1. GHULAM SAMAR SHAH, J.-This. Leave petition is meant to impugn the judgment of the Peshawar High Court, dated 9-4-1978, by which the writ peti--petition of the three petitioners herein, against the order of the Government of N.-W. F. P., nominating respondents 6-9 for admission to Fatima Jinnah Medical College, Lahore, against the seven seats reserved for female students from the Federally Administered Tribal Areas (hereinafter called FATA), was dismissed.
2. The background of this case is that the question of the admission of students from FATA to various professional colleges of the country has from time to time engaged the attention of the Federal as well as the Government of N.-W. F. P. After a great deal of thought, which the two Governments seem to have given to this subject, the Federal Government finally agreed to reserve for students from FATA, 59 seats in the various Medical Colleges as under:
(1) Khyber Medical College, Peshawar , 37
(2) Bolan Medical College, Quetta = 6
(3) Fatima Jinnah Medical College for Womea, Lahore 7
(4) Medical College, Lyallpur
(5) Medical College, Rawalpindi 4
(6) Medical College, Sind - 2 Total 59 With this decision of the Federal Government, the Government N.-W. F. P. Agreed. Tberefore, in order to allocate these seats, the Government N: W. F. P. In the Home and Tribal Affairs Department put up a, summary before the Governor proposing therein the following formula, based on the population of each Agency/Frontier Region as also that within the quota allotted to each Agency/Frontier Region, the criterion for selection should be the open merit: Agency/Frontier Region Population Medical Seats Khyber Agency 3,77,000 Mohmand Agency 3,82,922 Bajaur Agency 3,64,650 Orakzai Agency 2,84,750 Kurram Agency 1 2,80,234 Peshawar, Frontier Region 60,132 Kohat, Frontier Agency 38,238 North Waziristan Agency 2,50,637 South Waziristan Agency 3,08,239 Bannu, Frontier Region 63,882 D. I. Khan, Frontier Regions 76,482 Total 59 This summary was duly approved by the Governor, N.-W. F. P., as well as M. L. A. Zone `B' with the result that it acquired the status of the policy decision of the Government. Proceeding on the basis of this decision the Government N.-W. F. P., out of the 59 reserved seats, allotted 52 seats to verious Agencies/Frontier Regions. But as to the seven seats reserved in Fatima Jinnah Medical College,, Lahore, the said Government, in view of another policy decision, allotted one seat each to the seven Agencies, namely Khyber, Mohmand, Bajaur, Orakzai, Kurram, North Waziristan and South Waziristan. In order to fill these seven seats, which alone are in dispute in this case, the Government N: W.F. P., after giving in the press wide publicity, invited applications from female students from FATA/Frontier Regions. On receipt of the applications, the said Government constituted a Selection Board before which all the candidates appeared, were interviewed and finally the Board selected the following seven candidates:
(1) Miss Nasim Akhtar daughter of Raza Khan of Khyber Agency.
(2) Miss Anis Bano daughter of Muhammad Jan of Kurram Agency.
(3) Miss Nasim Akhtar daughter of Muhammad Nawaz of Orakzai Agency.
(4) Miss Hamida Qureshi daughter of Abdul Aziz Qureshi of Mohmand Agency.
(5) Miss Shabin Begum daughter of Abdul Qayum of Mohmand Agency.
(6) Miss Tahira Shaheen daughter of Niaz Gul Daur of North Waziristan Agency.
(7) Miss Robina Wazir daughter of Retired Gul Dad Khan of Bannu, Frontier Region.
3. (Note. Miss Tabira Shaheen, appearing at serial No. 6, was later disqualified, for the domicile certificate submitted by her before the Board was found to be bogus and her seat was, therefore, allotted to a female candidate from the Frontier Region-Bannu).
4. It seems that when the petitioners herein were not intimated the result of the Selection Board, they started making inquiries which revealed that on the merit list as compiled by the Board they stood at Serial Nos. 3, 4, 6 having secured in the Intermediate Science Examination 510, 508 and 473 marks---respectively, yet they were rejected and instead respondents 6--9, who on the merit list stood at Serial Nos. 7, 8, 9 and 10, respectively (and were all third divisioners) were selected. Feeling aggrieved, the petitioners, therefore, filed in the Peshawar High Court, a writ petition challenging therein the decision of the Selection Board on the following grounds:--
(1) that the said decision violated the norms of justice, equity and good conscience;
(2) that it was against the provisions of Article 22 of the Constitution of Islamic Republic of Pakistan;
(3) that according to the prospectus of Fatima Jinnah Medical College, Lahore, the respondents herein, all being third divisioners, could not be given preference over the petitioners who were second divisioners; and
(4) that by the said decision the Board had ignored the principle of pure merit.
