Nasir-ul-Mulk, C.J.--By this single judgment we propose to dispose of W.Ps. Nos, 1640/2004, 1682/2004, 1697/2004, 1726/2004, 1733/2004, 1757/2004, 1758/2004, 1763/2004 and 109/2005 as they all relate to admission in the Medical/Dentistry Colleges for the Session 2004-05 on the seats reserved for the "Backward Areas of N.W.F.P." The seats regarding which the petitions have been filed were reserved for Gadoon/Amazai, Districts of Chitral, Upper Dir and Shangla. The criteria for eligibility for these seats has been laid down in the prospectus for the Session 2004-05 issued by the Government of N.W.F.P. for the session, and appears on page 11 and the number of seats reserved for each area are mentioned on page 9. The reserved seats are in addition to the open merit seats and the candidates hailing from these areas are required to apply for the open merit as well as reserved seats.
2. The entry test for admission in the medical colleges was held on 15.8.2004. The prospectus however was not issued until 25.10.2004. The admissions were open from 4.11.2004 and the last date of submission of application forms was 8.11.2004. The petitioners in all the writ petitions had passed their entry test and had applied for the seats reserved for their respective backward areas but were not able to get admission on the reserved seats in any of the medical colleges. The controversy in these petitions pertains to the criteria of eligibility for these reserved seats, namely, as to whether or not the candidates must have passed their matric and F.Sc examinations from their respective backward areas. According to the prospectus, candidates applying for the seats reserved for Gadoon Amazai, Dir Upper, Dir Lower and Shangla are required to have passed their SSC and F.Sc (Part I and II) from their District of domicile. An exception however was made for female candidates from Dir Upper, Dir Lower and Shangla, who were not required to fulfill this condition. As for Chitral Gadoon/Amazai the requirement was made applicable to male as well as female candidates.
Subsequent to the issuance of the prospectus the Health Department of N.W.F.P. issued two corrigendum's, one dated 26.10.2004 and the other 4.11.2004, but made public on 7.11.2004 by publication in the newspaper. The first notification brought about changes in the criteria of eligibility for Dir Upper, Dir Lower, Batgram, Shangla and Bunir. The notification incorporated the existing and the revised entry in the prospectus. It will be worthwhile to reproduce both: EXISTING.
Only those male candidates who have passed SSC (Science) and F.Sc. premedical Part-I and II from their district of domicile will be eligible for admission against their respective seats. In case of females, the criteria of passing SSC and F.Sc from the district is not required.
REVISED Only those made candidates who have done their education from their district and all those female having domicile from their districts will be considered for admission and not their educational qualification from their district/areas.
3. By the notification of 4.11.2004 the requirement of passing matric and F.Sc. examinations for candidates applying against the seats reserved for Gadoon/Amazai was dispensed with, with the result that candidates belonging to the said area who had pass their matric or F.Sc examination from elsewhere were made eligible to compete for the reserved seats.
4. The petitioners in W.P. Nos, 1640 and 1682/2004, Manzoor Ahmad Qureshi and Arif Shah respectively, hail from Gadoon, who have passed their matric and F.Sc (Part I and II) from educational institutions in their own District. They were denied admission as a result of the corrigendum dated 4.11.2004 which made Respondents Nos, 7 to 10, with better merits than the petitioners, eligible, though they had been educated in institutions outside their District. Waqas Ahmad and Nazir Ahmad, sons of Muhammad Rafique filed W.P. No, 109/2005 claiming that they are residents of Amazai and had applied for the seats reserved for the said area but were denied the same because they obtained their matric and F.Sc qualification from Haripur. It may be stated that Amazai forms part of District Haripur.
5. The petitioners in W.P. Nos, 1726 and 1733/2004, Miss Najma Begum and Badshah Afsar respectively belong to District Shangla. Miss Najma Begum has been admitted in the Khyber College of Dentistry, Peshawar. She was however unable to gain admission on the seat reserved for District Shangla in Ayub Medical College Abbottabad due to the corrigendum dated 26.10.2004 whereby Respondent No, 5, who also hails from Shangla gained admission having better merits, though he had passed his part I F.Sc examination from Islamia College Peshawar. The petitioner Badshah Afsar has not been able to get admission and he has the same grievance against the same respondent.
