P L D 1976 Quetta 70 (PLP)

I. MAHMUD, J.-The petitioners in Constitutional Petitions Nos. 38/76. 39/76 and 41/76 have challenged the orders of the High Powered Appellate Committee refusing to grant admission to them in the Bolan Medical College. Quetta in the First Year M. B. B. S. Class in the Academic Session 1976-77. They have also challenged the admissions granted to the respondents Nos. 1 to 3 as being illegal and against the rules of admission contained in the Pros pectus and Policy of Admission. As these petitions arise out of the same set of facts and raise common questions of law, they have been heard together and will be disposed of by this judgment.

2. Before stating the facts, it will be convenient to mention some of the salient features of tie Admission Policy announced by the Governor of Baluchistan which was released to the press on 4-2-1976 following the issue of the Prospectus which was published earlier, relating to admissions in the Bolan Medical College, Quetta in the First Year M. B. B S. Class for the Academic Session 1967-77.. A total number of 150 students were to be admitted. Seats were allocated among various categories of applicants. A total number of 129 seats were distributed district-wise among the 14 Districts of the Province of Baluchistan and seats were reserved for girls in each District. Three seats were reserved for girls from Quetta (Urban) District and one from Quetta (Rural) District. In the other Districts (except Loralai and Kalat, in each of which, two seats were reserved for girls) one seat was reserved for a girl from each of the remaining Districts. Except in the case of the Quetta District, there was no distinction between applications from the urban and rural areas. Only local/domiciled residents of Baluchistan Province were eligible for admission provided they or their parents had a minimum of 12 years' continuous stay in the Province and had passed the Matriculation and Intermediate Science Examination from Baluchistan. The latter condition was relaxable. Selection of students for admission was to be male strictly on merit through a Selection Committee, whose composition was also notified, which was to scrutinize and interview the candidates on 12th, 13th and 14th February 1976. Appeals against the decisions of the Selection Committee were to be heard and decided by a High Powered Appellate Committee consisting of the Additional Chief Secretary, Govern ment of Baluchistan, as Chairman, Secretary, Finance Department of the Government of Baluchistan and the Assistant Director (Medical) Provincial Health Directorate, Quetta.

3. The petitioner in Constitution Petition No. 38/76, Miss Razia Iqbal, a permanent resident of Quetta District, applied for admission against one of the three seats reserved for girls of Quetta (Urban) District. But as she had scored 574 marks, she was unsuccessful, as three other girls who had scored higher marks than her were granted admission to the three Quetta (Urban) seats. As there were no girl applicants from any of the Districts of Chagai, Khuzdar, Makran, Lasbela, Kharan, Nasirabad and Marri-Bugti Agency, in which one seat each was reserved for a girl, there were seven vacancies. It was decided by the Selection Committee, and approved by the High Powered Committee which decision was approved by the Government of Baluchistan, that these surplus seven girls' seats which fell vacant, may be given to Baluchistan female candidates on open merit basis, who otherwise had been unsuccessful in obtaining admission against the reserved seats. This decision was taken to protect the rights of the girl students and to assure the existence of a sizeable batch of girl students in the Bolan Medical College. Therefore, the Selection Committee selected seven girls on an open merit basis after interviewing the candidates and scrutinising their documents. The petitioner was selected for admission and placed last at Serial No. 7 in this list of open merit girls' seats.

4. The respondents Nos. 1, 2 and 3 who failed to get selected in the quota reserved for girls from the Quetta District, filed appeals to the High Powered Appellate Committee, although, note of these appeals were directed specifically against the petitioner. It is admitted by the petitioner she was given notice of the appeals by the High Powered Committee, but it is con tended that she was not allowed to appear before the Committee. The grievance of respondent No. 1, Miss Razia Hussain, was that she was a resident of Nasirabad/Marriabad, Quetta (Rural) District and objected to the admission of respondent No. 4, Miss Kausar Nisa to the Quetta District (Rural) seat, as she did not belong to the rural area of the Quetta District. The High Powered Committee after hearing the respondents Nos. 1 and 4, allowed the appeal of Miss Razia Hussain and granted admission to her against the Quetta (Rural) District seat and shifted respondent No. 4 Miss Kauser Nisa to the open merit girls' seats and granted admission to her as she bad secured the highest marks viz. 672, and placed her at Serial No. 1 in the list. The result was that the name of the petitioner, who was selected against the 7th and last open merit girls' seats, was dropped from the list by the High Powered Committee and the petitioner was accordingly informed by letter dated 6-4-1976 (Annexure K-1 to the petition).

