2018 PLP 111 (CLCN)

GHULAM MUSTAFA MUGHAL, J.

The captioned appeal by leave of the Court arises out of the judgment dated 20.1.2018, passed by the learned High Court in Writ Petition No. 2000 of 2017.

2. The facts forming the background of the captioned appeal are that both the appellant and respondent No.1, herein, hail from Leepa Valley and are contesting for the special seat of B.Sc. Engineering. Vide order dated 4.12.2012, the appellant, herein, was nominated by the Nomination Board of the Azad Jammu and Kashmir against the special seat reserved for Leepa Valley in the University of Engineering and Technology, Lahore, for the session 2017-18. Feeling aggrieved from the nomination of the appellant, respondent No.1, herein, challenged the same through a writ petition filed under section 44 of the Azad Jammu as Kashmir Interim Constitution Act, 1974, on 4.12.2017. The precise stand of respondent No.1, herein, before the High Court was that the nomination of the appellant is violative of the policy notification dated 17.4.2014. It was stated that as the petitioner has not completed his education i.e. F.Sc. from the institutions of Leepa Valley, therefore, he was not entitled to be nominated against the seat reserved for the locals of Valley although he has improved his division and secured more marks vis-a-vis to the private respondent, herein. The writ petition was contested by the Nomination Board as well as the private respondent, herein, by filing separate written statements. It was claimed by non-petitioner, appellant, herein, in his written statement that at the time of issuance of notification, the science subjects were not taught in Govt. degree college Leepa Valley. Moreover, no such condition was existed at the relevant time in the policy, therefore, the petitioner got admission in Government Modal Science College Muzaffarabad, in the first year and completed the same from the said College, however, after the enforcement of the notification, the respondent got himself migrated from Govt. Modal Science College Muzaffarabad to Govt. Degree College Leepa and passed examination of F.Sc. from there. It was stated that the appellant, herein, improved his division as per policy of the Board of Intermediate and Secondary Education and secured more marks vis- -vis to the petitioner, respondent, herein, therefore, his nomination was in line with the merit. After necessary proceedings the learned High Court, through the impugned judgment has cancelled the nomination of the appellant, herein, with a direction to the Nomination Board to nominate the private respondent, herein, against the seat of B.Sc. Engineering reserved for Leepa Valley.

3. Mr. Muhammad Yaqoob Khan Mughal, the learned Advocate appearing for the appellant vehemently argued that nomination of the appellant, herein, was made in view of his merit position and after the enforcement of notification dated 17.4.2014, the petitioner got migration from Govt. Modal Science College Muzaffarabad to Govt. Degree College Leepa and has completed his remaining education from there. The learned Advocate argued that so far as passing of the examination of F.Sc. 1st year of the appellant, herein, from Govt. Modal Science College, Muzaffarabad is concerned, it was not possible for the appellant, herein, to get the admission of F.Sc. 1st year because science classes were not available at that time in the institutions of Leepa Valley. The learned Advocate argued that the appellant cannot be deprived of his nomination on the ground that he has appeared as private student for improving his division and his name is placed in the list of private candidates of the District Hattian. It was stated that under the relevant rules, he could not be readmitted in the same subjects and every student who intends to improve his division is treated as private student by the Board of Intermediate and Secondary Education which does not affect his merit for the purpose of nomination. The learned Advocate argued that the judgment passed by the learned High Court is erroneous, illegal, perverse and violative of the merit. In support of his submission, the learned Advocate placed reliance on the cases reported as Umair Khan v. AJ&K Government and 6 others (2017 SCR 980) and Jawaria Maqsood v. Joint Admission Committee for Medical Colleges through Chairman, AJ&K Medical College, Muzaffarabad and 3 others (2017 YLR 1571).

