TALAT QAYUM QURESHI, J.--- Through this single judgment we tend to dispose of Writ Petitions Nos.767 and 768 of 2000 as common question of law and facts is involved in both the petitions.
2. Mst. Musarrat Nigar (petitioner in Writ Petition No.767 of 2000 and Mst. Parveen Bibi (petitioner in Writ Petition No.768 of 2000) having obtained 500 and 575 marks respectively out of 850 marks were refused admission in first year Arts Group on open merit in Government College for Women Saidu Sharif, Swat. They have invoked the Constitutional jurisdiction of this Court for issuing writ to respondent No.1 for considering their applications on open merits and admitting them if they are found eligible for such admission.
3. Mr. Syed Sardar Hussain, learned counsel representing the petitioners argued that the petitioners are bona fide residents of Madyan District Swat, they obtained 500 and 575 marks respectively out of 850 marks in Secondary School Certificate Annual Examination in Sessions 2000. They submitted applications for admission in Government College of Women Saidu Sharif, but their applications were not considered on the ground that they were not residents of NA-21. The respondent No.1 without caring for the merit and the Prospectus of the said College admitted students who were not the local residents and had secured lesser marks than the petitioners. This was all done in flagrant violation to the Constitutional guarantees provided under Articles 22 and 25 of the Constitution of the Islamic Republic of Pakistan.
4. On the other hand Mr. Tariq Javed, learned A.A.-G. representing respondents Nos.1 to 3 argued that the admissions were made strictly in accordance with Rules. As per Rule 13-A of the Government Colleges Admission Rules, 1997-98, the students who are residents of the area were given preference and those belonged to the other areas were not admitted because the Colleges situated in bigger Towns are over-crowded and the students belonging to rural areas and Tehsil Head Quarters were encouraged to take admission in the Colleges situated nearest to their places of abode. The petitioners being residents of Madyan could take admission in Higher Secondary School Matta (Swat) which was nearest to their residences.
5. We have heard the learned counsel for the parties and perused the record.
6. The argument of the learned counsel for the petitioner that students having lesser marks and belonging to other areas were given admission, whereas the petitioners were refused admission on the ground that they do not belong to NA-21, hence discriminated has a force in it. The perusal of the record indicates that respondent No.1 has admitted Mst. Shazia (respondent No.4 in Writ Petition No.767 of 2000) having 499 marks of Buner District Mst. Shagufta (respondent No.15 in Writ Petition No.768/2K) having 531 marks hailing from Shangla District, Mst. Bakhtshanda (respondent No.57) having 525 marks of Buner and Mst. Sarnia Kawsar (respondent No.9 in Writ Petitipn No.768 of 2000) having 559 marks belonging to Sakhakot Malakand Agency. Though they had lesser marks than the petitioners. All the abovementioned students belonged to places which were situated much away from the places of abodes of the petitioners. In this way not only the merit was ignored, but respondent No.1 also ignored the admission policy framed by the Government in the year 1997-98.
7. So far as the amended admission Rules 1997-98 are concerned, Rule 13(a) is reproduced hereunder for convenience:- "Students who are residents of the area shall be given preference in admission to the colleges located in that area. Applications from candidates of other areas seeking admission in Intermediate/Degree classes will be considered in case of AI or A Grade holders only and those who have genuine reasons such as residence of parents or when vacant seats exist in the college(s) due to non-availability of local students."
8. As per this Rule the residents of the area were to be given preference in admission to the Colleges located in that area and the candidate" of other areas, who had secured AI or A Grade could also be considered on open merit and those having genuine reasons such as residence of parents could also get admission. On availability of vacant seats when local residence students were not available, outsiders could also be admitted. In the case in hand the "vacant seats" were available, therefore, the students hailing from Buner, Shangla and Sakhakot were admitted, but strangely enough the petitioners, who belonged to Madyan which falls in District Swat and who had better merits than the other outsiders were ignored.
9. The learned A.A.-G. laid great emphasis that the petitioners could seek admission in Higher Secondary School Matta (Swat), which was nearest to the residences of the petitioners as per admission policy of the Government, but he was unable to show us any provision or any rule in which it has been laid that the students belonging to a particular area must apply or get admission in the nearest available College, particularly when the seats in a College situated in bigger Town which is equipped with better staff are available.
10.Swat is still a backward area and due to illiteracy and customs of the said area people normally do not allow their women-folk to take education and it really pains us to observe that those who want to take education were discouraged under one pretext or other to take admission in the institution of their own liking. Article 22(3)(b) of the Constitution of the Islamic Republic of Pakistan provides safeguard to the citizens in the following words:-- "No citizen shall be denied admission to any Educational Institution receiving aid from Public Revenue on the grounds only of race, religion, caste or place of birth."
11. No doubt the Provincial Government has the powers for making the provisions for the admission in Colleges but the said policy must be made in the light of Article 22 of the Constitution and no one should be deprived of the right by any law passed by it. The Rules for admission referred to by the learned A.A.-G. do provide that when vacant seats exist in the College(s) due to non- availability of local residents students, the outsiders could be considered. Even according to this Rule 13(a), the admissions for non-local students were to be made strictly on merits and not according to the wishes and whims of respondent No. 1 . The petitioners having secured marks which entitled them on merit to be admitted in College were unlawfully ignored. We, therefore, declare the action of respondents Nos.1 to 3 refusing the petitioners admission in first year Arts Group in Government Girls Degree College, Saidu Sharif, Swat as without lawful authority and direct that the petitioners be admitted in the College without disturbing the other students, who have already been admitted in the College. No order as to costs.