' NAZIM HUSSAIN SIDDIQUI, J.---The petitioner, Principal, Ayub Medical College, has impugned judgment dated 11-4-2000 of a learned Division Bench, Peshawar High Court, whereby Writ Petition No,1065 of 1997 of respondent No,1 was accepted in the following terms:-- ' In view of the above facts, we are left with no other option but to accept this writ petition in the terms that the petitioner shall be deemed to have been admitted as against Category-N and was not liable to pay the amount for Self Finance education and that he is entitled to continue his studies as if he stands admitted on the reserved seat of Category-N. The payment already made by him under the Scheme shall be refunded to him after due deduction of charges, fee etc. Which were otherwise chargeable from a candidate of Category-N. In the circumstances of the case, as we have held in the preceding paras. The admission of respondents Nos.5 and 6 is not to be disturbed. Nor order as to costs. The C.Ms. Also stand disposed of.
2. The facts relevant for decision of, this petition are that respondent No,1, Adnan Zafar, submitted his application tort for admission in the Khyber Medical College, Peshawar for the year 1996-1997.
His father Dr. Zafar Ali was then posted as Deputy Director Dentistry Directorate, N.-W.F.P., Peshawar.
The respondent had qualified "0" Level (Cambridge), whereafter he passed F.Sc. (Pre-Medical) and secured 851 marks and submitted his application for admission in the college on open merit, as well as on reserved seats against Category-N (seats reserved for children of N.-W.F.P. Doctors). In the entry test weightage of the respondent No,1 came to 623.6 marks, whereas of the respondents Nos.5 and 6 was 623.2 and 615.1 marks respectively. It is the case of petitioner that at the time of interview, the candidates were informed that selection of the candidates against Categories B, C, D, L, M and N will be made after the receipt of nominations of FATA candidates from the Ministry of State and Frontier Regions, Islamabad, as some of the FATA candidates, whose parents are serving in N. -W .F.P. Health Department, have also applied against reserved seats. The respondent qualified for admission on self-finance seats. He did not like to take risk to wait for result of the Category-N seat, because there was a possibility of his not being selected for Category-N seat after receipt of nominations of FATA candidates. Since, categorically, he opted for self-finance seat, he was not considered for Category-N seats, which were allocated to respondents Nos.5 and 6 in accordance with the merit. The respondent No,1, on 14-5-1997 approached High Court and his petition was allowed in above terms.
3. It is contended on behalf of the petitioner that since respondent No,1 without any reservation, opted for seat on self-finance basis, he could not file writ claiming his nominations under Category-N. Learned counsel also argued that if at this stage, the prayer of the respondent No,1 is allowed, it would have the effect either to keep one seat on self-finance basis vacant, or to cancel the admission of respondent No,6.
4. It is clear that it was respondent No,1, who opted for admission on self-finance seat and thereafter respondents Nos.5 and 6 were admitted. The issue was finally decided when respondent No,1 opted for admission on self-finance basis. It would be unjust both for petitioner, and for respondents Nos.5 and 6 if said issue is reconsidered. Accordingly, we convert this petition into appeal and allow the same, set aside the impugned judgment and dismiss Writ Petition filed by respondent No,l.