' YAHYA AFRIDI, J.---Through this single judgment, this Court shall dispose four petitions, as they all have common of questions of fact and law involved therein. The particulars of the said petitions are as follows:-
(I) Khitam-ul-Haq v. Govt. Of Khyber Pakhtunkhwa and others (Writ Petition No.833 of 2011)
(II) Ejaz-ul-Haq v. Govt. Of Khyber Pakhtunkhwa and others (Writ Petition No.834 of 2011)
(III) Bashir Ahmad v. Govt. Of Khyber Pakhtunkhwa and others (Writ Petition No.39 of 2012)
(IV) Ihsanullah v. Govt. Of Khyber Pakhtunkhwa and others (Writ Petition No.721 of 2011) .2. The brief and essential facts leading to the present petitions are that Government of Khyber Pakhtunkhawa, Department of Health through the Prospectus announced the Admission Policy for prospective candidates applying to all Public Sector Medical and Dental Colleges of Khyber Pakhtunkhawa for courses leading to M.B.B.S, and BDS Degrees commencing from the sessions 2011-2012 ("Prospectus"). The provisions provided therein, 'inter alia', clearly laid down the total number of open merit and reserved seats, the criteria for eligibility of candidates and weightage given to various consideration stated therein.
3. The present cases relate to the five reserved seats allocated for 'backward' area of District Kohistan, for which the Prospectus provided that:-- "IV. Khyber Pakhtunkhwa Backward Areas Seats ' These seats are reserved for the backward areas of the Province of Khyber Pakhtunkhwa. The backward areas are identified as Upper and Lower Dir, Chitral, Kohistan, Gadoon Amazi, Tribal areas adjoining Mansehra District including for Ghar (Kala Dhaka) and Upper Tanawal Batagram District including Allai, Shangla, Butter, Kalam, Tank and Hangu and Tehsil-Balakot and Kalam. Candidates from these areas can also apply against open merit seats. To be considered on open merit as well as quota seats, the candidates must apply against both categories through separate admission forms. However, it will be the choice of the candidate to avail open merit or backward area seat.
Criteria of eligibility for backward areas of Khyber Pakhtunkhwa.
(1) The candidate and his/her father must be having a valid domicile certificate of the Backward area against which he/she is submitting the application and if father is not alive then the mother's valid domicile of the backward area will be considered.
(2) (I) The candidates must have obtained education from Clan-I till F. Sc, (complete sessions) including SSC with science and F.Sc. Pre-medical front institutes within the concerned backward area of Khyber Pakhtunkhwa and have passed examinations from the same institutes provided such facilities exist in the area.
(ii) Where there are no high schools or colleges available or the facility for teaching science subjects does not exist, the candidate must have obtained their primary and middle education from the respective backward area and must have obtained their SSC (science) and F. Sc. (Pre- medical both complete Part-I and Part-II) within the district of domicile.
(iii) In case of non-existence of school/college or non-availability of the facility for teaching science subjects, the candidate will have to provide a solid proof in the form of a certificate (as per specimen given on page 68) duly verified by the concerned EDO (Education) and countersigned by the concerned DCO of the concerned district.
(iv) In case of non-availability of candidates fulfilling the above mentioned criteria, the selection will be made on merit from amongst the candidates on the basis of domicile of the concerned backward area.
(v) The candidates must have qualified the prescribed entrance test for admission to Public sector Medical and Dental Colleges in Khyber Pakhtunkhwa."
