Mst. Mehreen Vs Govt. of KPK

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EFORE THE PESHAWAR ifiGH COURT, \t . \\ BENCHABTTABAD Nc0 / II

W.P.No 2017

Mst. Mehreen Daughter of Ajmal Khan Caste Tanoli resident of. New Darband Tehsil Oghi District Mansehra ........................... Petitioner

VERSUS

Government of •Khyber Pakhtunkhwa, tffçough, . / Secretary Health, Peshawar. . / (V' . Government of KhyberPakhtunkhwa, thrbJ& - Sebretaiy Education, Peshawar.

Chairman, joint Admission Committee, Khyber Pakhtunkhwa, medical and Dental Colleges, Peshawar. .

Principal, Khyber Medical College, Peshawar. .5. Principal, Ayub Medical College, Abbottabad.

6.District Education Officer (Male) Mansehra. Azhar Tqbal son of Mthammad Iqbal Swati, resident of P.O New Darband, Tehsil 0 1-1 District Mansebra.

S Sabeena Jabeen Daughter of Muhammad Naeem resident of New Darband Tehsil Oghi District Mansehra. .................................. Respondents

WRIT PETITION UNDER ARTICLE 199 OF

THE CONSTITUTIQN OF ISLAMIC

REPUBLIC OF PAKISTAN, 1973, AS

AMENDED . UP TO DATE FOR A

DECLARATION TO THE EFFECT THAT

THE PETITIONER BEING. QUALIFIED

AND ELIGIBLE AS PER CRITERIA FOR

ADMISSION IN BDS AS WELL AS . IN

MBBS, IS ENTITLED TO GET ADMISSION IN

JUDGMENT EE

IN THE PESITIA WAR 23PI COURT,.. N

ABB OTTABAL 1NCFI. .

JUDICIAL DEP IMENT H .7

20t7

JUDGMENT

Date of hearing: 21.11.2017.

Petitioner (Mst. Melireen) by: Mr. Muhamad Na Anwar, Advocate.

Official Respondents No. 1, 2 Mr. Yasir Zahfb'bas and 6 by: AAG.

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Respondent No. 3 by Mr. Fawad Sa1ej, Advoc Respondent No. 7 (Azhar Iqbal) Sardar Aman by: Advocate.

Respondent No. 8 (Sabeena Mr. Tahir Hussain Lughmani, Jabeen) by: Advocate.

SYED ARSHAD ALL J: Through this common judgment, we intend to dispose of W.P No. 183-A of 2017 and W.P No. 252-A of 2017 as common questions of law and facts are involved in both the petitions. In W.P No. 183-A/2017, the petitioner is seeking the constitutional jurisdiction of this Court praying that:-

"On acceptance of instant writ petition the impugned act of the respondents giving admission to respondents No. 7 and 8 against the reserved seat of upper Tanawal may graciously be set aside, and respondents be directed to give admission to the petitioner in BDS in Ayub Medical college, Abbottabad or MB /35 at Khyber Medical College, Peshawar, as per admission policy/criteria framed by respondent No. I, or any other relief which this 1-lonourable court deems fit and proper in ç the circumstances of the case may kindly be ( \ \ k \ granted."

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Whereas in W.P No. 252-A/2017, peti 'oner Qazi Muhammad Awais is seeking the following prayer. t "It is, therefore, prayed that by accepting this writ petition, the respondents may please be directed to allow admission in BDS on the reserved seat of bacicward area of Tor Ghar & upper Tanawal to petitioner as the petitioner did his education from primary to FSc from educational institutions situated in back-ward area of District Mansehra by cancelling the admission of respondent No. 5 being not eligible.

Any other relief which this Hon 'ble court deems appropriate in the circumstances of the case may also be granted in favour of petitioner."

