1992 PLP 1367 (CLC)

(a) Merit for admission shall be determined on the total number of marks secured in Inter Science or B. Sc. examination as the case maybe. (b) The following marks shall be added or deducted from the total marks of the candidates in order to prepare the adjusted merit marks for final merit list. This addition or deduction shall not alter the Division/Grade of the candidates . (i) Add 20 marks for service rendered under National Cadet Corps Scheme subject to the production of requisite certificate under the National Guards Act, 1973. (ii) Deduct 5 marks if candidate has appeared a second time, in Inter Science or B.Sc. Examination in order to improve his/her Division/Grade.

18. A candidate would be considered to have secured Division/Grade that has been conferred on him/her or declared for him/her from the Board/University. However, the actual merit of the candidate within the Division/Grade awarded shall be fixed according to the formula give m`para 17 above.

19. The Chairman, Selection Board shall announce the selection by displaying the list of candidates, selected by the Selection‑ Board, on the Notice Board of the respective College.

20. The Selection Board shall have the discretion to refuse admission to any candidate, who indulges in violence, uses abusive language, becomes insolvent or misbehaves with the Selection Board." In support of his contention learned counsel for the petitioner placed reliance on Amjad Parvez v. Province of Punjab and others (1985 SCMR 1018 (2), wherein it was held that "First divisioner in Intermediate having first preference for admission, whether or not a student who had passed Intermediate in Second Division and whose percentage by addition of 20 marks is raised to more than 60 per cent will be entitled to admission in preference to a first divisioner having lesser marks." It was further held that "increased marks entitled the candidate for admission alongwith candidate considered to have passed in First Division". Cases cited by the learned counsel were PLD 1977 Lahore 820 and PLD 1976 Karachi 1248. On the other hand it was contended by Mr. A.M. Mobeen Khan learned counsel for respondent No.3 supported by Mr. Zawar Hussain Jafferi A.A: G. for respondents Nos. 1 and 2 that there were 9 other students who had superseded the petitioner but none of them has been impleaded as party with the respondent and in their absence no relief can be granted to the petitioner: In support of his contention learned counsel also placed reliance on 1985 SCMR 1018 at page 1025 where it was held:‑ "The learned counsel for the appellant did not dispute this position. However, contended that respondents Ilyas Ahmed and Muhammad Afzal have not evinced any interest in seeking admission against the said two seats, except when they were made respondents in the present proceedings, first on the order of the High Court, and subsequently by the order of this Court, and consequently it would be futile to order their admission against the said two seats. The difficulty in the way of the learned counsel, however, is that both these respondents are present, and have reiterated their claim to the said two seats saying that they had every intention to seek admission to a Medical College. In this view of the matter, all that can be said that the appellant should keep his forgers crossed and wait for the opportunity when the said two respondents are found to have declined or failed to seek admission against the said two seats." Next it was contended that in pursuance of section 3 of the Sindh Medical Colleges Act (Act V of 1985) the prospectus was issued by the said Medical College and since the petitioner has not called in question the wires of section 3 of the Ordinance he cannot be permitted to call in question the prospectus. In support learned counsel placed reliance on Shahenshah Humayun Cooperative Housing Society Ltd. and 2 others v. House Building Finance Corporation and another (PLD 1984 Karachi 426) in which it was held that where an act enables the Authority to make Regulations, a Regulation which is validly made under the Act which is intra vires of Regulation making authority, should be regarded as though same were itself an enactment. Bye laws or Regulation being in nature of subsidiary legislation has statutory force, and general principles governing interpretation of statutes, therefore, would apply on construing them. Next it was maintained on behalf of respondent No.3 that the petitioner failed to file objection within 15 days of the display of the provisional merit list as contemplated under the Rules disentitling him to take up the so called plea. This position was disputed by Mr. Ali Aslam Jafferi according to whom a protest in this regard was lodged with the Principal of the College although not within 15 days. However it was argued that in any case a candidate shall not have any vested right