PLJ 2008 Peshawar 249 (DB)

Present: Hamid Farooq Durrani and Syed Musadiq Hussain Gillani, JJ.

Miss KOMAL NAZIR QAZI--Petitioner

versus

KHYBER MEDICAL UNIVERSITY JOINT ADMISSION COMMITTEE, PESHAWAR through its Chairman and 8 others--Respondents

W.P. No. 1948 of 2007, decided on 28.2.2008.

Educational Institution--

----Eligibility for admission against seats reserved for backward areas as given in the prospectus--Candidate for one of the reserved seats of backward areas, having obtained education from a place outside the district/Agency of respective backward area, cannot be considered at par with those who received education from within the backward area--Amendment brought through corrigendum subsequent to issuance of prospectus for the relevant year whereby eligibility criterion of candidates was modified--Delition/abolition of seats initially provided for backward areas of NWFP through the prospectus in without lawful authority--Framers of the admission policy should have been concerned with principle rather that the consequences--Writ Petitions allowed. [Pp. 255 & 258] A & B

1999 SCMR 965, followed.

Mr. Rashid-ul-Haq Qazi, Advocate for Petitioners.

Mr. Ubaidullah Anwar, AAG for Respondent No. 3.

Syed Zafar Ali, Advocate for Respondent 8.

Respondent No. 9 in person.

Date of hearing: 6.2.2008.

Judgment

Hamid Farooq Durrani, J.--This petition alongwith connected W.Ps. 336/07, 1960/07 and 1965/07 is taken up together for decision as petitioners in all the petitions claim their admission in Medical/Dental Colleges against quota reserved for NWFP backward areas, reflected through Prospectus for the year, 2007-08 pertaining to said admissions.

Before recapitulating individual facts involved in the matters in hand, it would be useful to reproduce herein below, the allocation of quota comprising seats in different Medical and Dental Colleges in NWFP and outside NWFP:--

Category of Seats MBBS MBBS MBBS MBBS MBBS BDS BDS MBBS Total

KMC AMC SMC GMC KGMC KCD ADS BMC

NWFP Backward

Areas 0 0 0 0 0 0 0 0 0

Kohistan 2 2 0 0 0 0 1 0 5

Chitral 3 2 0 0 0 1 0 0 6

Dir Upper 1 1 0 0 0 0 0 0 2

Dir Lower 1 1 0 0 0 0 0 0 2

Gadoon 1 1 0 0 0 0 0 0 2

Amazai 0 1 0 0 0 0 0 0 1

Gadoon/

Amazai 0 0 0 0 0 1 0 0 1

Tribal Area

Adjoining

Mansehra

including

Kala Dhaka and

upper

Tanawal 1 0 0 0 0 0 1 0 2

Kala Dhaka 0 1 0 0 0 0 0 0 1

Batagram 1 0 0 0 0 0 0 0 1

Allai 0 1 0 0 0 0 0 0 1

Shangla 0 1 0 0 0 1 0 0 2

Buner 0 1 1 0 0 0 0 0 2

Kalam 0 0 1 0 0 0 0 0 1

2. It is pertinent to note that the Chancellor, Khyber Medical University approved the revised seats distribution regarding public sector Medical and Dental Colleges in NWFP on 15.9.2007. As a consequence to the said revision, the following allocation came into existence:--

