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Constitutional Petition No.D‑54 of 1984, decided on .5th March, 1984.

‑‑‑S.29‑‑‑Provisional Constitution Order (1 of 1981), Art.9‑‑‑Petitioner applying afresh for admission to 1st Year M.B.,B.S. Course enclosing two N.C.C. Certificates‑‑Officials not adding 20 marks to his total marks under misapprehension that he was not entitled for such addition under 5.29‑‑Petitioner,held, was entitled to 20 additional marks which further entitled him to admission to M.B.,B.S. Course.‑‑[Educational institution].

A.A.Fazeel for Petitioner.

Syed Sarfraz Ahmed, A.A.‑G. for Respondents Nos. 1 and 2.

Date of hearing: 5th March,1984.

This petition under Article 9 of the P.C.O., 1981, was filed on 14th January, 1984, claiming relief, inter alia, for direction to admit the petitioner in the First Year M.B.,B.S. course at Quaid‑i‑Azam Medical College, Bahawalpur for the sessions 1982‑83, against scats reserved for Karachi.

1. The circumstances in which the petition was filed may briefly be stated.

(a) The petitioner in 1981, passed his Intermediate Science Examination (Pre‑Medical group) in First Division, having secured 64.3% marks. He on 16th February,1982 applied for admission in the‑First Year M.B B.S. for the session 1981‑82 in a medical college in Sind. In the prescribed form filed by him against the relevant column, the following information was inserted:‑

" NCC Training Certificate No. Just completed

(Write Nil) if certificate is 50% of NCC training

not available):

It has been explained that the NCC certificate could not be filed on 16th February,1982 with the admission form for the reason that though the petitioner had completed 50% training and had applied on 10th January,1982 to the relevant authority for issuance of the certificate he by letter dated 10th Apri1,1982 was informed:‑

"Ref: Your application dated 10th January,1982

Please refer to your above‑quoted application. In this connection you are informed that the matter is under consideration at HQ NCC and G, Karachi and a certificate, as requested by you will be issued if decided favourably.

(Sd.)

GSO‑2‑(Trg)

NCC TRG TEAM NCC Karachi."

(b) The petitioner, thus was not called for interview held in March, 1982, as the certificate for having completed 50% training of NCC had been delayed at the Government end.

2. The petitioner in the circumstances applied for admission to 1st Year M.B.,B.S. 1982‑83 session. With his application this time he produced amongst others the following documents:‑‑

(i) His own letter dated 10th January,1982 for grant NCC Certificate for completing 50% training period.

(ii) NCC Training Certificate dated 7th November,1982 (100%).

(iii) NCC Training Certificate completing 50% further certifying that the petitioner "was still undergoing his remaining training course."

The petitioner's name appeared in the list of "disputed" candidates, who were to be interviewed on 15th February, 1983 for admission to 1982‑83 M.B.,B.S. 1st Year session. At the time of interview the following remarks were entered against the name of the petitioner in the list of the candidates: "adjusted percentage 65.8% pending for decision from Department of Health."

It may be observed here that the petitioner had passed the Inter Science Examination in 1981, in second attempt for improving his division. Five marks were therefore deducted according to rule 17(b)(ii) of the Rules for Admission in the Prospectus. Thus the marks of the petitioner for purposes of admission were reduced from 64.3% to 63.8%. The petitioner, however, became entitled to addition of 20 marks for having successfully completed NCC Training in accordance with section 29 of National Guards Act, 1973. The adjusted marks of the petitioner thus became 65.8% for the purposes of his consideration for admission.

3. At the interview held as above, 437 boys were given admission out of whom 5 candidates were selected for admission in Medical College in Quaid‑i‑Azam Medical College, Bahawalpur against the seats reserved for Karachi. The names of the students so selected were forwarded by the Principal. Dow Medical College, Karachi, the respondent No.2 under his letter dated. 26th December 1983 addressed to the Principal. Qua id‑i‑Azam Medical College, Bahawalpur. The names of these students with the adjusted

marks obtained are reproduced below:‑‑ '

ADJUSTED MATRIC

MARKS,. MARKS.

"1. Mr.Mohammad Yousuf s/o 658/1000 617/1000

Islamuddin.

2. Mr.Mohammad Usman Shaikh 658/1000 562/800

s/o Mohammad Sadiq Shaikh

3. Mr.Zahid Afzal s/o 651/1000 670/800

Mr.Sharif Afzal.

4. Mr.Pervaiz H.Rabadi 657/1000 619/800

s/o Prof.H.Rabadi.

5. Mr.M.Arshad Hashim

s/o Mr.Tayyab Hashmi 657/1000 517/800."

The petitioner having come to know that the names of the students shown at Nos.3 to 5 in the above‑mentioned letter were being forwarded for admission in the Quaid‑i‑Azam Medical College at Bahawalpupr, made representations to the Government of Sind and Principal, Dow Medical College/Chairman, Selection Committee on 28th November,1983 and 5th December,1983 but without any success.

