MUHAMMAD RAZAQ Versus PROVINCE OF BALUSHISTAN , Azizullah Memon

I. MAHMUD, J. -The petitioners in Constitutional Petitions Nos. 52/76, 53/76 and 54/76 have challenged the orders of the High Powered Appellate Committe setting aside on appeal the admissions granted to them by the Selection Committee in the First Year M.B.B.S. Class of Bolan Medical College, Quetta for the Academic Session 197E-77. They have also challenged the admissions granted to the respondents Nos. 6 and 7. As these petitions arise out of the same set of facts and raise common questions of law, they have been heard together and will be disposed of by this Judgment.

2. The petitioner in C. P. 52/76, Mohammad Razzaq secured 507 marks in his F. Sc. examination which he passed from the Government Degree College at Sibi. He applied for admission against one of eight seats then reserved for candidates from Sibi District under the Admission Policy announced on 4-2-1976. He was selected by the Selection Committee and placed at Serial No. 6. One Manzoor Ahmed, who was not selected, filed an appeal against the admission of the petitioner as well as against Mohammad Safdar (petitioner in C. P. 53/76) and Lai Chand (petitioner in C. P. 54/76) on the ground that he had obtained higher marks than them. While the appeal was pending the Governor of Baluchistan issued a direction to the Appellate Committee to re-allocate seats on basis of population as recorded by the 1972 Census. Accordingly, the total number of seats reserved for Sibi District was reduced from eight to six, out of which five seats were reserved for boys and one seat for a girl. The High Powered Committee had also heard the appeal of Shafiqur Rehman, respondent No. 7 and found that his domicile certificate was in order and accepted his appeal. As he had scored 591 marks against the petitioner's 507 marks, the petitioner's name was dropped from the list of candidates, selected by the Selection Committee, as he was the 6th and last candidate. The petitioner was so informed by letter dated 6-4-1976 (Annexure 'E' to the petition). The grievance of the petitioner is that respondent No. 6, Mohammad Asif Durrani as well as respondent No. 7 Shafiqur Rehman, who bad been rejected by the Selection Committee on the ground that they were not permanently residing at Sibi, were wrongly admitted by the Appellate Committee. His further grievance is that the decision of the respondent Government in re-allocating the seats and thereby taking away two seats reserved for boy students of Sibi District is illegal. He further challenged the admission granted to respondent No. 5 Mohammad Rafiq.

3. The petitioner in C. P. No. 53/76, Mohammad Safdar secured 468 marks in his F. Sc. Examination, which he passed from Government Degree College, at Sibi. He submitted his application for admission against one of the eight seats then reserved for students of Sibi District. He was selected by the Selection Committee and placed at Serial No. 8. Manzoor Ahmed. Tariq Javed and Naseem Hyder, who were not selected; filed appeals against the admission of the petitioner on the ground that they had scored higher marks than the petitioner. As stated earlier, while the appeals were pending, seats were re-allocated to the District of Sibi by the Appellate Committee on the direction of the Governor and were reduced from total of eight to six and the boys' seats from seven to five. As a result of such re-allocation of seats, the petitioner's name which stood at serial No. 8 of the List of selected candidates was dropped from the list and he was accordingly informed by letter dated 6-4-1976 (Annexure 'E'). His grievances are the same as those of Mohammad Razzaq (petitioner in C. P. No. 52/76), mentioned above.

4. The petitioner in C. P. No. 54/76, Lai Chand secured 514 marks in F.Sc. Examination which he passed from the Government Degree College at Sibi. He submitted his application for admission against one of the eight seats then reserved for Sibi District. He was selected by the Selection Committee and placed at Serial No. 5. One Manzoor Ahmed, who was not selected, filed an appeal against the admission of the petitioner on the ground that he had obtained higher marks than the petitioner. As stated earlier, while the appeals were pending, the seats were re-allocated to the District of Sibi and were reduced by two, from seven to five for the boys seats. He was informed by letter dated 6-4-1976 that the appeals of Shafiqur Rehman, respondent No. 7 and Mohammad Asif Durrani respondent No. 6 were accepted by the High Powered Committee and as the petitioner was selected against the .5th and second last seat, his name was dropped from the list by the High Powered Appellate Committee and he was accordingly informed. His grievances are the same as those of the petitioners in C. P. No. 52/76 and 53/76 above mentioned.

5. The petitions were resisted by the respondents. Dr. Abdul Khaliq Khan, Secretary to Government of Baluchistan, Health and Social Welfare Department, Quetta, respondent No. 1 filed a counter-affidavit setting out the record supporting the decisions of the High Powered Appellate Committee granting admissions to the respondents. The respondents Nos. 5 to 7 have also filed their counter-affidavits in support of their respective cases.

6. We have heard Mr. Basharatullah, Advocate for the petitioners. Mr. Mohammad Ahmed Mirza, Advocate-General for the respondents Nos. 1 to 4, Mr. Azizullah Memon for the respondent No. 5 and Mr. Munawar Ahmed for respondents Nos. 6 and 7.

