' FAIZ MUHAMMAD KHAN J.-Azam Khan, petitioner herein, and Muhammad Ashfaq Khan, respondent No, 4 herein, both belong to the Federally Administered Tribal Area. Some seats for the session 1981- 82 were reserved in various Medical Colleges of the country for admission of the students from the Federally Administered Tribal Area. In the province, Home and Tribal Affairs Department of the Government of North-West Frontier Province handles cases of admission of students from that area in various Medical Colleges of the country. The overall supervision of the Federal Government in that respect is, of course, there.
2. For the session 1981-82 a total number of 91 seats for admission in M.B.,B.S. Course and 5 seats for admission in B.D.S. Course were reserved in various Medical Colleges of the country for the students hailing from the Federally Administered Tribal Area. A notice for admission was issued by the Home and Tribal Affairs Department on 16th January, 1982 wherein the break-up of the seats reserved in various Medical Colleges of the country was also given, calling upon the interested candidates to submit their applications on the prescribed form through the concerned political Agent/Deputy Commissioner upto the date specified in the notice. The copy of this notice has been placed on record by respondent No,
1. It was made clear in para. 4 of the said notice that final selection of the candidates was to be made by the Provincial Selection Committee in accordance with the instructions of the Federal Government issued from time to time and on the basis of the prospectus of the Khyber Medical College, Peshawar.
3. Pursuant to the said notice, interested candidates applied for admission through proper channel.
Azam Khan, petitioner herein, and Muhammad Ashfaq Khan, respondent No, 4 herein, were amongst them.
4. Twelve seats were stated to have been reserved for the candidates from Khyber Agency for admission in various Medical Colleges of the country. A Merit List of the candidates from that area was stated to have been prepared by the Commissioner, Peshawar Division, in which the petitioner, having obtained 463 adjusted marks, was placed above Muhammad Ashfaq Khan, respondent No,
4. That List was forwarded by the Commissioner, Peshawar Division to the Home and Tribal Affairs Department of the Government of the N.-W.F.P. Were selection of the candidates from various Agencies/Areas of the Federally Administered Tribal Area was to be finalised and the candidates allocated to various Medical Colleges of the country against the seats reserved for them.
5. Since on the basis of prescription contained in the prospectus of the Khyber Medical College, Azam Khan petitioner was having 463 adjusted Marks, he was expecting admission in the Bolan Medical College, Quetta, as mentioned by him in para. 5 of this petition, in preference to Muhammad Ashfaq Khan, respondent No 4. But to his great surprise, Muhammad Ashfaq Khan, respondent No, 4, was admitted in Bolan Medical College, Quetta in preference to him. The petitioner made enquiry and he was informed that since he had secured third division in his F. Sc.
(Pre-Medical) Examination and was not eligible for admission to the Medical College, he was not considered for admission against one of the reserved seats.
6. The petitioner has filed this Constitutional petition wherein he has challenged the action of the authorities in selecting respondent No, 4 for admission in Bolan Medical College, Quetta, in preference to him, as being without justification and without lawful authority. The main grounds on which the petitioner invokes the Constitutional jurisdiction of this Court are that he having more adjusted marks than respondent No, 4 could not have been ignored for admission, as such decision amounted to making nugatory the statutory benefit conferred upon him by a Central Statute, that the Prospectus of the Bolan Medical College, Quetta, where the petitioner would have got admission instead of respondent No, 4, did not lay down that a candidate who may have secured third division in the F. Sc. (Pre-Medical) Examination was not eligible for admission to the said College and for that reason the admission to the petitioner could not have been refused simply because the Prospectus of the Khyber Medical College contained a condition making ineligible for admission a candidate who may have secured third division in the F. Sc. (Pre-Medical)
Examination.
7. Respondent No, 1 filed para-wise comments in this Court wherein it was stated that the petitioner being a third divisioner was not eligilble for admission in the Medical College under the priorities for admission fixed in the Prospectus of the Khyber Medical College, which was relevant for the purpose. It was also mentioned that the Governor of the N.-W.F.P. Who undisputedly acts as Agent to the President for the Federally Administered Tribal Area, had decided that no 'third divisioner' was to be admitted to Professional Colleges. It was also stated in the said para-wise comments that the Selection Committee ignored the petitioner, for he was not eligible for admission being a third divisioner in the F. Sc. (Pre-Medical) Examination on the basis of which he had sought admission to Medical College and in his place respondent No, 4, who had obtained 2nd division in his F. Sc. (Pre-Medical) Examination and was thus eligible, was selected for admission to Bolan Medical College. It was further mentioned in the said comments that another candidate Muhammad Ali, who was at serial No, 12 and had 469 adjusted marks as compared to 463 adjusted marks of the petitioner, was also not considered for admission being a third divisioner in the F. Sc. (Pre-Medical) Examination.
