Find a Lawyer

Writ Petition No. 22 of 1985, decided on 26th February, 1986.

---Art. 199--Educational institution--Admissions in Medical Colleges against reserved seats--Prospectus containing that no candidate would be given admission after six weeks of commencement of session--Admission against reserved seat however allowed to candidate on reserved seat after six weeks of commencement of session--On cancellation of his domicile and on purposely staying back by next candidate, petitioner becoming second next candidate eligible for admission against reserved seat but Principal refusing to allow him admission on ground that more than six weeks had passed after commencement of session--Petitioner had applied for admission in time and he was deprived due to fraud played by first candidate who obtained domicile, by practising fraud, which was later on cancelled--Principal who did not abide by rule of prospectus in case of first candidate while admitting him after six weeks of commencement of session, held, could not enforce said rule in case of petitioner whose application was still pending for admission against reserved seat which had thus fallen vacant- issued to Principal to vacant--Writ of mandamus admit petitioner.--(Educational institutions).

- ---Art. 9--Discretion--Exercise of, must be real--Bad faith, dishonesty, unreasonableness disregard of public policy and things like that referred to according to facts of individual cases, held were matters relevant to question--Court would interfere if a decided on a competent matter was so unreasonable that no reasonable authority could ever had come to it.

-Admission in professional colleges against reserved seats of backward area--Matters to be taken into consideration for admission stated Candidates entitled to admission against such seats not to be suffer due to made to technicalities and intricacies of prospectus with no statutory force behind it.

1979 S C M R 1018(2) rel.

Abdullah Jan Mirza and M.M. Idris for Petitioner.

Haji Muhammad Rafiq for Respondent.

Date of hearing: 10th February, 1986.

ABDUL KARIM KHAN KUNDI, J.‑‑One Faizanullah, another Tayab and third Muhammad Salim Khan, the petitioner had applied for admission in the Ayub Medical College against the reserved seat of Kala Dhaka for the session 1984‑85. Faizanullah being on the top was allowed admission which was challenged by the petitioner in Writ Petition No‑2/85 on ground that he was not the bona fide domicile of Kala Dhaka, District Mansehra and accordingly prayed that his name be struck of the roll and instead he be admitted against the seat as he was the only eligible candidate left in the field because Mr. Tayab the second candidate had purposely stayed out of the contest for admission. Pending his writ petition the Deputy Commissioner, Mansehra cancelled the domicile of Faizanullah on 12‑3‑1985 and learning about the cancellation, the petitioner immediately applied to the Principal Ayub Medical College on the same day for his admission against the reserved seat. Petitioner also claimed that the responder had assured him that his stand was justified and that he would get the admission against the reserved seat. Petitioner had withdrawn from his writ petition in order to approach the concerned authorities for admission against the vacant seat. On cancellation of his domicile certificate the respondent had struck of the name of Faizanullah from the College Rolls on 24th of March, 1985 but did not admit the petitioner against the reserved seat having thus fallen vacant mainly on the pretext that no student could be admitted after a lapse of six weeks of the start of the session which instantly commenced on 31‑10‑1984. Petitioner approached the Minister for Health in the Government of N.‑W.F.P. but his recommendation also did not materialize and before whom the respondent had forwarded the same plea that according to the prospectus of the College admissions were to close automatically six weeks after the start of the session and that no student could be admitted thereafter even if a seat falls vacant. Petitioner was obliged to approach this Court once again in a writ petition stating that the pretext of the respondent that no student could be admitted after a lapse of six weeks as an unreasonable and unfounded excuse and also discriminatory because Faizanullah himself was admitted on 15‑1‑1985, much after the lapse of six weeks of the commencement of session on 31‑10‑1984. He further stated that the College remained closed for winter vacation from 5th of December, 1984 to 5th of March, 1985 and that the session factually started on the re‑opening of the College after the winter vacation. He stated that he had applied for admission on 12th of March, 1985 only a week after the reopening of the College after the winter vacation immediately on the cancellation of the domicile certificate of Faizanullah and that the refusal of the Principal was unjustified both on factual and legal ground. He claimed that the Principal had no lawful 'authority in the circumstances to register refusal in the matter of the admission of the petitioner.