6. Rafiullah and Muhammad Ayub, are domicile of District Dir Upper and for the same reason, on account of the corrigendum of 26.10.2004 Respondent No, 5, Kifayatullah was admitted in Khyber Medical College, on one of the seats reserved for Dir Upper, notwithstanding that he had passed Part I of F.Sc from Islamia College, Peshawar. The cases of Miss Nilofar Jalal and Miss Maria Saeed, petitioners in W.P. Nos, 1697 and 1757/2004, both hailing from District Chitral are on a different ground. Both the petitioners do not fulfill the criteria of passing matric and F.Sc examination from their home District. They pray that the exclusion of this requirement for some of the other Districts by the two corrigendums and for female candidates in the original prospectus for Dir and some other areas, be also extended to District Chitral.
7. The admissions in medical colleges, particularly those relating to the seats reserved for the Federally Administered Tribal Area (FATA) and the Provincially Administered Tribal Area (PATA) had been the subject of litigation since long. The question of reserved seats in medical colleges, including those for FATA and Backward Areas came before the Hon'ble Supreme Court in the case of Attiya Bibi Khan vs. Federation of Pakistan (2001 SCM R 1161) and in a landmark judgment the Hon'ble Court finally settled the issues. It was held that reservation of special seats in medical colleges was discriminatory and violated Article 25 of the Construction. The Hon'ble Court however made exceptions of 3 categories of students for whom reservation of seats was permissible; disabled persons, students of foreign countries on reciprocal basis for a period of 7 years for the time being and students domiciled in FATA and under developed districts as well as. Azad Kashmir and Northern area's provided they had obtained their matric and intermediate education from such areas.
8. The principle laid down 'in Attiya Bibi Khan's case was followed by the Government of N.W.F.P. in framing the policy for admissions in medical colleges in the following year. Subsequently, however another development took place when the Hon'ble Supreme Court reviewed for a limited purpose the principle in Attiya Bibi Khan's case as regards the students from the Federally Administered Tribal Area. In Civil Review Petition No, 387/2001 the Hon'ble Court bifurcated the seats reserved for students from FATA in two categories; those who had obtained their education from institutions in FATA and those who had studied outside FATA. For the former category 10% of the total seats were ordered to be reserved and the remaining 90% would go to the second category.
9. After the review of the Attiya Bibi Khans' case by the Hon'ble Supreme Court as petition was filed (W.P. No, 709/20)02) by Adnan Zia, a student from District Shangla who had been educated in Abbottabad Public School, praying that the seats reserved for the backward areas of N.W.F.P., which included Shangla, be also bifurcated into two, in. line with the principle laid down by the Hon'ble Supreme Court in Civil Review Petition No, 387/2001. The petition was dismissed by this Court; on 4.7.2002, holding that the order in the review petition was restricted to seats reserved for FATA. The judgment in Adnan Zia's case was upheld by the Hon'ble Supreme Court in C.P. No, 1310 of 2002 when leave was refused to Adnan Zia on 11.11.2002, where again the Hon'ble Supreme Court reiterated the principle in Attiya Bibi Khan's case and held that the only exception by the review was for students from FATA.
