P L D 1998 Lahore 365 (PLP)

IFTIKHAR HUSSAIN CHAUDHRY, J.--Imran Ahmad Khan sought admission in the 1st year M.B.,B.S. Class for the Sessions 1993-94 through Writ Petition No.422 of 1994. On a concession given by Principal of the College whereby claim of the petitioner was admitted, the writ petition was allowed at preliminary stage by order dated 9-3-1994 passed by a learned Single Judge in Chambers and Imran Ahmad Khan was directed to be admitted to the First Year M.B.,B.S. Class.

2. The Province of Punjab and Chairman, Admission Board filed IntraCourt Appeal assailing the legality and validity of the order passed by the learned Single Judge in Chambers which was admitted to hearing on 15-8-1995 Learned counsel for the appellant as well as respondent Imran Ahmad Khan halle been heard in the matter.

3. Learned counsel for the appellant submitted that Imran Ahmad Khan was not eligible to get admission in any medical college within the Province during the academic Session 1993-94 as he had passed F.Sc. (Pre-medical) examination after 4-10-1993 which was last date for submission of applications. It was submitted that writ petition was filed in which the correct legal and factual position was withheld and moreover Principal of Quaid-e-Azam Medical College was impleaded as the only respondent who was not competent at all to have admitted the claim of the petitioner or to have granted admission to him in Medical College. It was submitted that it is only the Provincial Admission Board to which applications are submitted by candidates desirous of getting admissions into the Medical Colleges and Admission Board prepares the merit list and then students are granted admissions by the same Board and that even if a vacancy exists in any of the medical colleges the same is to be filled by the Chairman, Admission Board only. It was submitted that Province of Punjab and Admission Board were necessary parties which were trot impleaded by the writ-petitioner and Principal of Medical College was arrayed as the only respondent who was neither the necessary nor was the proper party in the matter. It was contended that writ petition was filed by son and father with collusion and the appellants were kept in dark and father thereafter submitted comments in the matter unauthorizedly and also admitted the claim without any authorization. It was submitted that this was sufficient to show that impugned order was obtained by collusion, misrepresentation and fraud and, hence, was liable to be set aside. Learned counsel for the respondent submitted that Intra-Court Appeal was time barred and that writ petitioner was otherwise eligible to get admission in the next session and besides that had been studying in the medical college for the last three years and in this view of the matter the impugned order should be upheld. It may be observed that as far as legality, validity or correctness of the impugned order was concerned, learned counsel for respondent could not say and did not say anything about the same.

4. The Province of Punjab manages and maintains seven medical colleges including Quaid-e-Azam Medical College, Bahawalpur which are under the administrative. control of Health Department. Admission to all the seven colleges is channelized through one-window operation at provincial level. All the aspirants apply to Chairman, Admission Board, who have passed the Intermediate Science Examination taking Pre-Medical group are eligible under Rule 12 for getting admission in the medical college. The students passing in the Supplementary/IInd Annual Examination Autumn Examination of the year of admission are eligible to apply during the next year. Under Rule 12(a) of the Prospectus of Government Medical Colleges in the Punjab for the Session 1993-94 applications are to be invited by an advertisement through the press the last date for submission of applications and applications received after that date could not be considered. Rule 16 of the Prospectus prescribes the mode of selection. The candidates are to be selected by the Admission Board comprising the Principals of the Medical Colleges, the Principal of King Edward Medical College, Lahore being Chairman of the Admission Board. The decision of Admission Board in respect of selection and admission is final. Sub-rules (c) and (d) of Rule 19 prescribe legal action to be taken against candidates making any false statement and a candidate detected to have submitted forged certificates or fake documents is to be permanently debarred for admission to any medical college in the Province. Under Rule 23 the Chairman, Admission Board is to prepare only one merit list of candidates, and under Rule 24 Admission Board makes selection from the merit list. The selection of candidates against the general merit seats is made according to merit and allocation of colleges is also made by the Admission Board after giving due consideration to candidate's choice. After the merit selection is over, the selection against the specially reserved seats for doctor's children is to be made from the special merit list for this category of candidates. If a seat against open merit falls vacant, the next candidate on merit is to be selected according to Rule

27. Though admission is to be closed after a lapse of period of three months from the start of First Year M.B.,B.S. Class but in case name of candidate is struck off on account of his having secured admission by fraudulent means, the next person on merit list is to be granted admission up to the end of first year class. The Prospectus also prescribes duties of the Principal of Medical College which are as under:- (1) He shall be responsible for all the administrative matters. (2) He will represent the College at the university according to rules. (3) He will discharge all academic duties entrusted to him by the university? i.e. attendance at meeting of the Medical Faculty etc. and will concern himself with all matters of academic interest in the institution at all times. (4) He will draw up and promulgate the detailed teaching programme for students in accordance with the general instructions of the College Academic Council. (5) He will draw up the agenda of the meeting of the College Academic? Council. (6) He will preside over the various academic functions of College. (7) He will sign and issue academic certificates in respect of students. (8). He will be responsible for the compilation of all Medical Education and? Research data in his institution. (9) He shall carry out any other duties that may be assigned to him from? time to time by the Government of the Punjab.

