P L D 1975 Peshawar 186 (PLP)

GHULAM SAFDAR SHAH, C. J.

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan is meant to call in question the two orders of Principal, Khyber Medical College, Peshawar dated 18-1-1975 and 27-1-1975 by which petitioners were refused admission to Medical College on merit on the ground that they being members of Ahmadiyya community were eligible to seek admission only against the seats reserved for that group as a minority sect. We have heard Mr. Mubashir Latif Ahmad, the learned counsel for petitioners and Mr. Jalaluddin Akbarji, the learned counsel for respondent University. It is conceded by Mr. Akbarji that the only reason for which petitioners have been denied admission is that they are members of Ahmadiyya community and thus they could seek admission only against the reserved seats for minority group. In this respect, he relies on para. 1 (appearing at page 10) of the Prospectus of Khyber Medical College, Peshawar the relevant part of which may be reproduced: "Minority candidates will be admitted only against the minority seats. They will not be considered for open merit seats. In case minority candidates are not available, this seat will be included in the total of the tagged seats for boys." Mr. Akbarji tells us that the prospectus in question was prepared on the strength of University of Peshawar Act, 1974 (N. W. F. P. Act No. II of 1974). But when we look at section 6 of the Act in question, it would rather go against the contention of learned counsel. Section 6 of the said Act reads as under :-- "The University shall be open to all persons of either sex and of whatever religion, race, caste, creed, class or colour and no person shall be denied the privilege of tie University on the grounds of religion, race, caste, creed, class or colour." It would thus be seen that para. 2 of the prospectus on which reliance is placed is ultra vires of section 6 of Act No. II of 1974. But when notice is taken of Fundamental Right No. 22(3)(b) of the Constitution, the position becomes further clear that the impugned orders are entirely unconstitutional and of no legal effect whatever. A look at this provision of the Constitution 4 would show that no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race religion, caste or place of birth. And it is common knowledge that Khyber Medical College, Peshawar receives from Government financial aid and thus it would be covered under the scope of said constitutional provision. Mr. Akbarji, the learned counsel for respondent-University argued that in respect of minority sects seats have been reserved by the University and therefore petitioners would be obliged to seek admission only against those seats. We are afraid there is no force in this contention. The seat reserved by the University for minority sects have for them the constitutional backing contained in clause (4) of Article 22 of the Constitution which reads as under :- "(4) Nothing in this Article shall prevent any public authority from making- provision for the advancement of any socially or educationally backward class or citizens." But this would not mean that a candidate belonging to a minority sect would have no right to compete for a seat on the basis of his merit. In point of fact, this right has been guaranteed to every citizen of the country in Fundamental Right No. 22(3)(b) of the Constitution which is to the following effect: "(3) Subject to law,

(a)

(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth." It would thus be seen that the impugned orders of Principal, Khyber Medical College, Peshawar are in conflict not only with section 6 of N. W. F -P. Act No. II of 1974 but also with Fundamental Right No. 22(3)(b) of the Constitution. In this view, therefore we hold these orders to be without lawful authority and of no legal effect whatever. This petition is accordingly allowed, and it is directed that the University authorities would give to petitioners admission in Khyber Medical College, Peshawar if they are otherwise qualified on merit. Under the circumstances, however, parties would bear their own costs. S. A. H. Petition allowed.