10.The foremost question that calls for determination is whether the policy incorporated in the present prospectus, as amended, for admission on seats reserved for the backward areas of N.W.F.P. in medical colleges is in line with the principle laid down in Attiya Bibi Khan's case. As already stated the Hon'ble Supreme Court in the said case had in very clear terms declared that seats reserved for FATA and backward areas are to be restricted to students who had passed their matric and F.Sc examinations from such areas; An exception to this Rule was made by the Hon'ble Supreme Court in the Civil Review Petition for FATA students whereby the seats were bifurcated into two categories as stated above. The rule in Attiya Bibi Khan's case regarding obtaining of education as regards Backward Area seats remains unchanged as held by the Hon'ble Supreme Court in Adnan Zia's case. There was one unreported judgment in the case of Tabbasum Naz vs. Government of N.W.F.P. (W.P. No, 1361/2001) referred to by Mr. Wasimuddin Khattak, Advocate, counsel appearing for the Joint Admission Committee, where it was held that the requirement of obtaining education in the backward areas cannot be made a condition for those students in whose areas there were no educational facilities.
11.Mr. M. Sardar Khan, Advocate, appearing for the petitioner Ms. Nilofar Jalal in W.P. No, 1697, pertaining to Chitral, pointed out in all fairness, that the judgment of this Court in Tabassum Naz's case was questioned before the Hon'ble Supreme Court and the Hon'ble Court whir' e disposing of the appeal alongwith a number of similar cases had reiterated the principle in Attiya Bibi Khan's case as regards seats reserved for backward areas. The judgment in Tabassum Naz's case was indeed questioned by the Chairman Joint Admission Committee before the Hon'ble Supreme Court and by a brief order in C.A. No, 72 to 109 of 2002 the appeal, alongwith a number of other cases were disposed of on 27.5.2002. It will be worthwhile to reproduce the same in its entirely: In these cases, the order of Peshawar High Court is being assailed by Joint Admission Committee
(JAC) constituted to govern the admission to the Medical Colleges in N.W.F.P. In all these identical matters, as elaborate judgment was delivered by this Court in Attiya Bibi's case, and the same has been reviewed by us today. It is submitted by Mr. Sardar Khan, ASC that students in these cases had been pro visionally admitted in the Medical Colleges and they are attending their respective classes.
Be Chat as it may, admissions of students ibid, will be governed in the light of our order reviewing Attiya Bibis' judgment today. Suffice to observe that if they fulfill the criteria laid down by this Court, in that eventuality, their respective admissions will be regularized otherwise their admissions would be cancelled. With these observations the appeals are disposed of accordingly."
12.The review order mentioned in the above order was passed in Civil Review Petition No, 387/2001 whereby, as mentioned earlier, Attiya Bibi. Khan's case was modified only as regards students from FATA. The Hon'ble Supreme Court while disposing of the above appeals, which included appeal by the Chairman Joint Admission Committee from the order of this Court in Tabassum Naz's case, had held that the admissions of those students who do riot fulfill the criteria in Attiya Bibi Khan's case, as reviewed, would be cancelled. We are not aware whether or not admissions of the petitioners in W.P. No, 1361/2001 were cancelled. Though the Hon'ble Supreme Court had not expressly reversed the judgment of this Court in Tabassum Naz's case but by holding that Attiya Bibi Khan's case would be applicable to all, except FATA students and left it to the authorities to apply the principle laid down therein, it would be seen that the principle laid down in Tabassum Naz's case does not hold the field in the light of the principle in Attiya Khan's case.
13.The criteria for admission on the reserved seats for the under deve'loped districts has been elucidated in Para 11 of the judgment in Attiya Bib i Khan's case as follows: "It must, however be pointed out that the benefit of such reservation should only be confined to those who have acquired their school and intermediate education from such less developed areas, and not to any one who manages to obtain domicile certificate from that area."
14.The Hon'ble Supreme Court did not create any exception to the above rule and thus whether or not educational facilities were available in a pa.rticular Backward Area the seats reserved for such area were to be restricted to students who had acquired their matric and F.Sc qualifications from such areas. The rationale for the rule can be found in the same paragraph of the judgment that such students had "suffered some initial disadvantage owing to their social and economic conditions". The underlying principle for the reservation of such seats, therefore, is to provide opportunity to those students to gain admission in professional colleges who are because of local social and economic conditions, and relatively poor educational facilities are placed at a disadvantage than those who are living and getting their education in developed areas. Thus students, who possess domicile from the Backward Areas but have studying in schools and colleges in the developed areas do not suffer from any such disadvantage and therefore they should complete with students who have been getting education in similar institutions. To admit such students on the reserved seats would defeat the very purpose for which the seats were reserved. That - is why the Hon'ble Supreme Court had in Attiya Bibi Khan's case held that mere possession of domicile of backward areas etc. would not qualify the holder to the reserved se at for such areas unless he had studied in such areas. It may be state that students from the Backward Areas are entitled to complete for the open merit seats as well. The reserved seats are over and above the seats on which students from the said areas may be given admission on open merits.
