TALLAT QAYYUM QURESHI, J.---Through this judgment we shall dispose of W.P. No.1862 of 1999 (Mst. Surraya Begum v. Chairman, Admission Committee etc.) and W.P. No.1890 of 1999 (Mumtaz Alam v. Chairman, Joint Admission Committee etc.) as the same .Question of law is , involved in both the writ petitions.
2. In Writ Petition No. 1890 of 1999 the petitioner having passed F.Sc. Examination, appeared in Entry Test and obtained 84.30% marks. Since he belonged to backward area of Gadoon, therefore, he applied for admission in Ist year M.B.,B.S. Class against open merit and one of the seats reserved for "Gadoon. " he was admitted in Saidu Medical College, Swat against open merit and on adjustment was shifted to Ayub Medical College. The grievance of the petitioner is that he deserved to be admitted in Khyber Medical College against seat reserved for "Gadoon" which was unlawfully denied to him.
3. In Writ Petition No. 1862 of 1999 the petitioner secured 770 marks plus 20 marks for N.C.C. In F.Sc.
Appeared in the Entry Test and obtained 78.92 per cent, marks. She had applied for admission in the 1st year M.B.,B.S. Class on open merit as well as for one of the seats reserved for backward area of Gadoon, District Swabi, but she was denied admission because the seat reserved for Gadoon at Khyber Medical College, Peshawar had been transferred into "general self-finance seat". Through writ petition in hand she has challenged the relevant provisions of admission policy for the year 1999-2000 and the action of the respondents whereby seat reserved for "Gadoon" was transferred/converted into "general self-finance seat".
4. Messrs Yahya Khan Afridi, the learned counsel for the petitioner in Writ Petition No. 1890 of 1999 and Abdul Qadir Khattak, learned counsel representing the petitioner in Writ Petition No.1862 of 1999 argued that two seats were reserved for backward area of Gadoon, District Swabi, one in Khyber Medical College, Peshawar and the other in Ayub Medical College Abbottabad. There was yet another seat for Gadoon/Amazai in Khyber College of Dentistry, Peshawar. There were four candidates from Gadoon area who had applied in 1999 for admission in 1st year M.B.,B.S. Class against open merit and seats reserved for the backward area of Gadoon. Out of the four candidates Arshad Khan who was on top of the merit list was admitted in Khyber Medical College against open merit. Muhammad Zuber, second on the merit list was admitted in Ayub Medical College, Abbottabad against open merit. Mumtaz Alam, petitioner in (Writ Petition No. 1890 of 1999) was admitted in Saidu Medical College, Swat against open merit. On re--adjustment Muhammad Zubair was shifted to Khyber Medical College and admitted against open merit seat, while Mumtaz Alam was shifted to Ayub Medical College against the seat reserved for backward area of Gadoon, but subsequently adjusted against open merit seat and thus both the seats reserved for Gadoon remained vacant. The respondent No. 1 decided to transfer the .Two seats reserved for Gadoon area to "general self--finance seat" which resulted in the deprivation of two deserving students of Gadoon area from admission in the two Medical Colleges. Mumtaz Alam, the petitioner was affected adversely because he could get admission in Khyber Medical College against seat reserved for backward area of Gadoon.
5. Likewise Mst. Surraya Begum, petitioner in (Writ Petition No. 1862 of 1999) deserved to be admitted against the reserved seat for Gadoon in Ayub Medical College but she was deprived of her right of admission due to reasons best known to respondents.
6. It was further argued that respondents have travelled beyond jurisdiction thereby taking away the vested right of the petitioner. The seats were reserved for Gadoon area with the purpose to give some advantage to the residents of that area for bringing them up to a position at par with the rest of the country, therefore, such seats, could not be abolished through ordinary admission policy which is in conflict with the existing laws.
7. It was further argued that the petitioners were discriminated as they were not treated at par with the children of Doctors for whom seats were reserved and in case of admission of child of a Doctor against open merit seat, the vacated seat was not transferred to "general self-finance seat". The decision of the respondents transferring the seats allocated/reserved for backward area of Gadoon to that of "general self-finance seat" was against the spirit of Articles 22(4) and 25 of the Constitution of the Islamic Republic of Pakistan, hence needs interference by this Court.
