' MALIK HAMID SAEED, J.--- The Government of Pakistan in the States and Frontier Regions Division, Islamabad (hereinafter called `SAFRON') in the year 1991 i,e, on 4-5-1991 issued Guidelines to be adopted by the Provincial Government of N.-W.F.P. For selection of FATA candidate against reserved seats in educational institutions of the country. According to this policy, 25% reserved seats were meant for overall merit of the FATA candidates and the remaining 75% were to be distributed on agency/frontier region-wise merit. The Provincial Government N.-W.F.P. Home and Tribal Affairs Department carried out the said policy but with certain additions from time to time e.g. For the year 1995-96, no third divisioner was entertained, for the year 1996-97 no candidate was entertained who had not obtained at least 60% unadjusted marks in F.Sc. (Pre-Med.) and had not qualified the entry test, for the year 1997-98 the same criteria was adopted whereas for the year 1998-99 the following criteria was invoked:-- "(1) The candidates from FATA for FATA reserved seats in N.-W.F.P. Medical and Dental Colleges as well as FATA reserved seats in Medical and Dental Colleges elsewhere in Pakistan' shall also have to apply to the Chairman, Joint Admission Committee/Principal, Khyber Medical College on prescribed form, for admission, duly completed in all respects along with a copy of the Application Form to the Home and Tribal Affairs Department, Government of N.-W.F.P. Who will be responsible for the authenticity of the documents submitted by the applicant with the Application Forms.
(3) The FATA candidates selected for admission to N.-W.F.P. Medical and Dental Colleges shall be immediately so admitted. The list of the selected FATA candidates for the seats reserved in Medical/Dental Colleges outside N.-W.F.P. Will be forwarded to SAFRON for further action."
2. As evident from the letter dated 15-9-1998 of the Home Department and Tribal Affairs addressed to Secretary SAFRON on 27-4-1998 a meeting was held under the Chairmanship of Governor, N.- W.F.P. In which the Secretary SAFRON, Islamabad had also participated, certain decisions were taken in which the policy for admission of FATA candidates in Medical Colleges was also discussed and the change so decided in the. Policy was required to be made by SAFRON Division in its. Pc!Icy in the following terms:--- "(1) 2(i) The joint Admission Committee will invite application from the FATA candidates for admission of all seats and advertised in Local and National paper of the country.
(2) (ii) The Joint Admission Committee will process the application of FATA candidates and submit their recommendation of those seats which are outside N.-W.F.P. To SAFRON."
On 4th July, 1998 a Special Meeting was held under the Chairmanship of Chief Secretary, N.-W.F.P.
For reviewing various policy issues relating to admissions in Government Medical and Dental Colleges prior to the publication of their Prospectuses for the academic session 1998-99. Under Item No,5, the criteria for admission on FATA seats was also discussed and the following decision was made, as is reflected from the copy of the Minutes of the said meeting:--- "12. Admissions on FATA reserved seats in medical and dental colleges both for N.-W.F.P. Colleges as well as colleges of other provinces is coordinated through a long channel involving the Political Agent/Commissioners Offices, Home and. Tribal Affairs Department and SAFRON. Except for political symbolism this procedure has no value added but, invariably delays admissions of FATA students. In a meeting chaired by Governor, N.-W.F.P. And attended by Secretary, SAFRON and Chief. Secretary, N.-W.F.P. On April 27, 1998 it had been decided that in future all steps in the admission process of FATA students to medical and dental colleges shall be coordinated by the Joint Admission Committee.
Decision:
13. It was decided that in case of admission on FATA reserved seats in future:--
(i) The Joint Admission Committee shall coordinate all steps in the admission process starting from invitation of applications, to determination of the merit list and announcement of placement both in N.-W.F.P. And non-N.-W.F.P. Colleges;
(ii) a representative of the Home and Tribal Affairs Department shall be invited to participate in the deliberations of the Joint Admission Committee when admissions of FATA reserved seats are being finalized; criteria for selection on FATA reserved seats shall be the same as presently followed by Home and Tribal Affairs Department and SAFRON. The details in this respect shall be obtained from the H&TA Department and incorporated in the guidelines for admission; provisional admissions shall be given to FATA students in N.-W.F.P. Medical and dental colleges by the Joint Admissions Committee subject to verification of domicile; in case of FATA seats outside N.-W.F.P. The final list for placements shall be communicated to SAFRON for further disposal;"
' It was in this background, when the Government of in the Health Department in its Admission Policy for the Medical and Dental Colleges for the Session 2000-2001 besides adopting the above procedure also made the following criteria under para. b(i)(a) for distribution of FATA Reserved Seats among the candidates seeking admission on these seats:--- "(a) 50% of FATA seats are allocated to those FATA candidates who have studied and passed their SSC or equivalent examination from an educational institution located in FATA. If no candidate is available to be admitted against this allocated quota of FATA seats, the deficiency/short fall will be met from the waiting list of the FATA candidates."
