1987 PLP 23 (CLC)

MIR HAZAR KHAN KHOSO, J.‑‑The petitioner and the respondent No.5 had seriously contested for admission in an Engineering Institution against quota fixed for rural Quetta before the Selection Committee (referred to hereafter respondent No.2) constituted under Notification No. 7‑16/ 80‑E‑ Gen: /39155‑95, dated 27th December, 1984 by the Government of Baluchistan (referred hereinafter as Policy) on 15th January, 1986 at Quetta wherein a controversy between its two Members the Secretary Law and the Deputy Commissioner, Quetta took a heated debate regarding eligibility of the respondent No.5 for admission from the Quetta Rural. The respondent No.2 however rejected the candidature of respondent No.5 and left it open for him to approach a Court of law. The candidature of the other students including the petitioner was approved for admission. It would be useful to reproduce the conclusive part of its order which reads as under:‑

"The Secretary Law was of the opinion that though Mr. Irfan Mirza was a domicile but since he had been issued a domicile certificate of rural area, he was eligible to contest from rural area and his candidature from that area was valid. There was a difference of opinion between the Deputy Commissioner Quetta and the Secretary Law. The Deputy Commissioner, Quetta suggested that the candidature of Mr. Irfan from a rural area should be rejected however he had liberty to approach the Court of law. Thus, the candidature was rejected accordingly. The other candidates who appeared for interview were declared genuine. The respondent No.2 seems to have reviewed its decision arrived at on 15th January, 1986 and took fresh decision on 10th February, 1986 holding the respondent No.5 eligible for admission. It would be appropriate to reproduce the second decision of the respondent No.2 also which reads as follows:-- d) Mr. Nasrullah Khan who stood at Serial No.3 of the merit list prepared for the candidate of District Quetta (Rural) appeared before the Committee and stated that Mr. Irfan had no right of selection from rural area. The Committee informed him that Mr. Irfan was a legitimate candidate from District Quetta (Rural)." On basis of their reviewed decision the respondent No.1 issued the impugned Notification No. 7‑1/84‑E‑Gen: /Vol: Vill/5676/815 on 15th April, 1986 and nominated the respondent No.5 for admission in the N.E.D. University Engineering and Technology Karachi. The petitioner being aggrieved and dissatisfied with the above said decisions of the respondents Nos. 1 and 2, has come in this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan before this Court and prayed for relief as under:‑

"It is, therefore, prayed that on the grounds stated above admission of respondent No.5 against the reserved seats for Quetta Rural area in Engineering University as per order dated 15‑4‑1986 issued by Government of Baluchistan as well as decision of Selection Committee dated 10‑2‑1986 and order of Deputy Commissioner, Quetta dated 21‑4‑1984 whereby he refused to ‑cancel the domicile certificate of respondent No.5 may be declared without lawful authority, jurisdiction and of no legal consequences and direction may be made to respondents I and 2 for selecting the petitioner against reserved seat of Quetta Rural area in N.E.D. University, Karachi and direction may also be made to the Registrar of N.E.D. University, Karachi to admit the petitioner in the place of respondent No.5. Further direction be made to District Magistrate, Quetta to cancel the domicile certificate issued in favour of father of respondent No.5 in the interest of justice. Any other relief which this Hon'ble Court deems fit in the circumstances of the case may also be awarded.

2. Mr. Iftikhar Muhammad, Advocate appeared for the petitioner. Mr. Muhammad Yakub Yousufzai Advocate‑General represented respondents Nos1 to

3. Respondent No.4 has been declared ex parte. Mr. Muhammad Moquim Ansari, Advocate defended the respondent No.5.

3. In support of its petition Mr. Iftikhar Muhammad, Advocate for the petitioner urged: (i) That the respondent No.5 had passed his Intermediate Science Examination outside of Province of Baluchistan, hence under Rule 13 of the Policy the respondent No.2 on cogent reasons could only ignore his such education outside Baluchistan; despite such objection raised by the petitioner the respondent No.2 failed to give its findings. (ii) That the Policy for admission in the Engineering University and Colleges issued by the Government of Baluchistan does not empower the respondent No.2 to review its own order. The learned counsel relied upon the cases reported in:‑ P L D 1979 Quetta 131 and P L D 1980 Pesh. 128.

