' This writ petition was dismissed by me on 9-3-2005 with reference to a judgment passed on 24-2- 2005 in Writ Petition No.720 of 2005. The petitioner filed I.C.A. No.63 of 2005. It came up on 19-4-2005 in the presence of counsel for the petitioner, Mian Abbas Ahmad, counsel for the present respondent No.6 and the learned Addl. A.-G. For the official-respondents. By agreement, the I.C.A.
Was allowed and the case was remanded in the light of contents of the _admitting note for fresh decision with directions to the parties to appear on 26-4-2005.
2. The case has taken up on 26-4-2005 when Mr. Balakh Sher Khosa, Advocate, put in appearance of the respondent No.7. She was allowed to be impleaded as such and the case was ordered to be listed today.
3. Learned counsel for the petitioner contends that the petitioner is a bona fide resident of Ozaman Tribal Area, Tehsil Rojhan, District Rajanpur. He did his Matric from a School in Rojhan. He appeared in the Intermediate Examination from a College in Muzaffargarh. He was not satisfied with the result and appeared again to improve his position and this time he appeared privately from Rajanpur and was able to got sufficient marks to seek admission in a Medical College. The precise contention of the learned counsel is the there are no educational institutions either at secondary or higher secondary level in the entire Tribal Area in question. His client did his Matric from Rojhan, District Rajanpur and then ultimately appeared in the Intermediate Examination from the same District. Even if it be deemed that he appeared from Muzaffargarh, in that case since there was no College in the Tribal Area in question, the rigors of the mandatory requirements of the terms of the Prospectus for admission to the reserved seat for the said Tribal Area would not be applicable. He relies on the case of Arif-ur-Rehman v. Government of N.-W.F.P. Through Secretary Education, N.- W.F.P. And others (2005 SCM R 340).
4. Learned A.A.-G. Argues that the judgment given by me in Writ Petition No.720 bf 2005 interpreting the said provisions of the Prospectus has since has been upheld by a learned Division Bench of this Court and the contention of the learned counsel for the petitioner must fail in the light of the said decision. According to the learned A.A.-G., the petitioner must have completed his Intermediate studies also from Rajanpur to which District the Tribal Area in question is attached. Mian Abbas Ahmad, learned counsel for respondent No.6 while relying upon the condition in the Prospectus for special seats in the light of the said judgment dated 24-2-2005 contends that this client being a resident of the Tribal Area and having completed her studies in Rajanpur is to be preferred to the petitioner who did his Intermediate from Muzaffargarh in the first instance. No one has turned up for the respondent No.7. I have already noted above that in view of urgency, the case was adjourned to be heard today in the presence of Mr. Balakh Sher Khosa, Advocate. This case has been repeatedly called but no one has turned up for her. She is accordingly proceeded against ex parte. In any case, for contention has already been pressed into service by the learned A.A.-G. As well as Mian Abbas Ahmad Advocate.
5. Before, I proceed further, I may state that I had directed the Litigation Assistance of the K.E.
Medical College to file a statement showing the inter se merit of the petitioner on the one hand and private respondents on the other hand. It has been reported that following four persons are contesting for admission against the seats reserved for Tribal Area of District Rajanpur, apart from one Muhammad Usama Rahim . Has scored 74.345% but has not turned up to seek admission:--
(i) Ali Nawaz Khan Mazari 80.291% score
(ii) Sumaira Aman 79.018% score
(iii) Saima Bukhari 76.477% score
(iv) Saima Zafar 73.636% score ' None present questions the said list score-wise. The petitioner, therefore, undisputedly is ahead of the other candidate with a score of 80.291%.
6. I may also further note here that the learned counsel for the petitioner with reference to some documents has argued that respondent No.6 is the daughter of a learned Advocate practising at Rajanpur and is permanent resident of Rajanpur City while respondent No.7 is the daughter of DSP (Legal) performing duties at Dera Ghazi Khan and is a resident of the said City. The implication is that the domicile certificate have been procured illegally to show residence in the said Tribal Area.
However, since determination of the said question would not be necessary for the order, I propose to pass, I am not commenting on this aspect.