4. The merit position of the top eleven candidates, who had applied for the said five Reserve seats of District Kohistan, was as follows:-- {{TABLE}} Name MeritRemarksName of College Akbar Hussain 68.17Primary IN, Middle IN, Matric IN. F.Sc. KMC Ahtazaz Ahmad 65.31Primary IN, Middle IN, Matric Out (Atd), Part-I & II IN KMC Ubaidullah Khan 64.86Primary IN, Middle IN, Matric IN, Part-I Ihsan Ullah 61.64Primary IN Middle Out (Atd), Matric IN, F.sc P-I & II Irfanullah 60.99Primary IN, Middle Out (Atd), Matric IN, F.Sc. II IN Riaz-ur-Rehman 60.04Primary IN, Middle IN, Matric IN, F.Sc Part-I OUT (Atd)
Part-II INAMC Sartaj Aziz 58.89Primary IN, Middle IN, Matric IN, Part-I Out (Atd) Part-II INAMC Kalsoom Zareen Khan58.19Total Education out Sher Afzal 58.07Primary IN, Middle IN, Matric IN, F.Sc Part-I (Atd) Out Part- II Atd OutADS Khitamul Haq 57.99Primary IN, Middle IN, Matric IN, F.Sc Part-I IN F.Sc Part-II IN Bashir Ahmad 57.84Primary IN, Middle Out, Matric IN, F.Sc Part-I IN F.Sc Part-II IN {{TABLE}}
5. The parties before us can be divided into four categories, namely:-- ' Category-I ' The three petitioners, who obtained all their essential education, starting from Class-I till F.Sc. From educational institutions within District Kohistan
(I) Khitam-ul-Haq
(II) Ejaz-ul-Haq.
(III) Bashir Ahmad. Category-II ' The petitioner, Ihsanullah, who claims that he was constrained to obtain the requisite education from outside District Kohistan, when the said facilities were not available in District Kohistan.
' Category-III ' The candidates, who have been admitted to medical and dental colleges in Khyber Pakhtunkhwa on the basis of their claim that they obtained their education from outside District Kohistan, when the said facilities were not available in District Kohistan.
' Riaz-ur-Rehman,
(II) Sartaj Aziz
(III) Sher Afzal Category-IV ' The candidates who have been admitted to medical colleges in Khyber Pakhtunkhwa having obtained their entire education from District Kohistan.
(I) Akbar Husain,
(II) Ahtazaz Ahmad,
6. The petitioners in Category-I, stated hereinabove, had earlier moved the Constitutional jurisdiction of this Court and their cases were referred to the Joint Admission Committee to consider their grievances and pass appropriate orders. The Joint Admission Committee, despite clear directions, was unable to pass appropriate orders. Hence, the petitioners had again invoked the Constitutional jurisdiction of this Court to seek their remedy. Hence, the present petitions. The learned counsel representing the said petitioners vehemently argued that the enabling provisions of the Prospectus, clearly provided that preference would be first given to candidates hailing from the 'backward' area and having obtained their entire education from Class-I to F.Sc. Pre-medical from their respective home District; that the candidates, stated in Category-II and III, who had not obtained their entire education from their respective home District had in fact abused the provisions provided in the Prospectus regarding submission of Certificates, by misrepresentation and fraud; that forged certificates had been provided to the Joint Admission Committee stating therein that such facilities were not available in their home District, when the official 'gazetteers' clearly revealed that during the said period, not only education facilities but in fact teaching staff was also available in their home District.
7. Learned counsel for the petitioner Ihsanullah, stated in Category-II, vigorously rebutted the assertion of the learned counsel for other petitioners and argued that the Certificate, he had provided was genuine and duly obtained from the concerned officers of his home District; that the petitioner had availed all his requisite education in his home District except for one year, when the said facility was not available; that the petitioner having obtained his F.Sc. Pre-medical in first attempt should be given preference over others, who had been 'repeaters ' and yet given admission in the current session.
8. Learned counsel representing candidates stated in Category-III, who had been admitted in Medical College in the current session, argued that the said candidates could not obtain all the requisite education from their home District, as the same was not available therein; that there had been no misrepresentation and the Certificates, provided to the Joint Admission Committee had been obtained from the competent officers and thus any lapse or falsity therein should not effect their accrued rights.
9. Learned counsel for the Joint Admission Committee narrated the entire history and background to show the provisions relating to reserve seats for 'backward' areas wire introduced in educational institutions in Khyber Pakhtunkhwa and thereafter explained how it had evolved over time; he also emphasized that the rationale behind the preferences given to candidates was based on the criteria of educational facilities being available in their respective home Districts; that the. Joint Admission Committee accepted the original certificates, duly signed and stamped by the District Co-coordinating Officer and the District Educational Officer of the respective Districts; that the provisions of the Prospectus, relating to admission criteria for prospective candidates was intra vires and based on the principle laid down by the apex Court in, various authoritative judgments rendered on the subject. Reliance was placed on the case Miss Amina Rafique v. Joint Admission Committee, Khyber Medical University and others (2009 SCMR 697), Mst. Iffat Nazir v. Government of Punjab, through Secretary Population Welfare Department Lahore '(2009 SCMR 703), Miss Komal Nazir Qazi v. Khyber Medical University, Joint Admission Committee, through Chairman and 8 others (2008 CLC 905), Arif-urRehman v. Government of N.-W.F.P through Secretary Education, N.-W.F.P and others (2005 SCMR 340), Manzoor Ahmad Qureshi v. Chairman Joint Admission Committee, Khyber Medical University, Peshawar and 9 others (PLD 2005 Peshawar 116), Muhammad Ibrahim and another v. Abdul Rehman and 8 others (2001 CLC 13), Yahya Gulzar v. Province of Punjab through Secretary Health, Government of Punjab, Lahore and 3 others (2001 CLC 9), Ali Ahmad v.