NWFP

backward

areas MBBS MBBS MBBS MBBS MBBS BDS BDS MBBS MBBS Total

KMC AMC SMC GMC KGMC KCD ADS KIMS BMC

Chitral 2 2 0 0 0 1 1 0 0 6

Kohistan 2 2 0 0 0 1 0 0 0 5

Dir Upper 1 1 0 1 1 0 0 0 0 4

Dir Lower 1 1 0 0 0 0 0 0 0 2

Gadoon/

Amazai 0 0 0 0 0 1 0 0 0 1

Tribal

Area

Adjoin

-ing

Mansehra 1 0 0 0 0 0 1 0 0 2

including

Kala

Dhaka

and

upper

Tanawal

Bala Kot 0 1 0 0 0 0 0 0 0 1

Kala

Dhaka 0 1 0 0 0 0 0 0 0 1

Batagram 1 1 0 0 0 0 0 0 0 2

Allai 0 1 0 0 0 0 0 0 0 1

Shangla 0 1 1 0 0 1 0 0 0 3

Buner 0 1 1 0 0 0 0 0 0 2

Kalam 0 0 1 0 0 0 0 0 0 1

Tank 0 0 0 2 0 0 1 0 0 3

Hangu 2 0 0 0 0 0 0 1 0 3

Total 10 12 3 3 1 4 3 1 0 3

3. Miss Komal Nazir Qazi, the petitioner in W.P. No. 1948/07 has questioned the merit list for reserved seats in respect of tribal areas adjoining Mansehra, including Kala Dhaka and Upper Tanawal as she has been denied admission against the said seats. The eligibility criteria for reserved seats of backward areas of NWFP, as reflected through the Prospectus for the year, 2007-08, has also been impugned by her on the ground that the requirement of obtaining Secondary School Certificate (Matric with Science) and F.Sc Pre-Medical (Part-I and Part-II) from the District/Agency of Domicile of the candidate in order to qualify for selection against the said quota, was against the dicta of superior Courts.

The petitioner submits that she hails from Village Bajna, Tehsil Ogi, District Mansehra, which area has been declared as backward by the Government of NWFP; that no Secondary or Higher education facilities with Science subjects are available for females in the Village/backward area, from which the petitioner hails, therefore, she had to take education in Army Burn Hall School and College for Girls, Abbottabad. She secured 852 marks out of 1100 in F.Sc examination and was placed in Grade-A. She applied for admission in Ist Professional M.B.B.S. in Ayub Medical College for the Session 2007-08, appeared in the Entry Test and qualified the same by securing 505 marks out of 800. In the said manner, she was able to achieve a target of 72.56% for the purposes of admission. Resultantly, she was shown at Sr.No.2 of the merit list while one Miss Aniqa Habib stood at Sr. No. 1, however, the petitioner was treated as an OUT candidate which denoted that she was a candidate for the respective reserved quota but had received education from outside the backward area and thus did not qualify for the reserved seats.

We would like to reproduce here the criteria of eligibility for seats reserved for backward areas of NWFP as provided through the Prospectus:--

(i) The candidates must be having a valid domicile certificate.

(ii) The candidates must have obtained their Secondary School Certificate (Matric with Science and F.Sc. Pre-Medical, Part-I and Part-II) from the district/Agency of their domicile, provided such facilities exist in the area. The candidate will have to provide a solid proof of non existence of such educational opportunities in the district of domicile through a certificate duly verified by the EDO (Education) and countersigned by the DCO/Political Agent) of the concerned district/agency.

(iii) The candidates must have qualified the prescribed Entrance Test for admission to Medical & Dental Colleges in NWFP.

4. It is the case of petitioner that her name, in the revised merit list, appeared at Sr. No. 4 against reserved seats of Upper Tanawal/Kala Dhaka combined while Respondent No. 7 M. Irshad was indicated at Sr. No. 9 in the said list having scored 65.53% marks. In spite, the Respondent No. 7 was granted admission against the reserved seat in Khyber Medical College. The facility for imparting education in Science/Pre-Medical subjects to the female students in the Village Bajna was lacking, therefore, for all intents and purposes, the obtaining of requisite educational qualification from an institution in District Abbottabad could not operate as a bar to entertain the application form of the petitioner for the respective reserved seat. The petitioner has also appended certificate from District Officer (Female) School and Literacy, Mansehra certifying the fact that there was no Girls Science School in Bajna nor there was any Female Girls College inside Upper Tanawal backward area. It was, however, conceded by special attorney of the petitioner that requisite education facility for female students, imparting Science and Pre-Medical subjects, was available in Tehsil Ogi besides other places in District Mansehra. It was also not denied that Respondent No. 7 had done his SSC education from Government Girls High School, Kolika, Tehsil Ogi, District Mansehra and HSSC from Government Degree College, Ogi, Tehsil and District Mansehra.

