P L D 2011 Karachi 400 (PLP)

SALMAN HAMID, J.

Vide this single order we propose to dispose of C.Ps. Nos. D-438, D-439 and D-3066 of 2010 as common questions of law and fact are in issue.

2. The facts deducible from the petitions are that in or about November, 2008, the petitioners made a request to the Chief Minister, Sindh, through proper challen, for conversion and allocation of medical seats reserved for the Overseas Pakistani citizens into self-finance (local) seats, primarily on the premise that such Overseas Pakistani citizens' seats are not utilized and thereby financial loss is caused to the medical c3lleges. Requisite summary regarding this request was made and moved. Ultimately the petitioners were allowed admission on overseas Pakistani seats. Record of the case would also demonstrate that the petitioners at the time of their admission in the year 2008 made payment of the tuition fees in US dollars 7000 a year. The controversy started with the letter dated 29-1-2009 of the Section Officer (ME) for Secretary to Government of Sindh wherein it was mentioned that the petitioners were allowed admission against the vacant seats of Overseas Pakistani on self-finance basis at US dollar 7000 per year. According to the petitioners since the Overseas Pakistani seats on self-financing basis had been converted into those of local seats, the tuition fees whereof was Rs.250,000 per year, the letter of the Section Officer to the contrary was unjustified and against the approval of the Chief Minister, Sindh. Resultantly present petitions were preferred.

3. Learned Counsel for the petitioners Syed Ali Bin Adam Jafri argued that once the permission was granted by the Chief Minister, Sindh which permission was based on the past practice of conversion of Overseas Pakistani seats into local seats, the Letter dated 29-1-2009 addressed by the Section Office (ME) to the principal of the medical college was unjustified and uncalled for; that under the law, the Chief Minister, Sindh was empowered to make conversions of the nature involved in the present petitions and therefore the conduct of the respondents in acting contrary to that, was discriminatory; that different yardstick against the petitioners having been used, is absolutely against the canons of justice and must not be allowed. It was therefore prayed that the amount of US dollars 7000 paid by each of the petitioners be adjusted towards the tuition fees applicable for local students for future years; and that the petitioners be not treated as Overseas Pakistani students and fees in dollars in future be not demanded from them.

4. Mr. Kamaluddin, learned counsel for the respondent No.1 (Liquat University) vehemently opposed the petition. It was argued that the petitioners' admission to the medical colleges was in violation of merit and therefore illegal and void. It was urged that the Chief Minister, Sindh had no lawful authority in allocating the medical seats reserved for the Overseas Pakistanis to the resident citizens of the country on the basis of self-finance for local students. Mr. Kamaluddin further argued that by accommodating the petitioners in an indirect manner, for which they were not directly entitled, other candidates have been deprived who possessed better percentage of marks than the petitioners. This approach, according to learned counsel shows favouritism and nepotism. The petitioners were recipients of illegal and wrongful benefits at the hands of an incompetent authority. The petition according to him was meritless and therefore deserved to be dismissed as such.

5. Respondents (Principal Medical College, Benazirabad in C.Ps. Nos.438/10 and 439/10 and Principal Chandka Medical College, Larkana in C.P. 3066/10) also filed their parawise comments. It was specifically denied that the seats reserved for Overseas Pakistani citizens was allocated to the petitioners by the Chief Minister, Sindh as resident citizen of the country on local self-finance scheme. It was specifically mentioned in the comments that the request of the petitioners for the conversion of Overseas Pakistani citizens seats to that of local seats was never approved by the Chief Minister, Sindh. It was argued by these respondents that since the petitioners paid tuition fees of US dollar 7000 each at the time of their admission by itself shows that they were never given admission on the basis of local seats but allowed admission on the basis of Overseas Pakistani students self-finance seats. Hence it was argued that the respondent No.2 was justified in demanding the fees as per rules of foreign/national students. It was stated that the petitioners were not discriminated. On the basis of these arguments it was prayed that the petition be dismissed.