8. On the other hand Mr. Wasimuddin Khattak, learned counsel representing respondents Nos.1 to 3 in (Writ Petition No.1890 of 1999 and respondents Nos.1 to 4 in (Writ Petition No.1862 of 1999) argued that the admission policy was framed by the Provincial Government of N.-W.F.P. And the College Authorities had only implemented the same in its letter and spirit. Arshad Khan and Muhammad Zubair were admitted in Khyber Medical College against open merit seats. Therefore, minimum representation was given to the backward area of Gadoon. The seat left at Khyber Medical College was therefore, transferred to "general self-finance. Seat" as per policy of the Government. So far as seat reserved at Ayub Medical College for Gadoon was concerned, due to re-adjustment of Mumtaz Alam, petitioner was transferred from Saidu Medical College, Swat and admitted against the seat reserved for backward area of Gadoon and he has been studying in the said College since his admission.
9. It was further argued that the Sessions for the year 1999-2000 was over and the students were to appear in the second year in the month of October, 2001, therefore, Mst. Surraya Begum cannot be admitted. He however, confirmed that as per orders of this Court seat reserved for backward area of Gadoon has been left vacant and no student has been admitted against the said seat.
10. Mr. Rashidul Haq Qazi, learned A.A.-G. Argued that the Provincial Government of N.-W.F.P. Has framed policy for admission to" the M.B.,B.S. Classes keeping in view all the attending circumstances and the same was implemented by the College Authorities according to its spirit, therefore, the policy needs no interference by this Court.
11. We have heard the learned counsel for the parties and perused the record annexed with the writ petition as well as written statements.
12. The prime question which needs determination in these cases is as to whether the seat reserved/allocated for backward areas could be transferred/converted into that of a "general self- finance seat" and the action of respondents transferring/converting one reserved seat for Gadoon in Khyber Medical College into that of "general self-finance seat" was in accordance with the policy laid down by the Government of N.-W.F.P. Or not the answer to this question is in negative. There is no cavil with the proposition that "Gadoon" situated in District Swabi is a backward area the people belonging to this area are educationally and socially backward. The area is undeveloped to the extent that even in the 21st century when the information technology has reached to the far-flung areas Gadoon is not having any educational institution of good standard for boys and even there is no High School/College for girls/women. The students of this area cannot compete with their more fortunate compatriots. Having realised these realities on the ground, the Government of N.- W.F.P. Reserved/allocated two seats one in Khyber Medical College and the other in Ayub Medical College for the resident of this area. Similarly one seat was reserved for admission in BDS for the residents of Gadoon/Amazai. This was done in order to provide genuine equality to the candidates belonging to this backward area. There is also no dispute that there were four candidates hailing from backward area of Gadoon, who had passed Entry Test and were eligible to be admitted against two reserved seats, one in Khyber Medical College and other in Ayub Medical College in accordance with the merit. Out of these four students Arshad and Zubair having better merits were admitted in Khyber Medical College against open merit seats whereas Mumtaz Alam was admitted in Saidu Medical College, Swat against open merit seat. With their admission against the open merit seats the two seats reserved for the candidates of Gadoon remained vacant, therefore, the next candidate on merit deserved to be admitted against one of the said seats either in Khyber Medical College or in Ayub Medical College, but the College Authorities instead of simply admitting the next student, made re-adjustment internally on which Mumtaz Alam who had been admitted in Saidu Medical College against open merit seat was brought to Ayub Medical College and was admitted against the seat reserved for Gadoon, though he deserved to be admitted at Khyber Medical College against seat reserved for Gadoon being on top of the merit list of candidates belonging to Gadoon. The learned counsel representing the College Authorities could not give convincing reply as to why the College Authorities did not admit him in Khyber Medical College against the seat reserved for Gadoon. The seat which remained vacant at Khyber Medical College was transferred/ converted into "general self-- finance seat". In our view, para. 4 (A) (III) (dealing with N.-W.F.P. Backward areas seats) of the Admission Policy for the year 1999-2000 is violative of the provisions of the Constitution of the Islamic Republic of Pakistan, 1973 firstly because the candidates admitted against open merit seats could not be considered against the seats allocated for reserved category. Being meritorious the first three had been admitted against open merit as per their own efforts and by giving excellent performance as ordinary students domiciled in N.-W.F.P. Therefore, their admission was to be treated as admission of an ordinary resident of N.- W.F.P. Hence, their admission had nothing to do with the seat reserved for Gadoon. A similar case came up before the Supreme Court of India and while deciding such proposition in Ritesh R. Sah v.
