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Civil Petition for Special Leave to Appeal Nos. 325, 344 and 333 of 1985, decided on 11th November, 1985.

‑‑‑Art. 185(3)‑‑Educational institution‑‑Vires of statute‑‑Admission in Medical Colleges‑‑Provincial Government framing rule to deduct ten marks for each additional attempt made by a candidate to pass or improve his marks in Intermediate/ B.Sc. Examination‑‑Students denied admission on this ground challenged vires of Rules‑‑High Court holding that Government had right of laying down policy and if it chose to do so and there was no law on subject which it offended, it was not right of any Court to throw it out, other than to hold, in any genuine case, that same was unreasonable or arbitrary‑‑Governments decision being in broader interest of students, neither arbitrary/ malicious, nor enforced clandestinely, upheld in Intra‑Court Appeal‑‑Supreme Court agreed with views taken by High Court and refused leave to appeal.‑‑[Educational institution].

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. I, r. 3‑‑Necessary parties‑‑Failure to implead necessary party fatal for case‑‑Petitioners denied admission in Medical College‑‑Order challenged in writ jurisdiction without impleading those students who were to be affected if petitioners were to succeed‑‑High Court held,, that petitioners were not entitled to seek relief without impleading those who were to be affected even though Court, held, that their admissions were not to be disturbed‑‑View upheld by Supreme Court‑‑Leave to appeal refused.

University of the Punjab v. Shahid Nasir 1982 P S ‑C 456 ref.

Ch. Muhammad Ashraf Azeem, Advocate Supreme Court with Ch. Mehdi Khan Mehtab(Advocate‑on‑Record for Petitioners (in C.P.S.L.A. 325 of 1985).

Nemo for Respondents

Syed Afzal Haider, Advocate Supreme Court for Petitioner (in C.P S.L.A. No. 344 of 1985).

Nemo for Respondents.

Ch. Muhammad Ashraf Azeem, Advocate Supreme Court with Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner (in C.P.S.L.A. No. 333 of 1985).

Nemo for Respondents.

Date of hearing: 11th November, 1985.

‑‑These three petitions for leave to appeal from the consolidated judgment of a Division Bench of Lahore High Court, dated 19‑1‑1985 allowing Inter‑Court Appeals of respondents and in result setting aside a common judgment of a learned Judge of the same High Court.

Facts briefly stated are that all' the three petitioners after qualifying themselves in F.Sc. (Pre‑Medical) Examination applied for admission in Medical Colleges in the Punjab for the academic year 1983‑84. For that academic year, the Provincial Government framed a new rule Nr' to the effect that 10 marks were to be deducted from the total marks for each extra chance availed in the case of students failing, taking examination in part or attempting to improve marks in F.Sc./B.Sc. Examination". Petitioners fell in this category, therefore, they were refused seats in the Medical Colleges. Their challenge to the order of refusal of admission in the Medical Colleges in Constitutional Petitions filed by them in Lahore High Court succeeded before a learned Judge of the High Court, but on Inter‑Court Appeals filed by respondents learned Judges of the Division Bench set aside the judgment of the learned Single Judge as stated earlier.

Several pleas were raised by the petitioners against the order of refusal of their admission in the Medical Colleges including challenge to the vires of the rules, and that petitioners were not aware of the aforesaid rule as it was printed in the Prospectus afterwards. All these pleas have been dealt with exhaustively by the learned Judges of the Division Bench of the High Court and rejected for cogent and proper reasons. Rustam S. Sidhwa, J. who wrote the leading judgment inspected the files of the Provincial Governments and that of the Chairman of the Admission Board and he has made the following observations in his judgment.

"(I) It does not find anything therein to indicate that this decision was taken maliciously or was enforced clandestinely. It was taken in the broader interest of the students and, in particular, to give an edge to students who were competitively quicker in their approach, over those who were less so. In favour of this view, it can be said that students who complete their F.Sc. or B.Sc. Examinations within a specified period, but without taking it in parts, are more keener, intelligent and have quicker grasp, over those who take it in parts, or through extra chances, or by re‑appearing to improve their marks. Against this view, it can be stated that students who are very keen to join the medical profession and have stretched their studies over a longer period of time to improve their marks, their patience and perseverance should not be permitted to be sacrificed at the alter of illusory precariousness. Whatever be the thinking on either side, the Government has the right of laying down the policy and if it chooses to do so and there is no law on the subject which it offends, it is not the right of any Court to throw it out, other than hold, in any genuine case, that the same is unreasonable or arbitrary."

while agreeing with these observations added:

"I also agree with my learned brother that the decision of the Provincial Government to deduct ten marks for each additional attempt made by a candidate to pass or improve his marks in the Intermediate Examination is not arbitrary. A candidate who applies for admission on the basis of the marks obtained by him in his very first attempt cannot be equated with a candidate who has applied for admission on the basis of marks obtained in two or more attempts; consequently, while comparing the merit of the two the former must be given an edge. That being the position the direction given by the Provincial Government that in assessing merits of the candidates ten marks should be deducted for each additional attempt made to pass or to improve the marks cannot be described as arbitrary."

The additional reasons on which learned Judges held that petitioners were not entitled to seek relief was that they had not impleaded students who were to be affected if they were to succeed. In this behalf learned Judges of the Division Bench referred to the decision of this Court in University of the Punjab v. Shahid Nasir 1982 P S C 456. In the words of Rustam S. Sidhwa, J. "these students who will be affected, were not before the learned Single Judge and had no opportunity to defend their case. It is not sufficient to relieve them from their right of defence by merely holding that their admissions will not be disturbed. Before the learned Single Judge they had a right to urge that the rule was properly applied and if it was so held they would have succeeded. If they had succeeded, then they would have had a legal right to stay and not any secondary right to fall back on the mercy of the College authorities or the directions of the High Court to permit them to continue their studies on compassionate grounds. In the absence of necessary parties, it is not possible for this Court, which is bound by strict rules of practice and procedure, which the law of the land and (sic) relief in favour of any person. It was the duty of the respondents to have impleaded in their writ petitions all the other students who would have been affected. This failure is fatal to their case."

We have heard the learned counsel for the petitioners in the light of the record before us. We wholeheartedly agree with the views of the learned Judges of the Division Bench of the High Court and find no merit in these petitions. These are, therefore, dismissed.

M. I. Petitions dismissed.

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