1996 PLP 1172 (SCMR)

AJMAL MIAN, J.--This is an appeal with the leave of this court against the judgment dated 9-12-1993 passed by a Division Bench of the High Court of Balochistan in Constitution Petition No.473 of 1993, filed by respondent No.4, Abdul Razzaq, against the refusal of Selection Committee to grant him admission in Bolan Medical College, Quetta, for the Academic Session 1992-93 on the ground that he passed his Matriculation from outside Balochistan, allowing the same as under:-- "15 From the aforementioned discussion we have come to the conclusion that Selection Committee has not properly applied its mind by invoking its authority under para. 29 of the Admission Policy particularly so, when the petitioner has passed his F.Sc. from Balochistan. He has studied in the same college in which the private respondents had got their education. Petitioner and respondents had equal opportunity and equal facilities in F.Sc. but the petitioner secured higher marks thus entitling himself to a seat reserved for District Lasbela. In the circumstances, we set aside the impugned order and declare the same as having been passed without lawful authority and of no legal effect. Resultantly directions are issued to the Selection Committee to admit petitioner as against one of the reserved seats of District Lasbela as against respondent No.4 who has lesser marks. However, there shall be no orders as to costs."

2. The brief facts are that the appellant as well as respondent No.4-applied for admission in the Bolan Medical College, Quetta, against one of the reserved seats of District Lasbela. It appears that the appellant had obtained 433 marks in F.Sc. (Pre-Medical), whereas respondent No.4 secured 477 marks including 20 marks of N.C.C. Training. The Selection Committee declined admission to respondent No .4 on the , ground that he had not passed his Matriculation from Balochistan as required under paragraph 29 of the Prospectus for the Academic Session 1992-93. It may be advantageous to reproduce the order of the Selection Committee, which reads as under:-- "

4. Mr. Abdul Razzaq Lasi son of M. Hussain Lasi The candidate appeared before the Selection Committee and was interviewed. He has passed his Matriculation Examination from Karachi. The candidate explained that he had been passed Karachi for study in Matric for better education. The reason of the candidate was not considered as cogent by the Committee. The candidate further intimated that after passing the Matriculation from Karachi he was shifted to Balochistan and passed his F.Sc. Examination from Balochistan Board. The Selection Committee rejected the application of Mr. Abdul Razzaq Lasi son of M. Hussain Lasi under paragraph No. 29 of the Prospectus of Bolan Medical College, Quetta during the Session 1992-93. " Against the above order, respondent No.4 filed aforesaid Constitution petition, which was allowed in the above terms. Thereupon, the appellant filed a petition in this Court, which was granted to examined, whether the view found favour with the learned Members of the Division Bench that the requirement of passing Matriculation Examination from Balochistan was not attracted to in the case in hand, is correct.

3. In support of the above appeal Mr. S.A.M. Quadri, learned A.O.R. for the appellant, has vehemently contended that the view found favour with the learned members of the Division Bench of the High Court that the requirement of having passed Matriculation Examination from Balochistan is attracted to when there is a tie between two candidates in the marks secured by them is F.Sc, is not in consonance with law inasmuch as paragraph 29 is independent from paragraph 40 of the Prospectus. Mr. Raja Abdul Ghafoor, learned counsel appearing for the official respondents, supported the learned counsel for the appellant, whereas Mr. M.K.N. Kohli, learned A.O.R. for respondent No.4, .has urged that admittedly respondent No.4 is a permanent resident of Lasbela District and admittedly he had passed his F.Sc. from Government Degree College, Lasbela, from where the appellant had passed his F.Sc, the Selection Committee was not justified in rejecting his application for admission in Bolan Medical College on the ground that he had passed his Matriculation from outside Balochistan.

4. It may be pertinent to reproduce paragraphs 29 and 40 of the Prospectus in order to appreciate the respective contentions of the learned counsel for the parties and which read a follows:-- "

29. The candidate must have passed Matriculation and Intermediate Examinations from Balochistan unless the candidate could satisfy the Selection Committee with cogent reasons for not studying in Balochistan for claiming exemption from this condition.

40. In case the adjusted marks of two or more candidates are equal, the candidate securing higher marks in the Matriculation with Science Examination shall be ranked higher on merit for the purpose ' of admission. If the marks of Matriculation With Science are also equal, then the candidate elder- in age shall be ranked higher on merit. " A perusal of the above quoted paragraph 29 indicates that it stipulates that the candidate must have passed Matriculation and Intermediate Examinations from Balochistan unless the candidate could satisfy the Selection Committee that he was entitled to exemption from the application of above requirement by advancing cogent reasons for not studying in Balochistan. Whereas paragraph 40 envisages that in case the adjusted marks of two or more candidates are equal, the candidate securing higher marks in the Matriculation with Science Examination shall be ranked higher on merit for the purpose of admission and in case the marks of Matriculation with Science are also equal, then the candidate elder in age shall be ranked higher on merit.

