2005 PLP 351 (SCMR)

5. No one appeared on behalf of respondent No.4 despite service.

6. It is to be noted that both, the appellant and respondent No.4, were contesting for admission against the seat reserved for the children of Doctors, falling within the category "C" for convenience Category "C" is reproduced herein below:‑‑‑ " 10 . .......................................................................................... Category "A" .............................................................................. Category "B . .............................................................................. Category "C" the children of only those doctors who are full time Medical Practitioners, Employees of sort/semi sort department (other local/domicile and permanent residents of Balochistan and are not employees in Provincial Government) and the children of deceased doctors falling in this category would also be eligible for the seat, provided that the deceased family is permanently residing in Balochistan, and they should have served the people of Balochistan as private practitioners for at least ten years. One Seat. Explanation. The doctors should be one registered with the Pakistan Medical and Dental Council and the candidate shall have to produce the certificate of registration valid/up to date of his/her father/mother, as the case may be from the Council on the date of application." Under chapter‑IV of the Prospectus, procedure has been laid down for admission in the college. According to its para.39, a candidate who wishes to apply for admission in M.B.,B.S. or B.D.S. is required to tile certain documents along with application form, details of which are mentioned therein, and if anyone of those documents is not filed, then under para.40, , the college administration is prohibited to receive the same before the expiry of the last date. A careful perusal of para.39 of the prospectus indeed indicates that producing of registration certificate issued by the Council is not mentioned therein. Similarly, para. 10 which deals with the category of the seat reserved for the children of the doctors, does not provide that if the registration certificate is not produced along with the application form, what would be its effect? Therefore, we are inclined to hold that ordinarily, the registration certificate may have been filed along with the application form but it has not been filed, then the college administration (Admission Committee) is also not prohibited to receive the same later on, but before its final conclusion in respect of grant of admission of the candidate.

7. It may be noted that somehow, an identical question came up for consideration before this Court in the case of Miss Zil‑e‑Huma v. Province of Balochistan through Secretary Health and 2 others C.A. No.721 of 1992, decided on 28th February, 1993. Relevant para. therefrom is reproduced hereinbelow:‑‑ (3) The learned counsel for the appellant has contended that the appellant was not required to file certificate of the Council along with the application form and the appellant could have been asked to produce it at the time of interview. He further contended that the domicile certificate and identity card bore the name of the appellant's father as Dr. Abdur Razzaq. Be that as it may, the fact remains that according to the prospectus a candidate claiming a seat against category "C" was required to produce a certificate from the Council. Clause 14 provides for selection of candidates against three seats reserved `or the children of doctors of Balochistan divided in three categories for that purpose as stated above. In category "C" an explanation has been added that a doctor shall be one registered with Pakistan Medical and Dental Council and the candidate shall have to produce certificate of registration of his/her father/mother, as the case may be, from the Council. Clause 37 provides that all applications must be accompanied with the photostat copies or attested copies of the documents in duplicate which have been categorized. It requires nine documents to be filed with the application. Nowhere it has been mentioned that Council's certificate as required by the applicants for the reserved seats under category "C" should be filed with the application. The fact that in clause 14 while describing the particulars of category "C" candidates an explanation was added requiring the candidate to produce the certificate did not necessarily mean that such certificate was to be filed with the application form. If that would have been the intention such document would have been included in the list mentioned in clause

37. From the facts narrated and not denied it seems that the application was endorsed by some official of the college and it was acknowledged as an application for candidates falling under clause

14. However, it does not affect the merits of the case because forms would have been scrutinized before the interviews were held by the Selection Committee. There were two occasions on which the appellant could have been asked to produce the certificate, on at the time of scrutiny and the second at the time when the Selection Committee was to hold the interview. The respondent, however, instead of making such inquiry or requiring the appellant to produce such a certificate refused to interview her. Between the dates when the application was submitted and the interview was held by the Selection Committee, there was sufficient time when such inquiry could have been made from the appellant and she could have been required to produce such a certificate. It has been alleged that she did produce a certificate from the Council. The fact that it was not mandatory or compulsory to file such certificate of the Council along with the application for admission, the respondents have taken a hyper-technical view of a very insignificant default committed by the appellant which may have been under misapprehension of fact after reading the Prospectus particularly clause

37. In cases of admissions of the students who deserve admission on their merits in their category, such hyper‑technical attitude should not be adopted. It is due to such attitude of the administration that creates heart burning and agitation. Such objections on their part also rob their actions of credibility and good faith. Considering the facts and circumstances of the case we set aside the impugned judgment and declare that the order of the respondents rejecting appellant's application for admission was without .lawful authority and direct the respondents to admit her in the first year M.B.,B.S. as applied by her."

