PLJ 2009 SC 448

[Appellate Jurisdiction]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan &

Ch. Ejaz Yousaf, JJ.

Miss AMINA RAFIQUE--Petitioner

versus

JOINT ADMISSION COMMITTEE KHYBER MEDICAL UNIVERSITY

and others--Respondents

CPLA No. 312 of 2008, decided on 5.5.2008.

(On appeal from the judgment dated 28-02-2008 passed by the Peshawar High Court, Peshawar in W.P. No 336/07)

Educational Institution--

----Admission on reserved seat--Admission in MBBS at Khyber Medical College--Denial of admission--Abolishment of reserved seat--No facility was available at the area--Restoration of reserved seat by High Court--Qualification of petitioner outside the area--Question of--Requirement of study in the area--Validity--Held: Petitioner possesses the domicile of village District Haripur, which is a declared backward area but due to no-availability of requisite education facilities in that area she had to get admission in the Army Burn Hall College for girls--It was mandatory for the candidates to have obtained their Matric with Science and F.S.C Pre-Medical from the district/Agency of their domicile, but the proviso tagged to the main provisions makes it abundantly clear that the requirement was subject to the availability of the facility in the area, meaning thereby that when no facility was available in the said area the candidate could not have been disqualified for not fulfilling/complying with the criteria. [P. 452] A & B

2005 SCMR 340, Ref.

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

Mr. Rooh-ul-Amin, ASC for Respondents No. 1, 4, 5, 6.

Qari Abdul Rashid, ASC for Respondent No 3.

Mr. Sartaj Ali Shah, Admn. Officer for Respondent No. 2.

Mr. M Nasir Mahfooz, ASC for Respondent No. 9.

Date of hearing: 5.5.2008.

Judgment

Ch. Ejaz Yousaf, J.--This civil petition for leave to appeal is directed against the judgment dated 28.2.2008 passed by the Peshawar High Court, Peshawar whereby Writ Petition No. 336 of 2007 filed by the petitioner, along with other connected petitions, was allowed with the observation that eligibility for admission in MBBS would be subject to qualifying SSC and F.Sc. examination from the backward area of the domicile.

2. Brief facts of the case, as gathered from the available record, are that the petitioner belonged to village Kaya, Utmazi, Tehsil Ghazi, District Haripur, a backward area declared by virtue of the Governor General Order No. 1 of 1952. It is the case of the petitioner that since no education facility was available for girls in the area, therefore, the petitioner under compulsion had to take admission in the Army Burn Hall College for Girls, Abbottabad and qualified her Secondary School Certificate Examination by obtaining 699 marks out of 850 with Grade-A-1 and F.Sc. Pre-Medical Examination securing 834 marks out of 1100 with Grade-A. In consequence of press publication reflected in "daily News" and the "daily Mashriq", she applied for admission in first professional MBBS, for the session 2007-2008, in the Ayub Medical College, Abbottabad, against one reserved seat for the backward area of Amazai. In addition, she also opted for competing against one seat of BDS in the Khyber College of Dentistry, Peshawar, in case she was not selected for admission in MBBS. The Respondents No. 7 to 9 also applied for admission in MBBS against the reserved seat of Amazai. The petitioner was asked to appear in the entry test conducted on 9.9.2007. She cleared the entry test and was accordingly shown at Sr.No. 7 as an applicant for one seat of BDS in the Khyber College of Dentistry, Peshawar, against the seat reserved for combined area of Gadoon and Amazai, however, she was not considered for admission in MBBS at Ayub Medical College, Abbottabad, as first priority. In meeting held on 15.9.2007 under the chairmanship of the Chancellor certain changes were brought in the quota of reserved seats and the seat reserved for admission in MBBS at Ayub Medical College, Abbottabad, pertaining to backward area of Amazai, was abolished. The petitioner challenged the denial of admission in the MBBS at Khyber Medical College, Abbottabad as well as the corrigendum No. SOS.IV/2-18/KMU/Reserved Seats dated 5.10.2007, whereby, reserved seat for Amazai was abolished, before the Peshawar High Court, Peshawar, through Writ Petition No. 336 of 2007 which was accepted vide impugned judgment and the abolished seat reserved for admission in MBBS was ordered to be restored. However, it was observed in Para 10 of the judgment that the candidates having obtained education from a place outside the district/agency of respective backward area could not be considered at par with those who received education within the backward area or concerned district in case of non-availability of requisite educational facilities in the backward area. The relevant extract from the impugned judgment is reproduced herein below for ready reference:--

"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."

"18. Admittedly, Miss Amina Rafique, petitioner in W.P. 336/07 has cleared here 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 area."

Being dissatisfied with the above observation the petitioner has challenged the said judgment through this petition.