5. In our view, paragraph 29 of the Prospectus is not controlled and is not subject to paragraph

40. The requirement of having passed Matriculation and Intermediate Examinations from Balochistan is independent from paragraph

40. They have no direct nexus. The High Court has rightly highlighted the object of paragraph 29 as under:-- "

11. From perusal of para. 29 it seems that the Government of Balochistan by incorporating this para intended to promote the cause of those students who got education in institutions in this Province where educational facilities are comparatively lesser and the students do not have better congenial atmosphere. Thus, they cannot compete students studying outside the province comparatively in better institution. In other words the object of this para. appears to be to prefer those students who pass their Matriculation and F.Sc. from the institutions in the Province." , The High Court having correctly appreciated the reason for incorporating aforesaid paragraph 29 has erred in holding that in the case in hand it was not attracted to for the reason that there was no tie between the appellant and respondent No.4 as to the marks obtained by them in F.Sc. Examination, The Selection Committee was competent to decide, as to whether the reason given by respondent No.4 for having passed his Matriculation from outside Balochistan, namely, simpliciter better education was sufficient or not. Unless the High Court finds that the reason recorded by the Selection Committee is perverse, it cannot interfere with the conclusion of the Selection Committee.

6. We may point out that if a student though is a permanent domicile and resident of a district in Balochistan but on account of some compelling reasons he receives education from outside Balochistan and passes his Matriculation and F.Sc. Examinations from outside Balochistan, the said compelling reasons may constitute cogent reasons or where the Balochistan Government itself nominates a candidate for getting his education up to Matric or F.Sc. in a well-reputed institution outside Balochistan against reserved seats of Balochistan, this may also be a cogent reason within the purview of paragraph 29 of the Prospectus.

7. The question, as to whether a particular reason given by a candidate for having passed his Matriculation and/or F.Sc. Examination from outside C Balochistan can be considered as a cogent reason in terms of paragraph 29, depends on the facts of each case. The Selection Committee is under an obligation to apply its mind fully and properly to the facts of a particular case with all attending circumstances and it should make efforts to ensure that a good student may not be denied admission in a Professional College because he, on account of some compelling justifiable reason, got his Matriculation and/or F.Sc. from outside Balochistan, particularly when there is no doubt that the candidate concerned is a bona fide domicile/resident of a district of Balochistan. It may also be kept in view that a permanent domicile/resident of Balochistan cannot get admission in a Professional College in any other Province except through nomination by the Balochistan Government on the basis of selection by the Selection Committee.

8. The upshot of the above discussion is that the impugned judgment cannot be sustained. The appeal is allowed and the impugned judgment is set aside. It will be deemed that the appellant has been properly admitted in the Bolan Medical College. However, we may observe that the appellant as well as respondent No.4 are at present in the Fourth Year. If respondent No.4 is dislodged from the College at this stage, it will not only be a loss to respondent No.4 but will also be a .loss to the public exchequer and to the Province of Balochistan. We would, therefore, observe that the official respondents would make efforts not to disturb respondent No.4's admission in Bolan Medical College. This observation is in consonance with the judgments of this Court in the case of Munir Ahmed v. Government of Balochistan and 4 others PLD 1981 SC 335, the case of Miss Salma Mughal v. Selection Committee, Bolan Medical College, Quetta and others 1993 SCMR 2083, and an unreported judgment dated 3-12-1995 in the case of Miss Zubeda Bibi v. Selection Committee, Bolan Medical College, Quetta, and others PLD 1996 SC 163, It may be advantageous to reproduce para. 7 of the last judgment, which reads as under:-- "

7. We have given our anxious consideration to the factum that the appellant as well as respondent No.4, Rubina Shah, are in the Fourth Year M.B.,B.S. and if respondent No.4 is dislodged at this stage, it would not only be a loss to her but would be a loss to the public money which has been spent on her above education. We would, therefore, observe that respondents Nos. l to 3 may sympathetically consider her case and to allow her to continue with her studies as observed by this Court in the earlier cases, namely, in the case of The Chairman, Selection Committee, Bolan Medical College, Quetta etc. v. Miss Safia Hameed etc. 1979 SCMR 529 at page 533 and in the case of Miss Salina Mughal v. Selection Committee, Bolan Medical College, Quetta and others 1993 SCMR 2083. " The above appeal stands disposed of in the aforesaid terms, with no order as to costs. M.B.A./Q-67/5 Order accordingly.