2012 PLP 891 (CLC)

NISAR HUSSAIN KHAN, J.

Mst. Huma Saad petitioner, through the instant writ petition has sought the declaration of act of respondent No.1, of allowing admission to respondents Nos.6 and 7, in Medical College on FATA Reserved Seats, as illegal, unjust, arbitrary discriminatory, mala fide, without lawful authority and of no legal effect. She also prayed for issuance of direction to respondent No.1 to allow her admission at the seats of respondents Nos.6 and 7, particularly, at the seat of respondent No.7, reserved seat for FATA in Bannu Medical College, Bannu.

2. The comments of respondent No.1, were called, which have been filed in compliance with the direction of the Court. Respondent No.1, stated in his comments that petitioner is resident of F.R. Bannu FATA, who applied for admission at FATA seat. She received her education from "Pennel High School and Girls. College Bannu", which is not located inside F.R. Bannu. Hence, she was declared "OUT" and was put in competition with the candidates of quota of 90 % seats, who received their education, outside FATA. However, she was unable to compete with them, so admission could not be allowed to her. Whereas, respondents Nos.6 and 7, hail from F.R. and they also acquired their education from the Schools and Colleges tailing inside FATA, so they were eligible for 10% "IN" quota.

3. Learned counsel for the petitioner argued that petitioner applied for admission for (Sessions 2010-2011) in Bannu Medical College, on reserved falling seats for FATA and she was issued a receipt in response to her application, which bears the endorsement of the respondent No.1 that she belongs to FATA. He maintained that in pursuance of her application, she participated in 'Entry Test' wherein she secured 61.26 % marks and was placed at S.No.29 in the final merit list for Session 2010-2011, which is far better than the percentage of respondents Nos.6 and

7. While she has been shown as "IN" in the said list, in respective column of final FATA merit list. He maintained that name of the petitioner was omitted from the list of selected candidates, which is illegal exercise of power on the part of respondents. Learned counsel argued that petitioner was constrained to obtain education from the School and College of the settled area, because no such facility was available in her village or in the surrounding areas in the F.R. so she was entitled to admission in the Medical College but she has been deprived of her right by giving preference to respondents Nos.6 and 7, on her, who obtained 59.39 and 60.42 per cent marks respectively in the 'Entry Test', which is much below the average of the petitioner.

4. Learned counsel for the respondents, while responding to the arguments of the learned counsel for the petitioner, contended that petitioner had studied in the School and College of Bannu City, which falls in settled area, so she is not entitled to admission on 10% reserved seats for "IN" candidates, as she is not eligible for the same while respondent No.6 and 7, have had their education from Schools and Colleges, falling inside the FATA.

5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the record of the case, with their able assistance.

6. Before we proceed to discuss the factual aspect of the case, it is pertinent to encompass the background of reservation of seats for FATA by placing them in two different categories of "IN" and "OUT". A civil Review Petition No.387 of 2001 was filed in the judgment of Mst. Attia Bibi Khan's case 2001 SCMR 1161, which was decided on 27-5-2002 and was allowed by their Lordship, with the direction that 10% of the total seats reserved for FATA region, may be allowed to those who in fact had received their education within FATA region and rest of the 90% seats of FATA, shall be given to the remaining candidates for admission on the basis of their domicile from the FATA region. The ratio of the said Judgment has been followed by the respondents, while formulating their policy for admission in Medical Colleges. Prospectus for Khyber Pakhtunkhwa Medical/Dental Colleges 2010-11, provides as follows:

FATA RESERVED SEATS (i) FATA seats include all seats reserved in Medical and Dental Colleges of Khyber Pakhtunkhwa and other Provinces. Out of the total reserved seats for FATA: (ii) 10 per cent seats are reserved for candidates who have obtained their Primary, Middle, SSC (Science) F.Sc. (Pre-Medical Part-I & Part-II) education from institutions within FATA while 90% seats are reserved for candidates who have obtained their Primary, Middle, SSC (Science) and F.Ss. (Pre-Medical Part-I and Part-II) education from institutions located outside and inside FATA. (iii) Any candidate who has obtained part of his/her education outside FATA, will not be considered as "INSIDE" candidate. (iv) In case of non-existence of school/college or non- availability of the facility for teaching science subjects, the candidate will have to provide a solid proof in the form of a certificate, duly verified by the concerned EDO (Education) and countersigned by the concerned PA (Agencies) and DCO (FRs).

7. These conditions are true reflection of the mandate and spirit of the judgment of the Hon'ble Supreme Court in Review Petition No.387 of 2001 Attiya Bibi Khan's case. Admittedly, the petitioner belongs to FR Bannu. Her this position has not been disputed by the respondents. So she was eligible to apply for admission on the reserved seats of FATA. The question to be resolved is that whether she is entitled to admission on 10% quota of the reserved seats for "INSIDE" candidates or 90 % quota of the reserved seats for "OUTSIDE" candidates. The application form submitted by the petitioner for her admission in year MBBS/BDS Medical/Dental Colleges Government of Khyber Pakhunkhwa, Session 2010-11, on a prescribed form, relating only to the FATA seats, has been annexed by the respondents with their comments, which shows that petitioner has clearly shown herself as "OUTSIDE" candidate as she received her SSC, F.Sc. Part-I and F.Sc. Part-II education from outside FATA. While application forms of respondents Nos.6 and 7 are reflective of the fact that they received their education inside FATA. As per clause (iv) of the respective Para of the FATA reserved seats, it was incumbent upon the petitioner to provide a certificate of her obtaining education from inside FATA or non-availability of the facility in her area. But she has failed to provide any such Certificate to the respondents. Whereas, respondents Nos.6 and 7 had complied with the said requirement. The record produced by the petitioner herself is reflective of the fact that she had received her education in the settled area from outside the FATA. On the basis of this factual position, she could have claimed the seat from 90% quota, reserved for outside candidates but she could not compete on that quota, with other "OUTSIDE" candidates. So she was denied the admission on the said quota. Although, the percentage of respondents Nos.6 and 7, in the "Entry Test" is below than that of the petitioner but they have come on the merit list, maintained for the candidates of "INSIDE" quota for which petitioner is not eligible, according to the admission policy formulated by the respondents, in accordance with the directions of the Hon'ble Supreme Court. In clause (iii) of the conditions meant for admission on FATA reserved seat, it is vividly emphasized that any candidate, who has obtained his/her education outside FATA, will not be considered, as "INSIDE" candidate. It is undisputed that petitioner has obtained her education outside FATA, so she was not eligible for 10% Seats reserved for "INSIDE" candidates.

8. We are of the considered view that admission to petitioner was declined on 10% reserved seats of IN quota, as she was not eligible thereto. It cannot be lost sight of, that object and purpose of the various provisions as enumerated in the Prospectus, qua reserved seats, meant for backward areas, is that, the students, who had studied in institutions, located "INSIDE" FATA, with relatively less facilities and cannot compete with students, who studied in Schools, equipped with better facilities and staff, may be accommodated. The students qualifying for 10% "INSIDE" reserved seats cannot be deprived of their right, without any lawful justification. This Court, thus, cannot issue a writ in aid of injustice.

9. For what has been discussed above, this writ petition, being devoid of merit is dismissed. M.H./50/P Petition dismissed.