2005 PLP 1703 (YLR)

CH. IJAZ AHMAD, J.

Brief facts of the case are that respondent No.3 invited applications from foreign students apart from others for admission in the M.B.,B.S. for Session 2004-2005 under Self-Finance Scheme. The petitioner submitted her application in obedience to the advertisement of respondent No.3. Respondent No.3 directed the petitioner to secure equivalence certificate from the Inter Board Committee of Chairmen, which was secured by tae petitioner as is evident from annexure-B attached with the Constitutional petition. The name of the petitioner was recommended by respondent No.3 to the Secretary, Health Department, Government of the Punjab, Lahore vide letter dated 13-11-2004. Thereafter the Government of the Punjab sent the recommendation of respondent No.3 to respondent No.1. Respondent No. 1 accepted the recommendation and admitted the petitioner in the said course. Petitioner deposited the fee with the respondent and was allowed to attend classes. Petitioner attended classes for seven days. Thereafter vide order dated 4-12-2004 respondent No. 1 directed the petitioner not to attend the classes. Petitioner being aggrieved filed this Constitutional petition.

2. Learned counsel for the petitioner submits that there is no age limit in the advertisement of respondent No.3 and also did not mention this fact in the general conditions issued by respondent No.3. He further submits that application of the petitioner was scrutinized by respondent No.3 and after scrutinizing the application of the petitioner found the same in terms of the instructions of respondent No. 3 and recommended the same to the Health Department, Government of the Punjab who forwarded the same to respondent No.1. Thereafter respondent No.3 has admitted the petitioner in the said course, therefore, the principle of locus -poenitentiae is attracted in all respects but this fact was not considered by the respondents in its true perspective. The impugned order is not in accordance with the law laid down by the superior Courts. In support of his contention he relied upon Pakistan through The Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161.

3. Mr. Tariq Shamim, Standing Counsel submits that respondent No.3 issued conditions qua Self-Finance Scheme, wherein it is particularly mentioned that final selection would be made by the institutions concerned keeping in view their threshold marks/grade and other requirements. The "other requirements" is prescribed in regulations issued by Pakistan Medical and Dental Council, Islamabad under the heading Regulations for the degree of Bachelor of Medicine and Bachelor of Surgery (M.B.,B.S.) wherein it is specifically mentioned in para.7 of section (ii) that prescribed minimum age limit is 17 years and maximum. 25 years whereas the petitioner's age is 25 years and six months, therefore, action of the respondent is in accordance with law. Mr. Muhammad Hanif Khatana Addl. A-.G. has also adopted the arguments of the Standing Counsel and submits that petitioner has to fulfil other requirements prescribed in the regulations issued by the Pakistan Medical and Dental Council. The learned counsel of respondent No.2 submits that regulation is applicable all over the country in all the Provinces. It is further submitted that the regulations issued by Pakistan Medical and Dental Council are to be followed by all the medical teaching institutions. In support of his contention, he relied upon Nadir Khan and another v. Principal Khyber Medical College Peshawar and others 1995 SCMR 421.

4. The learned counsel of the petitioner in rebuttal submits that regulations and instructions issued by the respondents are not attracted qua the foreign students, therefore, action of the respondent is without lawful authority.

5. The representative of respondent No.3 is present in Court who is asked with regard to the status of the seat in question. He submits that respondent No.3 has not recommended any other name till date in place of the petitioner and there is no other applicant to claim seat in question as all the applicants have already been admitted in different institutions.

6. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record also.

7. It is better and appropriate to reproduce relevant instructions of respondent No.3, regulation of Pakistan Medical and Dental Council, relevant extract of the prospectus and relevant part of the impugned order to resolve the controversy between the parties:-- (1) "Instructions of respondent No. 3:-- (I) ....... (II) ....... (III) ....... (IV) Selection of the students against the seats allocated to Foreign students of Pakistan origin will be made purely on merit to be determined by Economic Affairs Division oil the basis of marks obtained by the students in Higher Secondary or equivalent examination. However, final selection will be made by the institutions concerned keeping in view their threshold marks grades and other requirements. (Underlining is our) (2) Section II

7. There shall be minimum age limit 17 years and maximum 25 years. (3) Entry Test. Instructions for submission of applications. All candidates applying for admission to the First Year M.B-B.S. against open merit seats and all other categories of seats (except those nominated by Economic Affair Division, Islamabad) are required to pass Entry Test with a minimum score of 40% otherwise they will not be eligible for admission. The Entry Test will be valid for the same session only. Admission will be made according to the rules contained in the prospectus. (a) Eligibility (1) ....... (2) ........ (3) ........ (4) The applicant should be under 25 years of age on the last date of submission of application. (Underlining is our).