to get admission in a college. In support reliance was placed on Farhat Jaleel and others v. Province of Sindh and others (PLD 1990 Karachi 342) wherein it was held that a tentative list showing candidates' admission. in the educational institution does not create a vested right in favour of such candidate. Further reliance was placed on Naeem Mirza v. Government of Sindh etc. 1987 CLC 1487 in which it was held that "It is well settled that no one has vested right to the admission to Medical College and changes in the prospectus or the Rules of admission can be made before a vested right is created. We agree with Mr. S. Ali Aslam Jafferi learned counsel for the petitioner that the provisions of National Guards Act LXI of 1973 read with Rules 17 and 18 of the prospectus of the Chandka Medical College provide that 20 marks secured by a candidate for rendering service under the National w Cadet Corps Scheme should be added while preparation of merit list by the Medical College, though it may not have the effect to alter the Division/Grade of the candidate. Such being the position, the petitioner indeed secured higher' marks than respondent No.3 who secured 660 marks only i.e. three marks less. Here we cannot but express our concern for open violation of rules of admission in Chandka Medical College by the concerned', authorities. To us, the contention raised by the learned counsel for respondent No.3, that no candidate for admission to Chandka Medical College should have vested right does not appear to be correct. Neither Farhat Jameel's case nor NaeemMirza's case cited above are applicable here as the facts and circumstances in the present case are clearly different and distinguishable. The petitioner has challenged the final list approved by the selection committee and not the tentative list as in Farhat Jameel's case. Similarly it is not a case where changes in the prospectus were made before vested right is created as was its the case of Naeem Mirza. The stand taken by the respondent No.3 is that since the prospectus issued by the Chandka Medical College was under section 3 of the Sindh Medical Colleges Act of 1987 it may be treated as though made under a statute having thus statutory force. Reference here may be made to the delegated executive legislation dated the 5th October, 1988 which reads as follows:‑ GOVERNMENT OF SINDH HEALTH DEPARTMENT Karachi, the 5th October, 1988 No. SOME) 1‑1‑APH 88‑89‑‑In pursuance of the provisions of section 3 of the Sindh Medical Colleges Ordinance, 1987, the Government of Sindh are pleased to prescribe the prospectus of the Medical Colleges in Sindh as given in the Schedule. The prospectus also includes the declaration of Geneva (Code of Ethics, and the courses of studies and examination approved from time to time by the Pakistan Medical and Dental Council. AHMED MAOSOOD HAMEEDI Secretary to Government of Sindh." The prescribed prospectus thus issued extended to all the Medical Colleges including the Chandka Medical College for implementing the purposes and object of the Sindh Medical College Act, 1987 which inter alia provide framing of rules so as to regulate admission in a Medical College (Section 3(1) (a), allocation of seats, conditions for admission (Section 3(2), a and c). These rules may appear to contain administrative directions among other as to admission in Medical Colleges but for all intents and purposes remain rules subordinate to the Act and unless repugnant to the latter have `effect as enacted in the Act itself. What then emanates from Rule 19 of the e prospectus is that a candidate whose name appears in final list of candidates selected by the Selection Board should have a vested right to get admission in a Medical College unless the Selection Board refuses his admission for indulgence in violence, employment of abusive language, misbehaviour with Selection Board or his becoming insolent (Rule 20). It was lastly contended by learned counsel for respondent No3 that respondent No.3 was given admission long time back and he is now a student of III year M.B.,B.S. and if his admission is cancelled he will be put to great injustice and hardship. It was suggested that in case the Court grants the petition it would be proper to direct the Medical College to allocate one more seat for the petitioner rather than cancel the admission of respondent No.3. In support learned counsel placed reliance on 1992 C L C

420. In view of facts, circumstances and legal position enumerated above we are neither inclined to pass an order canceling the admission of respondent No.3 nor we feel that it is a fit case for direction to Chandka Medical College C to allocate one more seat for the petitioner for the reason that he has failed to implead nine other candidates who had superseded him on the merit list. Accordingly we dismiss the petition but with no order as to costs. AA./S‑875/K Petition dismissed.