PLJ 2010
Present: Qazi Faez Isa, CJ and Syeda
Tahira Safdar, J.
NOROZ KHAN--Petitioner
versus
SELECTION COMMITTEE through its Chairman
Balochistan Public Service Commission Quetta and 3 others--Respondents
C.P No. 86 of 2009, decided on
24.12.2009.
Education Institutional--
----Bolan Medical College Prospectus
2008-09--Para 32--Petitioner applied for admission to MBBS Programme against
reserved seats--Question of entitlement--Petitioner admittedly had two local
certificates of two different districts--One local certificate having not been
got cancelled within stipulated two years period as per requirement of
Paragraph 32 of the College Prospectus, he was not entitled to get admission in
Bolan Medical College even if he had more marks than the respondents--Petition
was dismissed.
[Pp.
28 & 29] A
Mr. Muhammad Aslam Chishti, Advocate for
petitioner.
Mr. Ghulam Mustafa Buzdar, Advocate for
Respondent No. 3.
Mr. Rauf Atta, Advocate for Respondent No
4.
Mr. Nasrullah Achakzai,
Additional Advocate General for State.
Date of hearing: 17.11.2009.
Judgment
Qazi Faez Isa, C.J.--The petitioner
applied for admission to Bolan Medical College Quetta ("College")
against one of the four reserved seats for District Gwadar to the MBBS
Programme in August, 2008 for the Academic Session 2008-09. The petitioner
stood at S.No. 4 as per the result of the Pre-Entry Test.
The petitioner however was not given admission on the reserved seat and as to
Respondent No. 3 Miss Raeesa Aziz, who on the pre-entry test having obtained
43.640 marks against 43.843 marks of the petitioner instead obtained admission.
The College came to the conclusion that the petitioner was not entitled to get
admission on the reserved seat in terms of paragraph 32 of the College
Prospectus 2008-2009, ("Prospectus"). Paragraph 32 of the Prospectus
reads as under:
"A candidate or his/her father/
mother/guardian as the case may be found in possession of two or more
local/domicile certificates issued by competent authority of different
Districts/Agencies in the time of applying for admission, shall not be
considered for admission against the seats of any District/Agencies for which
he or she has applied. Such cases can be considered as a special case only if
he or she or the parents/guardian inform the committee at the time of admission
and that too have got cancellation of their certificates at least two years
before applying for admission in Bolan Medical College, Quetta, if such cases
not mentioned at the time of admission will be de-seated without any notice and
will not be eligible for admission in future for at least three coming years.
And he or she has no right to appeal in any Court of law."
2.
The Selection Committee determined in the light of paragraph 32 of the
Prospectus that the petitioner is not entitled to get admission on the reserved
seat for District Gwadar. The decision of the Selection Committee in this
regard is reproduced as under:
"The Selection Committee went
through the report of EDO Revenue Gwadur dated 15.12.2008 Mr. Noroz Khan S/O
Abdullah of District Gwadur [Gwadar) at S.#04 on merit
list is holding in two locals at one time i.e. Local of Gwadur as well as Local
of Kech, therefore under Clause 32 of the College Prospectus 2008-09 his
candidature stand rejected against reserved seat of District Gwadur and the
next eligible candidate be admitted in Bolan Medical College, Quetta during the
academic session 2008-09."
3.
Not being satisfied with the said decision the petitioner approached the
Chief Minister of Balochistan, who referred the matter for reconsideration by
the Selection Committee. However, the Selection Committee unanimously
maintained its earlier decision. The said decision is reproduced as under:
"The Principal, BMC placed before
the Selection Committee the case of Noroz Khan S/o Abdullah resident of
District Gwadar on the direction of Hon'ble Chief Minister as envisaged in his
letter No. PS-CM/1-1/2008/1781 dated 22/01/2009. The
case was discussed by the Selection Committee and all the Members were of the
unanimous view that the previous decision of the Selection Committee stands
correct and rejected Mr. Noroz Khan S/o Abdullah candidature for admission
according to Para No. 32 of the Prospectus 2008-2009."
