1999 PLP 1469 (MLD)

MIAN SHAKIRULLAH JAN, J.

The petitioner Raza Hassan has moved this Constitutional petition for issuing a writ to the respondents to admit the petitioner on one of the self-finance seats in Ist Year M.B-B.S. in Khyber Medical College, Peshawar according to merit and the rules with further directions not to include those persons in the list for self-finance who had not applied on the target date.

2. The case pertains to the selection of candidates, who had applied for admission on self-finance basis of admission to Ist Year M.B.,B.S. Classes in Khyber/Ayub Medical Colleges of the Province for the Session 1997-98, but later on the seats allocated to the self-finance scheme were reduced at a time when even the result of the entry test had been declared by the concerned authorities and only interview was to be conducted.

3. From the material available on file it is evident that the petitioner applied for admission in one of the medical colleges of the Province with first preference of admission in Khyber Medical College, Peshawar, both on merit (Category 'A') as well as on self-finance basis (Category 'C') in response to the advertisement in the press by the Chairman, Joint Admission Committee of Khyber Medical College, Peshawar and Ayub Medical College, Abbottabad. The last date for filing of admission forms was 25-10-1997. List of the candidates with their respective categories was prepared and in the said list the petitioner was shown to have applied for admission on merit as well as self- finance basis. The entry test was also held and result of the same was published in the newspapers on 12-11-1997. It was on 29-11-1997 when in the light of Letter No-SO-II(H)/2-2-1997 dated 29-11-1997 issued by the Section Officer (Health-II), Health Department, Government of N.-W,F.P., the children of doctors were allowed to apply for admission on 12 self-finance seats, curtailed from the total 57 seats to be filled-up on self finance basis, reducing the number of self-finance seats to 45 only. Resultantly, respondents Nos.6 to 17 (except respondents Nos.6 and 9, who had already applied for admission like petitioner on both the categories), who had not applied for admission on self-finance basis on or before the target date were granted admissions in the Ist Year M.B.,B.S. Class in the light of the directions contained in the letter dated 29-11-1997 of the Health Department. The instant petition has been filed on 17-2-1998 after diligent efforts of the petitioner till 10-2-1998 (Annexure-C) to get copies of the merit list and the letter of the Health Department dated 29-11-1997. The grievance of the petitioner in these circumstances, is that his merit position was much better than respondents Nos. 12 to 16 and if under the directions of the Health Department contained in letter dated 29-11-1997 the said respondents were not allowed admissions, he would have been selected for admission to Ist Year M.B.,B.S. Class due to his better merit.

4. According to the prospectus for the year 1997-98 of Ayub Medical College, Abbottabad, the Board of Governors can change any or all the rules and regulations given in the prospectus without prior notice whenever considered necessary. Similar are the provisions with regard to change in the Prospectus of Khyber Medical College, Peshawar except that instead of the Board of Governors the right to change the rules/regulations of the Prospectus is with the Government of N.-W.F.P. The Governor of N.-W.F.P. is the Chairman of the Board of Governors, Ayub Medical College. Both the Prospectuses at pages Nos. 13 to 64 clearly provides that no application after the given date and time will be entertained. The amendment in the Prospectus whereby the children of doctors, who had not filed applications for admission on self-finance basis on or before the notified date i.e. 25-10-1997 were allowed to contest on self-finance seats obviously amounts to change of rules/regulations in the Prospectus with regard to the admission policy and its effectiveness over the right of the petitioner is an important factor for determination in this case. Admittedly, the petitioner had applied for admission on self-finance basis before the last date for filling of application. The petitioner also appeared in the entry test and passed the same. At the relevant time i.e. on the last date of filing applications or before that or even before the entry test, no meeting of the Board of Governors was held for the alleged change in the Prospectus and it was after the completion of the abovementioned process when the required approval was accorded at much belated stage probably due to the issuance of the letter of the Health Department wherein the Section Officer concerned had communicated the decision of the competent authority simply in a letter form and not in a proper form of a notification to be published in the official Gazette. No doubt, the Section Officer is empowered to sign an order of instrument of Government under the Rules of Business, but where an order amounts to change of the rules/regulations of the Prospectus, then it is the responsibility of the department concerned to have circulated the order in form of a notification and not as a letter of ordinary routine. The petitioner's name appears in the list of candidates of category ' A' as well as ' C' and he also participated in the entry test whereafter only the formality of interview was to be fulfilled when the admission policy was changed through letter dated 29-11-1997 followed by the approval of the Board of Governors, both after the relevant date i.e. 25-10-1997 for filing the admission forms, as a result of which some of the candidate-respondents, who had not applied for admission, having less marks than the petitioner were allowed admissions in Ist Year M.B.,B.S. Class and thus a vested right of admission, which had accrued to the petitioner, stood infringed by such modification in the admission policy after the crucial date and the argument of the learned counsel for the respondents that mere application for admission does not create a vested right in favour of a candidate is not worth acceptance in this case, as the admission policy was changed at a time when the process for admission in the two medical colleges of the province had nearly been completed and only the interview was to be held and moreover through the said change, those candidates who had not applied for admission on self-finance basis were made eligible for admission contrary to the clear cut provisions of the two prospectuses of the said Colleges and which change proved detrimental to the interest of the petitioner in the sense that had the change in the admission policy not been brought in after the due date, the petitioner would have been granted admission in the Ist Year M.B.,B.S. Class due to his better merit position over respondents Nos. 12 to

