Full Judgment Text & Judicial Ruling

1988 M L D 1107

1988 M L D 1107

[Karachi]

Before Saleem Akhtar and Allahdino G. Memon, JJ

AZAM KHAN‑‑Petitioner

versus

PRINCIPAL, DOW MEDICAL COLLEGE AND CHAIRMAN, ACADEMIC COUNCIL, SELECTION COMMITTEE, DOW MEDICAL COLLEGE and 3 others‑‑Respondents

Constitutional Petition No.D/96 of 1988, decided on 29th March, 1988.

Educational institution‑‑---

-‑‑‑Medical Colleges‑‑Admission in M.B.,B.S. Class‑‑Eligibility of candidate‑ Candidate was included in waiting list at No.2 after filling required seats in M.B.,B.S. Class‑‑After completion of admission, two seats fell vacant as two students were expelled from Medical College‑‑Candidate thereafter duly applied for admission before expiry of 1st academic year as a candidate falling at No.2 in waiting list, but admission was refused on two grounds, firstly, that candidate had already been admitted in B.D.S and had attended class there, secondly, that Rule 5 of Prospectus for year 1986‑87 regulating admission in M.B.,B.S. Class had been amended‑‑Alleged amendment in Rule 5 of Prospectus having been made for year 1987‑88 and not for year 1986‑87 which had not retrospective effect, candidate's case, held, would be governed by Rule applicable at time when application for admission (for year 1986‑87) was made‑‑No bar existed in that Rule that if candidate in waiting list had been given admission in B.D.S. Class; then he would not be considered for admission against seat fallen vacant during 1st academic year‑‑Candidate was entitled for admission in M.B.,B.S. Class against vacant seat in circumstances.

Turab Ahmad for Petitioner.

Abdul Raheem Kazi, Addl. A: G. for Respondents Nos.1 to 3.

Rehanul Hassan Farooqui for Respondent No.4.

Date of hearing: 29th March, 1988.

JUDGMENT

SALEEM AKHTAR, J.‑‑The petitioner had applied for admission in the Medical College for the year 1986 ‑87 in the First Year M.B.,B.S. Class. In October, 1987 the respondent No.1 announced the names of 328 candidates who were selected for admission in Medical Colleges on merits. In that list the name of the petitioner appeared at serial No.365 and was included in the waiting list. It may, however, be mentioned that he was granted admission in B.D.S. Class in the first year. It has been alleged that the candidate on the waiting list upto serial NO‑363 have already been admitted in different Medical Colleges therefore his number on waiting list is No.2. On 22nd December, 1987 the Principal and Chairman Academic Council, Sind Medical College expelled two students from the First Year M.B.B.S. Class of Academic Session of 1986‑87 and therefore, two seats fell vacant. The petitioner applied for admission as he was No.2 on the waiting list. Such application was made on 30th December, 1987 but no reply was received, therefore, a legal notice dated 4th January, 1988 was served. As the respondents did not reply the petition was filed on 30th January, 1988. After the petition was filed the respondent No.3 sent a reply dated 10‑2‑1988 in which it was stated that admission in Medical Colleges, in Sind is made on merit basis and as his request was not covered under the rules, the same could not be acceded to. The petitioner claims admission in the vacant seat on the basis of rule 5 of the Prospectus issued for the year 1986‑87 which reads as follows:‑

"5. The seats which remain vacant at the time of selection shall be filled by admitting the next candidate on merit from the same district. If the boys' seat remains vacant in a district, it will be filled in by the girl candidate of the same district and vice versa. If the seats still remain vacant the same shall be filled in by consideration of candidates on combined merit from the tagged district allocating boys' seats to boys and girls' to girls.

In case a seat falls vacant during Ist academic year of admission, the same shall be filled in by adopting the aforesaid procedure.

Explanation.‑‑ For the purpose of this para. the Ist academic year means the period between the date of the commencement of the first year class and the date bf promotion of that class."

It is the case of the petitioner that earlier seats which had fallen vacant have been filled in by the candidates from the waiting list whose numbers were prior to the petitioner. In the counter‑affidavit filed on behalf of the respondent No.3 it has been stated that as the petitioner has been given admission in B.D.S. and he has attended the classes he is not entitled to be admitted against the vacant seat. It has further been stated that as rule 5 has been amended the petitioner cannot claim the vacant seat.

A perusal of rule 5 will show that it contemplates two situations, one when the seats remain vacant at the time of selection which are to be filled in by the candidates on merit basis from the same district. Such candidates are none else but these who are on the waiting list. The second situation contemplated by the rule is in which vacancy occurs during the first academic year which is also to he filled in the same manner. It has been explained that first academic year will start from the date of commencement of the class and the date of promotion of that class. The petitioner's case falls in good second category as admittedly the first year class has not yet been promoted. There is no bar in this rule that if any candidate in the waiting list has been given admission in B.D.S. Class then he cannot be considered for admission against the vacancy which falls during the First Academic Year.

Now coming to the contention that the rule has been amended, it may be pointed out that the amendment was made in the Prospectus of Medical Colleges of Sind for the year 1987‑88. Rule 5 for the year 1987‑88 is in the following terms:‑

"5. The seats which remain vacant at the time of selection shall be filled in by admitting the next candidate on merit from the same district. If the boys' seat remains vacant in a district, it will be filled in by the girl candidate of the same district and vice versa. If the seats still remain vacant the same shall be filled in by consideration of candidates on combined merit. from the tagged district allocating boys' seats to boys and girls seats to girls.

In case a seat falls vacant during first six months of academic year of admission the same shall be filled in by adopting the aforesaid procedure. Any seat falling vacant thereafter shall not be filled and shall stand forfeited.

Explanation:‑ For the purpose of this para. the 1st academic year means the period between the date of the commencement of the first year class and the date of promotion of that class."

In fact this is not an amendment of Rule 5 of the prospectus for the year 1986‑87. This rule has been introduced in the prospectus for the year 1987‑88 and has no application to the prospectus for the year 1986‑87. Even otherwise the rules contained in the prospectus for the year 1987‑88 cannot be applied retrospectively for the year 1986‑87. The petitioner's case will be governed by the rules which were applicable at the time when applications for admission for the year 1986‑87 were invited.

We are clearly of the view that the petitioner is entitled to admission against the vacant seat for which no other person whose number was above the petitioner's position in the merit waiting list has claimed. We, therefore, declare that the petitioner is entitled to admission against the vacant seat in the First Year M.B.,B.S. Class for the year 1986‑87 in the Sind Medical College, Karachi and direct the respondents to admit him in this class. There will be no order as to costs.

H.B.T./A‑330/K Petition accepted.

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