2.I3rief and essential facts of the cases are that the petitioners in both the writ petitions as well as A respondents Azhar Iqbal and Sabeena Jabeen being the permanent residents of Upper Tanawal, a backward area

of District Mansehra, had applied for two seats reserved for the candidates who are permanent residents of Upper Tanawal. A total of 20 candidates applied against the seats reserved for the candidates of Upper Tanawal for the session 2016-2017. The last date for the submission of forms for the eligible candidates was fixed as 23 September, 2016. The provisional merit list was displayed on the notice board on 30.09.2016 whereas the date for submission of objections/claims regaiding the merit was fixed as 1st and 2nd October, 2016. The final merit list was displayed on 05.10.20 16 and thereafter interviews for open merit were conducted from 15th to 20 Octo~?/' r\ r 2016, whereas the interviews from the candida fr o m backward area were conducted from 23' to 25th Oct er,, ,t:

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2016. The merit among the petitioners vis-â-vi respondents for the two reserved seats among the candidates of Upper Tanawal for session 2016-2017 along with other educational background is fol lowing:-

5.l.D Merit Name Father Name Primary Middle Matric F.Sc P-I P.5c P-2 N No. Sco.

Muhammad New New Oglil Oghi 14 17812 Azhar lqbal 48.69 New Darband Ighal Darband Darband Mansehra Mansehra New New 16 17767 Mehreen Ajnial IChan 46.20 New Darband Mansehra Mansehra Darband Darband Sabeena Muhammad Nev Darband (1-4) New New New New IS 17480 40.50 LassaNawab (4-5) Jabeen Naeein Darband Darband Darband Darband Qazi Qazi Darband l3uLti New Lassan 19 13947 Muhammad Muhammad 39.31 Nambal Butti Shergarh Oghi Darband Nawab Awais - Ashral'

3.The respondent institution! University has laid down an eligibility criteria for the students hailing from the backward area and since the grievances of all the petitioners qua respondents revolves upon this eligibility criteria, therefore, it would be advantageous to reproduce the same:-

"CRITERIA OF ELIGIBILITY FOR

BA GKWARD AREAS OF KHYBER

PA KHTUNKH WA

1.The candidate and his/herfather must be having a valid domicile certUicate of the Backward area against which he/she is submitting applicat ion and iffather is not alive then the in other 's valid domicile ofthe backward area will be considered.

2.L The candidates must have obtained education from class-I till F.Sc (Complete sessions) including SSC with science and FSc premedical from the institutions within the concern backward area of Khyber Pakhtunk1 and have passed examinations from tIM same institutions, provided such facilities exist in the area.

In case where there are no facilities within the concerned 'I Backward area of SSC with science and PSc Pre Medical, the candidate must have obtained his/her primary and middle education from the respective backward area, provided the candidate has obtained SSC with Science and F.Sc Premedical from within the District of domicile, or from the area nearest to their backward area.

In case of non existence of school/college or non-availability of the

facility for teaching science subjects, the candidates will have to provide a so/id proof in the form of a certUlcate duly ver?fied by the concerned DEO c'Education) and countersigned by the concerned DC of the concerned district.

iv. In case any candidate who has obtained part of his/her education from outside the concerned backward area or area of domicile, provided such facilities exist, will not be considered as ins ide candidate.

V. The candidate applying for backward are seat will have to provide a solid proof in the form of a certmcate (as per specimen given on page 69) duly vermed by the concerned DEO (Education) and countersigned by the concerned DC of the concerned district.

In case of non-availability of candidates fufuiling the above mentioned criteria, the selection will be made on merit from amongst the candidates on the basis of maxi,'nun • 'c c$' ?c?.d education obtained from the concern backward area. %

The candidates must have appeared in the prescribed Entrance Test for admission to Public sector Medical & Dental Colleges in Khyber Pakhtunkhwa.

Students selected on Backward Areas quota seats should sign surety 47 bond of not less than five years, stating that after completion of education, they shall perform duty in their home districts for at least 5 years. Any violation will result in their payment of an amount equal to self finance seat, with compounding interest rate. This money will be recovered as arrears of land revenue, in case of non-payment.

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Note: All admissions will be based on the location certificate provided by the concerned DCO and EDO and Joint Admission committee will not be responsible for omission or commission f any in the location certficate as provided by the candidate.