4. Conversely, Mr. Ansar Khan Tahir, the learned Advocate appearing for private respondent argued that the impugned judgment of the learned High Court is perfectly legal and does not suffer from any legal infirmity. He argued that the appellant has not completed his whole examination of F.Sc. from any institution located in the Leepa Valley, rather he passed the examination of first part of F.Sc. from Govt. Modal Science College Muzaffarabad. He argued that as the F.Sc. consists of two parts, therefore, it cannot be said that he passed his F.Sc. from the local institution. The learned Advocate argued that even his latest certificate of F.Sc. denotes that he appeared in examination as a private student, which means that he studied somewhere outside the Leepa Valley. The learned Advocate argued that the condition of receiving education from the same area has been imposed through notification dated 17.4.2014 in order to raise the education ratio of the backward area to compensate the students of such area vis- -vis to those who have the means and sources to study outside.

5. We have heard the learned Advocates representing the parties and perused the record with our utmost care. The controversy among the parties relates to the nomination of a seat for B.Sc. pre- engineering course reserved for Leepa Valley. The nomination policy in the Azad Jammu and Kashmir was enforced through the instructions/notification issued on 5th November, 2009. On 17th April, 2014, an amendment was effected in the said policy, which is reproduced as under: (underlining is ours) A perusal of the above would show that for nomination against the seats reserved for Neelum/Leepa Valley, a condition has been incorporated in the policy for the benefit of those who have completed their studies from the local institution. The purpose behind the notification is to increase the rate of education and bring the students living in the backward area at par with those who have an opportunity to study in the urban area in a better atmosphere. That is why, special condition for receiving education from local institution has been imposed. Admittedly, the policy notification was issued on 17.4.2014, whereas, the appellant, herein, got admission in F.Sc. part 1st in Govt. Modal Science College Muzaffarabad and passed the same on 10th October, 2015. Subsequently he obtained migration from Govt. Modal Science College Muzaffarabad to Govt. Degree College Leepa as is evident from certificate issued by the Principal Degree College Leepa on 21.9.2017. He did his 2nd part of F.Sc. from Govt. Degree College Leepa in the annual examination 2016 and obtained 718 marks out of 1100. Subsequently, the appellant, herein, improved his marks under the policy, while appearing as late college student of Government Degree College Leepa. Under the relevant policy, he could not be declared as a regular student of Govt. Degree College Leepa, therefore, he was declared as a private student and placed amongst the similar candidates of District Hattian.

6. It may be stated here that notification dated 17.4.2014 came under consideration of the Azad Jammu and Kashmir High Court in the writ petition titled Anas Mumtaz and others v. Joint Admission Committee for Medical College and others (Writ Petition No. 2164 of 2014 decided on 10.11.2014 and it was held that the notification will operate from the next session i.e. session 2015-16. As the appellant, herein, did his first part of F.Sc. in the session 2015-16 from Govt. Modal Science College Muzaffarabad and subsequently he has obtained migration for achieving the benefit on the basis of notification dated 17.4.2014, therefore, it cannot be said that he has completed his F.Sc. from a local Institution. This view has already been approved by this Court in an unreported case titled Hamad Mushtaq Janjua v. Joint Admission Committee for Medical College and others (Civil Appeal No.47 of 2016 decided on 29.3.2016. In the cited case, one of the candidates passed her first part of F.Sc. from Al-Razi Science College Muzaffarabad and after obtaining the migration she did his second part from Degree College Leepa Valley and it was declared that she was not entitled to the nomination because she passed her first year of F.Sc. from Muzaffarabad whereas the migration was obtained by her in the second year to get the benefit of notification dated 17.4.2014. In para 10 of the referred judgment the relevant proposition has been considered as under:- "