Dr. Y.L. Yamul and others (AIR 1996 SC 1378) it was held:-- "A student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they will be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as a open category candidate and not as a reserved category candidate. "
13. Secondly, it could never be the intention of policy makers to reserve/allocate seats on the one hand to backward areas and 8 on the other hand to take the same back by converting the same into "general self-finance Scheme". Had it been the intention of the policy makers that if two or more deserving candidates hailing from such backward area are admitted against open merit then the reserved seats would be converted into another category, in such a case, there was no lawful justification for reservation of seats for backward areas.
14. Thirdly, special seats were reserved for the backward area with the intention to give some advantage to the residents of that area for bringing them up to a position, at par with the rest of the competitors, by giving admission to the students having rich resources belonging to other areas would be prejudicial to the protective measures adopted for the residents of backward areas.
15. Fourthly, the College Authorities/ Joint Admission Committee itself violated the policy at the time of making re-adjustment. The three candidates who were on the top of the merit list of Gadoon had already been admitted against open merit seats. If at all any candidate out of the said admitted students was to 'be adjusted against seat reserved for the students of Gadoon, then being on the top of the merit list from amongst the remaining candidates, Mumtaz Alam was to be admitted in Khyber Medical College but this was not done with the pretext that minimum of candidates from Gadoon had been admitted. This formula was adopted for the seat allocated for backward area of Gadoon in Khyber Medical College only, but not for Ayub Medical College. Had the same formula been adopted for Ayub Medical College, then one seat reserved for Gadoon had been availed by Zubair who had been admitted against the said reserved for backward area of Gadoon and hence minimum representation to Gadoon area had been given in Ayub Medical College also. On admission of Zubair against open merit seats as mentioned above, two seats one in Khyber Medical College and the other in Ayub Medical College remained vacant, therefore, Mumtaz Alam having better merit deserved to be admitted in Khyber Medical College against the seat reserved for Gadoon.
16. Fifthly,' transferring of seat reserved for backward area of Gadoon to that of "general self- finance seat", gives clear cut expression that Medical Education has been commercialised which defeats the very purpose of reservation of seats for backward areas. No policy should be made on commercial basis because the rich shall have the privilege of getting, admission and the poor having no resources shall be deprived of their fundamental right of getting. Education.
17. Sixthly, the august Supreme Court of Pakistan in Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil, Secretariat, Islamabad and others (2001 SCM R 1161) declared reservation of seats for all categories in Medical Colleges illegal and without lawful authority, except for disabled, Afghan Refugees and students domiciled in FATA or under developed areas who have taken School and Intermediate Education in Educational Institutions situated within those areas i.e. The reservation of seats in Medical Colleges for backward areas was considered proper and therefore, such seats were allowed to continue. In the case in hand Mst. Surrayya Begum could not get her Matric and Intermediate education at Gadoon because there is no Secondary School and College for Girls and Women in that area, but despite non-availability of the educational facility she continued her education at Yardan; the rigours of extreme whether, did not change her mind to get education. She showed excellent performance by obtaining 770 marks in F.Sc. In our humble view, she shall not be affected by the dictum laid down in the aforementioned judgment of the august Supreme Court of Pakistan that the students belonging to under developed areas who have taken School and Intermediate Education in Educational Institutions situated within those areas shall only be admitted because, as mentioned above, no Secondary School and College for Girls/Women is available at Gadoon. The conversion of the seats reserved for backward areas' into that of "general self --finance seat" is, therefore, against the dictum laid down by the august Supreme Court of Pakistan.
18. For the aforesaid reasons we hold that the seats allocated/reserved for backward area could not be converted into that of "general self-finance seat" specially when deserving candidates belonging to that backward areas was available on the waiting list. The conversion of reserved seat in Khyber Medical College to that of "general self-finance seat" is, therefore, against the policy of the Government, fair play and the norms of justice.
