1. ' ANWARUL HAQ, C. J.-This petition seeks leave to appeal against the judgment of a Division Bench of the Peshawar High Court dated the 23rd of October, 1979, by which a constitutional petition, filed by the petitioner Mohammad Noor and two others seeking to challenge the refusal of the relevant authorities to grant them admission to the first year of the M. B., B. S. Class at Ayub Medical College, Abbottabad, was dismissed.
2. ' According to paragraph 8 of the Prospectus of the Ayub Medical College for the year 1979-80, the total number of seats for admission in the first year M. B., B. S. Class of the college has been fixed at 100, out of which 50 are described as provincial seats, and 50 as federal seats. Out of the 50 federal seats, 30 are reserved for the Federally Administered Tribal Areas (FATA). These seats are further sub-divided among the various Political Agencies, and in the present case we are concerned with four seats allotted, to the Bajaur Agency. The petitioner applied for one of these seats, but his application was rejected on the ground that he had been placed in the third division in the B. Sc.
3. (Medical) examination.
4. ' Reliance in this behalf was placed by the selection committee on the provision contained in paragraph 8 (b) of the Prospectus to the effect that : "FATA seats will be allocated by the Home and. Tribal Affairs Department with the condition that no 3rd Divisioner will be enter tained. Any unallocated seats will be added to the open seats of N.- W.F.P. Such selection will be made on the basis of merit in accordance with the Provincial Government instructions as contained in the Ayub Medical College Prospectus, Only bona fide residents of the area are eligible.
5. ' Aggrieved by this order of the college authorities, the petitioner and others invoked the writ jurisdiction of the High Court, contending that the Prospectus of the college should be declared as illegal insofar as it lays down that an application of a 3rd Divisioner from the FATA candidates will not be entertained, as this provision was against the principles of policy embodied in Articles 22 (4) and 37 (a) providing special measures for the advancement of socially and educationally backward classes of citizens of Pakistan. It was further contended that the seats reserved for the Bajaur area could not be given to any other area Both these contentions were, however, repelled by the High Court.
6. ' Leave to appeal is sought on the following grounds :-
(a) The Prospectus of the Ayub Medical College has no legal sanction, although it is issued with the approval of the Provincial Government, but it cannot control the allocation of federal seats as the approval of the Federal Government does not appear to have been obtained to the conditions embodied in the Prospectus in regard to the eligibility of the candidates from the federally administered tribal areas ;
(6) That the college being a statutory body governed by Ordinance XIX of 1978 (the Ayub Medical College (Board of Governors) Ordinance, 1978), promulgated on the 27th of November, 1978, the only competent body to make rules and lay down conditions was the Board of Governors, and not the Provincial Government which has approved the Prospectus, and, therefore, for this reason as well the condition applied to the petitioner is without lawful authority ;
(c) That the condition banning the admission of candidates, who have passed F. Sc. (Medical) examination in the 3rd division is unreasonable and unjust, and also contravenes the principles of policy embodied in Articles 22 (4) and 37 (a) of the Constitution ; and,
(d) That, in any case, the seats reserved for Bajaur Agency could not be given to outsiders.
7. After hearing Mr. Bashir Ahmad Ansari, learned counsel for the petitioner, at some length, we have formed the view that this is not at all a fit case for our interference is the matter..
8. ' It will be seen that the objection resting upon the Ayub Medical College being a statutory body governed by its Ordinance was not raised in the High Court, and, therefore, we are not inclined to permit the petitioner to raise this point at this stage. It appears, however, that seats in all the medical colleges of Pakistan are being allocated according to certain policy instructions, which have the approval of the Provincial Government, concerned, and the petitioner also applied for admission to the Ayub Medical College on the basis of the Prospectus issued by the Provincial Government of the North-West Frontier Province. In the absence of any material to the contrary, we are entitled to assume that the College must be a Provincial institution as otherwise the Provincial Government would not have approved the Prospectus of this institution. It is on the basis of the right, if any, created by this Prospectus that the petitioner made his application for admission, and subsequently invoked the writ jurisdiction of the High Court. If the Prospectus as such has no legal sanction behind it, and the Federal Government has not made any rules in this behalf, a none were shown to us, then it is clear that the petitioner has no locus standi at all to ask any Court of law to examine his grievance, as he would hay no legal right of any kind.