8. In view of above dictum laid down in the above judgment as well as observation made by us hereinabove, it is held that respondent B No.4 on producing registration certificate of her father, issued by the Council, had fulfilled the condition for seeking admission in terms of para. 10 of the Prospectus of the College.

9. Learned counsel for the appellant, however, was called upon to satisfy as to whether she can compete for a seat, falling within category "C" of para. 10 of the Prospectus because to claim such seat, she was required to establish that her father is full time Medical Practitioner or is employee of sort/semi sort department (other than Provincial Health Department) in Balochistan. Learned counsel answered that her father is a doctor in the Federal Government and presently posted at Quetta. In view of such statement we are inclined to hold that appellant had no locus standi to get admission against the seat, reserved for the children of doctors in Bolan Medical College because in para. 10 of the Prospectus, three categories have been allocated for the children of doctors being categorized as "A", "B" and "C" respectively. Admittedly her case is not covered under category "A" as her father is not in teaching staff of the Bolan Medical College. Similarly she is also not eligible to apply for the seat meant for the children of doctors serving in the Provincial Health Department falling within category "B". Likewise her case is also not covered by category "C" as it deals with the full time Medical Practitioner i.e. private doctors, neither her father is in the employment of sort/semi sort department (other than Provincial Health Department) in Balochistan rather he is employee of the Federal Government and incidentally is presently posted in Quetta, therefore, instead of claiming a seat reserved for the children of doctors, under category "C" of para. 10 of the Prospectus, she could have competed with other candidates on merit subject to her eligibility. This question cantc up for consideration before the High Court of Balochistan, Quetta in the case of Gul Mahina v. Selection Committee 1999 YLR 1586 judgment was authored by one of us (Justice Iftikhar Muhammad Chaudhry). wherein while examining the identical proposition, it has been held as under:‑‑ "We have noticed hereinbefore that the employees of the Provincial Government have been particularly excluded from this category, therefore, if the employees of Provincial Government are debarred to claim a seat under this category then how the children of employees of Federal Government can claim a scat under this category; therefore, we are of the considered opinion that category "C" of para. 12 caters for requirements of children for admission in First Year M.B.,B.S. in respect of those doctors who are private practitioners and period of service to the people of Balochistan at their credit and no other category of the children of doctors either in the employment of the Federal Government or in the Provincial Government can be allowed to be admitted under this category because for the children of doctors serving the Provincial Health Department other than the children of doctors teachers of B.M.C. under Category "B" one seat has been provided to them. Thus, we are persuaded to hold that respondent No.4 Sheharyar Hanif Khan whose mother Dr. Shama Hanif is admittedly in the service of Federal Government, but not a full time private Medical Practitioner. cannot claim admission against the reserved seat falling under Category "C" of para. 12 of the Prospectus notwithstanding the fact that besides her service with the Federal Government she has also got her private maternity home/clinic in the town where she is working as Medical Practitioner, besides discharging her commitments as officer of the Federal Government being Director. Technical Population Welfare it is not possible for the employees of the Provincial Government or Federal Government to act as Medical Practitioner privately for full time."

11. Learned counsel for appellant attempted to persuade us to take a different view from the one which has already been expressed in above noted judgment but there was consensus of opinion by the Bench to maintain the above conclusion. Thus, it is held that appellant was not eligible to apply for the seats falling within category "C". Thus, we are not inclined to interfere in the impugned judgment in view of above discussion and for added reason that respondent No.4 had obtained more marks than the appellant, therefore, for an hyper-technical reason, admission cannot be denied to her at this stage as it would not be in the interest of justice. Resultantly appeal is dismissed leaving the parties to bear their own costs. M.H./B‑21/S Petition dismissed.