JUDGMENT: JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment, dated 26-2- 2004 passed by a learned Division Bench of the Peshawar High Court, Peshawar whereby writ petition preferred on behalf of petitioner seeking admission in B.Sc. Engineering on the reserved seats meant for Gadoon Amazai, in the University of Engineering and Technology, Peshawar, has been dismissed.
2. Mr. M. Bilal, learned Senior Advocate Supreme Court appeared on behalf of petitioner and contended that the provisions as contained in paragraph 4.16 of the Prospectus of N.-W.F.P.
University of Engineering and Technology, Peshawar (hereinafter referred to as "the Prospectus") have been misinterpreted and misconstrued by the learned Division Bench which resulted in serious miscarriage of justice. It is argued that the provisions as embodied in paragraph 4.16 of the Prospectus cannot be made applicable to the petitioner as at, relevant time F.Sc. Facilities were not available in the Gadoon Amazai, hence the question of taking admission in F.Sc. Does not arise. It is urged with vehemence that no qualified candidate for the allocated seat to Gadoon Amazai was available except the petitioner who was entitled for admission against the reserved seat of Gadoon Amazai (Backward Area) in the University of Engineering and Technology, Peshawar. It is also mentioned that the reserved seat meant for Gadoon Amazai is yet vacant and the petitioner could be adjusted against it, as no other qualified candidate is available.
3. Mr. S. Mir Muhammad, learned Advocate-on-Record appeared on behalf of respondents and supported the judgment impugned for the reasons enumerated therein with further submission that according to the provisions as contained in paragraph 4.16 of the Prospectus, the seat reserved for Gadoon Amazai could be allocated only to that candidate who has passed his matriculate and intermediate examinations from any recognized institution in the area. It is further argued that the petitioner could not be adjusted against the reserved seat as he has not passed his intermediate examination from Gadoon Amazai but on the contrary obtained a diploma from the Government Polytechnic. Institute Abbottabad which makes him disentitled to get admission against the reserved quota meant for Gadoon Amazai.
4 . We have carefully examined the respective contentions as agitated on behalf of petitioner and respondents in the light of relevant provisions of the Prospectus and perused the judgment impugned. It mainly prevailed upon learned Division Bench of the High Court that pursuant to the provisions as enumerated in paragraph 4.16 of the Prospectus, only those students can apply for the seat reserved for Gadoon Amazai who have passed their matriculation and intermediate examinations from any recognized institution situated in the area and the petitioner could not be accommodated against the reserved seat meant for the Gadoon Amazai as he had obtained diploma from the Government Polytechnic Institute Abbottabad by choice and failed to qualify intermediate examination from Gadoon Amazai. We have examined the said view in the light of provisions as contained in paragraph 4.16 in the Prospectus, which is reproduced hereinbelow for ready reference:--- "The candidates who fulfil the eligibility requirements shall have to apply to Dean, Faculty of Engineering, N.-W.F.P. University of Engineering and Technology, Peshawar for entry test and admission on or before the last date advertised for the Academic Session 2003-2004. Candidates applying against seats under this category must have passed their SSC and Intermediate examinations from educational institutions located within the concerned area."
5. A bare perusal would reveal that the following mandatory conditions have been prescribed in the above reproduced paragraph:-
(i) A candidate must fulfill the eligibility requirements
(ii) the application for admission shall be made to Dean, Faculty of Engineering N.-W.F.P. University of Engineering and Technology, Peshawar and
(iii) the candidates must have passed their SSC and Intermediate Examinations from the educational institutions located within the concerned area.
6. On the touchstone of the criterion as mentioned hereinabove, the case of petitioner has been examined who admittedly belongs to village Besak, Gadoon District, Swabi who passed his matriculation examination from Gadoon Amazai and subsequently obtained diploma of Associate Engineering in Electrical Technology from the Government Polytechnic Institute, Abbottabad. It must not be lost sight of that no Polytechnic Institute was functional at Gadoon Amazai but on the contrary it was located in Swabi. It is however, not the case of respondents that why this diploma was not obtained from Swabi but the case of petitioner seems to be that the petitioner had not qualified his intermediate examination from an educational institution located within Gadoon Amazai area which is in oblivion of the fact that diploma of Associate Engineering in Electrical Technology is equivalent to that of intermediate and thus, the eligibility of petitioner to get admission against the reserved seat for Gadoon Amazai cannot be questioned because admittedly the Diploma of Associate Engineering in Electrical Technology is considered at par with that of intermediate certificate. Besides that the above mentioned diploma has been recognized for the purpose of admission in the University of Engineering and Technology, N.-W.F.P. Peshawar. In such view of the A matter where a candidate has obtained diploma, the question of passing intermediate examination does not arise because the petitioner would be qualified to take admission on the basis of diploma. No doubt that the petitioner had obtained diploma from the Technical Institution situated at Abbottabad for the reason that no Polytechnic Institution was existing in Gadoon Amazai, therefore, no fault can be attributed to the petitioner. It may be pointed out that even at the relevant time F.Sc. Classes were not functional in Gadoon Amazai due to non- availability of science teacher which finds corroboration from the certificate duly issued by the Principal which is reproduced herein below for ready reference:-- "CERTIFICATE Certified that the posts of Science Subject Specialists were lying vacant in this School during the Session 1999-2000. So, on due admission date, no student was admitted for said session, in Part-I (Science Group)."