Principal, Government Degree College, Sahiwal and others (1999 MLD 3397), Miss Uzma Sabir Qureshi and others v. Government of Balochistan through Secretary, Health Department, Quetta and others (1999 YLR 1326), Gui Khan v. Government of Baluchistan through Secretary Education and 4 Others (PLD 1989 Quetta 8), Miss Shazia Mukhtar v. Principal, King Edward Medical College, Lahore and another (1992 CLC 1379), Ahmad Ali v. _Province of Sindh and 2 others (1986 MLD 1777), Naeem Mirza v. Government of Sindh through Secretary, Department of Health, Sindh Secretariat and 2 others (1987 CLC 1487) and unreported judgment of this Court in Miss Nifasat Farooqi v. Joint Admission Committee (Writ Petition No.1786 of 2005) decided on 18-7-2006.
10. Valuable arguments of learned ,counsel for the parties heard and available record perused.
11. Canvancing the judicial pronouncements of the superior Courts on the issue of reserved seats in educational institution in Khyber Pakhtunkhwa for `backward' areas, this Court notes that the matter was addressed in a comprehensive manner in the judgment pronouncement by this Court in Manzoor Ahmad Qureshi v. Chairman Joint Admission Committee (PLD 2005 Peshawar 116) wherein, it deliberated upon the precedents set by the apex Court in Attiya Bibi Khan's case (supra) and Tabassum Naz's case (supra) and finally held that:-- "The underline 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 been studying in schools and colleges in the developed areas do not suffer from any such disadvantage and therefore they should compete 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 seat for such areas unless he had studied areas. 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.As. Nos.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."
' This issue of reserved seats for 'backward' areas in Medical Colleges in the province of Khyber Pakhtunkhwa was revisited by this Court in Miss Komal Nazir Qazi's case, (2008 CLC 905) wherein, it was held that:- "In the light of above referred judgments, we are of the firm view that a candidate for one of the reserved seats of backward areas having obtained education from a place outside the District/Agency of respective backward area,. Cannot be considered at par with those who receive education from within the backward area or concerned District in case of non- availability of requisite educational facility in the backward area."
' This particular matter was also agitated before the apex Court in Arif-urRehman's case (2005 SCMR 340) wherein, the august Court realizing that the petitioner had obtained part of the requisite educational qualification from outside his own District, as there was no such facility available therein, allowed the said petitioner admission on the reserved seat. It was thus held that:- "it cannot be ignored that object of various provisions as enumerated in the Prospectus qua the reserved seats met for backward area is that the students who had studied in institutions located in such areas with relatively less facilities and cannot conclude in open merit may be accommodated and such allocation of reserved Quota cannot be reserved without sufficient lawful jurisdiction which totally lacking in this case".
' This principle was reaffirmed by the august Supreme Court in Miss Amina Rafique's case (2009 SCMR 697).
' Thus, keeping the 'ratio decidendi' of the aforementioned judgments of superior Courts, as our beacon of guidance, it is clear that the most essential consideration for awarding a placement on the reserved seats for 'backward' area is that the candidate should not only hail from the said area but is also to have studied and passed the requisite education therefrom. It is, only, when the said essential requisite educational facilities are not available in the area of domicile that candidates who have studied and passed the requisite educational qualification elsewhere are to be considered and awarded a place on the said reserved seats. The most crucial point for consideration is that the former is the general 'principle', while the later is an 'exception' thereto. The irony is that the exception' has now gained prominence, while the 'principle' has lost its significance and prime position.
