SYED ARSHAD ALI, J.---Through this common judgment, we intend to dispose of W.P. No, 183-A of 2017 and W.P. No, 252-A of 2017 as common questions of law and facts are involved in both the petitions. In W.P. No, 183-A/2017, the petitioner is seeking the constitutional jurisdiction of this Court praying that:-- "On acceptance of instant writ petition the impugned act of the respondents giving admission to respondents Nos, 7 and 8 against the reserved seat of upper Tanawal may graciously be set aside, and respondents be directed to give admission to the petitioner in BDS in Ayub Medical college, Abbottabad or MBBS at Khyber Medical College, Peshawar, as per admission policy/criteria framed by respondent No, 1, or any other relief which this Honourable court deems fit and proper in the circumstances of the case may kindly be granted."
Whereas in W.P No, 252-A/2017, petitioner Qazi Muhammad Awais is seeking the following prayer:-- "It is, therefore, prayed that by accepting this writ petition, the respondents may please be directed to allow admission in BDS on the reserved seat of backward area of Tor Char and upper Tanawal to petitioner as the petitioner did his education from primary to FSc from educational institutions situated in backward area of District Mansehra by cancelling the admission of respondent No, 5 being not eligible.
Any other relief, which this Hon'ble court deems appropriate in the circumstances of the case may also be granted in favour of petitioner."
2. Brief and essential facts of the cases are that the petitioners in both the writ petitions as well as respondents Azhar Iqbal and Sabeena Jabeen being the permanent residents of Upper Tanawal, a backward area of. District Mansehra, had applied for two seats reserved for the candidates who are permanent residents of Upper Tanawal. A total of 20 candidates applied against the seats reserved for the candidates of Upper Tanawal for the session 2016-2017. The last date for the submission of forms for the eligible candidates was fixed as 23rd September, 2016. The provisional merit list was displayed on the notice board on 30.09.2016 whereas the date for submission of objections/claims regarding the merit was fixed as 1st and 2nd October, 2016. The final merit list was displayed on 05.10.2016 and thereafter interviews for open merit were conducted from 15th to 20th October 2016, whereas the interviews from the candidates backward area were conducted from 23rd to 25th October 2016. The merit among the petitioners vis-a-vis respondents for the two reserved seats among the candidates of Upper Tanawal for session 20162017 along with other educational background is following:-- S. No,I.D. No,Name Father NameMerit Sco.
14 17812 Azhar Iqbal Muhammad Iqbal48.69 16 17767 Mehreen Ajmal Khan 46.20 18 17480 Sabeena JabeenMuhammad Naeem40.50 19 18947 Qazi Muhammad AwaisQazi Muhammad Ashraf39.31 PrimaryMiddle Matric F.Sc P-1 F.Sc P-2 New DarbandNew DarbandNew DarbandOghi MansehraOghi Mansehra New DarbandNew DarbandNew DarbandMansehra Mansehra New Darband (1-4)
Lassa Nawab (4-5)New DarbandNew DarbandNew DarbandNew Darband Nambal ButtiDarband ShergarhButti Oghi New DarbandLassan Nawab
3. The respondent institution/ University has laid down an eligibility criteria for the students hailing from the backward area and since the grievances of all the petitioners qua respondents revolves upon this eligibility criteria, therefore, it would be advantageous to reproduce the same:- "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 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 class-I till F.Sc. (Complete sessions) including SSC with science and F.Sc. premedical from the institutions within the concerned backward area of Khyber Pakhtunkhwa and have passed examinations from same institutions, provided such facilities exist in the area. ii. In case where there are no facilities within the concerned Backward area of SSC with science and FSc Pre Medical, the candidate must have obtained his/her primary and middle education from the respective backward area, provided the candidate has obtained SSC with Science and F.
