2019 PLP 10 (MLD)

GHULAM MUSTAFA MUGHAL, J.

The captioned appeal by leave of the Court arises out of the consolidated judgment dated 22.03.2018, passed by the Azad Jammu and Kashmir High court in Writ Petitions Nos.2063 and 2127 of 2017.

2. Precise facts forming the background of the captioned appeal are that two writ petitions were filed before the High Court of Azad Jammu and Kashmir on 13.12.2017 and 21.12.2017, respectively. The first writ petition was filed by Habiba Tasawar and others whereas, the second was filed by Obaid-ur-Rehman and others, against the appellants and proforma respondents, herein. The common stand of he petitioners was that they were eligible for nomination for MBBS/BDS course in different medical colleges of Pakistan and Azad Jammu and Kashmir for which entry test was scheduled by the competent authority to be conducted through the University of Health Sciences Lahore (UHS). After scrutiny of the applications, admittance cards for the purpose of entry test were issued to the respondents, herein, but when they appeared at the relevant center i.e. Mirpur, they were not allowed to participate in the entry test on the ground that they are not in possession of their national identity card which was sine qua non for participation in the entry test. The respondents, herein along with their parents protested against the decision taken by the staff of UHS who was conducting entry test at Mirpur center, whereupon, they were allowed provisionally subject to the condition that their parents will provide their identity cards before closing time of the entry test and in case they failed to do so, the result of such candidates would not be announced and their paper would he deemed to have been cancelled. It was stated that parents of some of the candidates produced their identity cards and their result was declared but the respondents, herein, were deprived of from their lawful right of admission because their result of the entry tests was withheld. It was further stated that the university was bound to release the result of the petitioners/respondents, herein, after being allowed to participate in the entry lest despite of the fact that admission committee requested the University for doing the needful. The writ petition was contested by the respondents by filing written statement, wherein, they refuted the claim of the petitioners and submitted that it was a condition precedent that all the appearing candidates will produce their identity cards failing which they would not be allowed to take part in the entry test. It was further stated that in order to overcome the situation, they were provisionally allowed subject to the condition, which has not been fulfilled by them or their parents, therefore, their result has not been declared. Moreover, they have not impleaded the necessary parties in the line of respondents and have not challenged the nomination made by the competent authority on the basis of entry test, hence, their petitions are liable to be dismissed. After necessary proceedings, the learned High Court has accepted the writ petitions filed by the respondents, herein, and directed the competent authority to declare their results through the impugned consolidated judgment dated 22.03.2018.

3. Sardar Shoukat Ali, the learned Advocate appearing for the appellants, vehemently argued that the respondents, herein, have filed writ petitions before the Azad Jammu and Kashmir High Court with unclean hands, hence, the same were liable to be dismissed. He added that the learned High Court has accepted these writ petitions erroneously and against the settled law. The learned Advocate further argued that as the petitioners were allowed to take part in the entry test provisionally and the condition was not fulfilled by them, therefore, their result has rightly not been released by the University. The learned Advocate further argued that the candidates who have been nominated for MBBS/BDS course in different colleges have not been impleaded as party in the line of respondents and their nomination has also not been challenged by the petitioners/respondents, herein, therefore, an infructuous relief which is not capable of being enforced cannot be granted in writ jurisdiction. 3(sic). Ch. Muhammad Attique, the Legal Advisor of the UHS has supported the contentions of Sardar Shoukat Ali, Advocate and submitted that even in the admittance card, it was categorically stated that the candidates will have to produce their Identity Cards for participation in the entry test and otherwise they will not be allowed to participate in the same. He further submitted that the petitioners were allowed provisionally on the condition that their parents will produce their identity cards before closing time of the entry test. He added that the result of those candidates has been withheld whose parents have not fulfilled the said condition. He submitted that the University Authority has not committed any illegality or violation of any rule or law, therefore, writ petitions were not competent and relief could not be granted in the circumstances of the case.

4. Conversely, Mr. Mushtaq Ahmed Janjua, the learned Advocate appearing for the respondents, vehemently argued that the University staff has allowed the petitioners/respondents, herein, to participate in the entry test and they were in possession of the admittance card which was sufficient proof of their identity, hence, after being allowed to take part in the entry test, their result cannot be withheld. The learned Advocate further argued that every arbitrary action/inaction of a public functionary is subject to supervisory jurisdiction of the High Court and it cannot be said that the High Court was not Competent to issue the direction for release of the result of the petitioners/respondents, herein. The learned Advocate further argued that on the basis of result, the petitioners can be accommodated in the next year. He further argued that it was not necessary to challenge the nomination or impleading all the successful candidates in the line of respondents because the respondents, herein, have not solicited any relief against nominated candidates.

5. We have beard the learned Advocates for the parties and have gone through the record of the case. Through the impugned judgment, the learned High Court has issued the direction for uploading the result of the respondents, herein, subject to proving their identity. It may be stated that the office bearers of UHS who were responsible for conducting the entry test at Mirpur center have allowed the respondents, herein, provisionally despite of the fat that they were not in possession of the identity card. After allowing them to participate in the entry test, the competent authority call verify their identity even otherwise from the record, therefore, withholding of result was not justified at all. The learned high Court has rightly observed so. So far as, the question that the nomination of the successful candidates has not been challenged by the petitioners/respondents, herein, is concerned, that has a substance in it. Almost 1st year in the MBBS course has been completed but the nominations of the candidates and their merit has not been challenged, therefore, the respondents, herein, cannot get rid of the consequences of not challenging the admission of the candidates with whom they were competing despite of declaration of their result. The right of declaration of the result cannot be withheld now on the ground that the respondents herein, were not in possession of their identity cards because this condition has been waived by the appellants, herein, themselves. To this extent writ has rightly been issued, however, declaration of the result of the respondent, herein, will not affect the admission duly nominated candidates in view of rule of law laid down in the case reported as Haji Muhammad Ashraf and another v. Development Authority, Muzaffarabad through its Chairman and another (1995 MLD 1343), wherein, at page 1350 of the report, it was observed as under:-- "The jurisdiction granted by section 44 of the Interim Constitution Act is discretionary in nature and relief is always refused if the Court forms the view that it would be unjust to allow the remedy where the conduct of a party, which comes to the Court, is such that it may amount to waiver. Remedy is also refused where the party is, though perhaps not waiving that remedy, yet the other party has been put in a situation of disadvantage in which case it would not be reasonable to unsettle the party. If this conduct is accompanied by lapse of time and delay it assumes greater importance. These principles have been upheld by this Court in Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (Af&K)

93. The facts for the present case clearly show that if a writ is issued at this stage it would not only work prejudice to the Development Authority but would also necessarily lead to waste of public money which has already been expended. In our view it would be inequitable to issue a writ even if we come to the conclusion that any illegality has been committed by the Development Authority in undertaking work which is in public interest." In view of the above finding no force in this appeal, the same is hereby dismissed. No order as to costs. ZC/49/SC(AJ&K) Appeal dismissed.