12. Thus the petitioners, stated in Category-I, have been illegally denied admission. They have fulfilled the requisite educational qualifications from their home Districts, and thus have a priority over others, who have obtained part of the requisite educational qualification from outside the District. Hence, they are to be awarded admission.
13. The learned counsel for the Joint Admission Committee argued that sufficient time had elapsed since the finalization of the admission process and by allowing the petitioners, stated in Category-I, admission would lead to displacing other admitted candidates. We find this stance being without legal force. The said petitioners have vigilantly pursued their legal remedy and depriving them of their due rights would surely lead to grave injustice.
' This issue has been finally addressed and settled by the apex Court in "Munir Ahmad v.
Government of Baluchistan" (PLD 1981 SC 335) and later followed by this Court in "Raza Hassan v.
Chairman Joint Admission Committee" (1999 MLD 1469), wherein, additional seat had been awarded to a legally deserving candidate despite completion of the admission process by the medical institutions.
14. This Court does not find the criteria set for eligibility of candidates for the 'reserved' seats, as provided in the Prospectus, to be 'ultra vires' or illegal in any manner. However, we would like to note that the term "backward" used in the Prospectus is not appropriate and the same be reconsidered for apt substitution in the policies to come.
15. As far as mode and manner of submitting Certificates, as provided in the Prospectus, for ensuring a safety mechanism that the requisite educational facilities are not available in the area of domicile of the prospective candidates, we do find the same warranting interference. There are serious complaints that the said Certificates, so provided are contrary to the actual position of availability of educational facilities in the said area. These serious complaints require urgent inquiry, which obviously is beyond the pale of Constitutional jurisdiction. The said objections, though very serious in nature, in no way can be deemed to be absolute, so as to conclusively prove and conclude that the Certificates, so provided by the admitted students in Category-III, stated hereinabove, are forged or based on misrepresentation. This would require a factual inquiry by the Joint Admission Committee.
' The worthy Additional Advocate General, present in Court, assured that all responsible officers of the Provincial Government would provide all possible assistance to the Joint Admission Committee, in the said inquiry.
16. As far as the admission already granted to the candidates mentioned in Category-III, stated hereinabove, it would not be in accord with the norms of justice to displace them, without providing them an opportunity to show that the Certificates, so provided by them, were not only genuine but in fact a true reflection of the actual state of affairs regarding availability of the requisite educational facilities in their home Districts.
' Furthermore, it may also be noted that once rights accrue in favour of -a candidate on his admission and effective steps are taken by him, then disturbing his education thereafter would not be in accord with safe dispensation of justice. The exception to this rule is when the said admission is based on fraud or misrepresentation.
' Thus, in view of the above deliberations, we, at this stage, would not pass any findings on the Certificates, so provided by the candidates already admitted in Medical and Dental Colleges in Khyber Pakhtunkhwa as stated in Category-III. Their admissions are subject to the inquiry to be carried out by the Joint Admission Committee.
17. Accordingly, for the reasons stated hereinabove, this Court holds that:--
(I) That the criteria of eligibility as stated in the Prospectus for candidates applying for the reserved seats of 'backward' area Kohistan are infra vires and warrants no interference.
(II) The candidates mentioned in category-I hereinabove, are entitled to admission on the reserved seats for 'backward' area of Kohistan and they be accordingly admitted in the Medical or Dental Colleges, as deemed appropriate by the Joint Admission Committee, in accordance with the provisions of the Prospectus.
(III) That the criteria of eligibility and priority, so set out in the Prospectus, is to be read firstly in favour of all those candidates, who have availed their education from class-1 to F.Sc. Pre-medical from their place of domicile and only when the said candidates are not available, then candidates from the said area, who have studied in educational institution outside the home District, because the requisite facilities were not available in the place of domicile, I are to be considered.
(IV) The credentials of students mentioned in Category-III, stated hereinabove, are to be inquired into by the Joint Admission Committee and in particular the Certificates they have already submitted in view of the serious objections regarding its genuineness and truthfulness of its contents. Their admissions are thus conditional upon the outcome of the inquiry of the Joint Admission Committee.
(V) The inquiry as directed, is to be concluded and the decision so made, communicated to the concerned candidates by or before 6th of March, 2012.
18. All the petitions are thus disposed of in the above terms.