Thus the students from the Backward Areas who have acquired education in the developed areas are not debarred from competing on open merit seats, which are even open to students fulfilling the criteria for admission on the reserved seats. We, therefore, hold that in the light of the principle laid down by the Hon'ble Supreme Court in Attiya Bibi Khan's case, and reiterated while disposing of C.A. No, 72 to 109 of 2002, the seats reserved in medical colleges for the Backward Areas of N.W.F.P. are restricted to only those students who have acquired their matric and F.Sc (Pre-Medical), Part I and II in such Backward Areas.
15.Though the above determination would be sufficient to decide all the cases before us, nevertheless we would address the other contentions raised in each of the petitions. Mr. Ali Jamil Qazi and Mr. Said Rehman Khan, Advocates, appeared respectively for the petitioners in W.Ps. Nos, 1640 and 1682/2004 pertaining to the seats reserved for Gadoon. Their main, contention was that the corrigendum dated 4.11.2004 and published on 7.11.2004 in the newspaper, whereby the requirement of local education for the seats reserved for Gadoon was dispensed with, was mala fide and not within the powers of the authorities once the admission process had commenced; As stated earlier by this corrigendum the respondents in the said writ petitions, who had obtained their education from institutions outside Amazai had gained admissions on the reserved seats. In support of the contention the learned counsel for the petitioners relied upon the judgment of this Court in case of Shamsul Alam vs. Chairman Joint Admission Committee (W.P. No, 1488/2001) decided on 4.7.2002.
16.Responding to the above contentions Mr. Abdul Latif Yousafzai, Advocate, appearing for Respondents Nos, 7 to 9, the students who have been admitted on the reserve seats, contended that the prospectus empowers the Provincial Government to bring about changes therein at any time and that it was in accordance with such power that the corrigendum was issued. That the students applying for admission in medical colleges are bound by the provisions of the prospectus as well as any changes made therein. The learned counsel also pressed into service the principle of locus poenitentiae that the respondents have already been admitted in the medical colleges in accordance with the rules. The learned counsel also pressed into service the judgment of this Court in the case of Noreen Taj. (W.P. No, 13/03) where under similar circumstances a corrigendum was upheld. The learned counsel representing the Chairman Joint Admission Committee Mr. Wasimuddin Khattak, Advocate, pressed into service another judgment of this Court in Miss Hanan's case W.P. No, 188/99 to contend that a provision in the original prospectus does not confer any vested right upon a candidate and that the authorities are empowered to amend the prospectus at any time. When asked as to what necessitated the corrigendum to dispense with the requirement of local education for the candidates, the learned counsel submitted that had this condition not been excluded only one candidate from Gadoon would have been entitled to admission on the reserved seat and the other two seats would have gone to open merits. The learned counsel however pointed out that the petitioner in W.P. No, 1640/2004 was even otherwise not qualified because he had obtained his F.Sc. Pre-Medical qualification from college situated outside Amazaj.