D. The claim of Mst. Evlehreen (petitioner) in her writ petition is that respondent no. 7 was not eligible for admission as he has passed his F.Sc in the year 2014 from AIMS College Oghi District Mansehra, an area which is outside the territorial limits of the backward area of Upper Thanawal, despite the tiict the facility of education (F.Sc) was available within the backward area for boys. Similarly, respondent no. S is also low on merit from the petitioner as sucl the Petitionci was illegally tefused admi Medial College despite she being eligib tbr same.

4.Admittedly at the time when the petitioner passed the SSC from Government Girls 1-ugh School Darband (falls with in limits of Upper Tanawal), there was no educational institute having the facility of F.Sc (Pre-Medical) in New Darband, therefore, her acquisition of F.Sc from other college of District Mansehra would not bar her from her admission against the reserved seats. The. petitioner

has firther relied upon a certificate allegedly issued by the office of the Principal Government Degree College, Lassan Nawab, Mansehra, wherein it has been stated that the college was established in the year 1995 and classes at inter level were started in the year 1998, therefore, the respondent Azhar iqbal should not have been offered the said admission as he has, admittedly, obtained his F.Sc from Oghi M.ansehra i.e. an area which does not fall within the territorial limits of the backward area. Whereas in writ petition No. .252-A of 2017, the petitioner namely Qazi Muhammad Awais has also disputed the admission of Azhar Iqbal on similar grounds and further stated that despite the •fact that he I C *e 4 f obtained his entire education from withi e• local limits of Darband, Upper Tanawal, he has n beenV given admission against the reserved seats.

the record, the following position of each candidate emerges:-

i. Mst. Mehrccn

She belongs to New Darband, Tehsil Oghi, a backward area of Upper Tanwal. Her educational record is as under:-

CLASS SCHOOL SESSION AREA

lqra Quran Academy, New Primary 2002-2006 Backward area Darband

Govt. Girls Higher Secondary 9111 2010 Backward al-ca School, New Darband, Mansehra

-do- 2011 -do-

Govt. Girls Degree College No. Non-backward! developed F.Sc Part-I 2012 2 Mansehra. area

F.Sc Pail-li -do- 2013 -do-

She has placed certificate from the competent authority which shows that during the session 2011 to 2013, no educational institute was imparting F.Sc (Pre- Medical) within the limits of Upper Tanawal, Tehsil Oghi District Mansehra. This fact has not been denied by the respondents and the certificate has also been issued ç C regarding the non-existence of educationaj required under the Rules.

H. Azhar ighal

CLASS SCHOOL SESSION AREA

Pine Valley Public School New Primary 2002-2007 Backward area Darband

lA 4 II fill -do- 2007-2010 Backward area to 8

Matric 9111 Gl-l.S.S New Darband 2010-2011 -do- Matric 10th -do- 2011-2012 -do-

Non-backward/ developed F.Sc Part-I AIMS College, Oghi Manschra 2012-2013 area

F.Sc Pai-t-II -do- 2013-2014 -do-

A certificate has been issued by the DEO (Education) to the effect that due to non-existence of

educational institute/facility during the session 2011-2014 for F.Sc (Pre-medical) in New Darband; Azhar Iqbal has obtained his F.Sc from Tehsil Oghi, District Mansehra.

Sabeena Jabeen

CLASS - SCHOOL SESSION AREA

Primary P I'ine Valley Public School New Backward area to 4111 Darband - Govt. Girls Primary School

& ili Lassan Nawab 2006-2008 -do-

Middle G.G.H.S New Darband 2008-2011 -do- Qth & 10111 -do- 20 I I -2013 -do-

F.Se Part-I

The Time School College 2013-2014 -do- New Darband

F.Sc Part-li -do- 2014-2015 A to

Qazi Muhammad Awais

In his petition, he claims to have o

his educational qualification from the schools/colleges which are located within the local limits of Upper Tanawal/ backward area, however, he could not provide the required certificate of location of the institutes in the backward area. He has placed the relevant certificate on file but the same was obtained on 19.12.2016, much after the merit list, hence, the same was not considered.