2. We heard Mirza Abdullah Jan, Advocate assisted by Mufti Muhammad Idris, Advocate for the petitioner and Muhammad Rafique Awan, Advocate for the respondent. At the outset we were referred to 1979 S C M R 1018(2) that prospectus was not a statutory document and that it has not been framed rather approved by any legislature and that even it was not known if the legislature was ever informed of its existence. That being the position the prospectus shall not have any statutory sanction. It is nothing more than an offer for admission in the College under certain conditions. The respondent was to perhaps lay his‑‑entire emphasis on the prohibitory provisions contained in the prospectus in not allowing admission to the petitioner after a lapse of six weeks of the commencement of the session for misapprehension ors his part that his act would be violative of a statute. His apprehension, however, does not appear genuine, sanguine and reasonable for even Faizanullah was allowed admission against the reserved seat on 15‑1‑1985 much after the lapse of six weeks of the commencement of the session. Again the College had remained closed for winter vacation from 5th of A December, 1984 to 5th of March, 1985. Faizanullah's domicile was cancelled on 12th of March, 1985 and he had thus attended the classes only for a week after the reopening of the College after winter vacation and in the circumstances the respondent should have been equally gracious

enough to allow admission to the petitioner against the reserved Seal having thus fallen vacant but for his insistence that he could not allow admission to the petitioner because a period of six weeks had since elapsed to the commencement of the session.

3.Again it was also the petitioner who had challenged the admission of Faizanullah who had played a fraud on the Deputy Commissioner Mansehra, Principal Ayub Medical College and the petitioner is obtaining a bogus domicile certificate of Kala Dhaka, District Mansehra and getting admission in the Ayub Medical College on its strength and depriving the petitioner, a bona fide resident of the place of his lawful right of admission in the college against the reserved seat. In case the domicile n certificate of Faizanullah was later on found bogus and his admission was canceled petitioner should not be made the sufferer for the fraud played by third person. He has applied for admission in time but was deprived of his lawful right on account of a fraud of Faizanullah. In fact this is not a case of late applying for admission and his application for admission shall be deemed pending with retrospective entitlement) for admission.

4. . It is contended that there was vesting a discretion in the respondent to allow or not to allow admission to the petitioner against the reserved seat after the lapse of a period of six weeks of the commencement of the session and since the respondent has exercised his discretion in the larger interest of the institution, hence the Court is not supposed to issue a writ of mandamus obliging the respondent to allow admission to the petitioner when the session of 1984-85 has since ended and the petitioner is only attending the classes through the interim order of the Court necessarily, at present the classes of session 1985-86 when against the reserved seat of Kala Dhaka for the session 1985-86 the petitioner has neither applied and another candidate had since been admitted against the reserved seat. There are, however, certain well-understood principles which the Court looks to in considering any question of the exercise of discretion. The exercise of a discretion must be a real exercise of discretion. Bad faith, dishonesty, unreasonableness, disregard of public policy and things like that referred to according to the facts of individual cases have been acknowledged as matters which are relevant to the question. Courts have to interfere) if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it.

5. In the instant case the respondent has been found unreasonable throughout in dealing with the matter of admission of the petitioner. He did not abide by the so-called rule of the prospectus not to admit F student after the lapse of six weeks of the commencement of the session in case of Faizanullah. The moment the domicile of Faizanullah was cancelled on 12th of March, 1985 when he had hardly attended the; classes for a week the respondent was supposed to offer the reserved) seat to the next candidate i.e. Mr. Tayab and in his absence to the petitioner and since Mr. Tayab was out of the field he was to accommodate I the petitioner against the reserved seat who had also applied for admission once again on 12-3-1985 against the reserved seat having fallen vacant

The respondent's unwarranted rigidity caused a loss of one academic year to the petitioner which he is prepared to sustain if he is deemed admitted against the reserved seat in session 1984-85 and for one reason or the other i.e. for non-completion of the requisite attendance etc. he is deemed to have failed and is permitted to continue his studies of the first year M. B.,B.S. in the current session of 1985-86 of which, rather earlier, he is regularly attending the classes under the interim order of this Court.

6. In fact in the professional colleges it is the admission which matters and the students may or do fail during the course of their studies but they stay on the roll of the college and ultimately qualify the professional tests and exams. The authorities have further to be I considerate enough in case of admission against the reserved seats of backward areas that candidates entitled to admission against such seats i are not made sufferers due to the technicalities and intricacies of, prospectus with no statutory force behind it.

7. In view of what has been stated above we would accept this writ petition, issue a writ of mandamus to the respondent to admit the F petitioner in the Ayub Medical College in first year M.B.,B.S. and to consider him admit to against the vacant seat reserved for Kala Dhaka District Mansehra in the session 1984-85. We would make no order as to costs.

M . Y . H .

petition accepted .

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.