10. The record shows that the appellant, Sundas Ashraf, was the regular student of Al-Razi College of Science Upper Chatter, Muzaffarabad and passed Intermediate Part-1 as a regular student of that college. Thereafter, she migrated to Leepa and passed Intermediate Part-II from Govt. Degree College Leepa. It is evident from the record that the appellant, Sudas Ashraf got her education throughout from Muzaffarabad District and at the end, she migrated to Leepa just to cover her case under condition No.1, imposed in policy notification dated 17.4.2014, that only those candidates will be eligible for nomination against the seats reserved for Neelum and Leepa Valley, who completed their Intermediate education as a regular student from the local institutions of the areas. As nothing is on record that she remained regular student of the local institutions of Leepa, therefore, in our estimation, the act done by the appellant to get the admission in the Medical Colleges on the seat reserved for the residents of Leepa; amounts to defeat the object of the policy notification dated 17.4.2014, while playing tactics; such like practice cannot be approved. As the condition imposed in the aforesaid notification was challenged before the High Court in Anas Mumtaz's case and the learned High Court has held that condition No.1, in the notification dated 17.4.2014, has rightly been inserted. This judgment of the High Court has not been challenged by any person and the same has attained finality, therefore, condition No.1, of the policy notification dated 17.4.2014, is very much in field and in presence of that no one can be allowed to play such like tactics. The learned High Court to eradicate such like practice has rightly observed in the impugned judgment that the head of the institutions shall not allow the students who managed migration mere to make them eligible for nomination against the special seats. An identical proposition has also been considered by a Division Bench of Peshawar High Court in the case reported as Manzoor Ahmad Qureshi v. Chairman, Joint Admission Committee, Khyber Medical College, Peshawar and 9 others (PLD 2005 Peshawar 116). In paragraph No.14 of the report it was observed as under:- "

14. The Hon'ble Supreme Court did not create any exception to the above rule and thus whether or not educational facilities were available in a particular Backward Area the seats reserved for such area were to be restricted to students who had acquired their Matric and F.Sc. qualification from such area. The rationale for the rule can be found in the same paragraph of the judgment that such students had "suffered some initial disadvantage owing to their social and economic conditions". The underlying principle for the reservation of such seats, therefore, is to provide opportunity to those students to gain admission in professional colleges, who are because of local, social and economic conditions, and relatively poor educational facilities are placed at a disadvantage then those who are living and getting their education in developed areas. Thus students, who possess domicile from the Backward Areas but have been studying in schools and colleges in the developed areas do not suffer from any such disadvantage and therefore they should compete with students who have been getting education in similar institutions. To admit such students on the reserved seats would defeat the very purpose for which the seats were reserved. That is why the Hon'ble Supreme Court had in Attiaya Bibi Khan's case held that mere possession of domicile of backward areas etc, would not qualify the holder to the reserved seat for such areas unless he had studied in such areas. It may be stated that students from the Backward Areas are entitled to compete for the open merit seats as well. The reserved seats are over and above the seats on which students from the said areas may be given admission on open merits. Thus the students from the Backward Area who have acquired education in the developed area are not debarred from competing on open merit seats, which are even open to students fulfilling the criteria for admission on the reserved seats. We, therefore, hold that in the light of the principle laid down by the Hon'ble Supreme Court in Attiya Bibi Khan's case, and reiterated while disposing of C.As. Nos. 72 to 109 of 2002, the seats reserved in medical college for the Backward Areas of N.W.F.P. are restricted, to only those students who have acquired their Matric and F.Sc. (Pre-Medical), Part-I and II in such Backward Areas." Again at page 127 in paragraph No. 24 of the report, it was observed as under:- "

24. The result of the foregoing discussion is that the admission on the seats reserved for the backward areas of Gadoon, Dir Upper and Shangla shall be governed by the principles laid down in Attiya Bibi Khan's case, namely, that only such students who have passed their SSC and F.Sc. (Part I and Part II) from their respective backward areas would be eligible for admission on the reserved seats." In view of the above, it can safely be concluded that the nomination of the appellant, herein, has rightly been cancelled by the learned High Court and respondent No.1, herein, who has studied throughout in the local institutions of Leepa Valley, has got a right to be nominated notwithstanding the higher marks obtained by the appellant, herein. So far as the special seat is concerned, preference cannot be given to the candidates who have partly studied in non-local institutions vis- -vis to those who have received their whole education from the local institutions. The contrary view by the Court will frustrate the policy notification issued on 17.4.2014. The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs. ZC/41/SC(AJ&K) Appeal dismissed.