2004 PLP 1828 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment, dated 17th May, 2002 passed by a learned Division Bench of High Court of Sindh, at Karachi, in a writ petition filed by the petitioner against the refusal of admission to her in the Medical College.

2. The petitioner applied for admission in 1st year BDS for the academic year 2001-2002 against the reserved seats of District Dadu in Chandka Medical College, Larkana. The merit list for admission was prepared on the basis of aptitude test conducted by Institute of Business Administration (IBA), on 15-11-2001-and the Coordinator Services IBA, Karachi, issued eligibility certificate to the petitioner on 26-11-2001 according to which she secured 153 out of 400 marks with overall percentage of 58.97 and was held entitled for admission. Later. IBA on the basis of an observation made by the examinee that the answer to Question No.15 in the Master Kay made available in the test, was incorrect, re-examined the said question and in consequence thereto the position of the petitioner in the merit list was changed from 153 to 149 and she was refused admission. The petitioner challenged the legality of the change of her position in the merit list in the High Court of Sindh through a Constitution petition and a learned Division Bench of the High Court dismissed the writ petition with the following observation:-- "There appears nothing to indicate that a provisional list is sacrosanct and cannot be modified in any manner. Since substantial justice seems to have been done we do not vend any reason to interfere in Constitutional jurisdiction. Accordingly we are constrained to dismiss this petition but would like to record that the IBA must be extremely careful in performing its duties and the persons responsible for such mishap ought to be strictly dealt with."

3. The grievance of the petitioner in the writ petition before the High Court was that she was deprived of her legitimate right of admission in the 1st year BDS Course against the reserved seat of District Dadu in Chandka Medical College, Larkana, through the use of device of re examination of answer to Question No. 15 in the Physic part in the Master Key. The Coordinator test services, IBA, in his affidavit filed with the comments submitted to the writ petition, stated that after collection of the answer books, it transpired that answer to Question No. 15 in the Master Key used for the test as pointed out by the examinee was incorrect, therefore, the result and the merit list .was revised accordingly. The Coordinator of the Institution (IBA) also stated in the affidavit that two questions in the Master Key were cancelled as different responses to the said questions would be equally, correct which caused confusion but question No. 15 was capable of only one response.

4. The learned counsel for the petitioner has contended that as per eligibility certificate issued to the petitioner by the IBA, she had earned a right of admission which could not be subsequently taken away by making change in the merit list on any ground including re-examination of answer book. The learned Additional Advocate-General, on the other hand, contended that eligibility certificate was issued to the petitioner on the basis of provisional merit list prepared by the Institute which being subject to correction was subsequently revised and added that the merit list in toto was revised after rectifying the mistake pointed out by the examinee in the Master Key without prejudice to the right of admission of an individual candidate.

5. There is no cavil to the proposition that the provisional result is always subject to correction and scrutiny but such correction is confined only to the extent of un-marked answer or mistake in the counting and totaling, of marks inside the answer book or on the title page and such other mistakes and do not include re-evaluation of marks. The examination of answer book for limited purpose of rechecking to rectify the mistake referred to above is always possible under the law but re examination of the answer book for re-evaluation of marks after announcement of result to, the disadvantage of a candidate, is not permissible. The examination of the matter in some detail would show that the manner in which IBA changed the merit list after issue of eligibility certificate affecting the right of admission of petitioner, was A not justified and fair to be approved. The IBA before undertaking the exercise of re-examination of answer to the relevant question and making change in the merit list has neither informed the candidates who were being affected nor bothered to verify from any other independent and reliable source to ascertain whether the answer to question No. 15 given in Master Key was actually incorrect and the answer suggested by the examinee was generally being accepted as correct answer to the said question. We find that except the oral assertion of IBA based on the opinion of examinee nothing was brought on record to justify the re examination of answer book and revise the merit list prejudicial to the right of candidates. The learned Judges in the High Court, having not attended this important question, have failed to render the judgment in the case, strictly in accordance with law. However, in view of the subsequent development, we would not like to interfere in the impugned judgment at this late stage for the reason that the candidates who applied with petitioner for admission in the 1st year BDS Course 2001-2002 and were successful in getting admission, have completed almost the 2nd year of BDS course and even if the impugned judgment is set aide, the petitioner cannot be offered a seat in 1st year BDS in the current academic year on the basis of her right of admission in the academic year 2001-2002.

6. This is sad that the public functionaries are not vigilant and careful in dealing with such sensitive matters concerning with the career of young people and do not realize that a slight negligence on their part may cause irreparable loss of precious years of academic life of a person. This is difficult to change or adopt a profession at a late stage and if a person is restrained from acquiring the requisite qualification for a profession in an unjustified manner, it would amount to prevent him from availing the Constitutional right of entering upon lawful profession of choice, therefore, the functionaries while dealing with such matters, must not act in a manner which is not in consonance with the principles of justice, equity and fairplay and similarly the delay in- disposal of such matters by the High Court within reasonable time may cause injustice which is not desirable. The petitioner, as per provisional result/merit list, was entitled for admission against the reserved seats for District Dadu and if the merit list would not have been disturbed subsequently by the Institution, she would definitely be given admission and when we confronted the learned Additional Advocate-General and departmental representative, with the above special features of the case, they un hesitantly replied that subject to the rule of eligibility, the petitioner if so desires, may apply for admission in 1st year BDS classes in the current academic year. The petitioner, who is present in Court, on our asking stated that she will be satisfied if her application for admission in 1st year BDS in the current academic year is entertained and is considered on merits.

7. We, having considered it a case of hardship while maintaining the impugned judgment, dispose of this petition with the direction that the petitioner shall be entitled to apply for admission in the 1st year BDS Course in the current academic year against the reserved seats of District Dadu in Chandka Medical College and she will be treated at par to other C candidates in the matter of admission in the current academic year, without any discrimination. The entitlement of the petitioner shall be determined purely on the basis of merits and strictly in accordance with law. It is, however, made clear that this being a case of its own nature, shall not be treated as a precedent. M.H./F-14/S Order accordingly.