Fawad Ullah VS KMU Peshawar

2013 M L D 1179

[Peshawar]

Before Malik Manzoor Hussain and Nisar Hussain Khan, JJ

FAWAD ULLAH---Petitioner

Versus

KHYBER MEDICAL UNIVERSITY, PESHAWAR through Vice-Chancellor and 4 others- --Respondents

Writ Petition No.3508 of 2011, decided on 3rd April, 2013.

Constitution of Pakistan---

----Art.199---Constitutional petition---Medical College, admission in---Seat reserved for Federally Administered Tribal Areas---Petitioner through stood first in the merit list, but was refused admission on ground to have appeared in First Year F.Sc. Exam in Government Degree College, Peshawar---Petitioner's plea was that extreme militancy and Military operation in North Waziristan Agency during relevant period resulted into mass migration of people to Peshawar and other areas, thus, he had to continue his studies at Peshawar under extreme compulsion, but he later on improved his marks in F.Sc., from FATA area, thus, he could not be said to have got entire education from outside FATA area---Validity---Militants had challenged writ of Government in entire area of South and North Waziristan, resultantly most of education institutions located there had been either destroyed by them or closed down due to fear of attack- --Such state of affairs still subsisted in such Agencies, where education institutions had suffered a lot---Such ground realities had compelled petitioner and others to migrate to settled area to continue their education---Petitioner passed First Year F.Sc., from Peshawar, but for improving his marks, he had to re-appear in said examination from Tribal Area and become successful--- Petitioner had been granted provisional admission in MBBS programe and he was presently studying in 3rd year---Petitioner's case was a "Hardship Case"---High Court accepted constitutional petition in circumstances.

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education) Civil Secretariat, Islamabad and others 2001 SCMR 1161 and Maimoona Kalsoom and others v. Khyber College of Dentistry and others Writ Petition No.288 of 1998 decided on 3-6-2003 rel.

Mian Muhibullah Kakakhel for Petitioner.

Taskeen-ud-Din Khattak and Muzamil Khan, D.A.-G. for Respondents.

Date of hearing: 3rd April, 2013.

JUDGMENT

MALIK MANZOOR HUSSAIN, J.---Through instant petition Fawadullah seeks declaration to the effect that he is entitled to admission in Kohat Institute of Medical Sciences, Kohat, against the seat reserved for FATA; the refusal by the respondents be declared as illegal and without jurisdiction. He also questioned the admission of respondent,No.3 to be declared as illegal and without lawful authority and is liable to cancellation.

2.Brief facts leading to present petition are that the petitioner is resident of Mir Ali, North Waziristan Agency. He appeared in the entry test for reserved seat of FATA and stood second in the merit list as the first candidate in the merit list opted to join Bannu Medical College, consequently, the petitioner stood 1st in the merit list. Inspite of this, the petitioner was refused admission on the ground that he appeared in Ist year FSc. Exam. in Government Degree College, Hayatabad, Peshawar whereas respondent No.3 cleared his all education up till FSc. from FATA area.

3.The learned counsel for the petitioner argued that though the petitioner appeared in 1st year F.Sc. exam in Government Degree College, Hayatabad, Peshawar but this was due to extreme militancy and Military operation of Pakistan Army, who used extensive operation in the area due to which the village of the present petitioner (Mir Ali) North Waziristan Agency, was hit by the missile and also by air strike of Pakistan Air Force, which resulted into mass migration of people of the area, for considerable duration to Peshawar, Bannu, Kohat and other adjoining/nearest settled areas and this was the reason that the petitioner was constrained, in order to continue his studies to join 1st year F.Sc. at Government Degree College, Hayatabad, Peshawar and that too was under extreme compulsion and not gained any undue benefit. He further stated that if the educational record of the petitioner is checked, the petitioner re-appeared in 1st year F.Sc. and cleared it from Waziristan Agency and so was the case for the 2nd year, thus he could not be said to have got his entire education from outside FATA. He candidly conceded that he has no grudge with respondent No.3 who is also studying in the same college as MBBS student and it is the 3rd year of the present petitioner that he is continuing his education of MBBS along with respondent No.3 in Kohat Institute of Medical Sciences; at this stage he does not impugn the admission of respondent No.3, but seeks regularization of his admission on humanitarian and compassionate ground and in such like circumstances of hardship, merit is not to be taken into consideration. He further stressed that present is a hardship case and where the whole tribe of the petitioner has been forced to vacate the permanent abode in village Mir Ali, due to the circumstances mentioned above; there left no option for the petitioner to continue his education in the area where they took shelter, in order to protect his educational career.

4.As against this, learned counsel appearing on behalf of respondents has not disputed the situation at the relevant time of North Waziristan especially Mir Ali where the family of the petitioner faced a critical/miserable law and order situation. He also conceded that as per record, the petitioner cleared his F.Sc. Part-I and Part-II from North Waziristan Agency and he reappeared in Ist year F.Sc. exam in the college situated within the tribal area.

5.We have gone through the record and carefully considered the submissions of the learned counsel for the parties.

6.Undoubtedly, the entire tribal territory, especially the South and North Waziristan Agencies were hard hit by the militancy and since the militant groups operating in the said area were challenging the writ of the government, the military operations were started which resulted in the mass migration of population of that area. More particularly, most of the educational institutions located in that area were either destroyed by the militants or were closed due to fear of imminent attack or destruction. This state of affairs which still persists till date, though with not much intensity, the educational sector in the tribal area suffered a lot. So in these circumstances, mass migration of inhabitants of tribal area including the students community took place for taking refuge to safe places of the settled area which was beyond their control. So these were the ground realities compelling the petitioner and alike to migrate to settled area to continue their education. In the case in hand too, the petitioner under the compelling circumstances, migrated to Peshawar where he passed his F.Sc. Part-I from the Hayat Abad Degree College but when his marks in the said Examination were not quite upto his standard, he resorted to improvement and this time, since overall law and order situation in the tribal area was to some extent calm, therefore, he got his improvement in F.Sc. Part-I and also Part-II from the tribal area. Meaning thereby that he got the entire education from the tribal area except his first attempt in the F.Sc. Part-I from the settled area. We have been informed that the petitioner after getting provisional admission in the MBBS programme, is presently in the 3rd year of his programme, i.e. nearing its completion and under the circumstances hinted to above, the case of the petitioner clearly falls under the definition of "Hardship Case" as is taken notice by the august Supreme Court of Pakistan in the case reported as 2001 SCMR 1161 (Mst.Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education) Civil Secretariat, Islamabad and others) and also followed by this court in Writ Petition No.288 of 1998 (Maimoona Kalsoom and others v. Khyber College of Dentistry and others) decided on 3-6-2003, wherein identical view has been projected. In such like circumstances the case of the present petitioner is one of the example of genuine cases, moreso adjusting/regularizing petitioner would not affect respondent No.3's admission, as conceded by the learned counsel for the respondents.

7.In the light of above discussion, this writ petition is allowed, the petitioner's provisional admission already granted by the respondents on the order of this Court dated 22-3-2012 is regularized without affecting respondent No.3 or nay body else.

SAK/187/P Petition accepted.