' AMIRUL-MULK-MENGAL, J.--- Petitioner Muhammad Jamil Khan, a candidate for one of the seats reserved for Quetta Rural area in the Engineering College, was not selected against the said seat by the Selection Committee and he was informed accordingly that his name has been dropped in terms of Clause 2.15 of the Admission Policy. It is this decision which has been assailed in this Constitutional Petition.
2. It may be pointed out that according to the Admission Policy issued by Government of Balochistan for allocation of seats in different Engineering Colleges of the country two seats are reserved for Quetta Rural. Present petitioner and three other candidates applied for the said seats.
The petitioner was at S.No,2 on the merit list of those candidates who were eligible to be selected from Quetta Rural.
3. It appears that on application of some candidates, the Selection Committee felt it necessary to seek confirmation from Deputy Commissioner, Quetta, whether petitioner belongs or does not belong to Rural area of Quetta. The Deputy Commissioner while submitting his report inter alia, observed that father of petitioner owns landed property measuring 1 Rod 9 poles in Mouza Sumangli, an area outside the limits of Quetta Municipal Corporation, falling in Rural Area. The identity card of petitioner's father also shows that he is a resident of Killi Sumangli, Quetta. Besides the above said observations, it was stated that in the Electoral Roll, the family of petitioner is shown to be resident of House No,8-21/163-31 Qamar Colony, MeConghy Road, Quetta. After this report the Committee rejected the application of the petitioner for admission in the Balochistan Engineering College, Khuzdar. Hence this petition.
4. Heard Mr. Amanullah Khan for petitioner, SA.M. Quadri for respondent No,6 and learned Advocate-General, Balochistan for official respondents.
5. Before proceeding further, it may be pointed out that there are two reserved seats in Engineering Colleges/Universities of Pakistan for the candidates of Quetta Rural Area. It is an admitted position that out of the two reserved seats only one seat was allotted to another candidate from Rural Area whereas the remaining seat was taken out of that quota and was included in the Divisional quota.
It is this seat which has now been allotted to respondent No,6 Sohail Ahmed on Divisional merit basis.
6. The moot question which requires determination would be whether the Selection Committee was competent and had lawful authority to do so under the Rules. The arguments addressed by the learned counsel for private respondent and learned Advocate-General, Balochistan were mostly confined to the fact that if, under the rules, there is no eligible candidate against the rural seats of District Quetta, the said seat or seats would be transferred to the Divisional quota and since petitioner did not belong to Rural Area of Quetta, hence dropping his name was proper and just.
7. Mr. Amanullah Khan on the other hand vehemently urged that the petitioner was a candidate from Quetta Rural and he was in possession of all relevant documents as required by the Selection Committee which he produced before it according to procedure, therefore, the seat allotted to Quetta Rural could not have been taken out of that quota by the Selection Committee and transferred to Divisional merit quota. Decision/action of Selection Committee of taking out this seat and transferring it to Divisional quota is without lawful authority and therefore, selection of respondent No,6 on the seat of Quetta Rural carries no legal effect.
8. In order to appreciate the arguments so addressed, we consider it feasible to reproduce the clause under which the name of the petitioner has been dropped by the Selection Committee. This is clause 2.15 of the policy which reads as under:-- "The Selection Committee, on the basis of documents attached with the application form on account of further inquiry from the Deputy Commissioner or other sources shall be competent as to whether a candidate actually belongs to the District of which he/she has produced the local/domicile certificate and whether he/she is entitled to his/her selection against the seats of that District or not. The candidate shall be bound by the decisions of the Selection Committee."
9. It is thus clear from the plain reading of the aforesaid clause that the Selection Committee is competent to hold, on the basis of documents attached, or as result of further enquiry from Deputy Commissioner or other sources, whether a candidate actually belongs to the District of which he/she is a candidate and whether he/she is entitled to his selection against the seats of that District or not. Here the Selection Committee has not ordered the cancellation of local certificate of petitioner nor it has held that petitioner does not belong to Quetta District. On query learned Advocate-General as well as counsel for respondent both admitted that local certificate issued to petitioner has not been cancelled. But they submitted that petitioner in fact belongs to Quetta Urban and not Quetta Rural. The question which cuts at the root of the matter is firstly, whether under clause 2.15 the Selection Committee is competent to withdraw a seat from quota of a district or area as distributed by the Government in the admission policy from the quota so reserved notwithstanding the provisions of the admission policy.
10. It is pertinent to point out that except Quetta District there is no other classification of the Urban and Rural areas throughout the province. However, as per clause 2.4 of the policy there appears to be a distinction between urban and rural areas of District Quetta. Another provision is clause 2.5, where there is mention of surrender of district merit seats or surplus seats and the mode of its distribution on the Divisional or Provincial basis. These two clauses are in fact very relevant for determination of dispute in this petition. Reference of these clauses of the policy would be beneficial hence the same are reproduced as under:-- "14 Except the Quetta District no distinction is made between Urban and rural areas of the province.
The Quetta District, the areas falling within the limit of Quetta Municipal Corporation and Quetta Cantonment area treated as Urban Area and the remaining part of the district as rural area.
2.5. Surrendered district merit seats, if any, shall be given to the candidates of the same division on divisional merit basis. If there are no eligible candidates in the division then such surplus seats shall be given to the candidates of the Province on Provincial merit seats.