5. The special attorney for petitioner, while arguing on her behalf, laid much emphasis on the fact that the petitioner having a Domicile of the backward area, was constrained to take her education from an area outside the District due to the reason that requisite education facilities were not available in the District of Domicile of the petitioner. In the circumstances, the petitioner was not obliged to have passed her SSC and F.Sc examinations from the District or Tehsil to which the backward area belonged. In his view, the petitioner was, for the said reason, placed in position similar to other candidates who obtained education within the backward areas where the facility of requisite education was available. It was also contended that the criteria of eligibility and the condition of having passed the requisite examinations from within the District/Agency wherein the respective backward area fell, was without lawful authority and of no legal effect. In support of his cause, the petitioner relied on consolidated judgment passed by the Hon'ble Supreme Court on 27.11.2006 in CAs. 1422 and 861 of 2006.

6. On the other hand, the official respondents contended through their written statement as well as Legal Officer appearing before the Court at the time of hearing that the petitioner was not qualified for admission against any of the seats reserved for backward areas of NWFP as she did not obtain requisite education from her respective backward area. It was further contended that the spirit of policy regarding the reserved seats for backward areas was to accommodate the socially and economically disadvantaged Sections of people. The students belonging to the backward areas were handicapped in competing with their rival candidates from developed areas, having obtained education from institutions providing better facilities in all respect. Reliance was placed on judgments of Apex Court delivered in C.A. 1596/05 (Manzoor Ahmad Qureshi Vs. Chairman Joint Admission Committee and others), C.A. 1597/05 (Arif Shah Vs. Secretary to Government of NWFP) decided on 7.3.2005, 2001 SCMR 1161 and also the judgments delivered by this Court in W.Ps 1640/04, 1682/04, 1697/04, 1726/04, 1733/04, 1757/04, 1758/04, 1763/04, 109/05, 198/05, 1786/05, 1848/05, 1862/05, 2046/05. 1/06 and 356/06.

It was further contended that the eligibility criteria for seats reserved against the backward areas of NWFP was already laid down through the said judgments, which was duly incorporated in the Prospectus of relevant year, therefore, the petitioner was not entitled to admission against the reserved seat. It was, however, conceded by the respondents that one seat in BDS at Dental Section of Ayub Medical College was still vacant against which there was no other eligible candidate from the requisite backward areas.

7. We have gone through all the referred judgments and have noticed that the eligibility criteria for reserved seats of backward areas of NWFP, as laid down and repeatedly followed through the judgments of this Court in Writ Petitions mentioned hereinabove, has not been substantially disturbed by the Apex Court through judgments subsequently delivered. Through the consolidated judgment in W.P. 1640 etc. it was held by this Court:--

"The result of aforegoing discussion is that the admissions on the seats reserved for backward areas of Gadoon, Dir Upper and Shangla shall be governed by the principles laid down in Atiya Bibi Khan's case, namely, that only such students who have passed this SSC and F.Sc (Part-I and Part-II) from their respective backward areas would be eligible for admission on the reserved seats".--------------------------------------------------------------------------------------------------------------------------------.

8. The Apex Court while deciding C.A. 1596/05 followed the judgment in Atiya Bibi Khan's case and observed in the following terms:--

"It may be noted that the condition for obtaining the Domicile Certificate from less developed areas, in view of the observation made by this Court, seems to be mandatory but at the same time there is another condition which has been imposed i.e. passing of Matriculation/SSC and Intermediate education from the less developed areas. This expression can be applied fully in those less developed areas where the facilities of Matriculation/SSC and Intermediate education are available, but in the cases where there is provision only for education upto Matriculation/SSC and no arrangement exists for providing education of F.Sc/Pre-Medical, the students of such less developed areas are bound to move to the areas which are not less developed areas but provides Intermediate and F.Sc/Pre-Medical education. In instant case, as well it is an admitted position that applicant firstly obtained Domicile Certificate from the less developed area Gadoon Amazai and secondly he passed his Matriculation/SSC Examination from Gadoon Amazai but as there was no Intermediate Science College for acquiring F.Sc/Pre-Medical Certificate he moved to District Swabi outside the Gadoon Amazai but he remained within the District which encompasses Gadoon Amazai which has been declared as less developed area. Therefore, under the circumstances we are of the opinion that the Joint Selection Committee while non-suiting the appellant should have taken into consideration this aspect of the case as well and should not have sealed the fate of the appellant for not acquiring education of F.Sc/Pre-Medical from Gadoon Amazai where no such college was situated. " (underlining is provided).