Arguments heard and record perused.

The reasons which prevailed before the

respondent joint admission committee, for giving

admission to respondent no. 7 (Azhar iqbal) and respondent no. 8 (Sabeena Jabeen) and denying admission to the petitioners are that respondent no. 7 Azhar lqbal was at serial no. 15 of the final merit list and his aggregate score was 48.69 and he obtained his education from primary to matriculation from within the backward area/Upper Tanwal, whereas he obtained his F.Sc from OghiTehsil which is adjacent to the backward area of Upper Tanawal, thus, he was awarded admission as he not only scored higher marks but also fulfilled the criteria.

Similarly, respondent no. 8, Sabeena Jabeen, had obtained an aggregate score of 40.50 and since she has obtained all her education from the educational institutes whic :>' located within territorial limits of Upper Tan 1, thus.Sr' she was given the admission and petitioner Mst. Me -een, was denied admission for the reasons that she had o her F.Sc from District Mansehra, which is not a background area despite the fact that on merit she had better position then respondent no. 8, Sabeena Jabeen.

7.The aforesaid reasons for denying admission to the petitioner, Mst. Mehrcen, are not based on correct interpretation of the eligibility criteria for backward area.

It would be pertinent to note that the petitioner obtained

her F.Sc certificate in session 2012-20 13 and, admittedly, at that relevant time there existed no educational institution having the facility to impart F.Sc (Pre-Medical) education and as such she obtained her F.Sc from District Mansehra, a settled/developed area, however, from the same district where the backward area of Upper 'l'anawal is situated. At this junction, clause 2 sub clause (i) and (ii) of the eligibility criteria is reproduced once again:- "2. 1. The candidates must have obtained education from class-I liii F.Sc (Complete sessions) including SSC with science and F.Sc premedical from the institutions within the concerned backward area of Khyber Pakhtunkhwa and have passed examinations from the same institutions, provided such facilities exist in the area.

ii. In case where there are440 facilities within the concc\ Backward area of SSC with science F.Sc Pre Medical., the candidate have obtained his/her primary anc middle education from the respective backward area, provided the candidate has obtained SSC with Science and F.Sc Premedical from within the District of domicile, or from the area nearest to thei.r backward area."

According to the aforesaid criteria, all the candidates were fulfilling the eligibility criteria. Ti

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admission has been given to respondent no.7, who has obtained SSC from an educational institute which is situated outside the territorial limits or Upper Tanawal,

then on the same analogy the petitioner was also entitled to admission as in both cases the facility of I.Sc was not available within the backward area of Upper Tanawal Once all the candidates fulfilled the basic criteria of eligibility then respondents were required to have given admission to the candidate who was higher on merit.

According to merit position, respondent no. 7, Azhar Iqbal, has obtained 48.69 marks, hence, he was on top of the merit. The contention of the petitioners that at the relevant time, educational facility was available within the backward area and he did not obtain his qualification from the backward area, is not sustainable for the reasons that the official respondents have denied this allegation and the competent authority has issued certificate in this respect stating therein that no institution with in the backwar aa had the facility of imparting F'.Sc (pre-medical), therefo , being disputed question of fact, the same cannot be adjudicated upon at this forum. The petitioner, Mst.

Mehreen, who has obtained 46.20 marks was second on merit, however, she was denied admission for the reasons that she had obtained her F.Sc from Mansebra and C) preference was given to Sabeena Jabeen, who obtained '7 40.50 marks, for the reasons that she obtained all her education from the backward area. Flowever, the

eligibility criteria envisages for such distinction only when the educational facility is available and the candidate does not obtain education from the said educational institution.

8.Probably, hardship has arisen in the catering to such situation/eventuality as the same has not been dealt with by the eligibility criteria. When the petitioner. Mst.