11. The case of the petitioner is to be adjudged at the touchstone of the aforesaid two clauses of the admission policy. There is no cavil to the proposition that two seats are reserved for Quetta Rural.
Any such seat could be surrendered to the Divisional merit seats only if there was no eligible candidate available from Quetta Rural or it was surplus. Here in case in hand four candidates applied from Quetta Rural including the present petitioner against two reserved seats. The petitioner was at S.No,2 on the merit list of the said quota. His local certificate indicates that he belongs to Sumangli, an area outside the limits of Quetta Municipal Corporation. From the report of the Deputy Commissioner it is also evident that his father owns landed property in Samungli. Over and above all, neither the Deputy Commissioner nor the Selection Committee ever finally decided that the petitioner does not belong to Rural area. Of course an oblique reference has been made to clause 2.15 by the Selection Committee which in fact has no relevancy in the case of the petitioner because clause 2.15 provides that Selection Committee is competent to decide as to whether a candidate actually belongs to District of which he/she produced the local/domicile certificate and whether he/she is entitled to his/her selection against the seats of the said District or not.
12. A distinction has to be drawn between different districts or areas of the same district particularly regarding District Quetta because as pointed out earlier, Quetta is the only District where the Government has categorically made a classification, in the form of urban and rural 'Areas'. Both the areas have been allocated seats separately. The decision of the Selection Committee, therefore, with reference to clause 2.15 is not much relevant because admittedly petitioner belonged to District Quetta. In such circumstances a duty is cast upon the Selection Committee to specifically determine whether a candidate of Quetta comes from urban area or from rural area of District Quetta. If therefore, when two or more eligible candidates are available against the reserved seats of Quetta Rural and the Selection Committee fails to determine that they or any one of them do not belong to Quetta Rural then in our opinion it is not competent to take out a seat from the said quota as 'surrendered' or 'surplus' to be transferred to divisional quota.
13. In the instant case the Deputy Commissioner to whom the matter was referred by the Selection Committee nor the Selection Committee by itself ever decided that petitioner does not belong to Quetta Rural area. When enquired learned Advocate-General also failed to place before us any decision to that effect either by Deputy Commissioner or the Selection Committee. In the comments, however, a reference has been made of the report of the Deputy Commissioner only, and it was stated that the Deputy Commissioner has held that petitioner does not belong to Rural area. This is prima facie wrong because Deputy Commissioner has never decided this fact finally but on the contrary submitted his report for decision to the Selection Committee which has also failed to decide this pertinent question. Rather the Selection Committee has not dilated upon this aspect at all. Mere reference of 2.15 by the Selection Committee does not mean that it has decided so. Therefore, in absence of any such decision by Selection Committee, taking out the seat of Quetta Rural as 'surrendered seat' or 'surplus seat' and transferring the same to the Divisional quota was without lawful authority; because it could be done only when no eligible candidates for the said seat were available.
14. It may be made clear that it is Government which has made distribution of seats on District/area basis and therefore, power of re-distribution of seats would generally rest with the Government and not with the Selection Committee. Selection Committee, however, has to act according to the admission policy as laid down by the Government.
15. The overall scheme as laid down in the policy of admission appears to be that in case of non- availability of eligible candidates the seat reserved for the district or the area shall go to the quota of same division or to the Provincial Quota. Clause 2.8 of the policy further elaborates the nature of competition within each district between the local and domicile candidates of the Province of Balochistan and nobody shall be denied admission on the ground of race, religion, colour or caste.
Competition in each district shall take place between the candidates of that district. Thus, a candidate from district '0' shall not compete with a candidate of district 'G'.
16. Broadly speaking the policy as laid down by the Government of Balochistan for admission in the Engineering Colleges contemplates that it is the candidates of each district who have to compete against each other for the seats of their respective districts. Likewise regarding Quetta District, the competition for urban seats would be amongst the candidates of urban area and not candidates of urban area vis-a-vis the rural so the candidates from rural area have to compete against each other for the seats reserved for rural area. Any seat of urban or rural area of Quetta would be surrendered to Divisional merit seat only if no eligible candidate is available from that area. Here in case in hand petitioner was an eligible candidate from Quetta Rural area. Nowhere it has been held by any forum that petitioner does not belong to rural area, so much so that the Selection Committee has also not held that petitioner was not eligible as a candidate against one of the seats reserved for Quetta Rural. Therefore, surrendering a seat reserved for Quetta Rural and transferring of the same to Quetta Division was against the policy of admission and the Selection Committee has acted without lawful authority by transferring the seat of Rural Area to Divisional merit seats. It is competent only when eligible candidate is not available. Since the Selection Committee has failed to determine that petitioner was not an eligible candidate, therefore, denial to give him admission against the reserved quota of rural area and taking out the said seat from Quetta Rural was totally unwarranted and without lawful authority.
' Summing up the discussion we have come to the conclusion that without determining that petitioner did not belong to Quetta Rural, transferring of seat of Quetta Rural to Divisional Quota was without lawful authority and the selection of respondent No,6, therefore, has no legal effect, hence we declare it so. As the petitioner was not declared neither by the Deputy Commissioner nor by Selection Committee as a candidate not belonging to Quetta Rural or in other words not an eligible candidate, therefore, refusal to give him selection was also unwarranted.
' We, therefore, allow this petition in the aforesaid terms with no order as to costs.