Sc Premedical from within the District of domicile, or from the area nearest to their backward area. iii. In case of non existence of school/college or non-availability of the facility for teaching science subjects, the candidates will have to provide a solid proof in the form of a certificate duly verified by the concerned DEO (Education) and countersigned by the concerned DC of the concerned district. iv. In case any candidate who has obtained part of his/her education from outside the concerned backward area or area of domicile, provided such facilities exist, will not be considered as inside candidate. v. The candidate applying for backward are seat will have to provide a solid proof in the form of a certificate (as per specimen given on page 69) duly verified by the concerned DEO (Education) and countersigned by the concerned DC of the concerned district. vi. 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 maximum education obtained from the concern backward area. vii. The candidates must have appeared in the prescribed Entrance Test for admission to Public sector Medical and Dental Colleges in Khyber Pakhtunkhwa. viii.Students selected on Backward Areas quota seats should sign surety bond of not less than five years, stating that after completion of education, they shall perform duty in their home districts for at least 5 years. Any violation will result in their payment of an amount equal to self finance seat, with compounding interest rate. This money will be recovered as arrears of land revenue, in case of non-payment.
Note: All admissions will be based on the location certificate provided by the concerned DCO and EDO and Joint Admission committee will not be responsible for omission or commission if any in the location certificate as provided by the candidate. "
3. The claim of Mst. Mehreen (petitioner) in her writ petition is that respondent No, 7 was not eligible for admission as he has passed his F.Sc in the year 2014 from AIMS College Oghi District Mansehra, an area which is outside the territorial limits of the backward area of Upper Thanawal, despite the fact the facility of education (F.Sc) was available within the backward area for boys. Similarly, respondent No, 8 is also low on merit from the petitioner as such the Petitioner was illegally refused admission in Medial College despite she being eligible for the same.
4. Admittedly at the time when the petitioner passed the SSC from Government Girls High School Darband (falls with in limits of Upper Tanawal), there was no educational institute having the facility of F.Sc (Pre-Medical) in New Darband, therefore, her acquisition of F.Sc from other college of District Mansehra would not bar her from her admission against the reserved seats. The petitioner has further relied upon a certificate allegedly issued by the office of the Principal Government Degree College, Lassan Nawab, Mansehra, wherein it has been stated that the college was established in the year 1995 and classes at inter level were started in the year 1998, therefore, the respondent Azhar Iqbal should not have been offered the said admission as he has, admittedly, obtained his F.Sc from Oghi Mansehra i,e, an area which does not fall within the territorial limits of the backward area. Whereas in Writ Petition No, 252-A of 2017, the petitioner namely Qazi Muhammad Awais has also disputed the admission of Azhar Iqbal on similar grounds and further stated that despite the fact that he has obtained his entire education from within the local limits of Darband, Upper Tanawal, he has not given admission against the reserved seats. From the record, the following position of each candidate emerges:-- i. Mst. Mehreen She belongs to New Darband, Tehsil Oghi, a backward area of Upper Tanwal. Her educational record is as under:-- CLASS SCHOOL SESSION AREA PrimaryIqra Quran Academy, New Darband2002-2006 Backward area 9th Govt. Girls Higher Secondary School, New Darband, Mansehra2010 Backward area 10th -do- 2011 -do- F.Sc Govt. Girls Degree 2012 Non- Part-I College No,2 Mansehra. backward/ developed area F.Sc -do- 2013 -do- Part-II She has placed certificate from the competent authority which shows that during the session 2011 to 2013, no educational institute was imparting F.Sc (Pre-Medical) within the limits of Upper Tanawal, Tehsil Oghi District Mansehra. This fact has not been denied by the respondents and the certificate has also been issued regarding the non-existence of educational facility as required under the Rules. ii. Azhar Iqbal CLASS SCHOOL SESSION AREA PrimaryPine Valley Public School New Darband2002-2007 Backward area Middle 6th to 8th-do- 2007-2010 Backward area Matric 9thG.H.S.S. New Darband2010-2011 -do- Matric 10th-do- 2011-2012 -do- F.Sc Part-IAIMS College, Oghi Mansehra2012-2013 Non- backward/ developed area F.Sc Part-II-do- 2013-2014 -do- A certificate has been issued by the DEO (Education) to the effect that due to non-existence of educational institute/facility during the session 2011-2014 for F.Sc (Pre-medical) in New Darband, Azhar Iqbal has obtained his F.Sc from Tehsil Oghi, District Mansehra. iii. Sabeena Jabeen CLASS SCHOOL SESSION AREA Primary 1st to 4thPine Valley Public School New Darband2004-2006 Backward area 4th and 5thGovt. Girls Primary School Lassan Nawab2006-2008 -do- Middle G.G.H.S. New Darband2008-2011 -do- 9th and 10th-do- 2011-2013 -do- F.Sc.