16. In Ghulam Mustafa v. The Chairman, University of Engineering and Technology, Jamshoro and 7 others (1986 CLC 1056) it was observed as under:-- "The determination of such date is necessary as once a vested right is created any amendment in the admission Rules affecting such vested right cannot be allowed. The admission policy is announced by publication of the prospectus. On the basis of such prospectus the applications are invited up to a particular date. These applications are considered and scrutinized immediately on the expiry of the last date for their submission. The applicants are then interviewed and selected for admission. In this process for admission the moment date for submission of application expires the applicant becomes entitled to be considered for admission. This seems to be a reasonable and proper approach to the problem. After the expiry of the last date no one can apply for admission. The applicants are to be considered on the basis of conditions, categories and criteria laid down in the prospectus or rules of admission. If the concerned authorities are allowed to amend the rules or policy after the last date and at any time before the admission process is completed, then it is likely to result in serious abuses, malpractice, manipulation and favouritism. Even if the authority honestly and bona fide amends during this period it is likely to be viewed with suspicion and will injury the reputation and prestige of august bodies like Syndicate. Amendment after the expiry of the date for submission of application is fraught with serious consequences and likely to cause mistrust. The possibility cannot be ruled out that after scrutiny if it is found that in the normal course a candidate is not likely to be admitted, then to accommodate him the Rule is changed to the detriment of other applicants who on the basis of un-amended Rules were likely to get the admission. Such uncertain situation creating atmosphere of suspicion and mistrust should be avoided by public bodies . . . . . . .. . . . . . . . . .. . . . . .. . . . .. . .. . . .

The candidates thus acquired a vested right to be considered for the admission on the basis of admission policy/rule existing on the expiry of the last date for filing the application . . . . . . . . . . . ......................The learned counsel for the respondents Nos. l and 2 contended that after lapse of about one year the petitioner cannot be granted admission. The present petition was filed without delay and as it was necessitated due to the unlawful and unauthorised act of the respondent No. 1, it cannot take shelter on this technical ground. In Munir Ahmad v. Government of Balochistan PLD 1981 SC 335 in similar situation appellant was declared entitled to admission. The learned counsel then contended that if the petition is allowed it will cause displacement of some respondents as new seat cannot be created. This submission amounts to stating that petitioner tray be substituted for respondent No.

12. Such a prayer made to the Court in Munir Ahmad v. Government of Balochistan PLD 1981 SC 335 was refused." Like above, petitioner had applied for admission on self-finance basis before the due date, had participated in the entry test and was declared successful and thus a vested right had accrued to the petitioner of which he has been deprived by way of change in the prospectus and that too in view of a letter issued by the Health Department not in accordance with the requirement of law/procedure. The objection of the learned counsel for the respondents that sufficient time has elapsed since the closing of the admissions for the ' Session 97-98 is also without any force, as the petitioner has diligently pursued his cause throughout, and in view of the judgment reported in 1986 CLC 1056 cited above.

5. Relying upon an authority in the case of Syed Muneeb Nazir Shah v. Azad Kashimir Government through its Chief Secretary and another (PLD 1985 Azad Jammu and Kashmir 17) the learned counsel for the respondents candidates urged that a vested right had also accrued to respondents Nos.6 to 17 because they have been nominated for admission and have also started studying in the Ist year M.B.,B.S. Class on such nomination and nearly one year has already elapsed, therefore, it would not be fair to disturb their studies at this stage of the proceedings. Keeping in view the dictum laid down in the above-said authorities and also alive to the extreme hardship that may be caused to the respondent who are studying in the Ist Year M.B.,B.S. Class on self-finance basis; we find ourselves in agreement with the contention of the learned .. counsel for the respondents/candidates that their admission should not be disturbed at this stage. However, it was brought to our notice that though in the Session 1997-98, almost one year has elapsed, but still, according to the learned counsel for the petitioner, the supplementary examination of the First Year M.B.,B.S. has not been held. It means that the opportunity of taking part in the supplementary examination could be availed by the petitioner. As the petitioner had given first preference of admission is Khyber Medical College, Peshawar, therefore, he is entitled to admission in the said college.

6. For the aforesaid reasons, this writ petition is accepted to the extent that the petitioner is directed to be admitted in the first year of M.B.,B.S. corresponding to Session 1997-98. The order of his admission would not, as such, affect the admission already granted to respondents Nos.6 to

17. No order as to costs. Q.M.H./R-199/P Petition accepted