' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby following relief is solicited by the petitioner.
"In view of the above, it is therefore most humbly prayed on behalf of the petitioner that this Hon'ble court may very graciously be pleased to issue following writs;
(i) Official respondents be directed to nominate private respondent No,3 for B. Sc. Engineering Course against general seats of Hattian Bala District;
(ii) Official respondents be directed to nominate the petitioner for B.Sc. Engineering Course against the seat reserved for Leepa Valley;
(iii) Official respondents be restrained to extend undue and illegal benefit to respondent No,4 by nominating respondent No,3 against the seat reserved for Leepa Valley;
(iv) Any other relief to which the petitioner is found entitled including costs is prayed for."
2. Precise facts forming background of the instant writ petition are that Additional Secretary Education Colleges/Nomination Board Azad Jammu and Kashmir invited applications for admission in B.Sc. Engineering including special seat reserved for residents of Leepa Valley allocated in various Institutions, Universities and Colleges of Islamic Republic of Pakistan for nationals of Azad Jammu and Kashmir pertaining to session 2012-2013, vide advertisement (Annexure "A") in which last date for filing applications was fixed by 30-9-2012. It is claimed that petitioner being first class State Subject of Azad Jammu and Kashmir, domicile holder of District Hattian Bala, enjoying permanent residence certificate of Leepa Valley possessed 875 out of 1050 marks in Matriculation and 832 out of 1100 marks in F.Sc. Applied for admission in B.Sc. Engineering course against special seat of Leepa Valley' within prescribed time who also passed entrance tests of N.-W.F.P. (Khyber Pakhtunkhwa) and Punjab. It is averred that petitioner submitted his application before the Nomination Board-respondent No,2 for open merit of District Hattian Bala as well as special seat of Leepa Valley. The petitioner was placed at Serial No, 8 in general merit, while inserted at serial No,2 in special seat of Leepa Valley's merit list. It is averred that one Khawaja Umar Naseem, who was inserted at Serial No,5 in general merit list had taken admission in B.Sc. Engineering in Dawood College of Engineering and Technology, Karachi, on open merit. It is further claimed that Nomination Board was bound to nominate respondent No,3 against general quota of District Hattian Bala who was falling at serial No,2 of the general merit while at serial No,1 of special seat's merit list. It is urged that to extend benefit to respondent No,4 the Nomination Board marked respondent No,3 against special seat of Leepa Valley, therefore, petitioner being at Serial No,2 in the said merit list of special seat has been deprived of from nomination against disputed special seat reserved for Leepa Valley, hence, the instant constitution petition.
3. After admission of writ petition, the respondents were directed to file written statement, however respondents Nos.1, 2 and 4 despite service failed to do the needful, therefore, proceeded ex parte vide order dated 25-2-2013. The contesting respondent, however, has filed written statement on 1- 3-2013 wherein it is stated that a Special Seat for B.Sc. Engineering has been reserved by the University of Engineering and Technology, Lahore for nationals of Azad Jammu and Kashmir, hence, the answering respondent participated in entry test and qualified the same by securing 201 marks out of 400. It is further stated that respondent No,3 also participated and qualified entrance test from the University of Engineering and Technology, Peshawar, by securing 279 marks. The applications were invited by the Azad Jammu and Kashmir Nomination Board from the State Subjects of respective districts against the quota of open merit, district wise and also special seats.
It is stated that respondent No,3 was selected for admission in Engineering University, Lahore on the basis of merit position whereas petitioner failed to secure merit vis-a-vis to the above respondent, thence, no illegality or irregularity was committed by the authority while nominating the answering respondent, therefore, petitioner has got no locus standi to file the instant writ petition.
4. Kh. Attaullah Chak, Advocate, the learned counsel for petitioner vehemently argued that petitioner being resident of Leepa Valley applied against the seats reserved for District Hattian Bala as well as for special seat reserved for Leepa Valley who was placed at Serial No,8 in the general merit of district quota while respondent No,3 was inserted at serial No,2 in the general merit supra.
However, against merit determined for special seat of Leepa Valley, respondent No,3 was placed at serial No,1 vis-a-vis to petitioner who was placed at Serial No,2 of the above special seat's merit list.
The learned counsel submitted that private respondent No,3 could be nominated on the basis of general merit, however, to extend benefit to respondent. No,4 the contesting respondent No,3 was nominated against special seat of Leepa Valley. The learned counsel pressed into service that official respondents by violating rule of law laid down by the apex Court in case titled Syed Mazhar- ul-Hassan Hamdani and another v. Zubina Nayyar and 10 others (1994 CLC 1428) and in an unreported precedent of this Court in case titled Fayyaz Ahmed v. Azad Jammu and Kashmir Nomination Board and others decided on 21-4-2010 has marked respondent No,3 for nomination against special seat, hence, prayed for acceptance of writ petition.
5. Sardar Muhammad Hafeez Khan, Advocate, the learned counsel for contesting respondent No,3 while controverting arguments of the learned counsel for petitioner, submitted that as respondent No,3 is resident of Leepa Valley, therefore, on the basis of getting top position in the merit list of teepa Valley deserved for admission against special seat. The learned counsel further emphasized that as petitioner could not secure merit position for special seat of Leepa Valley vis-a-vis to respondent No,3, therefore, he could not be nominated against the said seat. The learned counsel pressed into service that it is choice of his client to opt admission either against district quota or against special seat on the basis of his merit position and craved for dismissal of writ petition.
6. After hearing the learned counsel for parties at great length, I have perused the contents of writ petition, examined the appended record and gave my earnest thought to the respective arguments advanced by the learned counsel for parties.