17. The judgment in Miss Nasira Hanan's case turns on its own facts. The petitioner had applied for one of the seats reserved in the Medical Colleges of N.W.F.P. for Northern areas after having passed the entry test and subsequently the requirement of passing the entry test was dispensed with by issuing a corrigendum in the prospectus with the result that the private respondents in the case, also hailing from Northern area were admitted in medical colleges though they had not passed their entry test. This Court had held that the petitioner had no vested right to be admitted as she had to be nominated by the relevant authorities for admission in medical, colleges. Having not been nominated she could not complain of infringement of a vested right. Similarly the case of Miss Noreen Taj, pertaining to the reserved seats for Gadoon is also distinguishable. There the requirement of local education was incorporated in the prospectus but by a corrigendum the same was excluded. The Chairman Joint Admission Committee in his comments however had stated that on the report of the Department of Education of lack of proper education facility in the institutions in Gadoon the condition of obtaining education from the backward area was dispensed with by the corrigendum. This Court did not interfere with the corrigendum for two reasons. Firstly, that the petitioner 'also became eligible for selection on account of the corrigendum and her complaint only was that the exclusion of the condition should not have been extended to male students as there were facilities available for such students. And secondly being a policy matter based on certain facts, information of which provided by the Education Department the interference with it was not warranted under Constitutional jurisdiction. Apart from the above two reasons the said judgment was delivered in view of the principle laid down in Miss Tabassum Naz's case. It was not brought to our notice that the said judgment had been the subject-matter of an appeal before the Hon'ble Supreme Court, which we have now held has impliedly been reversed by the Hon'ble Supreme Court by its order in C.A. No, 72 to 109/2002.
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 SCM R 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 the 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 reserve 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.
18A. In W.P. No, 1682 the petitioner has also questioned the condition qualifying students from Gadoon for the reserved seats who had passed their matric and F.Sc examinations from institutions from their own district, in this case District Swabi, of which Gadoon is a part. The petitioner in the connected W.P. No, 1640 had passed his F.Sc examinations from a college in District Swabi outside Gadoon. It may be noted that only a part of District Swabi, namely, Gadoon, has been declared backward area for the purpose of admission in medical colleges. According to the judgment in Attiya Bibi Khan's case candidates applying for the reserved seats of backward area must have obtained their education from such areas. Thus the area of District Swabi other than Gadoon would not be such an area so that education in the institutions situated therein would fulfill the criteria laid down in Attiya Bibi Khan's case. The petitioner in W.P. No, 1640/2004 would thus also not qualify for the seats reserved for Gadoon.
19.W.P. No, 109/2005 has been filed by two brothers, resident of Amazai, who have been declined the reserved seats as they had obtained their education outside Amazai. The contention on their behalf was that Amazai is part of District Haripur and that since there were no proper education facilities in Amazai the petitioners were compelled to get their education from institutions in District Haripur outside Amazai. For reasons above stated the petitioners were rightly refused the reserved seats for Amazai as they had not received their education in institutions situated in the backward area.
20.Mr. Abdul Latif Afridi, Advocate, appeared for the petitioners in W.P. Nos, 1697 and 1757/2004 relating to the seats reserved for Dir Upper. As stated above according to the original . provision in the prospectus the eligibility for admission on the reserved seat for the said District was education from local institutions, both matric and F.Sc. The revised criteria published in the notification of 26.10.2004 has been reproduced in para 2 above. We were not able to make any sense of the revised provision. Even the learned counsel appearing for the Chairman Joint Admission Committee and the private respondent who gained admission because of the notification, were at a loss to give it any meaning. The learned counsel for the Chairman Joint Admission Committee did however state that the provision has been applied so as to entitle a student who had passed Part I of F.Sc examination in the developed areas and Part II in the backward areas to be admitted on the reserved seat for Dir Upper. Whatever may have been the intention of the framers of the notification of 26.10.2004 at least it cannot be spelt out from it that the requirement of having passed Part I and Part II of F.Sc examination from the backward area had been dispensed with and that passing of Part I examination from outside such area and clearing the Part II from it would render the student eligible for the backward area seats. If such a meaning can be given to it, it would militate against the principle laid down in Attiya Bibi Khan's case. Additionally the impugned notification having been issued after the commencement of the admission process, is liable to be struck down in view of the discussion in para 17 above.