4. In the above circumstances this petition was filed which has been contested by the official respondents Nos.1 and 2, on whose behalf counter -affidavit has been filed.

Out of the other three respondents/students who had secured adjusted marks lesser than the petitioner, on behalf of the respondent No.3 statement in writing was filed on 6th February,1984 by his mother Mrs.R.H.Rabadi that the respondent No.3 had already joined B‑Pharmacy and that she had no objection if the seat which had been offered to her son, the respondent No.3 was allotted to somebody else. In view of this statement, the respondent No.3 was dropped from the present case. The respondents Nos.4 and 5 are absent and it appears that they have not been served. Mr.A.A. Fazeel, the learned counsel for the petitioner submitted that in the circumstances of the case he is not seeking any relief against the respondents Nos.4 and 5 particularly for the reason that the seat, against which the respondent No.3 was selected for admission in Quaid‑i‑Azam Medical College has fallen vacant, and that against that seat the petitioner could be given admission.

5. The facts which have emerged from the record are that the petitioner, who had passed the Inter Science Examination in the year 1981 on the second attempt with 64.3% marks (from which after deducting 5 marks for repeating Class XI of Inter Science Examination for purposes of improving division, was reduced to 63.8% marks) was not given admission in the 1981‑82 session for the reason that although he was eligible for the grant of NCC certificate as provided in section 29 of the National Guards Act, 1973 (as amended by Ordinance No.VI of 1975) he having successfully completed not less than 50% of the total training period and was still undergoing training, was not issued the said certificate in spite of his application dated 10th January,1982 due to delay at the Government end. Had he been issued the said certificate in time, his adjusted marks would have been 65.8%. In the circumstances the petitioner in accordance with rule 12 applied for selection in 1982‑83 course and produced the requisite NCC training certificates. His adjusted marks were 65.8% and thus was entitled to be given preference to the respondents Nos. 3 to 5, each one of whom had secured only 65.7% adjusted marks.

The learned Assistant Advocate‑General, who appeared for the official respondents however, contended that the admission of the petitioner for the sessions 1981‑82 was refused as he was found ineligible for admission on merits in the light of the marks obtained by him in Inter Science Examination. He further submitted that the petitioner could not claim additional 20 marks for having completed 50% of the total training period as provided in section 29 of the National Guards Act,1973 for the reason that no certificate was annexed to the application/form filed on 16th February, 1982 for admission in 1981‑82 session. We have considered the arguments of the learned counsel and find that the same are based upon misapprehension. The material on record clearly makes out that on 10^th January,1982 (Annexure 3 to the petition) the petitioner had applied for ‑nuance of the requisite certificate for having completed 50'. training period (NCC) but as late as 10th April,1982 he was informed that the matter was till then under consideration. The NCC Training Certificate (for completing 100% period) was issued on 7th November,1982 (Annexure 8). The Certificate showing that the petitioner had completed 50% of the total training periods and was still going undergoing his remaining training course (1979‑80), was not issued until 2nd January,1983. The non‑production of the certificate was thus due to delay at the Government end though the petitioner was eligible to receive the requisite NCC Training Certificate even at the time when he for the first time had applied for admission in 1981‑82 course.

6. The petitioner thus in accordance with rule 12 of the Prospectus on 31st March,1983 applied afresh for admission in the 1st Year M.B.,B.S. 1982‑83 course, alongwith which he produced besides other requisite documents the two NCC Certificates in mentioned para 2 above. The petitioner was thus entitled to be considered for admission in the First Year M.8.,B.5 1982‑83 session he having secured 65.8% (adjusted) marks which were higher than the marks obtained by the respondents Nos. 3, 4 and 5, whose names alongwith other two candidates were forwarded on 26th December,1983 by the respondent No.2 to the Principal, Quaid‑i‑Azam Medical College at Bahawalpur for admission to 1st Year M.B.,B.S. class of 1982‑83. It however appears, that the name of the petitioner was omitted due to misapprehension on the part of the official respondents that the petitioner was not entitled to the additional 20 marks as provided by section 29 of National Guards Act, 1973 (as amended).

7. For the aforementioned reasons we hold that the petitioner was entitled to admission "in the 1st Year M.B.,B.S. Course at Quaid‑i‑Azam Medical College Bahawalpur for the sessions 1982‑83 against one of the seats reserved for Karachi", as prayed. The respondents Nos. 1 and 2 are therefore directed to act accordingly.

We may clarify that the interviews for the admission to the 1st Year M.B.,B.S. Class of 1983‑84 in Medical Colleges in Sind have already taken place and that the candidates who have applied for admission are not before us and that they or any of them cannot be deprived of admission in accordance with the rules during the current session (1983‑84). The seat of Parvez H. Rabadi, the respondent No.3 has already fallen vacant as he has joined B‑Pharmacy Course. In our opinion the interest of justice would be served if the respondents Nos. 1 and 2 give admission to the petitioner against the seat which has fallen vacant as above mentioned.

This petition accordingly succeeds subject to the observations made as above. In the circumstances of the case, the parties are left to bear their own costs.

M.B.A. Petition accepted.

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