1990 PLP 805 (SCMR)

SAAD SAOOD JAN, J‑‑This petition for special leave to appeal is directed against the judgment and order dated 23‑4‑1989 of the Peshawar High Court which arises in the following circumstances.

2. While formulating the policy for admission of FATA candidates against the reserved seats in different medical colleges of the country for the session 1987‑88, the Governor of the N.W.F.P. directed:‑ "Let us follow the principle of equity holding the merit supreme and at the same time showing some favour to female candidates. Please distribute the seats as follows:‑‑ (a) Merit Seats 82. 10 seats per Agency and three seats per FR to be allotted on merit alone irrespective of sex of the candidate, provided that :‑ (1) One seat to each Agency and FR shall be allotted to a female candidate irrespective of merit; (2) Where there is no female candidate available, the seat shall be availed by a male candidate of the same Agency/FR. (b) Reserved Seats for female Candidates

5. To be allotted amongst the female candidates on over‑all merit alone."

3. When the matter of admission for the session 1988‑89 came up for consideration before the Provincial Government, it was discovered that as many as 24 female candidates against the total number of 83 seats reserved for FATA candidates were in a position to seek admission on the basis of merit alone. This was considered to be more than adequate representation of the female candidates in the Medical Colleges. Accordingly, with the approval of the Governor, the policy formulated in the previous year was revised and reservation of seats for female candidates irrespective of merit was done away.

4. Respondent No.1 is domiciled in F.R. DPra Ismail Khan. In the Intermediate Examination she did not get high enough marks to obtain admission in a medical college on merit. That being so, in the session 1988‑89 she sought admission on the basis of the seats reserved for female candidates in accordance with the policy formulated for the session 1987‑

88. Her candidature was rejected in accordance with the revised policy. She fled a writ petition in the High Court to challenge the legality of the rejection of her candidature. A Division Bench in the High Court accepted the petition and directed the Provincial Government to make arrangement for her admission in any of the recognised colleges. While allowing the writ petition the High Court observed: "We. therefore, hold that a certain standard for female representation was in existence at the time of the application made by the petitioner for admission to a medical college from the Federally Administered Tribal Areas. Such a standard was not superseded by any other formula before the meeting of the Provincial Selection Committee. In our view the Provincial Selection Committee was not competent to deviate from the said standard already laid down." The Provincial Government as well as the Commissioner, Dera Ismail Khan, seek leave to appeal from the judgment and order of the High Court. In support of this petition it is inter alia contended that the reservation upon which respondent No. 1 has based her claim was intended only for the session 1987‑88 and that it did not hold good for the subsequent sessions. In any event it was open to the Provincial Government to revise its policy after taking into consideration the altered circumstances. The High Court therefore erred in holding that respondent No.1 was entitled to seek admission in a medical College as a matter of right. The contentions raised on behalf of the petitioners need examination. Leave to appeal is granted. The operation of the order of the High Court is suspended in the meanwhile. The appeal should be listed for hearing at an early date. The parties would be at liberty to file additional documents; if any. H.B.T./C‑46/S Leave granted.