Part-IThe Time School and College New Darband2013-2014 -do- F.Sc.
Part-II-do- 2014-2015 -do- iv. Qazi Muhammad Awais In his petition, he claims to have obtain his educational qualification from the schools/colleges which are located within the local limits of Upper Tanawal/backward area, however, he could not provide the required certificate of location of the institutes in the backward area. He has placed the relevant certificate on file but the same was obtained on 19.12.2016, much after the merit list, hence, the same was not considered.
5. Arguments heard and record perused.
6. The reasons which prevailed before the respondent joint admission committee, for giving admission to respondent No, 7 (Azhar Iqbal) and respondent No, 8 (Sabeena Jabeen) and denying admission to the petitioners are that respondent No, 7 Azhar Iqbal was at serial No, 15 of the final merit list and his aggregate score was 48.69 and he obtained his education from primary to matriculation from within the backward area/Upper Tanwal, whereas he obtained his F.Sc from Oghi Tehsil which is adjacent to the backward area of Upper Tanawal, thus, he was awarded admission as he not only scored higher marks but also fulfilled the criteria. Similarly, respondent No, 8, Sabeena Jabeen, had obtained an aggregate score of 40.50 and since she has obtained all her education from the educational institutes which are located within territorial limits of Upper Tanawal, thus, she was given the admission and petitioner Mst. Mehreen was denied admission for the reasons that she had obtain her F.Sc from District Mansehra, which is not a background area despite the fact that on merit she had better position then respondent No, 8, Sabeena Jabeen.
7. The aforesaid reasons for denying admission to the petitioner, Mst. Mehreen, are not based on correct interpretation of the eligibility criteria for backward area. It would be pertinent to note that the petitioner obtained her F.Sc certificate in session 2012-2013 and, admittedly, at that relevant time there existed no educational institution having the facility to impart F.Sc (Pre-Medical) education and as such she obtained her F.Sc from District Mansehra, a settled/developed area, however, from the same district where the backward area of Upper Tanawal is situated. At this junction, clause 2 sub-clauses (i) and (ii) of the eligibility criteria is reproduced once again:-- "2. i. The candidates must have obtained education from class-I till F. Sc (Complete sessions) including SSC with science and F. Sc premedical from the institutions within the concerned backward area of Khyber Pakhtunkhwa and have passed examinations from the same institutions, provided such facilities exist in the area. ii. In case where there are no facilities within the concerned Backward area of SSC with science and F. Sc Pre Medical, the candidate must have obtained his/her primary and middle education from the respective backward area, provided the candidate has obtained SSC with Science and F.
Sc Premedical from within the District of domicile, or from the area nearest to their backward area."
According to the aforesaid criteria, all the candidates were fulfilling the eligibility criteria. If admission has been given to respondent No,7, who has obtained SSC from an educational institute which is situated outside the territorial limits of Upper Tanawal, then on the same analogy the petitioner was also entitled to admission as in both cases the facility of F.Sc was not available within the backward area of Upper Tanawal Once all the candidates fulfilled the basic criteria of eligibility then respondents were required to have given admission to the candidate who was higher on merit. According to merit position, respondent No, 7, Azhar Iqbal, has obtained 48.69 marks, hence, he was on top of the merit. The contention of the petitioners that at the relevant time, educational facility was available within the backward area and he did not obtain his qualification from the backward area, is not sustainable for the reasons that the official respondents have denied this allegation and the competent authority has issued certificate in this respect stating therein that no institution with in the backward area had the facility of imparting F.Sc (pre- medical), therefore being disputed question of fact, the same cannot be adjudicated upon at this forum. The petitioner, Mst. Mehreen, who has obtained 46.20 marks was second on merit, however, she was denied admission for the reasons that she had obtained her F.Sc from Mansehra and preference was given to Sabeena Jabeen, who obtained 40.50 marks, for the reasons that she obtained all her education from the backward area. However, the eligibility criteria envisages for such distinction only when the educational facility is available and the candidate does not obtain education from the said educational institution.