7. Now the relevant details of the studies done by the petitioner and the respondents Nos.6 and 7 are as follows:--
(a) Ali Nawaz Mazari petitioner.
(i) Matric Government High School Rojhan, Rajanpur.
(ii) Intermediate From Muzafargarh.
(iii) Improved Marks As private candidate from Rajanpur.
(b) Saima Zafar respondent No.6.
(i) Matric Government Girls High School, Highway Colony, Rajapur.
(ii) Intermediate Private Rajanpur
(c) Sairna Bukhari respondent No.7.
(i) Matric Rajanpur Public School, Rajanpur.
(ii) Intermediate Private Rajanpur.
8. It will, thus, be seen that ultimately all the three candidates completed their studies in Rajanpur.
The only distinctive feature is that the examination the result whereof was not found satisfactory by the petitioner was undertaken by him from a College in Muzaffargarh.
9. Now there is no dispute that in the said Tribal Area of District Rajanpur where all the three candidates are stated to be resident, there is no provision even for primary education as per certificate issued by the Deputy District Education Officer, Rojhan, District Rajanpur countersigned by District Education Officer, Rajanpur. As to Tehsil Rojhan, District Rajanpur, a certificate has been filed issued by the Principal, Government Degree College, Rojhan, stating that although F.A./F.Sc.
Classes were started in the year 1999 but no staff was provided to teach Science subjects. The College does not have its own building and there is no Labo ratory.
10. Now at this stage, I may refer to the relevant condition and the interpretation placed thereupon by me in the said judgment dated 2-2-2005 in Writ Petition No.720 of 2005:-- CONDITION.
"The candidate must have a domicile of the same District Area, and must have Completed his/her school and High Secondary Education from the same Districts Area."
INTERPRETATION "9. Thus, upon a reading of the said judgment of the Hon'ble Supreme Court of Pakistan and the policy framed, in compliance thereWith, the only possible interpretation is the one being made by the learned A.A.-G., i.e., the candidate must have a domicile in the identified underdeveloped District and must have completed his requisite education in the said District to entitle him to apply for admission to the seat reserved for that particular District."
11. Now what has to be seen is that in circumstances like the present when it .Is established that no educational facilities were available in the Tribal Area in question to enable the said candidates who fulfilled the said terms stated above, can it be said that the petitioner or for that matter the other candidates who have not completed their studies in the said Tribal Area be held to be disqualified to be considered for admission to the said reserved seat. To my mind, the answer has to be in the negative. The seat has been reserved for the Tribal Area. The primary condition being that the candidate must be a resident of the said Tribal Area and the other equally primary condition being that he or she must have completed the education from the said area. However, in the admitted circumstances of the case, it would not be possible for any candidate resident of the said Tribal Area to have completed his or her education in the said Tribal Area. This being so, an exception will have to be made. Now the further question that arises is as to whether in the said circumstances a candidate would be required to complete his studies only for the District to which the tribal Area is attached. To my mind, the question will have to be answered in the negative. The, reason being that once the inability which is beyond the control of the candidate in the matter of completing the studies in the Tribal Area stands established then it would not matter where the candidate completes his studies.
12. The learned A.A.-G. Expresses an apprehension that by taking, the said view,. I am undoing the effect of the earlier judgment and further doing harm to the spirit behind the dictum of the Hon'ble Supreme Court leading to the imposition of the said .Condition. I, however, find the apprehension to be rather misplaced. The reason being that the other term of admission to such seats is that the candidates for a particular reserved seat have to complete inter se and this being so ultimately a bona fide resident of the Tribal Area in question would be admitted if he is found to .1,,e the best by the Admitting Authority.
13. My said view is fully supported by the judgment in the said case of Arif-ur-Relunan being relied upon by, the learned counsel for the petitioner.
14. For the reasons stated above and particularly with reference to the peculiar circumstances of this case, I allow this writ petition. Since according to the own evaluation of the official- respondents, the petitioner tops the list for the Tribal Area in question with the highest score, I hereby direct the official-respondents to allow admission to him against the seat reserved for the Rajanpur Tribal Area (Rojhan). No order as to costs.