8. In this background of facts Qazi Muhammad Jamil Advocate argued the case of the petitioner and Syed Ibne Ali, Additional Advocate-General argued the case of the respondents.
9. There are certain material facts which are not disputed and are mentioned hereafter. The petitioner sought admission in the Medical College on the basis of having passed F. Sc. (Pre- Medical) Examination, which he had passed in third division. The respondent No, 4 had passed that examination in second division. The adjusted marks of the petitioner were more than the adjusted marks of respondent No,
4. The prospectus of the Khyber Medical College, as also the policy of the Governor acting as Agent to the President with respect to this Area, made ineligible for admission a candidate who secured third Division in F. Sc. (Pre-Medical) Examination on the basis of which he sought admission. The petitioner having obtained third division in the F. Sc. (Pre-Medical)
Examination was not considered for admission being ineligible according to the rules specified in the relevant Prospectus and the policy referred to above. For the sake of convenience, we may here reproduce the relevant rule as under : "(xii) No candidate who obtains Third Division or equivalent Grade i,e, less than 45% marks in the examination on the basis of having qualified in which he seeks admission shall be eligible to apply for admission and their application, if any, will not be entertained. This shall apply to all Categories of students, including those from P.A.T.A. And F.A.T.A."
10. Since the candidates from the Federally Administered Tribal Area were to be admitted to various Medical Colleges of the country, each one of which had separate criteria for admission as laid down in the Prospectus of each such College, a policy applicable on uniform basis was, therefore, to be laid down by the authorities to regulate such admissions and finalise selection of the candidates. For that reason, it appears, the Prospectus of the Khyber Medical College was made basis for selection. Such action for the Selecting Authority was perfectly valid and could not be taken exception to. No doubt, according to this Prospectu the merit of the candidates inter se was to be determined on the basis of the adjusted marks, worked out in the manner specified in the Prospectus, but a candidate who according to this Prospectus was not eligible for ad mission could not be considered for selection and his merit even could be worked out in the manner specified in the Prospectus for the contest could be between the eligible candidates and not between the eligible and the ineligible candidates. Once a candidate on the ground of his ineligibility was out of the arena, the question of the counting of his adjusted mark did not arise. We are, therefore, of the firm view that if a candidate for any valid reason, and the laying down of a certain minimum standerd was certainly a valid reason, was ineligible for admission, then neither his merit was to be worked cut, nor was he to be allowed to compete with otherwise eligible candidates for admission.
In that event the question of the frustration of the Federal Statute would not arise.
11. The main contention of the learned counsel for the petitioner was that the provision in the Prospectus of the Khyber Medical College declaring ineligible for admission a candidate who may have secured third division in the F. Sc. (Pre-Medical) Examination on the basis of which we may be seeking admission could not be enforced, for it would make nugatory the advantage of the addition of 20 marks conferred on a candidate by the Federal statute, called the National Guards Act, 1973, as amended by Ordinance IV of 1975. While advancing this argument he relied on PLD 1977 Lah.
820. We find no force in this argument because in our view the addition of 20 marks would help that candidate who is otherwise eligible for admission to a College, having secured in the examination on the basis of which he seeks admission at least the minimum standard laid down in the Prospectus, and would not be of any help to a candidate who according to the reasonable requirement of the Prospectus is not eligible to be considered for admission. The authority relied upon by the learned counsel for the petitioner was applicable to the facts of this case because the ineligibility clause, as it appears in the Prospectus of the Khyber Medical College, was not there in the Prospectus cansidered in that case, nor was this point raised before, or considered by, the Court in that case. Further, as already seen, even if the ineligibility of the petitioner on the basis of his having passed the F.Sc. (Pre-Medical) Examination in third division was kept out of consideration and his case viewed only on the basis of adjusted marks worked out in the manner provided in the Prospectus, yet the petitioner having adjusted marks lower than Muhammad Ali was not entitled to admission in the Bolan Medical College, as claimed by him.
12. There is also no substance in the argument of the learned counsel for the petitioner that since according to para. 37 of the Prospectus of the Bolan Medical College, Quetta, which dealt with the criteria for selection of candidates, a candidate who may have passed F. Sc. (Medical Group)
Examination in third division was eligible for admission, the petitioner being qualified for admission in College should have been considered for the same. If the criteria for selection as laid down in para. 37 of the Prospectus of the Bolan Medical College was applied, even then the petitioner was out of selection because the respondent No, 4, being a second Divisioner in the F. Sc. (Medical Group), was to be given preference over him under preference No, 3.
13. The net result is that there is no merit in this writ petition, which is hereby dismissed. No order as to costs.