7. The submission of Mr. Basharatullah is that selections were made by the Selection Committee on the basis of the declared Policy of Admission released to the press on 4-2-1976, according to which a total of the 8 seats were allocated to District of Sibi, out of which 7 seats were reserved for boys and that the Government of Baluchistan, respondent No. 1 had no power thereafter, to alter the allocation of seats by reducing the boys' seats from 7 to 5. We have considered this submission and it seems to us that on a bare reading of the relevant Rules of the Prospectus, it is clear that the Governor of Baluchistan has reserved the power to make alteration in the Admission Policy. Rule 1-A on page 6 of the Prospectus states that seats in the Bolan Medical College would be allocated as per the policy decision of the Government of Baluchistan. Rule 14 on page 11 of the Prospectus reads:-

"14. The Government of Baluchistan/the Principal reserves the right o additions and alterations of any rules in the Prospectus, Admission Form and Admission Policy."

The learned Advocate-General referred to the minutes of the meeting of the Appellate Committee held on 9-11th March 1976. It appears that the Governor of Baluchistan issued a direction to the High Powered Appellate Committee to re-allocate the seats previously distributed among the Districts of the Province on a population basis, strictly on the basis of population figures of the 1972 Census. This action of the Governor became necessary not only in view of revision of the boundaries of some of the Districts but also because of public representations. In compliance with the Governor's direction, the Appellate Committee reduced the total number of seats allocated to Sibi district from 8 to 6 and the boys' seats from 7 to 5, the one girl's seat remaining unaltered. The result of reduction of two boys' seats was that candidates who were selected by the J Selection Committee at Serial Nos. 6 and 7 had to be dropped and much of the controversy in these petitions relates to the validity of the Governor's direction to reduce the seats by two.

8. According to the learned Advocate-General, the principle of re allocation of seats on population basis was maintained. In Sajid Raza and others v. The Commissioner, Quetta Division, Quetta (P L D 1973 Kar. 332), it was held that instructions contained in the prospectus which debarred admission of Third Divisioners were validly amended by a letter addressed by the Governor of Sind to the Principal of the Dow Medical College, Karachi permitting admission of candidates belonging to Baluchistan Province who had secured Third Division marks in the Inter Science Examination. We have held in Constitution Petitions Nos. 38/76, 39/76 and 41/76 that as the Bolan Medical College, Quetta is an institution owned and controlled by the Government through the Department of Health and Social Welfare, the respondent No. 1, the Governor as executive head of the Government (whose power he now exercises on behalf of the President after the Proclamation of 31-12-1975), B extends to the matter of laying down a Policy and issuing instructions for regulating admissions to the Medical College. We are therefore satis fied that the re-allocation of seats of Sibi District by the Appellate Committee, w hick was finally approved by the Governor, was validly made.

9. The next submission of Mr. Basharatullah is that having been selected by the Selection Committee, the petitioners' right to admission had accrued and they acquired a vested right to admission which could not be denied to them by the subsequent re-allocation of seats. In support of the rule that a vested right cannot be taken away by a subsequent act of the authority having retsrospective operation, he referred to Messrs Mardan Industries Ltd.. Sakhakot v. Government of Pakistan (P L D 1965 Pesh. 47) and Mohammad Himayatullah Faroogi v. Government of Pakistan (P L D 1969 S C 407). This proposition of law is not disputed. But the main question is, what is the nature of the right of an applicant who has applied for admission to the Medical College in terms of the Prospectus and Policy of Admission. Mr. Basharatullah pressed us to accept the dissenting opinion of M. R. Khan. J. of the Supreme Court in Mian Rafiuddin v. The Chief Settlement and Rehabilitation Commissioner (P L D 1971 S C 252), on the nature of the analogous right of a displaced claimant person to transfer of property out of the compensation pool under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. That learned Judge held that a person applying for transfer of a property out of the compensation pool is entitled as of right, to have that property transferred to himself if he is a claimant and is in possession of the property. The majority view of the Supreme Court in that case was to the contrary that such a claimant does not acquire any vested right to the grant of a particular property in the compensa tion pool and that, at most, he is m the position of a vested beneficiary with a general beneficial right which he shares in common with all claimants. As observed in Malik Muhammad Usman v. The State (P L D 1965 Lah. 229), a minority view is not a decision of the Supreme Court.

10. The nature of the right of an applicant who has applied for admission to a Medical College was considered in Humera Satwat Yusuf v. The Government of the Punjab (P L D 1971 Lah. 641), wherein certain observations of the Supreme Court in an unreported case were cited. It was observed as follows:-

"In a recent case entitled Arif Ali Hazoor v. The Administrator, K.E.M.C, Lahore (C. P. S. L. 124/1970, decided by the Supreme Court of Pakistan on 29-5-1970) it has been held that there is no authority for the proposition 'that the right to apply for admission to an educational institution carries with it a legal right to be admitted which can be enforced under Article 98 of the Constitution'. The petitioners, therefore, did not have any public or private right to claim an admission to any Medical College in pursuance of the applications submitted in that behalf and the orders fixing the number of seats for the various categories of students to be admitted to the institutions concerned has not injured any legal right inhering in them."