The petitioners in the four connected writ petitions i,e, Writ Petitions Nos.1270, 1287, 1324 and 1417 of 2000, are thus aggrieved of the afore-mentioned Admission Policy for the Session 2000-2001 and have prayed for declaring the same as illegal, without jurisdiction and without lawful authority or in the alternative declaring para.VII(B)(i)(a) of the Admission Policy as such. As in all the four writ petitions, one and the same questions for determination have been raised, therefore, we have proposed to dispose of them through this common judgment in Writ Petition No,1270 of 2000.
3. The main stress of the learned counsel for the petitioners in their arguments was that the Provincial Government had no authority to frame a policy which is inconsistent with the Policy already notified by the Federal Government (SAFRON) and that the same is discriminatory, in that on one hand it is not applicable to the FATA reserved seats in other Medical Colleges of the country, and on the other hand is also not made applicable to other professional colleges in the Province.
Reliance was placed on the Rules of Business, 1973 of the Federal Government where under in Schedule II (Rule 3(3) the SAFRON has been entrusted with the responsibility of nomination of candidates from FATA for admission to various Medical Colleges against seats reserved for those areas besides other business.
5. In reply, the learned A.A.-G. Argued that the Health Department of Government of N.-W.F.P. Is empowered under the Rules of Business, 1985 to look after the affairs of the medical education including medical schools and colleges, and institutions for dentistry and the medical colleges throughout the Province and as these colleges are run, controlled and managed by the Provincial Government, therefore, the Government is competent to frame policies for admission of candidates in the said colleges from FATA and the Home and Tribal Affairs Department has specifically been authorized in this behalf vide para. 41 at page 42 of the Rules of Business, 1985 as under:--- "41. Admission of candidates from tribal area to medical and other professional colleges against reserved seats."
6. We have considered the arguments of both the sides and are of the view that the admission policy in question is not in conflict with any federal law, regulation, notification nor with the Constitution. The documents/letters, referred to in the foregoing paragraphs of this judgment clearly indicates that SAFRON Division as well as the Home and Tribal Affairs Department of N.- W.F.P. Agreed to nominate the Joint Admission Committee to coordinate all steps in the admission process starting from inviting of applications to determination of merit list and announcement of placement both in N.-W.F.P. And nonN.-W.F.P. Colleges. The reason behind it was explained to be the long channel involved in the process of admission on FATA reserved seats involving the political Agents/Commissioners Offices, Home and Tribal Affairs Department and SAFRON. A condition was also laid down that a representative of the Home and Tribal Affairs Department shall be invited to participate in the deliberations of the. Joint Admission Committee when admissions on FATA reserved seats are to finalize. At the same time, it was made incumbent upon the Joint Admission Committee to follow the criteria for selection on these seats made by SAFRON and its Provincial counterpart Home and Tribal Affairs Department. It may also be mentioned here that all these decisions were taken in presence of the Secretary, SAFRON.
7. Under the Federal Rules of Business as well as N.-W.F.P. Rules of Business, the SAFRON and Home Department of N.-W.F.P. Both are concerned with nomination and admission of FATA candidate on the reserved seats respectively. Total 111. Seats have been reserved for FATA candidates throughout the country out of which 85 seats have been allocated in the various Medical Colleges of N.-W.F.P.
Whereas the remaining 26 seats have been reserved in the other Medical Colleges of the three Provinces. A prerogative has been given to the Home and Tribal Affairs Department to make and finalise admissions on the 87 reserved seats in the medical colleges of N.-W.F.P. Through Joint Admission Committee and to recommend the list of those seats to SAFRON which are available in the medical colleges of the other Provinces for disposal at its end. From the above, it is clear that A SAFRON as well as the N.-W.F.P. Home and Tribal Affairs Department both agreed to change the criteria for admission on FATA reserved seats in future and the Joint Admission Committee was nominated to go through the whole process of admission. Under the N.-W.F.P. Rules of Business, the medical colleges in the Province are under the control of the Provincial Government. Being controlled and run by the Health Department, the Provincial Government is thus competent to make admission policies for admission in these colleges.
8. As a result of the meetings held on the subject and the decisions taken in the said meetings (sometimes chaired by the Governor, N.-W.F.P. And duly attended by the Secretary SAFRON also and sometimes presided over by the Chief Secretary, N.-W.F.P.) the future criteria for admission on the FATA reserved seats was struck down by the Health Department for admission on FATA reserved seats. In the said admission policy there appears no transgress made by the Provincial Government over the number and allocation of seats. The only change is to the effect that those candidates who have received their education in the Tribal Areas Schools/Colleges have been given some preference over those candidates, who of course belong to the tribal areas, but have not studied in their native schools/colleges and have received education outside those tribal agencies. So far as the competency of the Provincial Government for making admission policy for those schools/colleges are concerned, which are wholly run/financed and controlled by the Provincial Government, a number of authorities of the superior Courts' are available on the subject to show that no legal exception could be taken to the same. For the sake of convenience, the citation of the following reported judgments would be helpful in reference to the context, as under:- "Miss Uzma Sabir Qurush and others v. Government of Baluchistan through Secretary, Health Department, Quetta and others 1999 Yearly Law Reporter 1326: "Admission---Power of Government to regulate admission--- ' Government retained jurisdiction to regulate admission in educational institutions, particularly those which were financed by it---Government was also empowered to change rules and instructions, contained in the prospectus, from time to time---Change in prospectus of college for admission through Self-Financing Scheme, in circumstances, was within competency and jurisdiction of Government."