8. Probably, hardship has arisen in the catering to such situation/eventuality as the same has not been dealt with by the eligibility criteria. When the petitioner, Mst. Mehreen, obtained her F.Sc. certificate in the session 2012-2013 the educational facility of ESC (Pre-Medical) was not available within the local limits of Upper Tanawal whereas when respondent No, 8, Sabeena Jabeen, obtained her F.Sc. certificate in the year 2014-2015, the said facility was available. The close perusal of admission policy envisages that both the petitioner as well as respondent, Sabeena Jabeen, were eligible for admission of the reserved seat however, the petition admission for the reasons that educational facility was available in Tehsil Oghi, which is nearer to Upper. Tanawal, as compared to other developed part of Mansehra and since she had not obtained admission in educational institution located in Tehsil Oghi which is nearer to backward area of Upper Tanawal, therefore, she was denied admission. This interpretation by the respondents is altogether alien to sub-clauses (i) and (ii) of clause-2 of eligibility criteria. The said eligibility criteria envisages that in case, educational facility is not available within the local limits of the backward area then the candidates must have obtained education from other part but within the district to become eligible for admission against the reserved seats. This clause does not envisage that candidate having acquired education from educational institution which is near to backward area would be given preference over the candidate who has obtained education from an area which is considerably placed at remote distance from the backward area within the district where the backward area is located, similarly if the facility of education is available at place nearer to backward area within the district where the backward area is A located and the candidate does not obtain his education from that nearest place rather obtains education from other part of the district where the backward area is situated cannot be denied admission against the reserved seat under the aforesaid criteria. The respondents have probably misconstrued the proviso to clause 2
(ii) of the eligibility criteria which states "In case where there are no facilities within the concerned Backward area of SSC with science and F.Sc Pre Medical, the candidate must have obtained his/her primary and middle education from the respective backward area, provided the candidate has obtained SSC with Science and F.Sc. Premedical from within the District of domicile, or from the area nearest to their backward area." In this clause the word 'or' has been used between "from within the district of domicile" and "from area nearest to the backward area". The word "or" obviously denotes alternate or either. In (Merriam Webster) Dictionary 'or' has been explained as:- 1---used as a function word to indicate an alternative <coffee or tea> <sink or swim> , the equivalent or substitutive character of two words or phrases <lessen or abate> , or approximation or uncertainly <in five or six days> 2 archaic : either 3 archaic : whether 4----used in logic as a sentential connective that forms a complex sentence which is true when at least one of its constituent sentences is true.
Whereas in The American Heritage Dictionary the word "or" has been described as:--
1. a. Used to indicate an alternative, usually only before the last term of a series: hot or cold; this, that, or the other. b. Used to indicate the second of two alternatives, the first being preceded by either or whether: Your answer is either ingenious or wrong. I didn't know whether to laugh or cry. c. Archaic Used to indicate the first of two alternatives, with the force of either or whether.
2. Used to indicate a synonymous or equivalent expression: acrophobia, or fear of great heights.
3. Used to indicate uncertainly or indefiniteness: two or three."
The word 'or' came for interpretation in the case of Ahad Yusuf's case (1986 CLC 1284) and Hakim Ali Bhatti v. Qazi Abdul Hakim (1986 CLC 1784). Ahad Yousaf's case was an election matter before the Chief Election Commissioner and while interpreting section 37(5) of the National and the Provincial Assemblies Ordinance (XIII of 1970) clauses (a) and (b) it was held:-- "The use of the word 'or' between the two clauses of subsection (5) of section 37 is disjunctive and not conjunctive and the remedy, therefore, as provided by this provision is alternate coeval and co-existent."
