ALLAH BAKHSH KHAN, J.-Since somewhat common questions are involved we propose to dispose of Constitutional Petitions Nos. 309 and 352 of 1981 per this judgment.
2. Ali Muhammad, Tariq Naved, Sajjad Rahim, Muhammad Javed and Shujatullah of Petition No. 309 and Ghulam Rasool, Habibullah and Raza Khan of Petition No. 352 have sought a declaration that they are eligible for admission to First Year B. Sc. Engineering class in the N.-W. F. P. University of Engineering & Technology, Peshawar and that the refusal of the respondents to consider them for admission was without jurisdiction and lawful authority and was discriminatory. They have asserted that they had passed B. Sc. Examination of the University of Peshawar in the First Division in the subjects prescribed under paragraph 6(c) of the Prospectus of the N.-W. F. P. University of Engineering & Technology by for the Academic Session 1980-81 and had passed their F. Sc. (Pre- Engineering) Examination from the Board of Intermediate and Secondary Education, Peshawar.
Being eligible they applied for admission to the First Year B. Sc. Engineering Class but their names were omitted from the list of the candidates to be considered for admission on merit because, according to the respondents they were not eligible under paragraph 18 of the Prospectus being not Second Divisioners in F. Sc. They cited instances of six third divisioners who had been admitted previously in the Academic Session 1979-80. Their learned counsel strenuously contended that the refusal of the respondents to allow admission to the petitioners was discriminatory and, secondly, the provision in the Prospectus with regard to Second Division in F. Sc. For those holding B. Sc.
Degrees in the First Division being not reasonable was to be struck down.
3. It would be appropriate to reproduce the relevant paragraphs appearing at pages 21 and 22, governing the admission, from the Prospectus for the Academic Session 1980-81 and these read as under :- "(4) All admissions shall be made on merit which shall be determined for each category as follows
(a) Merit No. 1 . . . . . F. Sc. With Physics, Chemistry and Maths. 60 or more marks.
(b) Merit No. 2 . . . . . B. Sc., 65 % or more marks in the Smester System or 60 % or more marks in annual System, with grouping as indicated under paragraph 6(c).
Note.-Only B. Sc. Candidates with grouping as specified under paragraph 6(c) are eligible.
(c) Merit No. 3 . . . . . F. Sc. With Physic, Chemistry and Maths. 45 or more marks.
(d) Merit No. 4 . . . . . B. Sc., 50 % or more marks under the Smester System or 45 % or more marks in annual System and with grouping as indicated in 6(c).
(5) Merit of the candidates shall be determined on the basis of total marks obtained in F. Sc./B. Sc.
And shall be determined in the branch/ department of Engineering in which he has applied for admission.
(6) Candidates applying for admission to a particular course of study will be grouped according to the educational qualifications they possess and in the order as mentioned below :-
(a) F. Sc. First Division Pre-Engineering and F Sc. Agriculture First Division (for Agricultural Engineering Branch only).
(b) Cambridge Overseas Higher School Certificate examination with Physics, Chemistry and Mathematics at the Principal level in Division First, or the British General Certificate of Education Advanced level with these subjects in Division-1 (London, Oxford, Cambridge).
(c) B. Sc. First Division with one subject from Group-A and one from Group-B of the following subjects Group-A1. 'A' course of Mathematics.
2. 'B' course of Mathematics.
3. Mathematics General.
Group-B1. Physics.
2. Chemistry.
3. Statistics.
The third subject must have been taken from either Group-A or Group-B.
Note.-In order to be Eligible for admission to the University of Engineering candidates must have passed I. Physics.
2. Chemistry (Pre-Engineering Group)
3. Mathematics at F. Sc. Level at leas in Second Division, or any equivalent examination with the same grouping (See also paragraph 18).
Paragraph 18 referred to above is as follows :-
18. Admission to first year B. Sc. Engineering course (as mentioned in 4, 5 and 6 above) shall be open only to candidates who have passed F. Sc. Pre-Engineering Examination of the Board of Intermediate and Secondary Education, Peshawar or any other examination recognised by the N.- W. F. P. University of Engineering & Technology as equivalent for the purpose of admission in Engineering, at least with a second division. For the purpose of admission, twenty marks shall be added for candidates who fulfil the requirements of National Guards Amendment Act 1973."