"Gul Khan v. Government of Baluchistan through Secretary Education and 4 others PLD 1989 Quetta 8: "Art. 22(4)-Admission Policy of Government of. Baluchistan, institution-Validity of-Provision of cl. (2.12) of Admission Policy which regulates terms and conditions for admission is not violate of the provisions of Art.22 of the Constitution which safeguard admission to Educational institutions--- Article 22(4) empowers a public authority for making provisions for the advancement of socially backward class of citizens."
' The admission policy in question is thus having no incompetency, for, it is within the powers of the Provincial Government to frame admission policies for admissions in the colleges which are run and financed by the Provincial Government and as stated earlier it is also not in contravention to any law/rules. The question of discrimination as argued by the learned counsel for the petitioners does not arise as other professional colleges in the Province do not come within the domain of the Health Department and it is for the concerned Department of the Provincial Government to make policy for admission for which the Health Department cannot be held responsible. Similarly, the Health Department of N.-W.F.P. Is also having no control over the other Medical Colleges outside the Province.
9. The main purpose behind the reservation of these seats is to extend protection to those tribal area students who are at a disadvantage as compared to the students of other areas keeping in view the difference between the education facilities available in the other educational institutions outside the tribal belt. It is easily imaginable that a student, who receives education in the school/college located in the tribal territory cannot compete with that student who receives his education in the developed areas of the country. If a child receives his education in the institutions of developed areas like Peshawar due to the reasons that his parents reside at Peshawar or they have migrated their child to Peshawar or any other educationally developed city of the Province for the purpose of receiving education there, in that case when the question of admission in the professional colleges would come between the two tribal children, having received their education quite in a different atmosphere, then seemingly the child who received his Secondary and Intermediate level education from the schools/colleges located in the Tribal Agencies would not be able to get admission in a professional college. Hence this child requires some protection in this regard and if it is not provided, the result would be that the child educated from institutions/schools outside the tribal agency would be high in merit than the child educated from the institutions/schools located in the tribal agency. The public interest is greater than private, as the development of remote and backward areas as a whole is to be kept in view and not the interest of a child who not only receives his education outside the tribal agency but after becoming a professional, would also not want to serve the tribal territory. On the other hand, it is expected that a child who from the start receives education in the tribal areas schools and colleges and does not leave his abode in the tribal area would certainly serve the same area even after getting degree from a professional institution. Answer to this aspect can be found in the judgments from Indian jurisdiction as well as of the superior Courts of this country, wherein the said criteria adopted by the professional colleges has been held to be reasonable and not in conflict with the provisions of the Constitution also. In (1990) Supreme Court Cases, page 130, the Supreme Court of India has held as under:- "Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled in order to become equal with otheRs, But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas."
' In the judgment reported in 1995 SCM R 711, the Hon'ble Judges of the Supreme Court of Pakistan have held as under:--- "We may observe that the rationale for reserving Rural and Urban seats separately in a District for admission in professional colleges seems to be to facilitate admissions of students belonging to rural areas as they generally do not have the same facilities of education as the students from urban area enjoy. In other words the underlined object of the above demarcation appears to be to avoid competition for admission in professional colleges inter se between Urban and Rural students. Keeping in view the above objective we are inclined to agree with Mr. Raja M. Afsar, learned Advocate-General's contention that if there is a tie between a student having residences in rural and urban area and a student having residence exclusively in rural area, the latter should be given preference."
' The admission policy framed for the Session 2000-2001 with regard to admission on FATA reserved seats in the medical colleges, having been based on positive approach to the overall interest of FATA students/ candidates, thus cannot be declared as illegal or violative of the fundamental right as enshrined in the Constitution of the Islamic Republic of Pakistan. The learned counsel for the petitioners could not advance any good ground for doing so.
10. Before parting with the judgment, it may be observed that during the course of arguments it was brought into our notice that the tribal students of Cadet College, Razmak (a college located in the tribal area) have also been included in the same 50% quota. Cadet College Razmak though is located in the tribal territory, yet the standard of its education is no secret. It is one of the best educational institution of this Province. So, the inclusion of those tribal candidates who have educated from Cadet College, Razmak in the said 50% quota would have serious consequences when the question of competing between the students who have educated from other institutions of the locality would come. Not to defeat the object of the said policy, we would direct the respondents to exclude the names of those candidates who have completed their studies in Cadet College, Razmak from the merit list meant for the candidates educated from inside the tribal areas schools/colleges.
11. For the aforesaid reasons, the writ petitions in hand are hereby dismissed with no orders as to costs.