4.
Being aggrieved by the decisions of the Selection Committee of the
College the petitioner filed the instant petition and sought the following
reliefs:--
"(i) declare
that decision of Selection Committee rejecting candidature of petitioner
(originally as well as on reference from the Chief Minister) is illegal and
without lawful authority
(ii) declare that
(iii) As
a consequence of the above declarations, admission of 3rd respondent in place
of petitioner was unlawful"
5.
Mr. Muhammad Aslam Chishti, learned counsel for petitioner however did
not address any arguments on the alleged un-reasonability of paragraph 32 of
the Prospectus. He simply maintained that paragraph 32 does not come in the way
of the petitioner. In this regard learned counsel stated that whilst admittedly
the petitioner held Local Certificate of District Kech but on his request the
same was cancelled on 29.8.2007 and on the day the petitioner submitted his
application he held only one Local Certificate that of District Gwadar.
6.
On the other hand Mr. Ghulam Mustafa Buzdar, learned counsel for the
private respondent Miss Raeesa Aziz opposed the petition on the following
grounds:--
(i) the application, submitted by the petitioner to the
Executive District Officer (Revenue) District Kech for cancellation of the
petitioner's Local Certificate, stated that the petitioner intended to move to
District Gwadar;
(ii) that the petition was based on mala fides as Local
Certificate was obtained simply for obtaining admission;
(iii) petitioner concealed the facts that he held two Local
Certificates and even if the Local Certificate in respect of District Kech was
cancelled on 28.9.2007 the petitioner was required to disclose the same in
terms of paragraph 32 of the Prospectus;
(iv) the
second sentence of paragraph 32 of the Prospectus created an exception, but the
same was not attracted to the case of petitioner since the cancellation of
Districts Kech Certificate was required to have been cancelled at least two
years prior to applying for admission;
(v) paragraph 32 of the prospectus provided for penal
consequences if disclosure was not made and as such the provisions thereof were
mandatory; and
(vi) the Chief Minister had no authority to require the Selection
Committee to reconsider its earlier decision.
7.
He also placed reliance on the case of Kishwar Rehman v. Government of
Balochistan, PLD 2001
"Object of reserved seats for
various districts in professional college appears to give legal protection to
the students of backward area in order to bring them at par with the developed
area of the country. This departure from merits has a Constitutional protection
in case of educational institutions financed by the Government. So, this object
would certainly be defeated if the students who are not permanent/genuine
residents of the districts, manage the certificates and get admission."
8.
Mr. Nasrullah Achakzai, learned Additional Advocate General, supported
and adopted the arguments of Mr. Ghulam Mustafa Buzdar, learned counsel for
Respondent No. 3.
9.
Admittedly in August, 2008, when the petitioner applied to the College
for admission, he as per his own showing had held a local certificate of
District Kech. The local certificate of District was got cancelled on
29.8.2007, whilst the local certificate of District Gwadar annexed with the
petition is dated 17.2.2007. Accordingly, it is clear that the petitioner held
two local certificates of two different districts for the period 17.2.2007 till
29.8.2007. Even if the petitioner had got one certificate cancelled it would
not entitle him to apply on the reserved seats of a particular district, since
the requirement of the College in this regard was three fold; Firstly the local
certificate of one district should have been cancelled, "at least two
years before applying", secondly, the petitioner was
required to so "inform the
Committee at the
time of admission" and, thirdly, the exercise of
the discretion by the committee was by way of `special case' and not as of
right. Therefore, since the stipulated two years had not expired and the
Committee had not been informed about, the petitioner holding two certificate,
the exception by way of `special case' provided in paragraph 32 of the
Prospectus was not attracted. The Selection Committee in rejecting the candidature
of the petitioner on the reserved seat of district Gwadar, therefore, committed
no illegality. Accordingly, the instant petition is dismissed, but with no
order as to cost.
(A.A.) Petition
dismissed.