5. The appeal of the respondent No. 2, Miss Shaista Baran who was a local girl of Quetta District, was rejected by the High Powered Committee, as she had scored only 555 marks in F. So., but she was granted admission to the girls' seats of Kachhi District, which had fallen vacant, as a hardship case, as she was the only local girl candidate who had failed to secure admission against the reserved seat, subject to approval by the Governor. This action of High Powered Committee was confirmed by the Governor of Baluchistan.

6. With regard to respondent No. 3, Miss Fauzia Deeba, although the High Powered Committee rejected her' appeal on the technical ground that her father was serving in the Sind police Department, yet recommended her case to the Governor to grant her admission as a hardship case, against any future vacancy in seats reserved for Iranian students. The Governor of Baluchistan observed that the mother of this respondent belongned to a well known local family of Quetta District and, therefore, she may be considered for admission on merit against the open merit girls' seats. As she had secured 607 marks, she was granted admission and was placed at Serial No. 3 of the list.

7. The grievance of the petitioner, Miss Razia Iqbal is that she has been wrongly dropped from the list of candidates selected to the open general merit girls' seats on extraneous grounds by the High Powered Committee and that the respondents Nos. 1 to 3 have been admitted illegally against the rules of admission. She, therefore, prayed that the order of the High Powered Committee dropping her name from the list of candidates selected against the open general merit girls' seats, be declared illegal and without lawful authority and the admissions granted to the respondents Nos. 1 to 3 be declared illegal and that respondent No. 4 be declared to be admitted on her rural seat of Quetta District.

8. The petitioner . in Constitution Petition No. 39/76, Miss Farida Shaheen, a resident of Quetta, who had scored 568 marks, applied for admission against one of the three seats reserved for girls of Quetta (Urban) District. But, she was unsuccessful as three other girls who had scored higher marks than her, were granted admission. She also could not be selected in the open merit girls' seats, as the 7th and the last candidate selected in this list had scored higher marks than her. She filed an appeal before the High Powered Committee against the Selection Committee, as well as against one Miss Nighat Shaheen (petitioner in Constitution Petition No. 41/76), which was rejected for the same reason. Her grievance, like that of Miss Razia Iqbal (petitioner in Constitution Petition No. 38/76) is that the High Powered Committee illegally granted admissions to Miss Razia Hussain (respondent No. 1), Miss Shaista Baran (respondent No. 2) and Miss Fauzia Deeba (respondent No. 3) and if their admissions are declared illegal by the Court, three seats would fall vacant for admission in the open merit girls' seats, and she would then become entitled to one of these seats.

9. The petitioner in Constitution Petition No. 41/76, Miss Nighat Shaheen a resident of Quetta District, applied for admission against one of the three girls' seats reserved for Quetta (Urban) District. But as she had scored only 607 marks, three other girls who had secured higher marks than her, were selected against those reserved seats. She was however, selected by the Selection Committee and was placed at Serial No. 4 in the open merit girls' seats. But an appeal was filed against her admission and the High Powered Committee after scrutinizing her documents submitted with her application, rejected her application on the ground that she did not fulfil the condition of passing the Matriculation and Intermediate Examinations, from Baluchistan, as she had done all her education in Karachi and further that her father did not have a continuous stay of 12 years in Baluchistan. She was accordingly so informed by letter dated 29-3-1976 (Annexure 'F' to the petition). Her grievance is that she is a permanent resident of Quetta as will be evident from the documents Annexures B, T-1 to T-8, and the order of the High Powered Committee rejecting her application was illegal, she also complained of the admissions granted to respondents Nos. 1 to 3.

10. The respondents Nos. 1 to 3 have filed counter-affidavits resisting the case of petitioner and maintained that their selection was valid, proper and in accordance with the rules of the prospectus and the conditions of the policy of admission. Respondent No. 4 supported the case of the petitioner and submitted that she was rightly selected by the Selection Committee against the rural girl's seat of Quetta District. The Chairman of the Selection Committee Dr. Abdul Khaliq Khan, Secretary, Health Department, Government of Baluchistan has filed a counter-affidavit setting out from the record; the decisions of the Selection Committee and the High Powered Appellate Committee and has supported the case of the respondents Nos. 1 to 3.