Jvlehreen, obtained her F.Sc certificate in the session 20 12- 2013 the educational facility of FSC (Pre-Medicafl was not available within the local limits of Upper Tanawal whereas when respondent no. 8, Sabeen Jabeen, obtained her F.Sc certificate in the year 2014-2015, the said facility was available. The close perusal of admission policy envisages that both the petitioner as well as Sabeena Jabeen, were eligible for admi

of the reserved seat , however, the petiti admission for the reasons that educational fkil available in Tehsil Oghi, which is nearer to pper Tanawal, as compared to other developed part of Mansebra and since she had not obtained admission in educational institution located in Tehsil Oghi which is nearer to backward area of Upper i'anawal, therefore, she F was denied admission. This interpretation by the respondents is aitogether alien to sub-clause-i and ii of clause-2 of eligibility criteria. The said eligibility criteria

envisages that in case, educational facility is not available with in the local limits of the backward area then the candidates must have obtained education from other part but within the district to become eligible for admission against the reserved seats. This clause does not envisage that candidate having acquired education from educational institution which is near to backward area would be given preference over the candidate who has obtained education from an area which is considerably placed at remote distance from the backward area with in the district where the backward area is located, similarly if the facility of education is available at place nearer to backward area within the district where the backward area is located the candidate does not obtain his education iJha nearest place rather obtains education fr other the district where the backward area is situat d denied admission against the reserved seatS •r the aforesaid criteria. The respondents have probably misconstrued the proviso to clause 2 (ii) of the eligibility criteria which states "In case where there are no facilities within the concerned Backward area of SSC with science and F.Sc Pre Medical, the candidate must have obtained his/her primary and middle education from the respective backward area, provided the candidate has obtained SSC

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with Science and F.Sc Premedical from within the District of domicile, or from the area nearest to their backward area. "In this clause the word 'or' has been used between "from within the district of domicile" and 'from area nearest to the backward area ". The word "or" obviously denotes alternate or either. In (Merriam Webster) Dictionary 'or' has been explained as:-

I --- used as afitnction word to indicate an alternative <coffee or tea> <sink or swim>, the equivalent or substitutive character o/two words or phrases <lessen or abate>, or approximation or uncertainty <in /Ive or six days> 2 archaic : either 3 archaic : whether 4 —used in logic as a sentential connective that /brms a complex sentence i-rh/c/i is true when at least one of its constituent sentences is true.

Whereas in The American Heritage Dictionaryth wor&' "or" has been described as:-

1.a. Used to indicate an alternative, usually only be/öre the last term u/a series: hot or cold; this, that, or the other. Used to indicate the second of two alternatives, the firs! being preceded by either or whether: Your answer is either ingenious or wrong. I didn't know whether to laugh or cry.

Archaic Used to indicate the first of two alternatives, with the force of either or whether.

2.Used to indicate a synonymous or eqz.tivalent expression: acrophobia, or fear of great heights.

ft 3. Us-ed to indicate uncertainty or indefiniteness: two or three."

The word 'or' came for interpretation in the case of Ahad Yusuf (1986 CLC 1284) and ifakirn A/i B/ia//i v. Paz!

Abdul Hakim (1986 CLC 1784). Ahad YousaPs case was

an election matter before the Chief Election Commissioner and whilc interpreting scction 37(5) of the National and the Provincial Assemblies Ordinance (XIII of 1970) clauses (a) and (b) it was held:--

"The use of the word 'or' between the two clauses of subsection (5) of section 37 is disjunctive and not conjunctive and the remedy, therefore, as provided by this provision is alternate coeval and co- existent."

Whereas in Hakim Ali I3hatti v. Qazi Abdul 1-lakirn (supra) and while interpreting the provisions of representation of the Peoples Act, (LXXXV rti'' ) meaning of woid 'oi' has been given as ux1i -- "Meaning of word 'or', held would be \sed to

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indicate alternative between dffereA unlike things.

A similar interpretation of the word "or" has been given by the horiourable Lahore High Court in Cli. Zulfigar Au Versus C/ia innan, Nab and Others (P L 1) 2003 Lahore

593)wherein it has been held that:-

"In the ordinary use, the word "or" is disjunctive that marks an alternative which generally corresponds to the word 'either'."