3. Mr. Rashid-ul-Haq Qazi, learned counsel for the petitioner has contended that the petitioner is eligible for admission in the first professional MBBS at Ayub Medical College, Abbottabad against the seat reserved for backward area of Amazai because there was no educational facility available for girls in village Kaya, Utmanzai, Tehsil Ghazi, District Haripur as such under compulsion she had to take admission in Army Burn Hall College for Girls, Abbottabad. In this regard he produced the certificate issued by the District Officer Schools and Literacy Haripur, countersigned by the D.C.O., Haripur certifying that no Girls Primary School/Middle School or High School exists in the Utmanzai area, District Haripur. He further contended that Respondents No. 7 to 9 are not eligible for admission against the said reserved seat for the reason that Respondent No. 7 does not belong to Amazai or Utmanzai areas, rather he belongs to village Galli, situated in Amb (former Amb State) which is a settled area. Further, the said Respondent has obtained fake domicile certificate from Amazai area, against which a complaint has already been filed by the petitioner before the District Co-ordination Officer, Haripur, for necessary action. Respondent No. 8 although belongs to Amazai backward area but failed to fulfill the requisite condition of having obtained the education of SSC and FSc from the backward area, when this facility was available in the backward area, particularly in his village Nara, Amazai. To supplement his contention he produced certificate issued by the D.O. (M) Schools and Literacy, Haripur countersigned by DCO, Haripur, stating that the Government High School, Nara Amazai, was established in 1962 and was upgraded in 1984. He also produced the list of students of Science Group appeared in SSC examination from Government High School, Nara Amazai, issued by Controller of Examination, Board of Intermediate and Secondary Education, Abbottabad. He further contended that Respondent No. 9 is also not eligible for admission on reserved seat because she does not belong to backward area of Amazai as she belongs to village Charbagh, District Swabi, which does not fall in either backward area of Amazai or District Haripur. In support of the contention he produced report of the D.O.R & E of Swabi stating therein that the Respondent No. 9 was born at Charbagh Chaknodeh, Tehsil and District Swabi, and her parents were residing at Charbagh since 50/60 years. Further, her domicile certificate of Amazai was also cancelled by the District Officer Revenue & Estate/Collector, Haripur, vide order dated 22.3.2008. He further contended that none of the Respondents No. 7 to 9 have challenged the corrigendum for abolishing one seat reserved for the backward area of Amazai for admission in MBBS, therefore, they are not entitled to contest the seat restored by the High Court through the impugned judgment. He maintained that the petitioner is fully eligible for one reserved seat of Amazai area on the basis of entry test merit and eligibility as she stands at a higher pedestal than Respondents No. 7 to 9 but she was illegally refused admission in MBBS first professional for the session 2007-2008. In support of his contentions he relied upon the cases of Arif-ur-Rehman v. Govt. of NWFP through Secretary Education (2005 SCMR 340); and an unreported case decided by this Court, titled Bilal Khan Tanoli v. Joint Admission Committee, Ayub Medical College (Civil Appeal No. 1422 of 2006).

4. Learned counsel for the respondents, on the other hand, while controverting the contentions raised by the learned counsel for the petitioner have contended that the petitioner was not qualified for admission against any of the seats reserved for backward areas as she did not obtain requisite education from her respective backward area. He further contended that the spirit of the policy regarding the reserved seat for backward area was to accommodate the socially and economically disadvantaged sections of the society who were handicapped in competing with their rival candidates from developed areas, having obtained education from institution providing better facilities in all respect. In this behalf reliance was placed on an unreported judgment delivered in the case of Manzoor Ahmad Oureshi v. Chairman Joint Admission Committee KMC & others (C.A. No. 1596 of 2005).

5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the record of the case, minutely, with their assistance.

6. It has not been controverted that the petitioner possesses the domicile of village Kaya, Utmanzai, Tehsil Ghazi District Haripur, which is a declared backward area but due to non-availability of requisite education facilities in that area she had to get admission in the Army Burn Hall College for Girls, Abbottabad. The very fact also stands proved from the certificate dated 18.10.2007, issued by DO, S&L and countersigned by DCO, Haripur. No doubt as per clause 2 of the Prospectus for the year 2007-2008 for NWFP Medical & Dental Colleges, Khyber Medical University, Peshawar, it was mandatory for the candidates to have obtained their Metric with Science and F.Sc. Pre-Medical, from the district/Agency of their domicile, but the proviso tagged to the main provision makes it abundantly clear that the above "requirement" was subject to the availability of the facility in the area, meaning thereby that when no facility was available in the said area, the candidate could not have been disqualified for not fulfilling/complying with the said criteria. Here it would be advantageous to have a glance at the relevant clause which reads as follows :--

"2. The candidates must have obtained their Secondary School Certificate (Metric 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 counter signed by the DCO/Political Agent of the concerned district/agency." (Underlining is ours).

Although, above aspect of the case was not considered by this Court in the case of Mst. Attiyya Bibi Khan & others v. Federation of Pakistan through Secretary of Education (2001 SCMR 1161), relied upon by the Peshawar High Court in the impugned judgment, but in the case of Arifur Rehman v. Govt. of NWFP through Secretary Education (2005 SCMR 340) the petitioner, who belonged to backward area, i.e. village Besak, Gadoon, District Swabi, and could not obtain F.Sc. from the district of his domicile due to non-availability of requisite educational

facility and obtained Diploma of Associate Engineering in Electrical Technology from the Government Polytechnic Institute, Abbottabad, was granted admission on the seat reserved for backward area of Gadoon. In a recent judgment delivered in an unreported case, titled as Bilal Khan Tanoli v. Joint Admission Committee, Ayub Medical College (Civil Appeal No. 1422 of 2006), this Court, after considering the above referred judgments, has held that the condition of obtaining requisite qualification from the same backward area will only be operative in case the educational facility is available in the said backward area.

7. It would be pertinent to mention here that the other contesting candidates have not challenged the impugned judgment before this Court, which shows that they have accepted the findings of the learned High Court. The petitioner however, is entitled for admission due to the reason that she could not obtain the requisite qualification from the concerned backward area as no facility of education was available within the area of her domicile at the relevant time, as such, she cannot be made to suffer for no fault on her part.

8. Upshot of the above discussion is that this petition is converted into appeal and allowed, the impugned judgment of the Peshawar High Court is set-aside and the Respondent No. 1, i.e. Joint Admission Committee, Khyber Medical University, NWFP, is directed to accommodate the appellant, Miss Amina Rafique, and grant her admission in first year MBBS.

These are the reasons of our short order of even date announced in open Court.

(W.I.B.) Appeal allowed.