11. The contention of Mr. Khalid Malik, learned counsel for the petitioners is that the High Powered Committee acted illegally and arbitrarily and in excess of jurisdiction by accommodating Miss Razia Hussain, respon dent No. 1 on the rural seat of Quetta (Urban) District in place of Miss Kausar Nisa, respondent No. 4 who was a genuine applicant entitled to admission on the rural seat of Quetta District. According to counsel, the High Powered Committee should not have accepted the belated local residence certificate (Annexure 'M' to the petition) produced by Miss Razia Hussain which certified that she was a resident of Nasirabad/Marriabad, a rural District of Quetta in lieu of her earlier filed residence certificate, certifying that she resided in Quetta (Urban) District and that as observed by the District Magistrate, Quetta in his memorandum dated 9th March 1976 (Annexure 'N' to the petition), the object of the change of residence was an attempt to improve her propects of securing admission. The further sub mission is that even if Miss Kausar Nissa, respondent No. 4 was to be shifted to the open general merit seats, the rural seat vacated by her should not have been given to Miss Razia Hussain, but should have fallen to the pool of open merit seats, which would have gone to the petitioner. This submission, in our opinion, has no force. As rightly pointed out by Mr. Mohammad Ahmed Mirza, learned Advocate-General for the respondents, the matter was within the jurisdiction of the Appellate Committee to evaluate the merits and the genuineness of the respective residence certificates produced by Miss Razia Hussain. Whether she was a bona fide resident of a rural on urban area of the Quetta District, was question of pure fact and the Appellate Committee was competent to accept the one or the other on the material before it. This Court cannot, in Constitutional jurisdiction, adjudicate on a controversial question of fact. The Committee accepted the appeal of Miss Razia Hussain on the evidence before it, and it cannot be said that the Committee had exceeded its jurisdiction. The Committee was also satisfied that Miss Kausar Nissa, respondent No. 4, who had to vacate the rural seat, as it was given to MiFs Razia Hussain was a meritorious candidate as she had scored first, division marks and ought rightly to be accommodated in the open general merit seats and indeed she was placed at Serial No.

1. We therefore find no force in the contention of Mr. Khalid Malik. 12: Mr. Khalid Malik next submitted that the decision to drop the petitioner's name from the list of selected candidates in the open general merit seats, as a consequence of shifting the respondent No. 4 to the open general merit seats, was taken by the Appellate Committee without hearing her. We find no merit in the submission, because the petitioner had no claim to the rural girls' seats from the Quetta District, which was granted to Miss Razia Hussain, respondent No.

1. The appeal filed by Miss Razia Hussain was not directed against her and, therefore, she was not entitled to hearing, although it is admitted that notice of the appeal was given to her.

13. The next submission of Mr. Khalid Malik was that the girls' seats reserved for Kachhi District which had fallen vacant, should not have been given to Miss/Shaista Baran, respondent No. 2 but should have fallen to the general open merit pool. As rightly submitted by Mr. Mohammad Ahmed Mirza, learned Advocate Gene-al for the respondents, the was no specific category of general open merit girls' seats or any alleged merit pool prescribed either in the Prospectus or in the Policy of Admission. The only rule 6 at page 7 of the Prospectus was also not applicable which prescribed that any vacancy left in any category shall be filled by selecting candidate from its waiting list strictly on merit basis. As there was no other candidate on the waiting list in the Kachhi District seat, therefore, as rightly submitted by Mr. Munawar Ahmed, counsel for tire respondent No. 3, the right to fill in the vacancy vested in the Governor in his sole discretion and in the exercise of his executive power. The recommendation of the High Powered Committee to grant a seat to Shaista Baran against a girl's seat which may fall vacant in any other District, was approved by the Governor of Baluchistan. By giving a Kachhi seat to Shaista Baran, although she was a resident of Quetta District, the Governor relaxed the qualification of requirement of residence, in her case, which he considered to be a hardship case, as she was the only local girl candidate. The Bolan Medical College is exclusively owned, maintained and controlled by the Provincial Government and the question of admission is a matter within the scope of the authority of the Provincial Government in the Department of Health and Social Welfare, and the Governor of Baluchistan being the executive head of the Provincial Govern ment, and after the introduction of the Governor's Rule under Article 234 of the Constitution, the Governor assumes the functions of the Provincial Government. Moreover, the petitioner had no vested right to admission to any of the seven vacant and surplus seats. The Governor in his sole discretion made these seats available for the admission on merit to the candidates who were otherwise unsuccessful in obtaining admission to reserved seats, in order to give them a second oppor tunity in fairness to them. In Humera Satwat Yusuf v. The Government of the Punjab (P L D 1971 Lah. 641) observations of the Supreme Court in an unreported case, were cited that there is no authority for the proposition that the right to apply for admission to an educational institution carries with it a legal right to be admitted which can be enforced in the exercise of Constitutional Jurisdiction of the High Court. At most, the petitioner had a right to be considered for admission to the seven surplus seats which fell vacant in the seven Districts. For these reasons, we must, therefore, reject the submission of Mr. Khalid Malik.

