' DOST MUHAMMAD KHAN, J.---The background of this constitutional petition is that petitioner after qualifying F.Sc Pre-Medical applied for admission to respondent No,1 (Joint Admission CommitteeJAC) in the first profession part-I M.B.B.S.On the reserved seat for Kala Dhaka in Ayub Medical College, Abbottabad (AMC) for the session 2004-2005. The area to which he belongs, was allotted one reserved seat in Ayub Medical College. The petitioner stood successful in the entry test held in August, 2004 and thus became eligible for admission on the reserved seat. However, his domicile of Kala Dhaka became a matter of dispute, thus, he filed Writ Petition No,186 of 2004 in this Court which was allowed on 23-2-2005 and his said domicile was confirmed/kept intact. After the said judgment ,was delivered, the petitioner approached respondent No, 1 (JAC) who directed him vide office order, dated 15-3-2005 to report to the. Principal, Ayub Medical College, Abbottabad for deposit of admission fee. Copy of the order is available at page 13 of the petition.
2. The petitioner then reported to Ayub Medical College for the above purpose but the Incharge (Acting Principal) told him that the Principal was away to China and would return on 22-3-2005.
Thus he was asked to come later on, on return of the Principal for the deposit of the fee etc. Applications in support of the said plea are enclosed as mark-D, D-1 to D-3.
3. However, vide memo No,2560, dated 9-4-2005, the Principal, Ayub Medical College, Abbottabad, refused him admission on the strength of judgment given in another case by this Court particularly in Writ Petition 1758 of 2004, dated 24-2-2005 titled "Manzoor Ahmad Qureshi v. Chairman, Joint Admission Committee and 9 others." The plea taken in the memo. Was that as the petitioner has not passed Matric and F.Sc. From the backward area (Kala Dhaka) thus he was not entitled to get admission on the said reserved seat. Accordingly, this reserved seat was converted into open merit seat. Aggrieved of the refusal of respondent No,2 in granting admission to the petitioner, the petitioner filed this petition. Respondents were issued pre-admission notice on 14-6-2005 which was repeated on 28-6-2005. However, on 30-6-2005, this petition was clubbed with Writ Petition No,36 of 2005 was an impression as given to the Court that somewhat similar points were involved therein as well and both required simultaneous disposal. However, due to the urgency involved, being admission cases, these were taken up on priority basis and all the counsel agreed that let this petition and connected petition be decided at the earliest to resolve the controversy.
4. We would not comment in any manner on the view taken by this Court in Manzoor Ahmad Qureshi v. Chairman Joint Admission Committee and 9 others (PLD 2005 Peshawar 116) because it has no direct bearing on the case of the petitioner as somewhat different proposition of law is involved herein.
5. We have heard the learned counsel for the parties and have gone through the record as well as the case-law cited at the bar.
6. It was not denied by the learned counsel appearing both for respondent No,1 (JAC) and respondent No,2, Principal (AMC) that in the area to which the petitioner belongs, does not have educational facilities/institutions like High School or Intermediate College with premedical course/studies. The cae of Manzoor Ahmad Qureshi is sub judice before the Hon'ble Supreme Court as was stated at the bar, leave to appeal has been granted. Thus, for his reason too, we would avoid to comment upon the principles laid down therein. However, all the petitions which were decided through the said judgment related to otherareas of the Province, like Dir, Chitral, Ahmadzai and Gadoon but Kala Dhaka, the place of domicile of the petitioner, was not the subject of adjudication therein.
7. Judged from another angle, under the rules and regulations, contained in the Prospectus issued by the Government of N.W.F.P., it is the Joint Admission Committee, (respondent No,1) who alone is competent to grant admission after determining the eligibility of a candidate both on open merit seat or reserved quota. The judgment of this Court in Manzoor Ahmad Qureshi's case was announced on 9-2-2005 and was very much in the knowledge of respondent No,1 but despite that the (JAC) vide memo No,2223-24/Admn/SAS/KMC granted admission to the petitioner in the 1st year, M.B.B.S. For the session 2004-2005 in Ayub Medical College, Abbottabad against the reserved seat for Kala Dkaka. It is worthwhile the mention here that respondent No,1 (JAC) is headed by its Chairman who is Principal of the KMC while rest of the Principals of the three Medical Colleges i.e, Ayub Medical College, Abbottabad, Gomal Medical College, D.I. Khan and Saidu Medical College, Swat are, its members and under the relevant regulations and rules its decision by majority or unanimity have a legal force, therefore, respondent No,2 (Principal, AMC) was having no authority whatsoever in his individual capacity to refuse admission to the petitioner without referring back his case to respondent No,1 (JAC) and he also interpreted the judgment in Manzoor Ahmad Qureshi's case supra at his whims without even obtaining legal opinion from its legal advisor as to whether the principle laid down therein was attracted to the case of the petitioner or not. The impugned action thus taken by refusing admission to the petitioner on such pretext was unwarranted and careless dispensation of statutory obligation to the detriment of the petitioner which on the face of it was without lawful authority and on this legal point all the learned counsel frankly conceded.
8. The Hon'ble Supreme Court was confronted with almost similar legal proposition in Arif-ur- Rahman's case (2005 SCM R 340) but their lordships held a contrary view to the one taken in Manzoor Ahmad Qureshi's case ibid. Relevant para. 6 of the judgment is reproduced below:-- "(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 thus diploma was not obtained from Swabi but the case of petitioner seems to be that the petitioned 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---."
9. As discussed above, refusal on the part of respondent No,2, (Principal, Ayub Medical College, Abbottabad) to grant admission to the petitioner in the above manner was an act coram non judice, without jurisdiction and of no legal effect being in disregard of law which is accordingly declared as such and we are left with no alternative but to allow this petition. Accordingly, this constitutional petition is allowed, the impugned refusal of respondents to grant admission to the petitioner on the reserved seat of Kala Dhaka for which he had applied for session 2004-2005, as without lawful authority, without jurisdiction and of no legal effect. Accordingly, we would direct that the petitioner be given admission forthwith on the said reserved seat for Kala Dhaka and he shall be adjusted suitably, fairly and justly according to the changed situation but while doing so, respondent shall not cause any prejudice to theinterest of the petitioner either in getting admission or continuing his studies in the course as the entire fault law with the respondents in this regard.
' These are detailed reasons for our short order, dated 22-3-2006.