HALEEM UR REHMAN vs PROVINCE OF SINDH and others

ORDER

SAJJAD ALI SHAH, J.---The petitioner seeks leave of this Court against a common judgment of the High Court of Sindh whereby it has inter alia declined to direct the respondent Shaheed Mohtarma Benazir Bhutto Medical College Lyari, Karachi to cancel the admission of respondents 3 to 7 and to provide admission to the petitioner in the said medical college.

2. Briefly , the petitioner applied for admission in Shaheed Mohtarma Benazir Bhutto Medical College Lyari, Karachi (hereinafter referred to as 'medical college') for the session 2012-13 from Gadap Town to which ten seats were allocated. The petitioner's name on merit was placed at serial No. 21, therefore, he was refused admission. It appears that the petitioner thereafter filed a petition bearing No. C.P. D-1732/2013 in the High Court of Sindh against the administration of medical college seeking an order directing the administration to verify the domicile and permanent residence certificates (PRCs) of all candidates seeking admission in the medical college to which college administration had no objection being a process of routine; consequently , the petition was dismissed on 12.8.2014 being without cause. The process of verifying the educational testimonials as well as domicile and PRC of the merited candidates who were granted admission was completed in accordance with the policy of the institution. It appears that the petitioner thereafter in the year 2015 filed appeals before the Commissioner Karachi Division under Rule 8 of the Sindh Permanent Residence Rules, 1971 seeking cancellation of PRCs issued in favour of respondents Nos.3 to 8. The said appeals remained pending for almost two years and ultimately on 17.4.2017 the said appeals were allowed and the PRCs of the private respondents Nos.3 to 8 were cancelled. All the private respondents challenged the order of the Commissioner by filing constitution petitions whereby their PRCs were cancelled; whereas the present petitioner filed a petition seeking cancellation of admissions of all the private respondents in the medical college on the ground that their PRCs stand cancelled and also sought his admission in the said college. The High Court after hearing all concerned through the common impugned judgment, allowed the petitions filed by the private respondents by setting aside the order of the Court and restoring their PRCs whereas the petition filed by the present petitioner was dismissed.

3. Mr. Abdul Salam Memon, ASC for the petitioner has contended that an efficacious alternate remedy of appeal was available to respondents Nos.3 to 7 against the order of the Commissioner cancelling their PRCs under the Sindh Permanent Resident Rules, 1971, therefore, the petitions filed by the private respondents Nos.3 to 7 were incompetent and ought to have been dismissed on this ground alone. We are of the view that in the facts and circumstances of the instant case where , after verifying the genuineness of the PRC by the office of the Deputy Commissioner , the said respondents were granted admission in the academic session 2012-13 and then all of a sudden its cancellation in the year 2017 when the holders of the PRCs had almost completed their MBBS, exposing them to uncertain consequences was a justifiable cause to invoke the writ jurisdiction of the High Court as in the circumstances, the remedy provided under the rules, to our mind, was not adequate or ef ficacious.

4. It was next contended that the order of the High Court is bad as it has been passed while ignoring documentary evidence which supports the order of the Commissioner cancelling the PRCs of the private respondents, however , our examination of the documentary evidence as well as the impugned judgment reveals that the case of each of the respondent has been very aptly examined by the High Court and we see no reason to disagree with the detailed findings of the High Court. Notwithstanding our conclusion on the issue, we in order to examine the matter from a different angle asked Mr. Abdus Salam Memon, ASC that even if it is established that the order cancelling the PRC was just and appropriate, whether the degrees of MBBS granted to the respondents by the University on the strength of genuine and verified educational testimonials and recognized by the PMDC could be recalled, merely on account of cancellation of their PRCs by the appellate authority specially when the granting authority had verified their genuineness at the time of admission. Advocate Supreme Court had no answer instead started behaving inappropriately . Consequently initially he was counselled to fairly assist to the Court as asked for and upon his consistent disrespect he was warned that such behaviour could cause him his license to practice before this Court.

5. On the other hand, the official respo ndents in response stated that since all the private respondents upon successful completion of MBBS have left the college and were granted degrees in accordance with the law by the DOW University which is not a party to the proceedings, therefore, no action could be taken against them; even otherwise, according to them, there was no flaw in their educational testimonials. The admitted position before us appears to be that the prospectus/rules of the medical college only provided that in case the PRCs or any other educational testimonial of the candidates were found fake, their admission was supposed to be cancelled, however , in the instant case neither any of the educational testimonials of the respondents nor their PRCs were found fake.

In fact when the respondents had almost completed their MBBS, the Commissione r by taking a different view than the granting authority , cancelled their PRCs which view was reversed by the High Court in accordance with law .

6. In the circumstances, we were of the view that the point which needed to be examined was as to whether the merit can be ignored by creating different pockets in the same city by putting the condition of PRC. Though Article 22(4) of the Constitution of the Islamic Republic of Pakistan empowers the public Authority for making provisions for advancement of socially or educationally backward class of citizens and likewise Article 37(a) of the Constitution cast a duty on the State to promote, with special care, the educational and economic interests of backward classes or areas, however , in the instant case again what was to be seen was as to whether citizen living in different pockets/areas of the same city could fulfill the criteria laid down in Articles 22(4) and 37(1) of the Constitution and could be made basis of escaping open merit system. Since neither any assistance is provided by learned ASC for the petitioner nor the case was examined by the High Court from this angle, there fore, we deem it appropriate to take up this issue in some other appropriate proceedings.

7. Consequently , this petition is found meritless and is hereby dismissed. Leave to appeal is declined.