Whereas in Hakim Ali Bahatti v. Qazi Abdul Hakim (supra) and while interpreting the provisions of.
Representation of the People Act, (LXXXV of 1976) meaning of word 'or' has been given as under:-- "Meaning of word 'or', held would be used to indicate alternative between different or unlike things."
A similar interpretation of the word "or" has been given by the honourable Lahore High Court in Ch. Zulfiqar Ali v. Chairman, NAB and others (PLD 2003 Lahore 593) wherein it has been held that:-- "In the ordinary use, the word "or" is disjunctive that marks an alternative which generally corresponds to the word 'either'." Thus, the use of the word 'or' does not give preference of existence of one eventuality over the other, hence the candidate as per eligibility criteria is required, in absence of the availability of education facility with the local limits of backward area, to have obtained the said education either from the district where the backward area is situated or any other place nearer to the backward area even though the same is not part of the same district.
9. Accordingly by accepting this petition, we direct the respondents to give admission to the petitioner Mst. Mehreen in any public sector college according to her merit. The arguments of learned counsel for the respondents that the session for which she has applied has been completed/closed is no ground to withhold admission to the petitioner as it is settled principle of law that nobody should be prejudiced by the acts/omission the government/public sector institution and thus she is entitled to be given admission, either in ongoing session or in forthcoming session, whichever is appropriate, keeping in view the policy of the respondents.
10. Now moving to the case of petitioner Qazi Awais, suffice it to mention that there are only two seats reserved for the candidates who hail from Upper Tanawal and as has been held above the Petitioners and the respondents, Azhar Iqbal and Sabeena Jabeen, all are eligible against the reserved seats and only two seats are reserved, therefore, despite the fact that Qazi Muhammad Awais is eligible for the seat reserved for the candidates who hail from Upper Tanawal, however, he cannot be given admission because of his lower merit position.
11. Before parting with the judgment, we hold that respondent No, 8, Mst. Sabeena Jabeen, cannot be disturbed because of her lower position on merit as admittedly she is neither at fault nor has made any misrepresentation or fraud while applying for admission against seat reserved for Upper Tanawal and by now she has already completed her first year of education, hence a vested right has accrued to her to D complete her education. Reliance, in this regard is placed on Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another (1997 SCMR 15) wherein it was held by the august Supreme Court that:-- "We have heard the learned counsel for the parties and have also perused the record with their assistance. We do not find any substance in the arguments of the learned counsel for the petitioners and as such, these are repelled. The above narration of facts demonstrates that respondent No, 1 was presumably given admission on merits by the competent. College Authorities after considering his case. The requisite fee was accepted by them in lieu of valid receipts. He was directed to join 1st year class of M. B. B. S. It is admitted that the respondent is likely to complete the second year course of MBBS. This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation he could not be held to be at fault. It is well-settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission was given to respondent No, 1 by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No, 1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No, 1 to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No, 2 had been accommodated by giving admission instead of respondent No,
1. This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their negligence for which the respondent could not be held responsible. The decision of the petitioners to give admission respondent No, 1 as implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on basis of act of the petitioners."
Similarly in Mst. Attiya Bibi Khan and others v. Federation of Pakistan throufth Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161) the august Supreme Court, while dealing with the alike matter, held that:-- "It is noted that, the phrase "till a decisive step is taken" is very important. There is no doubt that relevant authority can receded before "decisive step" is taken. In these cases, admissions were granted to the candidates, in accordance with the prospectus, and the results were communicated to them before the writs were filed. They had not committed any wrong. Thus, decisive steps in these matters were already taken and thereafter steps contrary to their interest could not be taken. The principle of "locus poenitentiae" is attracted in these matters."
With these observations, both the petitions are disposed of.