5. A perusal of the foregoing provisions contained in the Prospectus for Admission to Medical College for the Session 1993-94 would show that only the Admission Board is competent to make selection of candidates for granting admission to Medical Colleges in the Punjab. The Principal of a Medical College performs only certain administrative functions and individually, has no concern whatsoever with the process of admission to the medical college. ?

6. In the case in hand, Imran Ahmad Khan passed intermediate Supplementary Examination, 1993 and submitted the petition on 28-2-1994 claiming that he was son of a doctor and was eligible for a seat reserved for doctor's sons for admission to any medical college; that there were 13 seats vacant in First Year M.B.,B.S. Class of Quaid-e-Azam Medical College and that students were being admitted till recent past and that he deserved to get admission as that would save one precious academic year for petitioner and the Society shall have a doctor one year earlier that 13 seats were yet to be filled and none could possess the marks obtained by petitioner; that one precious seat shall be saved in the whole of Punjab for the next year and that admission of the petitioner was not going to effect anybody. It was further averred in the petition that petitioner approached the respondent, namely the Principal, Quaid-e-Azam Medical College for admission but he had declined to accommodate him for no just cause. Prayer was made for issuance of a direction to respondent-Principal to admit the petitioner in the First Year M.B.,B.S. Class. ?

7. Parawise comments were called for from the respondent-Principal and a too-eager Principal conceded the ground more than willingly and the writ petition was allowed by order dated 9-3-1994. A gleeful Principal inducted the petitioner into First Year M.B.,B.S. Class. So far so good. But the catch here was that recnondent-Principal was one Dr. Iqbal Ahmad Khan, a real father of Imran Ahmad Khan petitioner and neither the son was eligible to get admission in the academic Session 1993-94 nor the father was empowered or competent to grant admission to his son. The cut off date for submission of applications for the Session 1993-94 was 4-3-1993. According to Rule 12-A of the Prospectus no application could have been entertained after 4-3-1993 for consideration by the competent Authority. Under Note III(b), the students passing the Supplementary or IInd Annual Examination in the year of admission would have been eligible to apply during the next year i.e. for the Session 1994-95 only as a result of Imran Ahmad Khan, writ petitioner was announced on 23-2-1994. By no stretch of imagination he could lay claim to be admitted to academic Session 1993-94. The writ petition filed by Imran Ahmad Khan was deviously worded and he claimed to have secured very high marks and had averred that he stood head and shoulders above the last candidate who was granted admission in the First Year M.B.,B.S. Class of the College. As observed above, only Principal of Medical College was made as respondent in writ petition who had nothing to do with the admission of a student to the College. It was only the Admission Board who was competent to have granted admission to a student. The Principal was member of the Admission Board and he knew the legal position very well but despite that his son filed a writ petition in which the relevant authorities were not impleaded. The necessary parties in writ petition who were to be arrayed as respondents were Province of Punjab who managed the colleges and Admission Board who was to grant the admission. It has been noted above that under Rule 27 of the Prospectus a vacancy is to be filled by the Admission Board from the long queue of candidates whose names are included in the merit list prepared at initial stages. For all practical purposes a vacancy cannot exist in First Year M.B.,B.S. Class of any medical college in the Province. The principal retained a vacancy and did not inform the Admission Board about that and instead submitted comments in the High Court conceding the entire claim of the writ petitioner. The entire proceedings in the' writ petition pursuant to which the impugned order was passed were collusive, based on misrepresentation and fraud. The petitioner played fraud upon the Court. He fraudulently deprived another candidate whose name already existed on the merit list and was entitled to get admission in the A First Year M.B.,B.S. Class. The writ petition was based on false averments, dishonest claim and impugned order was obtained by the petitioner with the help of his own father and both were hand-in-glove with one another in cheating the Court as well as the present appellants who were competent authorities in the matter. The position of rules contained in the Prospectus is unambiguous, clear and unequivocal and there was no room for misconception or misinterpretation. The impugned order was obtained through active, conscious and deliberate fraud and stood vitiated.

8. As observed above respondent/writ petitioner was unable to defend the impugned order on merit and it was urged on his behalf only that Intra-Court Appeal was time-barred and secondly, that writ petition/respondent had spent a $ few years in the Medical College and could have got admission in the succeeding year. Rule 19(c) and (d) prescribes for punishment of a student who obtains admission in the Medical College by misrepresentation. A student can be expelled from the medical college regardless of the period spent by him in the Medical College. Length of studies alone is hardly a ground on which the impugned order could have been sustained. For a proceeding to be given a facade of legitimacy, it must have some legal or equitable foundation, however, narrow that might be. In present case, the proceedings pursuant - to which impugned order was passed did not have any foundation at all and the impugned order has to fall to ground. Since the impugned order was obtained without any legitimacy and was result of pure and simple fraud, the dismissal of appeal on ground of limitation alone would tantamount to allowing the respondent/writ petitioner to benefit from ill-gotten gains which would not be permissible under any canon of law or equity. The delay in filing of appeal is condoned for the same reasons for which we are allowing the appeal. ?

9. The appeal is resultantly allowed and impugned order is set aside for the forgoing reasons. The consequences shall follow the event.

10. We were informed in the course of hearing of appeal that former Principal of Quaid-e-Azam Medical College who had granted admission to respondent has been suspended for misconduct and, therefore, we are not passing any order for initiating disciplinary proceedings against the former Principal. A.A./P-33/L Appeal accepted.