6. Mr. M. Sarwar Khan, learned A.A.-G. appearing on behalf of the Department of Health argued on the same lines as those of respondents Nos.1 and

2. However, it was added that the petitioners having failed to pass on merits as well as on local self finance seats of their respective districts, got admissions on the seats reserved for Overseas Pakistanis after approaching the Chief Minister, Sindh. It was argued that petitioners' passing percentage on merits and self-finance scheme for local seats, was far below as compared to other students. Learned A.A.-G. stated that if at all any one was entitled to these seats then .it were the students whose percentage was much higher than the petitioners. During the course of arguments on 1-12-2010, the learned counsel produced a Summary for the Chief Minister, Sindh dated 16-11-2009. Copy of this Summary was supplied to the learned counsel for the petitioners. It was pointed out that in the summary a request was made to the Chief Minister Sindh through proper channel. The summary was to the effect that the request of the petitioners was neither covered under the rules nor it comes within the ambit of judicious discretion. Hence it was recommended that the request of the petitioners be regretted/rejected. This summary was endorsed by the Chief Secretary as well as by the Chief Minister, Sindh. On the basis of this summary and its endorsement by the Chief Minister, Sindh, the learned counsel argued that earlier summary dated January 2009 upon which the petitioners were relying upon has lost its efficacy. It was therefore, argued that in view of summary of November, 2009 the present petition has become infructuous and the same be dismissed as such.

7. We have heard learned counsel as well as learned A.A.-G. and also perused the record.

8. The petitioners' case primarily hinges on the summary of January, 2009 whereby the Chief Minister, Sindh is stated to have allowed the petitioners request upon assent of the principals of, respective medical colleges. This was despite the fact that the Chief Secretary at that time expressed his regrets. The regrets of the Chief Secretary was to the effect that the requests of the petitioners, "will destroy merits". After approval, as the record would show, the petitioners deposited tuition fees in US dollars 7000 for the academic year 2008-09 (without reservation). This was the fees for Overseas Pakistani citizens on self-finance basis. The summary dated January, 2009 would also show that the merit position of the three petitioners was 41.77% (Mr. Imdad Ali), 62.54% (Ms. Ufera Memon) and 46.09% (Ms. Shama Zehra Naqvi). As against this fact, the last candidate selected against self-finance seats on merits was as high as 70.68% and as low as 65.13%. At the time of filing the application by the petitioners for admission on overseas Pakistani citizens seats their case was that, 'financial loss to the medical college" would be curtailed by these admissions.

9. Such argument gives an impression that the petitioners wanted to come to the rescue of the colleges and wanted to save the colleges from financial loss as there were no applicants for such seats and the same were going to waste. The petitioners look like knights in shinning amount when they offered themselves on such quota and agreed to make payment of tuition fees in dollars. However, going deep into the matter shows that no only such offer was selfish and at the cost of usurpation of the rights of the students who fell short on the merit list, but also shows that it was aimed at depriving the colleges to charge the petitioners for the seats on which they were accommodated. In our opinion the petitions lacks all canons of equity and etiquettes. The petitioners in the first instance represented that they may be accommodated on Overseas Pakistani seats and in doing so the colleges would generate funds (in dollars). This is how they represented themselves and also paid in dollars. However, once they set foot in the colleges they attempted to wriggle out from their commitment in paying in dollars. Frivolous argument was raised that since they were admitted on self-finance (local) seats, they cannot be asked to pay in dollars.

10. It is not disputed that the petitioners, in the first instance attempted to get admissions on merits. Having failed they attempted to get admission on local self-finance seats. In this too they failed. The petitioners then made above applications for getting into the colleges on overseas Pakistani seat's quota. This time they succeeded. It is also not disputed that such admissions of the petitioners was made possible only when the Chief Minister, Sindh was approached. This approach despite Chief Secretary's reservations to the effect that, "These requests will destroy merit" proved fruitful to the petitioners. Approval for admission on overseas quota was accorded by the Chief Minister, Sindh.

11. Above narration would demonstrate nothing but the fact that legitimate right of the students who secured far more percentage that the petitioners was compromised just because the petitioners represented that the inevitable financial loss which was to be caused to the colleges would be averted which admissions otherwise were not possible as they failed both in merit as well as on local finance basis. The petitioners came from the backdoor. The Chief Minister, Sindh was cajoled and somehow despite Chief Secretary's reservation the admissions were approved. However, now the summary of November, 2009 would show that the request of the petitioners regarding payment in local self finance seats has been declined. This being .the latest position, the petitions which are solely hinged on the purported approval of the Chief Minister as contained in the Summary of January, 2009 loses any efficacy/basis. Under such circumstances we disposed off these petitions on 1-12-2010 by directing the petitioners to deposit fees of Overseas candidates within three months, failing which petitioners shall forthwith discontinue their studies in the colleges. We further hold that a person who is not entitled to a right thing directly can also not obtain it indirectly. Therefore the petitioner, by no stretch of imagination fall within the meaning of aggrieved persons as defined under Article 199 of the Constitution of Pakistan 1973. As a matter of fact we see that the petitioners approached this court with patent mala fides. It would therefore not be out of context to record that the petitioners came to this court with unclean hands and with mala fide intentions. The above are the reasons for our short order passed earlier. S.A.K./U-5/K????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.