In other words, by submitting an application for admission to an educational institution, an applicant does not acquire a right to be admitted. At most, D it can be said that he has a right to be considered for admission. To the same effect is the opinion of a Division Bench of the High Court of Sind & Baluchistan expressed recently in Sajid Raza and 3 others v. The Commissioner, Quetta Division Quetta. Mr. Basharatullah tried to distinguish these cases on the ground that in those cases, no admission was granted to the applicant in the first instance. On the other hand, Mr. Mohammad Ahmed Mirza, learned Advocate-General submitted that the admissions granted to the petitioners by the Selection Committee were the subject of appeal before the High Powered Appellate Committee, which was seized of the entire matte and, until the Appellate Committee had finally selected the candidates, there is not finality attached to the selections made by the Selection Committee. I am inclined to agree with this submission.

11. As stated earlier, appeals were filed by several unsuccessful candi dates to the Appellate Committee against the admissions granted to the petitioners. Not only were these appeals allowed, but the Appellate Committee had also reduced the number of seats of two by re-allocating the seats in the Sibi District on the directive of the Governor, with the result that a maximum of five seats only were available. As the respondents Nos. 6 and 7 had scored higher marks than the petitioners, the names of the petitioners were dropped from the list of the finally selected candidates. Therefore there is no force in the contention that the petitioners had acquired any accrued or vested right to admission by reason of their selection by the Selection Committee. We Must therefore, reject the submission of Mr. Basharat ullah.

12. Dealing now with the objections of the petitioners to the admissions of the respective respondents, the respondent No. 5 Mohammad Rafique was granted admission by the Selection Committee on the basis of local residence certificate dated 17-1-1976 and letter of Deputy Commissioner, Sibi dated 6-2-1976. The appeal filed by Zabid Faheem to the Appellate Commit tee against him was dismissed, as he failed to satisfy the Committee that the petitioner was not a genuine local resident of Sibi. The case of the respondent No 5 as rightly submitted by Mr. Azizullah Memon on his behalf, was that as he had scored 546 marks which were higher than the marks obtained by each of the three petitioners, he was rightly accepted for admission both by the Selection Committee and the High Powered Appellate Committee. His selection therefore, is beyond dispute.

13. With regard to the admission of respondent No. 6 Mohammad Asif Durrani, the Selection Committee rejected his application because he had passed his Matriculation Examination from Hyderabad where his father was serving as Member, Public Service Commission, Hyderabad for some years and hence did not accept his domicile certificate dated 10-10-1975 showing place of domicile as Sibi. The respondent's appeal to the High Powered Appellate Committee was allowed and the said domicile certificate of the respondent's fattier was accepted on the ground that he is a Government servant and liable to transfer at any time and anywhere in the Province. As rightly submitted by Mr. Munawar Ahmed, the Appellate Committee had jurisdiction to evaluate the weight of the evidence and come to a finding of fact that his permanent residence was in Sibi District, on the material before it. It cannot therefore, be said that the Committee exceeded its jurisdiction in setting aside the decision of the Selection Committee which had ignored the said material. As he had obtained higher marks than the petitioners no exception can therefore, be taken to his admission by the Selection Committee.

14. With regard to the admission of Shafiqur Rehman, respondent No. 7 the Selection Committee rejected his application on the ground that his father had been serving in Loralai District and possessed no property in Sibi District. He filed an appeal to the High Powered Appellate Committee which was accepted on the material produced before it, which showed that his father was serving for the major part of his service in Sibi District, as his Service Book showed and coupled with the evidence that he has been educated in Sibi District, accepted him as a genuine resident of Sibi District. As rightly observed by Mr. Munawar Ahmed, the question of permanent resident was a question of fact within the exclusive jurisdiction of the High Powered Appellate Committee. There was material before it to substantiate the finding of fact in favour of the respondent. j As the respondent had secured higher marks than the petitioner, he was rightly granted admission.

15. The final submission of Mr. Basharatullah was that Mohammad Razzaq, petitioner in C. P. 52/76 was not supplied with the notices of the appeals filed by respondents Nos. 6 and 7 and was not heard before his name was dropped from the list of selected candidates by the Appellate Committee. As these respondents had not filed any appeals objecting to the pre-qualifica tions of the petitioner, he was not entitled to receive copies of the appeals or to be heard. He was dropped from the final selected list only as a result of the admission of the respondents who had scored higher marks on merit than him and as a result of two seats being dr-.)pped from the total number of seats.

16. For the foregoing reasons, we find no force in these petitions, which are accordingly, dismissed with no order as to costs.

S. A. H. Petitions dismissed.