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Thus, the use of the word 'or' does not give preference of existence of one eventuality over the other, hence the candidate as per eligibility criteria is required, in absence of the availability of education facility with the local limits of backward area, to have obtained the said education either from the district wherc the backward area is situated or any other place nearer to the backward area even though the same is not part of the same district.

9.Accordingly by accepting this petition, we direct the respondents to give admission to the petitioner Mst. Mehreen in any public sector college according to her merit. The arguments of learned counsel for the respondents that the session for which she has ap been completed/closed is no ground to withho admission.H to the petitioner as it is settled principle of law th should be prejudiced by the acts/omission or the government/public sector institution and thus she is entitled to be given admission, either in ongoing session or in forthcoming session, whichever is appropriate, e ll keeping in view the policy of the respondents.

10.Now moving to the ease of petitioner Qazi Awais, suffice it to mention that there are only two seats reserved for the candidates who hail from Upper l'anawal and as has been held above the petitioners and the

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respondents, Azhar Iqbal and Sabeena Jabeen, all are eligible against the reserved seats and only two seats are reserved, therefore, despite the fact that Qazi Muhammad Awais is eligible for the seat reserved for the candidates who hail from Upper 'l'anawal, however, he cannot be given admission because of his lower merit position.

11.Before parting with the judgment, we hold that respondent no. 8, Mst. Sabeena Jabeen, cannot be disturbed because of her lower position on merit as admittedly she is neither at fault nor has made any misrepresentation or fraud while applying for admission against seat reserved for Upper Tanawal and by now she has already completed her first year of education, hence a vested right has accrued to her to complete her educatio co Relianëe, in this regard is placed on Chairni 2ethon rr Com,nittee/Principai, K/nE Edward Met!. vi GoiJue

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1r,iqnrp (t 2 )cI7Rr.v i's. lJ1⁄2sifZaniir Ahmad at I (1997 SCMR 15) whtrein it was held by the aLuzust Supreme Court that:-

"We have heard the learned counsel for the parties and have also perused the record with their assistance. We do not find am' subs lance in the arguments of the learned counsel for the petitioners and as such, these are repeiled. The above narration of facts demonstrates that respondent No. I was presumably given admission on merits by the competent College Authorities afier

considering his case. The requisite fee was accepted by them in lieu of valid receipts. lie was directed to join 1" year class of M B. B. S. It is admitted that the respondent is likely to complete the second year course of M.B.B.S. This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation, he could not be held to be at fituit. It is well- settled that once a right is created in Jhvour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission was given to respondent No. I by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities. The learned High Court ivas eminently justIed in accepted the plea of respondent No. 1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No. I to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No. 2 had been accommodated by giving admission instead ofrespondent No. I. This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their negligence for which the responde not be held responsible. The dcci, of the petitioners to give admission o if respondent No. I as implemented i letter J and spirit, lie, therejbre, cannot be dep'vsAi ofhis vested right which he had earned on basis of act of the petitioners."

Similarly in /i'Jst. Attiya BiN 1(11(111 and "p others Vs Federation of Pakistan tlzrol.iL'lz Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161) the august Supreme Court, while dealing with the alike matter, held that:-

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"1t is noted that, the phrase 'till a decisive step is taken" is very important. There is no doubt that relevant authority can receded before 'decisive step" is taken. In these cases, admissions were granted to the candidates, in accordance with the prospectus, and the results were corn inunicated to them before the writs were filed They had not committed any wrong Thus, decisive steps in these matters were already taken and thereafter steps contrary to their interest could not be taken. The principle of "locus poenitentiae" is attracted in these matters.

With these observations, both the petitions are disposed of.

Announced:

JUDGE

JUDGE

lilf lab J'5/' iou/ct's S)ct! ili,,/:t,,,u,,ad -luiqi.c SI,,,!, & Sit',! ,irshail 411