellant and respondent are taken into consideration the respondent is placed at higher position as compared to the appellant; and (iii) that respondent No.7 has already been admitted in the Medical College. A vested right has accrued in her favour, therefore, at this stage the appeal is liable to be dismissed for the simple reason that the seat reserved for the said Medical College would be lost.

5. We have heard the learned counsel for the parties and also gone through the record. The writ petition was partly accepted on the ground that another Writ Petition No. 66 of 2003 decide& on 16‑4‑2003 where fresh nominations were to be made after preparing merit list on the basis of aggregate marks obtained in both the entry tests. Therefore, the writ in dispute was also accepted to that extent and the rest of the relief was refused. The relevant observation is usefully reproduced:‑‑ " The nominations of all the candidates of District Muzaffarabad have been vacated on the ground that only entry test of the Punjab Government was considered for preparation of the merit. It was directed in Misbah Manzoor's case, Writ Petition No.66 of 2003, decided on 16‑4‑2003, that fresh nominations would be made after preparing the merit on the basis of aggregate marks obtained in both the entry tests, therefore, to this extent direction issued in the aforesaid case shall also be followed ... : The upshot of the above discussion is that the writ petition is partly accepted and it is directed that a fresh merit will be prepared on the basis of aggregate marks obtained in both the entry tests by the parties and in case the respondent obtained merit position on the basis of aggregate marks, her nomination would not be disturbed otherwise the petitioner herein shall be nominated forthwith. The other relief is hereby refused on the grounds listed hereinabove. "

6. Since the above case referred by the learned Judge in the High Court i.e. Misbah Manzoor's case, was also under appeal before this Court and the judgment passed by the High Court was challenged and the same was set aside by acceptance of appeal. The judgment passed by this Court in that case is titled Ambreen Zeb and others v. Misbah Manzoor and others (Civil Appeal No.59 of 2003, decided on 30‑6‑2003), therefore, the observations made on the basis of that judgment would have no validity the eye of law.

7. It may be mentioned that the said judgment lays down the law in the light of the instructions 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. In view of the above discussion, we do not find any merit in this appeal which is dismissed with no order as to the costs. H.B.T./81/SC(AJ&K) Appeal dismissed.