The contents of above certificate were neither contested nor rebutted. It can, therefore, safely be inferred that at the relevant time no student was admitted in Part-I (Science Group) due to non- availability of science teacher.
7. The allocation of seats meant for Academic Session 2003-2004 by the N.-W.F.P. University of Engineering and Technology, Peshawar runs as follows:-- "N.-.W.F.P. University of Engineering and Technology Main Campus, Peshawar Allocation of seats - Academic Session 2003-2004:------ Cat.
No.Details Total Agri. Civil Chem Elect Mech. Mining
1. Open merit (settled Areas of N.-W.F.P.)240 20 60 20 60 60 20
2. FATA 21 2 5 5 6 3
3. Merged area ofHazara Division2 -- 1 -- 1 -- --
4. Azad Jammu andKashmir4 -- 1 -- 1 -- --
5. Northern Areas 2 -- 1 -- 1 -- --
6. Balochistan Province 6 -- 1 -- 2 2 1
7. Punjab Province 10 1 2 -- 2 2 3
8. Sind Province 5 1 1 -- 1 2 --
9. Sons/Daughters of Employees of (a)N.-W.F.P Engg.
University.
(b)Peshawar University7 1-- --2 ---- --3 12 ---- --
10. Army 3 -- 1 -- 1 1 --
11. Airforce 1 -- -- -- 1 -- --
12. Foreign Students Tech. Assistance Programme Self Finance basis Afghan Refugees16 10 41 -- 17 4 1 -- -- --4 3 13 3 11 -- --
13. District Chitral 1 Discipline shall be allotted on merit basis by the N.W.F.P University of Engineering and Technology Peshawar as Under :-
1. Civil Engineering 3
2. Electrical Engineering 3 Total 6 14. District Kohistan 1
15. Gadoon Area 1
16. Federal Capital Areas 1
17. Sons/Daughters of Employees of1 (c)N.-W.F.P Agri.
University.
(d)Gomal University D.I. Khan Total 338 26 87+3 20 87+3 83 29 A bare perusal of the allocation of seats would reveal that one seat was meant for Gadoon Amazai (Serial No,.15) which could not be allocated to the petitioner on the flimsy ground and in violation of the relevant provision of the prospectus.
8. Learned Advocate Supreme Court on behalf of respondents could not point out that to whom the reserved seat for Gadoon Amazai was allocated. The learned Advocate Supreme Court failed to mention the name and particulars of any candidate showing that the quota meant for Gadoon Amazai was exhausted. Even otherwise, the seat meant for Gadoon Amazai could not have been allocated to any other candidate in view of the fact that the petitioner was entitled to get admission being qualified candidate against it.
9. In our considered view the petitioner has been declined admission by the authorities concerned without having gone through the entire record with diligent application of mind. It cannot be ignored that object of the various provisions as enumerated in the prospectus qua the reserved seat meant for backward areas is that the students who had studied in institutions located in such areas with relatively less facilities and cannot compete in open merit may be accommodated and such allocation of reserve quota cannot be usurped without sufficient lawful jurisdiction which is totally lacking in this case. In sequel to above-mentioned discussion, the petition is converted into appeal and accepted. These are the reasons for short order, dated 21-10-2004 which is reproduced herein below for ready reference:-- "For the reasons to be recorded latter on, the petition is converted into appeal and the same is allowed. Impugned judgment, dated 26-2-2004 of a learned Division Bench, Peshawar High Court passed in W.P. No,1260 of 2003 is set aside. The petitioner/appellant is entitled to admission in the University of Engineering and Technology, Peshawar for reserved seats of Gadoon Amazai (backward area) N.-W.F.P."