9. The above observations, in all fairness, drove the respondents to bring in the condition of obtaining education by a candidate from the District of backward area in cases where there was no facility for imparting Science/Pre-Medical subjects to the level of SSC and F.Sc within the backward area itself. In another judgment delivered in C.A. 1597/05, the Apex Court held that the doing away of condition for a candidate competing for the reserved seat of backward area in terms of requirement to have studied in that very backward area, was rightly struck down by the High Court.

10. In the light of above referred judgments, we are of the firm view that a candidate for one of the reserved seats of backward areas, having obtained education from a place outside the District/Agency of respective backward area, cannot be considered at par with those who receive education from within the backward area or concerned District in case of non-availability of requisite educational facility in the backward area. We are also of the view that the criteria of eligibility for admission against seats reserved for backward areas of NWFP as given in the Prospectus for the year, 2007-08, issued by the respondents, is in accordance with accumulative effect of judgments referred to herein above.

11. Resultantly, the petitioner is declared disentitled to preference over the other candidates, including Respondent No. 7, who have studied from within the backward area or Tehsil/District within which the respective backward area is situated. This observation shall also regulate the admission to the two seats in Fatima Jinnah Medical College, Lahore reserved for female candidates of entire backward areas of NWFP.

In the wake of the above, Miss Hina Gul and Shazia Bibi, newly impleaded respondents 8 and 9 shall be considered entitled to the admission in Fatima Jinnah Medical College, Lahore against the reserved seats subject to recommendations by the respondents in view of their respective eligibility.

We would also like to note that in the peculiar circumstances of the case when one seat in BDS at Dental College, Abbottabad is lying vacant due to non-availability of other eligible candidate from backward tribal area adjoining Mansehra including Kala Dhaka and Upper Tanawal, the petitioner shall be considered for admission against the said seat as admittedly she is a domicile holder of one of the said backward areas.

This writ petition merit disposal in the above terms.

12. In W.P. 336/07, petitioner Miss Amina Rafique has questioned the amended allocation of seats reserved for NWFP backward areas and has also claimed her entitlement to admission against one of the deleted seat originally provided in the prospectus against the area of Amazai. Similarly, in W.P. 1960/07, the petitioner Muhammad Waqar Farooqi, has impugned the slashing of two seats initially allocated in the Prospectus for backward area of Gadoon. This petitioner also claims eligibility for admission against one of the said abolished seats. In W.P. 1965/07, the petitioner Miss Sania Akhtar has brought under challenge the deletion/abolition of seat reserved for the backward area of Amazai as primarily reflected in the allocation of quota through the Prospectus.

13. The brief facts relevant in these three petitions are that all the petitioners applied for admission to various Medical/Dental Colleges in NWFP and submitted their applications to participate in the Entry Test to be conducted by the respondents for the purpose. The last date for submission of Forms was 20.8.2007 while the Entry Test was conducted on 9.9.2007. The result of Entry Test was declared on 10.9.2007. It was subsequent to the declaration of results that a Corrigendum was issued on 15.9.2007 wherein certain changes were brought about in the quota of seats reserved for backward areas of NWFP. The said changes have been reflected through the extract reproduced herein before. As a consequence to the change in policy, one seat for M.B.B.S in Ayub Medical College pertaining to the backward area of Amazai was abolished while one seat each in M.B.B.S at Khyber Medical College and Ayub Medical College, pertaining to the area of Gadoon, were also done away with.