14. With regard to the admission granted to Miss Fauaia Deeba, respondent No. 3, the contention of Mr. Khalid Malik, counsel for the petitioners was that she was wrongly granted admission as a resident of Quetta District, and in this connection, he relied on the fact that a passport was issued at Karachi to her deceased father Abdur Rabb in 1961 (Annexure P-1), who was serving in the Sind Police Service for many years, and copy of the title page of Partnership Deed dated 24-12-1974 (Exh. P-2) in which her mother was shown as a resident of Karachi. She however, sub mitted a certificate of residence of her mother (Annexure'P') dated 10-1-1976 certifying that she was a resident of Quetta. Although her appeal was accepted by the High Powered Appellate Committee on technical grounds, yet they observed that it was a fit case to be brought to the notice of the Governor of Baluchistan for granting her admission, provided, a vacancy occurs in these seats reserved for Iranian students. The Governor o Baluchistan accepted the said recommendation and considered her as a lo--al of Quetta, as her mother belonged to a well known local family of Quetta and who was drawing a pension from the Quetta Treasury, and, therefore, the Governor of Baluchistan issued instructions to the High Powered Com mittee to consider her for admission in the open general merit seats. Accordingly, she was admitted as she had scored high marks and was placed at Serial No. 4 in the list. The instructions to the Committee to consider her application on merit to the open merit girls' seats have the force of law, as observed in Sajid Raza and 3 others v. The Commissioner, Quetta Division, Quetta and 9 others (P L D 1973Kar. 332). It was held that the Governor of Sind had the power to vary instructions contained in the Prospectus in the exercise of executive authority of the Government in the matter of admission to the Medical College which was owned and controlled by the Provincial Govern ment. In that case, a letter was addressed by the Government of Sind to the Principal, Dow Medical College amending instructions contained in the Prospectus which provided that 3rd Divisioners were not eligible for admission. The letter provided that candidates belonging to Baluchistan Province who had secured 3rd Division in F. Sc. shall be admitted. The Prospectus also provided that the Policy of Admission may be relaxed by the Governor. The submission of Mr. Khalid Malik has therefore, in our opinion, no force.

15. Mr. Khalid Malik submitted the same arguments in connection with the Petition of Farida Shaheen (Constitution Petition No. 39/76). The only ground of Farida Shaheen is that respondents Nos. 1 to 3 were wrongly admitted and that if their seats are declared vacant by the Court, she would be entitled to admission against one of the three seats. In my opinion, no exception can be taken to the selection of respondents Nos. 1 to 3 for the reasons discussed above. In this view of the matter, the application of Farida Shaheen was rightly rejected on merits, as she had secured less marks than girl candidates selected against the 7th and the last open merit girls' seats, who had secured 575 marks.

16. With regard to the case of Miss Nighat Shaheen. the contention of Mr. Khalid Malik was that the Appellate Committee had wrongly found that she was not a domiciled resident of Quetta District, merely because she had passed her Matriculation and Intermediate Examinations in Karachi and that her father had not resided for a continuous period of 12 years in Baluchistan. He referred to Annexures B, T/1 to T/8, which are copies of certificates of resi dence of the petitioner and her brothers and sisters. As discussed earlier in this judgment, residence is a question of fact and the matter was within the jurisdiction of the Appellant Committee to evaluate the material and the documentary evidence produced by the petitioner before it, and in my view, no case of excess of jurisdiction has been made out. As observed earlier, it is also not proper for the Court in the exercise of Constitutional jurisdiction to adjudicate on a controversial question of fact. No exception can therefore, be taken to the rejection of the application of Miss Nighat Shaheen.

17. For the foregoing reasons, we find no force in these petitions, which are accordingly dismissed with no order as to costs. S. A. H. Petitions dismissed,