19. The argument of the learned counsel for the petitioners that the petitioners were discriminated as they were not treated at par with the children of the Doctors and children of teaching staff/non- teaching staff of various institutions for whom special quota seats were allocated as in cases of admission of child of a doctor/teaching/non-teaching staff of various institutions against open merit seat, the vacant seat was not transferred to "general self-finance seat", whereas seats reserved for Gadoon were transferred to "general self --finance seats" though deserving candidates were available on merit list has a force in it. The perusal of the admission policy as well as Prospectus for Admission of Khyber Medical College and Ayub Medical College show that certain quota seats have been reserved for the children of the doctors/teachers and there is no provision made in the policy that in case of admission of the children of doctors/teachers against open merit seats, the special quota seats would be transferred to that of "general self-finance seat". The argument of the learned counsel for the respondents (Admission Committee) that special quota seats for the doctors/teachers children have been transferred to "general self- finance seat" in Gomal and Saidu Medical Colleges makes the argument of learned counsel for the petitioners more strong as to why provision for transferring of the special quota seats reserved for doctors/teachers in Khyber Medical College and Ayub Medical College was not provided in the policy and why the seats for the children of doctors/teachers at Gomal and Saidu Medical Colleges were made I transferable to that of "general self-finance seat" and similar seats in Khyber Medical College and Ayub Medical College were not transferable to "general self-finance seat". We fail to understand as to why the students belonging to Gadoon were discriminated and were not treated at par with the children of doctors/teachers. We are also unable to convince ourselves as to why the Admission Committee has not adopted the same criteria when the special quota seats for children of doctors /teachers were transferred to "general self-finance seats" at Gomal and Saidu Medical Colleges, whereas special quota seats for Khyber medical College and Ayub Medical College were not made transferable.
20. The argument of the learned counsel for respondents (Joint Admission Committee) that the Sessions for 1999-2000 is over and students admitted in the said sessions shall be appearing in the second year examination this year, therefore, Mst. Surraya Begum cannot be admitted, has no force.. As discussed above Mst. Surraya Begum was the only candidate left for admission against reserved seat for Gadoon. The College Authorities/Joint Admission Committee should have admitted Mumtaz Alam in Khyber Medical College against seat reserved for Gadoon and Mst.
Surraya Begum should have been admitted in Ayub Medical College against the seat reserved for Gadoon but this was not done by the College Authorities. The conversion of the seat reserved for Gadoon in Khyber Medical College into that of "general self-- finance seat" was illegal and para.4(A)(III) (dealing with N.-W.F.P. Backward areas seats) of the Admission Policy framed by the Government, was also against the provisions of the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, Mst. Surraya Begum, the petitioner in (Writ Petition No. 1862 of 1999) should not suffer because of the omission or illegal action of the College Authorities/Joint Admission Committee. She was denied admission on wrong premises and hence was entitled to be restored in the same position as of right to the maximum possible extent which she would have occupied but for the wrongful act of the College Authorities. Had she been treated in accordance with the admission policy for the year 1999-2000, she would have been admitted in Ayub Medical College, therefore, she cannot be deprived of the beneficial position for which she was entitled. The College Authorities/Joint Admission Committee instead of considering her in their parental jurisdiction, preferred to commercial gain for College by transferring the seat reserved for Gadoon to that of "general self-- finance seat". We would, therefore, accept both the writ petitions. Mumtaz Alam petitioner in Writ Petition No. 1890 of 1999 is directed to be accommodated in Khyber Medical College, Peshawar against the seat reserved for backward area of Gadoon while Mst. Surraya Begum, petitioner in (Writ Petition No. 1862 of 1999) is directed to be admitted in Ayub Medical College, Abbottabad against the seat reserved for backward area of Gadoon vacated by Mumtaz Alam petitioner in Session 1999-2000. If, however, due to any administrative difficulties, the College Authorities are unable to accommodate Mst. Surraya Begum in the said Session, then she shall be admitted in the forthcoming Session for the 1st year M.B-B.S. Class. There shall however, be no orders as to costs.