1. ' SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is filed by the appellant to call in question the judgment of a learned Division Bench of High Court of Balochistan, whereby Constitution Petition No,453/93 filed by the appellant was dismissed and the decision of the Selection Committee of Bolan Medical College (B.M.C.), Quetta, refusing admission to the appellant was upheld. Leave was granted in the above case to consider, the following legal contentions: "3. The learned counsel for the petitioner has submitted that the petitioner was entitled to be considered for admission on urban seat, as she had secured more marks than respondent No,4.
2. She had secured 728 marks in F.Sc. Pre-Medical and 20 marks were added on account of training in NCC, therefore, she secured 748 marks. Thus on merit she was at serial No,6 above than Miss Alaya Qureshi who secured 743 marks. There are 7 seats reserved for Quetta Urban. If the petitioner could not be selected against Rural seat, she could be selected against Urban seat on merits.
4. The contention raised by the learned counsel prima facie seems to be correct. Leave is granted.
3. The petitioner was provisionally admitted on 25-11-1993. She will continue her study till the decision of the appeal.
4. ' A contempt application has been moved by the petitioner that respondent No,2 has not admitted her to the College and thus he violated the order of this Court. A reply has been submitted by the Principal, Bola& Medical College, Quetta, that the order of this Court has been implemented. In view of the reply of the Principal, no action is needed."
5. ' At the hearing, of the appeal, no one appeared on behalf of the respondents. We have accordingly heard the learned counsel for the appellant. The only contention raised by the learned counsel for the appellant in support of the appeal is that even if it was found by the Selection Committee that the appellant was not a bona fide resident of rural area of Quetta, she could have been considered against the urban seat as according to finding of the learned Judges of the High Court she was resident of urban area of Quetta and had qualified for being considered on merits against an urban seat. In support of the contention, the learned counsel for the appellant has relied on the case of Hamza Khan v. Province of Baluchistan (1995 SCM R 711).
6. ' In the aforesaid case, the appellant had applied for admission in Engineering College, on the basis of being a resident of rural area of Quetta. The Selection Committee of Engineering College, after making enquiry through the Deputy Commissioner, came to the conclusion that the appellant in that case was not a resident of rural area but was residing in urban area of Quetta and accordingly, rejected his application for admission in the professional college. The appellant then challenged the decision of the Selection Committee of the Engineering College before the High Court but without any success. Before the learned Judges of the Division Bench of the High Court the appellant in that case had contended that even if it was found that he was not a resident of rural area, Quetta, but resident of urban area of Quetta, the application for admission can be considered by the Selection Committee against an urban seat on merits of the case but this contention of the appellant was rejected by the High Court. Leave was granted in the above case and the judgment of the High Court of Baluchistan was reversed by this Court, as follows:-- "10. The above first reason which found favor 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.
7. ' 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 Belei, 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 Balochistan. 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.
8. 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."
9. The ratio of the above decision apply on all fours to the facts of the present case. The appellant having been found a resident of urban area of Quetta and her application for admission against a rural seat having been rejected on that account, she could be considered against the urban seat, if she otherwise qualified for admission on merits against the seat reserved for urban areas. The appellant could not be denied admission merely on the ground that she had not applied for admission against the seats reserved for urban. There is nothing in the prospectus of the college to show that an applicant who had applied for admission against the rural seat could not be considered against the urban seat, if he/she is otherwise qualified for admission on merits against the urban seat. Such hyper technicalities militate against the spirit of admission policy in the educational institution. From the facts on record before us, it is evident that on merits the appellant was entitled to admission on a seat against the urban quota. We, accordingly, allow the appeal, set aside the judgment of High Court. We have been informed that the appellant has already completed her studies in two years and is now in the 3rd year M.B.,B.S. She will be deemed to have been granted admission regularly against an urban seat. There will be no order as to costs as the respondents have not appeared and contested the case.