21.The petitioners in W.Ps. Nos, 1726/2004 and 1733/2004, pertaining to District Shangla were represented by Mr. Said Rehman Khan Advocate, like in the cases of Dir Upper mentioned above the petitioners have questioned the corrigendum dated 26.10.2004 on account of which respondent Fazal Rabbi in the two petitions was admitted on the seat reserved for District Shangla in Ayub Medical College Abbottabad. The said respondent had not passed both Part I and Part II F.Sc examination from the backward areas. According to the original provision in the prospectus he was not eligible for the reserved seat as it required that the candidate must have passed both parts from their district of domicile. Respondent No, 5, though serve through the Principal Ayub Medical College was not represented. However, after the judgment was reserved written statement was submitted on behalf of the said respondent by his counsel Ms. Shazia Wazir, Advocate, alongwith in application for permission to place the same on record. The reason for the absence of Respondent No, 5 was stated to be his being away for "Tableegh" to Karachi. Any way the written statement was received and is placed on record. The learned counsel for the said respondent had more or less repeated the contentions advanced by the counsel representing the respondents in the other cases regarding accruing of vested right to the respondent and the binding effect on all the candidates of the provisions in the prospectus as well as the amendments made therein from time to time. These contentions have been discussed above and need not be repeated. For , reasons stated in Para 20 of this judgment the impugned corrigendum of 26.10.2004 cannot be allowed to stand. It may be state that the petitioner in W.P. No, 1726/2004 has already been admitted in Khyber College of Dentistry on open merits. She is aiming for the M.B.B.S. seat in Ayub Medical College whereas the other petitioner, Badshah Afsar in W.P. No, 1733/2004 has not been given admission any where.
23.The petitioners, Ms. Nilofar Jalal and Ms. Maria Saeed in W.Ps. Nos, 1679/2004 and 1757/2004 respectively are from District Chitral but do not fulfill the criteria of obtaining their matric and F.Sc. qualifications from their own district. Their only plea is that like exemption of female candidates from the local education requirement for Dir Upper and lower and also generally on account of the two corrigendums dated 26.10.2004 and 7.11.2004, the same benefit be also extended to the petitioners. Since we have already declared, that the said corrigendums were illegal and that the requirement of locally obtained education as eligibility for reserved seat is in consonance with the principle laid down in Attiya Bibi Khan's case, these petitions have no merits.
24. The result of the foregoing discussion is that the admissions on the seats reserved for the backward areas of Gadoon, Dir Upper and Shangla shall be governed by the principles laid down in Attiya Bibi Khan's case, namely, that only such students who have passed their SSC and F.SC (Part I and Part II) from their respective backward areas would be eligible for admission on the reserved seats. Consequently, the impugned corrigendum of 26:10.2004 and 4.11.2004 (published on 7.11.2004) are struck down as illegal. Thus W.Ps. Nos, 1697/2004, 1757/2004, 109/2005 are dismissed as the private respondents have been admitted in the medical colleges in accordance with the above principle. W.P. No, 1640/2004 is disposed of in the terms and though the petitioner does not qualify for the reserved seats as he did not pass his F.Sc examinations from Gadoon backward area, however, the admissions of Respondents Nos, 7 to 9 in Medical/Dental Colleges on the seats reserved for Gadoon and Gadoon/Amazai are set aside. W.P. No, 1682/2004 is allowed and the petitioner be considered for the seats reserved for Gadoon on merits. Similarly. W.Ps. Nos, 1758/2004 and 1764/2004 are allowed and the admission of Respondent No, 5, Kifayatullah in Khyber Medical College, Peshawar is set aside and the petitioners be considered for such seat according to their merits. Accordingly, W.Ps. Nos, 1726/2004 and-1733/2004 are allowed and the admission granted to Respondent No, 5 Fazal Rabbi in Ayub Medical College is set aside and the petitioner be considered for the seat on merit. It may be clarified that the Chairman Joint Admission Committee shall allocate the seats which have fallen vacant as a result of this judgment, in accordance with the merits of the students from the respective backward areas. There shall be no orders as to costs.