4. On the other hand Mr. Muhammad Yaqoob Yousufzai, the learned Advocate‑General appearing fur the respondents Nos. 1 to 3 and Muhammad Moquim Ansari, Advocate for respondent No.5 candidly conceded:‑ (i) That the policy does not contain any provision to authorize the respondent No.2 to review its own order. But while placing their reliance on section 21 of the West Pakistan General Clauses Act, stressed that the respondent No.2 had the authority to review, rescind or alter it own order. (ii) Regarding studying of the respondent No.5 outside Baluchistan they submitted that no such objection was raised before the respondent No.2 and in the alternative the respondent No.2 had impliedly granted such exemption in favour of respondent No.2. For better understanding the contentions raised by the learned counsel for the parties on the first proposition, it would be appropriate to reproduce the Rule 13 of the policy. It reads: "

13. The candidate must have passed the Matriculation and Intermediate Science Examination from Baluchistan unless the candidate could satisfy the Selection Committee with cogent reasons for not studying and claiming exemption from the operation of this condition. " The above rule it may be observed obviously puts embargo on admission of a student who has passed Matriculation or F.Sc. examinations outside of the Province of Baluchistan. But at same time it further provides an A opportunity to a candidate to satisfy with cogent reasons the respondent No.2 for having studied outside Baluchistan and claiming exemption from the operation of the condition.

5. It is an admitted position that the respondent No.5 has passed his F.Sc. from Karachi outside of Province of Baluchistan, for which the respondent No.5 had to place cogent reasons before the respondent No.2 for passing his F.Sc. outside Baluchistan. Having passed F.SC. outside Province of Baluchistan as a matter of policy the respondent B No.5 was barred to get admission straightaway unless at his request the rule was relaxed by the respondent No.2. Consequently thereto it was obligatory upon the respondent No. 2 to have passed a speaking) order whether the rule was relaxed or not. In that context the order of respondent No.2 in quite silent. As such it was rightly debated by~ the learned counsel for the petitioner firstly that the respondent N0.2 had not taken into consideration the rule 13 at all and secondly, relaxation of the rule in his favour had not been made by the respondent No.5.l Obviously absence of clear finding of the respondent No.2 in that direction it could hardly be presumed that the rule was impliedly relaxed or exemption extended in favour of the respondent No.5. We are‑, therefore, inclined to remand the case to the respondent No.2 for the finding whether it exempts the respondent No.5 from the ambit of the, above said rule or not.

6. Reverting to the second contention raised by the learned counsel for the petitioner it may be observed that the Government of Baluchistan has laid down clear Policy regularizing admission of students in the Engineering Institutions against reserved seats. It contains the detailed conditions in all respects. But, however, confers no powers of review upon the respondents Nos. 1 and

2. The Rules has to be strictly followed by respondents Nos. 1 and 2 who in no way could arbitrarily surpass it to their own convenience. Had there been no policy regularizing the admissions of students in the Engineering Institution, the reliance of the learned counsel for the respondent No.5 on section 21 of the West Pakistan General Clauses Act would have been understandable. Being no authority of review available to them under the policy, the provision of section 21 of the General Clauses Act could hardly be stretched towards that end. Besides Rule 16 of the Policy gives finality to the decision of the respondent No.2 and a' candidate has to abide by its decision. The rule reads:‑ "

16. The Selection Committee on the basis of the documents attached with the application form of a candidate, as required under paragraph 18 and or further inquiry through the Deputy Commissioner or other sources, shall be competent to decide as to whether a candidate actually belongs to the district, of which he/she has produced the local/domicile certificate and whether he/she is entitled of his/her being selected against the seat of that district or not. The candidate shall be bound to abide by the decision of the Selection Committee." From the facts discussed hereinabove we are of the firm view that the respondent No.2 has no authority ‑vested in them either under the Policy or section 21 of General Clauses Act to review, rescind or amend its own decision. The action of respondent No.2 reviewing its) own first decision and the order passed thereon by the respondent No.1, therefore, are illegal, void and without lawful authority. But as the first decision of the respondent No. 2 is not only scanty but ambiguous one, besides the controversy between the Law Secretary and the Deputy Commissioner seems to have not been either fully followed or considered[ by the respondent No.2, we are, therefore, inclined to remand the case on this ground also for resolving the same.

7. For the reasons shown hereinabove we accept the petition and declare the impugned decisions of the respondent Nos.l and 2 as having been passed without lawful authority and as such of no legal effect and remand the case to the respondent No.2 to re‑consider the case of the petitioner and the respondent No.5 afresh on all four. The respondent No.2 shall dispose of the case within a period of one month after receiving this order. The petitioner and the respondent No.5 shall appear before the Chairman Selection Committee (The Chairman Public Service Commission Baluchistan) on 20‑8‑1986 who shall convene the meeting of the Selection Committee for the purpose immediately and dispose of the case as directed hereinabove. The parties are left to bear their own costs. A . A . Petition allowed.