4. It is abundantly clear from what has been reproduced above that holders of B. Sc. Degree in the First Division can be considered for admission at Merit No. 2 provided that they have grouping of subjects shown, in paragraph 6(c). The only condition for the eligibility, however, is that they must have passed Physics, Chemistry and Mathematics (Pre-Engineering Group) at F. Sc. Level at least in the Second Division. The learned counsel for the petitioners contended that this condition was not reasonable inas--much as a Third Divisioner in F. Sc. With the aforesaid subjects undertakes) to pursue his study for another two years and gets his B. Sc. Degree in 18 the First Division. It being so, he should not be deprived of reaping the harvest of his Labour for two academic years. We are of the view that once a holder of B. Sc. Degree in the First Division with the requisite grouping" of subjects becomes eligible for admission the requirement that he must have passed his F. Sc. (Pre- Engineering Group) at least in the Second Division does not appear to be reasonable. It is significant to note that an F. Sc. With Physics, Chemistry and Mathematics in the Second Division stands at Merit No. 3 and is eligible for admission. If a person fails to secure Second Division and is a Third Divisioner another opportunity lies at his feet to be eligible for admission and it is open to him to work hard and secure First Division in the B. Sc. The mere fact that be could not secure Second Division in F. Sc. Should not stand in his way after he passes his B. Sc. Examination in the First Division. It was urged on behalf of the respondents that the subjects of Physics, Chemistry and Mathematics must be studied in greater depth and the students must have a stronger base in these subjects. It was further urged that the students usually opted for Mathematics A and B courses, besides Statistics, in B. Sc and left out Physics and Chemistry altogether. It escaped the notice of the learned counsel for the respondents that those holding B. Sc. First Division were required to have one subject from Group A comprising Mathematics A, B and General Mathematics; one subject from Group B comprising Physics, Chemistry and Statistics and one subject from either of these Groups. If a student was permitted by the prospectus to have Mathematics A, B and Statistics according to these Groups there was no occasion to complain on the part of the respondents that the students usually opted for Mathematics A, B and Statistics leaving out Physics and Chemistry altogether and, as such. Stood at a disadvantageous position. If the authorities were anxious about Physics and Chemistry to form essential part of both the Groups, the grouping of subjects can be amended accordingly in the Prospectus. The anxiety of the authorities concerned for greater depth and stronger base in the subjects Physics and Chemistry at F. Sc. Level may be genuine but the requirement in the Prospectus is to be streamlined. 1f the Third Divisioner in F. Sc. With these subjects chooses to achieve good division in his B. Sc. Degree and succeeds in securing First Division we see no reason for insistance on his securing Second Division in F. Sc. We are, therefore, of the view that the requirement of Second Division at F. Sc. Level for those holding First Division to B. Sc. Is not reasonable and the said provision in the Prospectus merits to be struck down.
5. The plea of discrimination agitated before us is, in the circumstances, not tenable. The particulars of the six candidates have been given in both the writ petitions who though F. Sc. Third Divisioners had been admitted to first year B. Sc. Engineering Class. It is alleged by the respondents that these persons had been admitted by the ten Faculty of Engineering, University of Peshawar for the Academic Session 1979-80 and not by the present N.-W. F. P. University of Engineering & Technology, Peshawar. This allegation could not be controverted before us by the learned counsel for the petitioners. Secondly, Khalid Mansoor appearing at Serial No. 6 hailed from Baluchistan and was refused admission on the ground of his being a Third Divisioner but the matter was taken up at a higher level by the Governors of Baluchistan and N.-W. F. P. The latter who was Chancellor of the University of Peshawar in the larger interest of our Province agreed to relax the provisions of paragraph 6(c) of the Prospectus and under his direction the Vice-Chancellur created one seat for Khalid Mansoor by name over and above the regular quota of five seats reserved for Baluchistan. It cannot, therefore, be said that it is the N.-W. F. P. University of Engineering & Technology, Peshawar who had allowed admission to the aforesaid persons, including Khalid Mansoor from Baluchistan, and had meted out a different and discriminatory treatment to the petitioners.
6. There is no denying the fact that all the petitioners in Writ Petition No. 309 are holders of B. Sc.
Degree in the First Division and they are Third Divisioners in F. Sc. (pre-Engineering Group). Ghulam Rasool and Raza Khan of Writ Petition No. 352, however, have different academic qualification. Both of them asserted in the writ petition that they had passed their B. Sc. Examination in the First Division. A look at Annexure A-1 shows that Ghulam Rasool had passed his B. Sc. Examination in Second Division. The respondents in their comments categorically alleged that Raza Khan had passed B. A. And not B. Sc. Examination. There is nothing on the record to show that the petitioner Raza Khan had controverted this allegation. It is manifest that both of them have not come to this Court with clean hands. They are guilty of suppression of material E facts deliberately and, as such, the discretionary remedy would not be available to them. It is observed in Wali Muhammad v. The Secretary Home Department, Government of Baluchistan, Quetta and 2 others (PLD 1972 Quetta 33), that as a constitutional petition is a discretionary remedy, it is not available to the petitioner because he has not come with clean hands. In Abdur Rashid v. Pakistan and others (1969 SCMR 141), the petitioner had suppressed a material fact in his petition and it was held that the High Court was justified, in dismissing the petition on the ground that he had not come with clean hands.
7. So far as the petitioner Habibullah is concerned be is B. Sc. First Division with Physics, Maths. A, Statistics and Islamiat as his subjects. The additional ground taken up on his behalf is that respondent 2 had nominated him against the seat reserved for Federally Administered Tribal Area and that respondent 1 gravely erred in refusing admission to him against one of the said seats. A look at the correspondence between the respondents shows that though the petitioner was Third Divisioner he was nominated by respondent 2 but it cannot be said that the nomination shall override the provisions of the Prospectus and respondent I would not be entitled to ignore it if the nominee was not found eligible for admission under the term and conditions of the Prospectus. It would be within the competence of respondent 1 to refuse admission to a candidate if the latter was not possessed of the requisite academic and other qualifications laid down in the Prospectus governing the admissions. These qualifications could, however, be relaxed if there was any framed policy of the N.-W. F. P. Or Federal Government with regard to Federally Administered Tribal Area or any [other area or class of people. This aspect of the matter, however, has little significance in view of our finding that the requirement that B. Sc. First Divisioner must be F. Sc. Second Divisioner for his eligibility to admission to First Year B. Sc. Engineering Class is struck down.
As a result of the foregoing discussion we would allow the Writ Petition No. 309 and partly Writ Petition No. 352 with regard to Habibullah only and declare these petitioners to be eligible for admission to the First Year B. So. Engineering Class of the N.-W. F. P. University of Engineering & Technology, Peshawar. The parties are left to bear their own costs.