1999 SCMR181 (PLP)

The brief facts are that the respondent applied for admission in First Year M.B.,B.S. Course in the Khyber Medical College for the academic year 1994-95, against the -seats reserved for open merit as well as against the two seats reserved for the handicapped. It appears that after scrutiny of the applications, a merit list was prepared in which she was shown at S.No.136 against 153 total reserved seats of open merit. However, when the final list of the candidates was prepared for granting admission, respondent's name was not included therein on the ground that in terms of Rule 33 of the Prospectus for 1994-95, she was overage by eleven months. Thereupon, the respondent filed the above writ petition, which was allowed in the above terms through the impugned judgment. Hence the official appellants filed a petition for leave to appeal, which was granted to consider, whether in view of above Rule 33 and the factual position, the High Court was justified in issuing the aforesaid direction in exercise of its Constitutional jurisdiction. In support of the above appeal, Mr. Talat Qayyum Qureshi, learned Additional Advocate-General, N. W.F.P., appearing for the appellants has vehemently contended that in view of the clear language employed in Rule 33 of the Prospectus for 1994-95, providing minimum age limit as 17 years and maximum as 25 years, the High Court was not justified in allowing the above writ petition in the above terms. On the other hand, Mr. M. Zahoor Qureshi, learned Advocate-on -record appearing for the respondent, has submitted that the respondent was eligible for admission against the merit seats as well as against the two seats reserved for the handicapped and disabled persons. He further submitted that the factum that on account of Polio the respondent had become disabled to walk properly has not been denied by the appellants. Mr. Talat Qayyum Qureshi, learned Additional Advocate-General candidly submitted that the above disability of the respondent was not denied by the appellants before the High Court, nor they intend to deny the same before this Court. He has also invited our attention to the Prospectus for the academic year 1996-97 wherein Rule 33 has been renumbered as Rule 44 with the addition of the words "The age will be reckoned from the closing date of application forms". In order to appreciate the above contention of the learned counsel for the parties, we may reproduce the above Rule 33 which reads as follows: -- "

33. The maximum age limit is (25) twenty-five years and minimum age limit is (17) seventeen years." The perusal of the above-quoted Rule indicates that it provides maximum age limit as 25 years and minimum age limit as 17 years. In this view of the matter, the appellants had acted in terms of the Prospectus for 1994-95 in refusing admission to the respondent on the ground of her being overage and therefore, the High Court was not justified in allowing the above writ petition. We would have set aside the impugned judgment of the High Court and would have maintained the order of refusal to grant admission to the respondent, but we are not doing so for the following reasons:-- (i) That admittedly the respondent is a disabled student; (ii) that the respondent is now in the fourth year of the M.B.,B.S., of which she will be taking examination after two or three months; and (iii) that no useful purpose will be served by disallowing the respondent to continue her studies at this stage, as the seat which was occupied by her in the academic session of the year concerned cannot be reallocated to any student now. In this view of the matter, though the judgment of the High Court is not strictly in accordance with law, we are not inclined to interfere with the same for the above reasons and keeping in view the peculiar circumstances of the case. However, we may make it clear that this case shall not be treated as a precedent. We may also emphasise that the High Courts should be very careful in issuing interim orders directing the authorities of the professional colleges to grant provisional admissions to the writ petitioners, subject to the result of the pending writ petitions. Because, if a student is to be disallowed further studies after 2/3 or more years of his/her admission in the medical college, it would cause a lot of hardship to him/her, as he/she would not only be wasting 2/3 or more precious years of his/her academic life, but would also find it difficult to adopt any other alternate profession at that stage. It is, therefore, desirable that the High Courts instead of granting any interim order, should straightaway fix the hearing of such writ petitions, so that the matter is finally decided and. in case a petitioner is entitled to admission, he/she may get the same, or if he/she is not entitled to admissi6n, some other deserving student may get the same. We may also refer to the cases of Haniza Khan v. Province of Balochistan through Secretary, Department of Education Civil Secretariat, Quetta and others (1995 SCMR 711), Abdul Janan v. University of Peshawar through Vice-Chancellor and others. (PLD 1996 SC 709), Riaz Muhammad Sherani v. Commissioner, D.I. Mian Division, Dera Ismail Khan and 9 others (1996 SCMR 1592) and Riaz-ul-14aq v. Selection Committee Constituted for Admission to Bolan Medical College through Secretary, Principal Bolan Medical College, Quetta and 6 others (1997 SCMR 1845), in which this Court has declined to disturb the studies of the students concerned on the ground that they had already studied for several years, or this Court made observation that the case of the student concerned be sympathetically and favourably considered by the authorities concerned and he be accommodated with the other students who were entitled to the admission on merits However, we may observe that the above cases cannot be treated as precedent for laying down a broad proposition that the Court should not disturb studies of the student who obtained admission on the bases of an interlocutory order which was not warranted. The above are the reasons in support of the short order of even date which reads as follows:-- "Since the respondent is a disabled person; namely, that she h suffered Polio which averment has not been denied by the learned Additional Advocate-General nor it was denied before the High Court, we are not inclined to disturb her studies as she is already in the 4th year. The appeal is disposed- of in terms of above for the reasons to be recorded in the' detailed judgment." H.B.T./J-23/S Order accordingly.