7. , Admittedly, both the candidates i,e, petitioner and contesting respondent No,3 hail from Leepa Valley who besides claiming the seat of general merit also applied for special seat of Leepa Valley.
The Nomination Board-respondent No,2 through proclamation (Annexure "A") solicited separate applications for general merit and special seat of Leepa Valley. Both the candidates applied separately. The Nomination Board prepared separate merit lists for nominations against general quota and special seat. The total seats of general merit pertain to District Hattian Bala, according to pleadings of the parties are 4 in number. As contesting respondent No,3, Naveed Asghar, placed at Serial No,2 in general merit list, therefore, he could be nominated against seat reserved for general merit. However, petitioner was falling at Serial No,8 against quota of general merit, hence, could not be nominated against seat reserved for District, Hattian Bala. It appears from record that private respondent No,4 was placed at Serial No,6 in general merit list, therefore, he could not be nominated against quota, allocated for District Hattian Bala, hence, it appears that to accommodate him, private respondent No,3 was nominated against special seat of Leepa Valley.
The Nomination Board, therefore, while nominating private respondent No,3 against seat reserved for Leepa Valley has violated pronouncement of the apex Court laid down in case titled Syed Mazhar-ur-Hassan Hamdani and another v. Zubina Nayyar and 10 others (1994 CLC 1428). The ratio decidendi laid down by the Hon'ble Court in the precedent case at page 1435 is reproduced as under:- "It is evident that under Instruction No,13, the Nomination Board has to prepare a merit list; it implies that Azhar Hussain, appellant, should have been considered by the Nomination Board on merits against general quota of seats irrespective of the fact that his application was for nomination against the special seat of Kel area. There is no provision in the relevant instruction for separate applications for seats of general quota and special seats. No separate applications were called for special seat in proclamation which was published in the newspapers. Therefore, the application of Azhar Hussan, appellant, did not debar the Nomination Board to consider his nomination against general quota of seats under Instruction No,13. A close perusal of the instructions would reveal that although a candidate may make choice for admission to a certain college but all the same the Nomination Board is not bound by such choice and is at liberty to nominate a candidate to another college of which he did not make any choice. Thus, the High Court has rightly held that Azhar Hussain, appellant, should have been nominated against a seat of general quota as he was entitled to it on merits, and not against special seat of Kel area which should have been allotted to a candidates who could not be nominated against general quota on merits. If the arguments advanced by the learned counsel for the appellants that Azhar Hussain had a choice to seek admission in medical college against special seat, it would not only violate the provisions of Instruction No, 13 but would frustrate the very purpose of creation of special seat which was in nature of a concession to Kel area in view of its educational backwardness.
Obviously, if Azhar Hussain was entitled on the basis of merit from general quota of seats reserved for Muzaffarabad District, he could not claim a choice against special seat merely because the same carries some economic benefits, especially so when no rules or instructions empower him to make such an option. The contents of the telegram sent to Azad Jammu and Kashmir Government by the Kashmir Affairs Division in connection with the creation of special seat for Kel area, show that the seat was a special seat in addition to the general quota of seats available to Muzaffarabad District including Kel area. Thus, the special seat would be available for the best student from the Kel area who could not be nominated on merits against general quota. The telegram cannot be interpreted to mean that even if a student is entitled to be nominated out of the general quota of seats he is to be nominated against special seat at his option. The expression `best students' implies the best 'student' out of the 'students' who could not get seat on merits from general quota. The purpose of the telegram was to intimate the Azad Jammu and Kashmir Government that a 'special seat' has been made available for Kel area. Had the Azad Kashmir Government intended that special seat could be allotted to a candidate from Kel area at his option, it would have made specific provision to that effect in the relevant instructions. Thus, it cannot be said that Azhar Hussain was entitled to make a choice for the special seat depriving the second best candidate from Kel area, i,e, the respondent No,1 from nomination, against the said seat."
' The identical view has been laid down by this court in Writ Petition No,20 of 2010 titled Fayyaz Ahmed v. Azad Jammu and Kashmir Nomination Board and others decided on 21-4-2010 which has also been frustrated by the Nomination Board.
8. It is evident from the merit lists of special seat of Leepa Valley and District Hattian Bala that respondent No,3, Naveed Asghar, could be nominated against seat of general merit while petitioner could be nominated against special seat on the basis of their respective merit position. If argument of the learned counsel for the contesting respondent that his client had a choice to seek admission in Engineering College, Lahore, against special seat is accepted, it would frustrate the very purpose of creation of special seat which was in nature of a concession to Leepa Valley area.
As respondent Naveed Asghar was entitled for admission on the basis of merit from general quota of seats reserved for Hattian Bala district, he could not claim a choice against special seat of Leepa Valley on the basis of rule of law laid down by the apex Court in the case of Mazhar-ul-Hassan Hamdani supra. The candidate placed at serial No,6 of general merit list namely, Muneeb-ul- Hassan could not be nominated who was much lower in the general merit list, hence, it was enjoined upon the Nomination Board to nominate respondent No,3 on the basis of his merit position.
9.The nub of above discussion is that by accepting the instant writ petition, Secretary Nomination Board-respondent No,2 is hereby directed to nominate respondent No,3 Naveed Asghar for B.Sc.
Engineering course against general seat of District Hattian Bala on the basis of his merit position while petitioner shall be nominated against special seat of seat Leepa Valley for the said course forthwith. However, nomination of private respondent No,4 Muneeb-ul-Hassan is declared as without lawful authority, hence, having no legal effect. The costs shall follow the eventuality.