9. ' It seems to us, however that the real question in this case is whether the condition placing a ban on the admissions of F. Sc. 3rd division candidates is in any manner violative of the provisions contained in the Constitution. Article 22 (4) referred to by Mr. Bashir Ahmad Ansari, lays down that : "Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens."
10. ' It will be seen that this is an enabling provision and the authorities of the Ayub Medical College appear to have made full use thereof, inasmuch as they have endeavoured to allocate seats in the college to various sectors of candidates resident in the N.-W F.P., including the Agencies, which are traditionally regarded as being educationally backward. There is thus no question of their being any contravention of the provisions of this Article.
11. ' Article 37 (a), the other provision relied -upon by the learned counsel, enjoins that "The State shall promote, with special care, the educational and economic interests of backward classes or areas."
12. ' Here again, it seems to us that by reserving 30 seats for the federally administered tribal areas, and by further allocating them to the various Agencies comprising this area, the policy requirement has been fully kept in view by the College authorities and the Provincial Government.
13. The argument that the banning of F. Scs. 3rd division is unreasonable and unjust, so as to amount to a violation of this policy directive of the Constitution, is not at all tenable. The directive cannot be interpreted to mean that candidates from the educationally backward areas should not be required to fulfil the minimum educational standards considered necessary by the competent authorities for imparting higher training in the professions. It is a matter entirely within the discretion of the competent medical authorities to determine as to what should be the minimum educational standard necessary for admission to a medical college, so that the student could obtain full benefit from the professional training to be imparted therein. The interests of the backward areas have been fully secured by allocating to them a certain number of seats, for which they do not have to compete with candidates from the advanced areas. It is not for the Court to substitute its own opinion for that of the competent authorities as to the minimum educational standard and qualifications needed for eligibility to a course of professional training.
14. ' The submission that the seats reserved for Bajaur Agency could not be allocated to outsiders is also misconceived, as no outsiders were brought in to compete with the petitioner and other candidates from the Bajaur Agency ; on the other hand as qualified candidates, eligible in terms of paragraph 8 (b) of the Prospectus, could not be found to fill all the seats reserved for the Bajaur Agency, the seats left unfilled could be given to other areas, in terms of the same paragraph, This is not a case of usurpation of the Bajaur Agency's seats by candidates from other areas. They have become eligible to claim these seats only after the candidates from Bajaur area have failed to qualify in terms of the relevant rule itself.
15. ' In support of his submissions Mr. Bashir Ahmad Ansari referred us to Miss Naseem Akhtar and 2 others v. Government of. Pakistan (I) in which it was observed, inter alias that allotment of a reserved seat to a candidate from another division was likely to frustrate the object of bringing uniform and balanced progress in each section of population of federally administered tribal areas. We regret we see no relevancy of this observation to the facts of the case before us, as here the seats reserved for the Bajaur Agency candidates had not been given to candidates falling in another category by giving them preference over the petitioner ; on the contrary, as already observed, the seats have been offered to other categories only when it was found that the Bajaur candidates could not qualify in terms of paragraph 8 (b) of the Prospectus.
16. For the foregoing reasons, it appears to us that there is nothing illegal or unlawful in the Prospectus of the Ayub Medical College, which could B be termed as violative of the principles of policy embodied in 1973 Constitution ; and that the petitioner's candidature has been rightly rejected in terms of the rule embodied in the Prospectus.
17. ' The learned counsel finally submitted on instructions from the petitioner, that at least one male candidate, whose name he could not ascertain at present, had been admitted by the College authorities although he was also a 3rd divisione0072 in the F. Sc. Examination. On the authority of Abdul Sattar v. Government of Sind (2), Mr. Bashir Ahmad Ansari suggested that in the circumstances, it would be appropriate if the college authorities were to create an additional vacancy to accommodate the petitioner so that there should be no discrimination against him, as he had at least an equal right to be treated on the same footing, as this other unknown candidate.
18. ' As this point was not raised before the High Court, we do not have the benefit of any finding as to the factual accuracy of the statement. However, if any such departure has, indeed, been made by the College authorities in admitting a 3rd divisioner, then it is only just and proper that the petitioner's case should also be reconsidered in the light of the departure already made, as alleged by the petitioner.
19. ' With these observations, the petition is dismissed.
(1) PLD 1978 SC 166 (2) PLD"1978 Kar. 59