5. "It comes to this that a girl applicant with higher marks of one agency, suppose `A' agency cannot get the seat from another agency say 'B'. The grievance of petitioners is not founded on fairplay and equity, for the reason that if their prayer is accepted, then the principle of reser--vation of seats for different agencies stands disturbed. When the principle of reservation for FATA/F. Rs. Is accepted then there is no justification for allotting the seat of one agency to another on merit standard. The question is quite simple that the seat of one Agency/F. R. Shall remain reserved for the candidate of that area alone, and a merit holder from another Agency/F. R. Cannot claim.
6. Under the circumstances we find no merit in this writ petition for further consideration and dismiss it."
7. We have heard Mr. N. M. Khan, the learned counsel for petitioners and Mr. Muhammad Sardar, the learned Advocate-General, N.-W. F. P., who has appeared on the notice of this Court. The principal grievance of Mr. N. M. Khan is that in the High Court the fate of his client was decided only on the basis of an oral statement of Mr. Muhammad Hassan Khan, Deputy Secretary, Home, States and Frontier Regions, who had not even filed an affidavit in support of his said assertions. His further grievance is that without awaiting the written statement of the respondent Government, or at least their comments, respecting which an order had already been made, the High Court should have allowed the writ petitions of his clients, for the allegations made therein were duly supported by their affidavits and in rebuttal thereof, nothing was brought on the record of the case from the other side. The learned Advocate-General has conceded this to be the correct position. In order to assuage the grievance of Mr. N. M. Khan, we therefore, suggested to him if he would like to have a short adjournment to enable himself to go through the official file of the Government. But he firmly declined the said offer. In this view, we have no option but to proceed with this petition which can be effectively disposed of on the basis of the file of the Government N.-W. F. P. Supplied to us by the learned Advocate-General.
8. Now as regards the inter se academic merit of the petitioners and respon--dents 6-9, there is no dispute. Therefore, if the academic merit alone was to be the criterion for admission to Fatima Jinnah Medical College, Lahore, the petitioners all being second divisioners, would have a better claim to admission than respondents all of whom are third divisioners. However, according to the policy decision of the Government; the criterion of merit has been recognised only among the candidates of a particular Agency/Frontier Region, as such Agency/Frontier Region has been allotted a number of seat on the basis of its respective population. The rationale behind this policy seems to be to provide to the female students from FATA/Frontier Regions an , equal opportunity to pursue their studies in the Medical Colleges of the count with a view to achieving a uniform and balanced progress by every segment of the people from FATA. However, if the contention of Mr. N.
9. 'M. Khan, the learned counsel for petitioners is accepted then the students from one Agency/ Frontier Region possessing superior merit, would grab the seats reserved for another Agency/Frontier Region with the result that the said policy of the[ Government, which otherwise seems to be laudable, would stand frustrated. I Mr. N. M. Khan has also attacked the decision of the Selection Board on the basis of Article 22 of the Constitution of Islamic Republic of Pakistan, 1973.
10. But he seems to have disregarded sub-Article (4) thereof which runs as under :- "22. (4) Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educa--tionally backward class of citizens."
11. Sub-clause (a) of Article 37 of the Constitution, which appears in Chapter II under the heading "Principles of Policy" would also seem to support the impugned decision of the Government, as it is worded thus: "The State shall promote with special care, the educational and economic interests of backward classes or areas."
12. Mr. N. M. Khan, the learned counsel next argued that if the criterion of merit was to be applicable only between the students of a particular Agency/ Frontier Region, then how was it that the seat allotted to Bajaur Agency was given to a student from Mehmand Agency with the result that the latter Agency was able to secure for its students two seats in Fatima Jinnah Medical College. In answering this question, the learned Advocate-General, N.-W. F. P., informed us that since there was no female candidate available from Bajaur Agency, the seat allotted to it was given to a female student, namely, Miss Shaheen Begum from Mehmand Agency, as both these Agencies were a part of Peshawar Division. He argued that by adopting this procedure the spirit of the impugned decision of the Government had been maintained, for if the seat of Bajaur Agency was to be allotted to another Agency (F. I.), which was a part of another Division 1C of the Province, it would frustrate the ultimate object of bringing about a, uniform and balanced progress-in each section of the population of FATA.
13. With this submission of the learned Advocate-General, the High Court, has essentially agreed. On our part also we wholly endorse the impugned policy decision of the Government which is based on discernible considerations of equity, fairplay and justice. We, are, therefore, of the view that the various contentions raised by the learned counsel for the petitioners has no merit in them. This petition, therefore, fails and is dismissed. s. A. H.