2018 PLP (C (PLC(CS)N)

M. TABASSUM AFTAB ALVI, C.J.

The supra titled writ petition has been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, following prayer is made by petitioner:- "It is, therefore, very humbly prayed that keepning in view the circumstances and facts of the instant writ petition, by accepting this writ petition issue an appropriate writ in favour of petitioner cancelling the nomination of respondent No.4, and respondent No.1, may kindly be directed to nominate petitioner against reserved seat of Leepa in Engineering College and also direct him not to allow respondent No.4 to get admission in Engineering College against reserved seat of Leepa."

2. Precise facts of the case are that petitioner is 1st class State Subject of Azad Jammu and Kashmir and permanent domicile holder of Sub-Division Leepa Valley. The petitioner got his education from the Schools and College of Leepa Karnah. After passing his matriculation in the year 2015, he got admission in Government Degree College Leepa Karnah, from where, he passed the exams Part-I and II of F.Sc. as a regular student in the years 2016-17. It is submitted that throughout his career, he remained regular student in academic institutions of Leepa Valley. The petitioner appeared in entry test for admission in Engineering College conducted by the University of Engineering and Technology Lahore, on 16.07.2017, and qualified the same. It is maintained that Nomination Board-respondent No.1, invited on line applications from eligible candidates for admission in Engineering College Lahore, against reserved seat of Engineering for Leepa Valley, in September, 2017, and petitioner submitted his application with all documents. It is maintained that private respondent No.4, also applied for the same seat who studied F.Sc Part-I, from Model Science College, Muzaffarabad. The Nomination Board-respondent No.1, issued an interim merit, list on 05.11.2017, with direction that any aggrieved candidate can file his objections against the aforesaid merit list. The petitioner filed his objections, against nomination of private respondent No.4, however, while neglecting objections of petitioner, final merit list was issued on 22.11.2017, through which, the aforesaid private respondent was nominated against the disputed seat, hence, the instant constitution petition.

3. The writ petition has been resisted by respondents through written statement, wherein, it is stated that private respondent has secured high marks viz-a-viz to petitioner, hence, was nominated for admission against the reserved seat of Leepa Valley. It is pleaded that private respondent has got all education Nursery to Inter level from Leepa Valley, however, after passing matriculation examination he took admission in 1st year of F.Sc. in Model Science College, Muzaffarabad, because at that time policy was not changed, hence, writ petition is not maintainable. The other contents of writ petition have also been refuted.

4. Raja Muhammad Iqbal Turk, the learned counsel for petitioner strenuously argued that policy/ criteria for nomination in different medical institutions in Pakistan and Azad Kashmir as well as against special reserved seats for Neelum and Leepa Valleys was issued by the Government vide notification dated 05.11.2009, which was amended through notification dated 17.04.2014. He contended that according to condition No.1, of the aforesaid policy notification dated 17.04.2014, only those candidates will be eligible for nomination, who completed their intermediate education as a regular student from the local institutions of the concerned area. He pressed into service that private respondent No.4, never completed his education in the local institution of Leepa Valley, rather he remained regular student of Model Science College, Muzaffarabad, and passed Intermediate Part-I, examination from the said College. The learned counsel voiced with vehemence that nomination of private respondent No.4, made by the Nomination Board respondent No.1, is bad in law, therefore, the same is liable to be set-aside and solicited direction to nominate petitioner against the reserved seat of Leepa Valley in the University of Engineering and Technology, Lahore. The learned Counsel in support of his contention referred to and relied upon a case titled "Umair Khan v. AJ&K Government and 6 others [2017 SCR 980].

5. Syed Ishfaq Hussain Kazmi, Legal Advisor of official respondents Nos.1 to 3 and Fayyaz Ahmed Janjua, the learned counsel for private respondent No.4, vehemently argued that private respondent has got all education Nursery to Inter level from Leepa Valley, however, after passing matriculation examination he took admission in 1st year of F.Sc. in Model Science College, Muzaffarabad, because at that time policy was not changed. The learned counsel argued that private respondent improved his F.Sc. division from Leepa Valley, hence, entitled to get admission in University of Engineering and Technology, Lahore, against special seat of Leepa Valley. The learned counsel maintained that petitioner is lower in the merit vis-a-vis to private respondent, hence, Nomination Board-respondent No.1, rightly granted admission to private respondent. The learned counsel finally craved for dismissal of writ petition.

6. After hearing the learned counsel for parties, I have perused the contents of writ petition and examined the documents made available with utmost care.

7. The claim of petitioner is that being a regular student, he got his education from the schools and College of Leepa Valley. He appeared in the entry test for admission in the University of Engineering and Technology, Lahore, who qualified the same, however, private respondent No.4, was nominated by the Nomination Board-respondent No.1, against the policy notification dated 17.04.2014. As per condition No.1 of the aforesaid notification only those candidates will be eligible for nominations against the seats reserved for Neelum and Leepa Valleys, who completed their Intermediate education as a regular student from the local institutions of the area. For proper appreciation, the aforesaid policy notification is reproduced as under:- A bare reading of condition No.1 of the aforesaid policy notification, makes it abundantly clear that candidates who acquired intermediate qualification from the institutions of the same territory as a regular student can be nominated from the respective under developed areas. Admittedly private respondent No.4, passed his Intermediate Examination (Part-I) Annual 2015, from Govt. Model Science College, Muzaffarabad vide Roll No.315136 dated 10.10.2015. The aforesaid respondent also studied for some months even in Part-II of F.Sc. in Government Model Science College, Muzaffarabad, hence, not acquired his Intermediate qualification from Leepa Valley. The purpose of reservation of the seats for an under developed area is to increase the rate of education in that area and to bring candidates in main stream. The petitioner, however, admittedly, has got his education throughout from the local institutions of Leepa Valley, hence, he is entitled to the discretionary relief of writ jurisdiction. The aforesaid view finds support from case titled, "Umair Khan v. AJ&K Government and 6 others (2017 SCR 980), wherein, the Apex Court at page 985 of the report, held as under:- "8. .. The case of the appellant is that a special seat (for admission in medical colleges) has been reserved for residents of Neelum Valley and he is the only candidate who completed his education from the local institutions of the area, therefore, in the light of the policy notification dated 17.04.2014 and the judgment of this Court delivered in Jawaria Maqsood's case he is eligible to be nominated against the special seat. To appreciate the stance taken by the appellant, we have scrutinized the record. It is obvious from the record that the Government vide notification dated 17.04.2014, introduced a policy regarding the nomination against the special seats reserved for Neelum and Leepa Valleys. It has been provided in the said policy that only those candidates will be eligible for nomination against the seats reserved for Neelum and Leepa Valleys, who completed their Intermediate education as a regular student from the local institutions of the area."

8. The nomination of private respondent No.4, against the seat reserved for candidates of Leepa and Neelum Valleys is , therefore, hereby declared against Govt. policy notification dated 17.04.2014.

9. The crux of above discussion is that the instant writ petition is accepted and the impugned merit list through which private respondent No.4, was nominated against disputed seat of Engineering pertaining to Leepa Valley in University of Engineering and Technology, Lahore, is set at naught. The Nomination Board-respondent No.1, is directed to nominate petitioner viz-a-viz to private respondent No.4, against the aforesaid seat forthwith. The costs shall follow the eventuality. ZC/6/HC(AJ&K) Petition allowed.