14. It is noted that the process of admissions for the seats in Medical/Dental Colleges was started by receiving the initial applications Forms latest by 20.8.2007. The result of the candidates who appeared in the Entry Test was declared before the issuance of Corrigendum on 15.9.2007. Admittedly, the applying candidates were given to know the number of seats reserved for impugned quotas and also the terms of their respective eligibility to the said seats through the Prospectus. The Corrigendum was thereafter issued without any notice to the candidates applying against the deleted seats at a stage when the admission process was nearing completion.

In the said context it would be useful here to refer to the admission policy as provided in the Prospectus itself which in its very first paragraph declares that the Khyber Medical University reserved the right to issue Corrigendum, correction/rectification on account of typographical mistakes, however, no amendments in policy and procedure was to be made during admission process.

15. We have also resorted to the judgments of this Court delivered in writ petitions mentioned hereinabove. One of the said judgments in W.P. 1640/04 etc. also canvasses the proposition in hand. In the said cases, the amendment was brought through Corrigendum subsequent to issuance of Prospectus for the relevant year whereby the eligibility criterion of candidates was modified. This Court, while striking down the impugned Corrigendum and amendments observed in the following terms:--

"18. We have in Shamsul Alam's case set aside a corrigendum made in the prospectus by holding that no change in the rules for admission in Medical Colleges be made after the admission process had commenced. In that case reliance was placed on the observations made by the Hon'ble Supreme Court in the case of Chairman Joint Admission Committee, Khyber Medical College Vs. Raza Hassan and others (1999 SCMR 965). The Hon'ble Supreme Court had declared "even if the petitioners have power to amend or alter any rule embodied in the prospectus, such action appears to be completely ill-advised after the process of admissions had already commenced". For the admission in the session of 2004-05 entry test was held in August 2004 and results also declared in the same month. The prospectus however was issued on 25.10.2004 and admissions opened from 4.11.2004 to 8.11.2004. The corrigendum impugned in the said two petitions was published on 7.11.2004. The process of admission thus had started, to say the least, from 4.11.2004 and thus no changes should have been brought about in the admission policy after the said date. We may however observe that it would be fair that the prospectus be issued by the Health Department before the holding of entry test. Additionally the reason given by the learned counsel for the Joint Admission Committee for bringing about the impugned change, namely, that the requirement of local education enshrined in the prospectus would have resulted only in the admission of one candidate from Gadoon on the 3 reserved seats, is untenable. The framers of the admission policy should have been concerned with principle rather than the consequences. This change had been made to the detriment of the interest of students who had fulfilled the requirement in accordance with provision in the un-amended prospectus. The private respondents who had obtained their education from institutions in the developed areas were even otherwise entitled to compete on open merit seats. For these reasons the impugned corrigendum of 4.11.2004, published on 7.11.2004 is likely to be struck down on this score alone.

16. In the light of the above, we are left with no alternative but to hold that the impugned deletion/abolition of seats initially provided for backward areas of NWFP through the Prospectus, is without lawful authority and of no legal effect. We, however, would refrain from making any observation regarding the seats additionally allocated or created for the areas not originally found in the relevant portion of Prospectus for the purpose.

17. Resultantly, we order that the seats deleted/abolished through Corrigendum dated 15.9.2007 pertaining to the areas of Amazai and Gadoon shall be restored to their status and number as provided in the Prospectus for the year 2007-08. The merit list of candidates applying against the reserved quota shall accordingly be resettled/modified.

18. Admittedly, Miss Amina Rafique, petitioner in W.P. 336/07 has cleared her SSC and F.Sc examinations from District Abbottabad while Muhammad Waqar Farooqi petitioner in W.P. 1960/07 has obtained the requisite Intermediate Pre-Medical education from Peshawar. Miss Sania Akhtar, petitioner in W.P. 1965/07, had been studying at Turbela, District Haripur. The cases of these petitioners, at the time of resettling the merit list as ordered above, shall be dealt with in the light of contents of Para 10 ibid in respect of eligibility for seats allocated to NWFP backward areas.

Resultantly, these three writ petitions are allowed in the above terms.

(M.S.A.) Petitions allowed