4. According to the regulations of Pakistan Medical and Dental Council and the prospectus of Government Medical Colleges the maximum age limit for admission to the M.B.,B.S. Ist year class is under 25 years on the last date for submission of applications, whereas, Miss Zando attained 25 years age on 10-3-2004." Bare reading of the aforesaid instructions issued by the respondent No.3 shows that the petitioner has to fulfil the conditions prescribed in the prospectus and regulations issued by the Pakistan Medical and Dental Council in view of the instructions of respondent No.3 wherein it is particularly mentioned that final selection would be made by the institutions concerned keeping in view their threshold marks/grades and other requirements. The petitioner secured admission in violation of the regulations of Pakistan Medical and Dental Council and prospectus, therefore, the principle of locus poenitentiae is not attracted. In arriving to this conclusion we are fortified by the law laid down by the Honourable Supreme Court in "Jalal-ud- Din's case" PLD 1992 SC

207. The relevant observation is as under:-- "Locus poenitentiae is the power receding till a decisive step is taken. But it is not a principle of law that order once passed become irrevocable and even past and close transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case." It is a scaled principle of law that each and every case is to be decided on its own circumstances and facts. The judgments cited by the learned counsel of` the petitioner are distinguished on facts and law in view of the regulation and prospectus wherein the age is specifically mentioned. It is a settled principle of law that petitioner has to point out that action of the respondent is in violation of rules and regulations of the respondents with regard to maintainability of the Constitutional petition. As mentioned above, the action of the respondent is according to the regulation and prospectus, therefore, Constitutional petition is not maintainable as per principle laid down by the Honourable Supreme Court in "Ali Mir's case" 1984 SCMR

433. We are fortified by the law laid down in Shamshad Ahmad's case 1980 SCMR 440 coupled with the fact that this seat will remain vacant and no useful purpose will be served if it is kept so, which is national loss and in case petitioner is not allowed to continue her study, then she will file application for return of her dues as the respondents did not inform her well in time which is contributory negligence of the respondents. It is admitted fact as stated by the representative of respondent No.3 that respondent No.3 has not recommended any other candidate with regard to the seat in question and there is no application pending with respondent No.3 to be recommended or claimed by any candidate qua the seat in question. This fact brings the case in the area of hardship regulation keeping in view that the petitioner has deposited huge amount in obedience of the orders of respondent. It is also settled principle of law that respondents have a parental jurisdiction to deal with the matter in view of the law laid down by the Honourable Supreme Court in Shaukat Ali v. The Controller of Examination, University of the Punjab, Lahore and another 1981 SCMR

364. Keeping in view this aspect of the case, we direct the respondents to consider the Constitutional petition as representation filed by the petitioner before them, who shall consider the same in a parental jurisdiction under hardship jurisdiction as law laid down by the Honourable Supreme Court in 1998 SCMR 682 "Younas's case" particularly when there is no claimant qua the seat in question and petitioner has deposited huge amount and also for the purposes to save the career of the petitioner. The petitioner is directed to appear before respondent No. 1 on 20-4-2005 who shall consider case of the petitioner under parental jurisdiction and pass an appropriate order keeping in view the aforesaid circumstances within 20 days till 10-5-2005 either himself or send the case to the competent authority who is also directed to pass an appropriate order in accordance with above direction within 20 days till 10-5-2005. He is further directed to submit report to the Deputy Registrar (Judl.) of this Court within stipulated period. Office is directed to provide copy of this order to Mr. Muhammad Hanif Khatana, Addl. A.-G. and Mr. Tariq Shamim, Standing Counsel who are directed to send the same to respondent No.1 for necessary action and compliance. With this observation, this petition stands disposed of. Copy Dasti on payment of usual charges. M.H./Z-88/L Order accordingly.