AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 2-1-1992 passed by a Division Bench of the High Court of Balochistan in Constitution Petition No,271 of 1991 filed by the appellant against the rejection of his application for admission in the Engineering College against the reserved seats for Quetta (Rural) by respondent No,2 i,e. The Selection Committee on the ground that he was not a bona fide resident of Killi Mehtarzai Beleli, Tehsil Quetta but was resident of urban area, dismissing the same.
' Leave to appeal was granted in order to examine the peculiar features noticed in the leave granting order.
2. The brief facts are that in response to the appellant's above application for admission, he was interviewed by the Selection Committee alongwith other applicants for the reserved seats for Quetta (Rural). It appears that upon raising of an objection by the private respondents as to the factum that the appellant was not a bona fide resident of Killi Mehtarzai Belch, Tehsil Quetta, the Selection Committee ordered an enquiry in respect thereof by the District Magistrate, Quetta, who also happened to be a Member of the Selection Committee. It seems that upon the receipt of the report from the District Magistrate, the Selection Committee rejected the appellant's application for the following reason (Annexure "M" Col. 6 at page 54 of this paper book): "Deputy Commissioner, Quetta has stated that applicant belongs to urban area. Rejected 2-15."
3. Being aggrieved by the above order the appellant filed the above Constitution petition before the High. Court besides contending that the appellant's application against the reserved seats for Quetta (Rural) was wrongly rejected, in the alternate it was also urged that the appellant was entitled to admission against the 12 open merit seats. However, the above contention did not find favour with the learned Judges of the Division Bench but on the contrary while dismissing the above constitution petition, it was observed that the appellant was not entitled to the admission as he got his education up to the Intermediate (Pre-Engineering) outside the Province of Balochistan without showing cogent reasons in view of clause 2.12 of the Prospectus. Thereupon, the appellant filed a petition for leave to appeal in this Court, which was granted for the above reason.
4. Mr. SA.M. Quadri learned A.O.R. Appearing for the appellant has contended that there is sufficient material on record to prove the factum that the appellant is a bona fide resident of Killi Mehtarzai Beleli, Tehsil Quetta and that the factum that the appellant has also a residence in Quetta city is of no consequences. His further submission was that in any case even if the appellant was not entitled to an admission against the reserved seats for Quetta (Rural), he was entitled to the same against the reserved seats for Quetta (Urban) or against 12 open merit seats.
5. On the other hand Mr. Raja M. Afser, learned Advocate-General has contended that in case of a tie between an applicant having residences in Rural and Urban areas and an applicant having exclusively residence in Rural area, the latter is to be preferred. However, he was unable to controvert the factum that since the appellant had secured 797 marks, he would have been entitled to get admission against 12 open merit seats.
6. We may observe that the rationale for reserving Rural and Urban seats separately in a District for admission in professional colleges seems to be to facilitate admissions of students belonging to rural areas as they generally do not have the same facilities of education as the students from urban area enjoy. In other words the underlined object of the above demarcation appears to be to avoid competition for admission in professional colleges inter se between Urban and Rural students. Keeping in view the above objective we are inclined to agree with Mr. Raja M. Afser, learned Advocate General's contention that if there is a tie between a student having residences in rural and urban area and a student having residence exclusively in rural area, the latter should be given preference.
7. There is no doubt that there are some documents on record to indicate that the appellant's ancestors owned agricultural land as well as houses in Killi Mehtarzai Beleli, Tehsil Quetta but there are also documents on record, which show that the appellant has a residence at Al-Jallani Road, Quetta which is an urban area. In this view of the matter, the above conclusion arrived at by the Selection Committee and upheld by the High Court seems to be unexceptionable.
8. This leads us to the above second submission of Mr. S.A.M. Quadri, learned A.O.R. For the appellant. In this regard, it may be pertinent to observe that there were seven reserved seats for Quetta (Urban) as per Annexure "N" (at page 56 of the paper book). It appears that applicants mentioned at Serial Nos. 1 to 7 in the above annexure had secured marks between 851 to 802 whereas the applicant at serial No, 8 had obtained 791 marks. Since the appellant has secured 797 marks his name would have appeared at serial No,8. As seats reserved for Quetta (Urban) were only 7 seats, he would have no chance in the absence of failure of any of the above first seven applicants to avail of the admission. However Mr. S.A.M. Quadri has contended that some of the applicants mentioned at the above serial Nos.1 to 7 had not availed of the admission or were adjusted against some other seats. According to him even applicant mentioned at serial No,10 in the above Annexure "N" was granted admission. It would suffice to observe that there is no sufficient material before us to conclude that the appellant would have been entitled admission against the above seven reserved seats for Quetta (Urban).
9. As regards 12 open merit seats we find from Annexure "P" (at page 59) that the appellant would have been entitled to admission as he has obtained more marks than the three last applicants mentioned at serial Nos.10 to 12. The High Court declined to allow the admission to the appellant against the above open merit seats for the reasons: firstly that he did not apply for the same, and secondly he did not satisfy the Selection Committee that he belonged to Quetta District. Additional ground which prevailed with the High Court was that the appellant had taken his entire education at Hyderabad for which it was the Selection Committee which was proper forum to consider whether reasons of such study were beyond the control or not.
10. The above first reason which found favour with the learned Judges of the High Court appears to be highly technical. We are inclined to hold that if an applicant is entitled to admission against open merit seats, omission on his part to apply for it but to seek admission against some other reserved seat is not sufficient ground to deny him admission, which he is otherwise entitled to.
11. As regards the above second reason, which prevailed with the learned Judges of the High Court, we are unable to subscribe to the conclusion recorded by them that the appellant had not approached the Court with clean hands or that the Selection Committee found that the appellant was not a resident of Quetta District. As observed hereinabove there are ample documents on record to manifest that the appellant's ancestors have land as well as house in Killi Mehtarzai Beleli, besides having house in Quetta Urban area and, therefore, it is not fair to conclude that the appellant had not approached the Court with clean hands. It is also not factually correct that the Selection Committee found that the appellant was not a resident of Quetta District but factually the Selection Committee concluded that the Deputy Commissioner, Quetta had stated that the applicant belonged to urban area.
12. No doubt that the appellant had obtained his education up to F.Sc. (Pre-Engineering) outside Balochistan i,e. In Hyderabad Sindh and that under clause 2.12 of the Prospectus, the Selection Committee could waive for cogent reasons the requirement that the appellant should have obtained his education in Balocihstan. However, we may point out that the Selection Committee did not reject the appellant's application for admission for non-compliance of the above condition contained in clause 2.12 of the Prospectus but rejected the same for the reason reproduced hereinabove in para. No,2 under clause 2.15 of the Prospectus. In this view of the matter, the High Court should not have non-suited the appellant on a ground which was not even considered by the Selection Committee. It could have remanded the case to the Selection Committee for considering the above aspect. We might have done the same, but since the appellant has already completed his first academic year it will not be just and proper to remand the case at this stage.
We, therefore, allow the above appeal and set aside the impugned order of the Selection Committee and the judgment of the High Court: The appellant shall be treated as having been granted admission against the open merit 12 seats. We would also like to observe that since the private respondents have also already completed one academic year, their admissions will not be disturbed.
13. The upshot of the above discussion is that the above appeal is allowed in the above terms with no order as to costs.