PLJ 2013 Peshawar 171 (DB)
Present: Nisar Hussain Khan and Malik Manzoor Hussain,
JJ.
FAWAD
ULLAH--Petitioner
versus
KHYBER MEDICAL UNIVERSITY
through its Vice Chancellor, Peshawar
and 4 others--Respondents
W.P. No. 3508 of
2011, decided on 3.4.2013.
Constitution of Pakistan,
1973--
----Art.
199--Educational institution--Admission in M.B.B.S. for reserved seat of
FATA--Protect educational carrier--Entire tribal territory, especially
Waziristan Agencies were hard hit by militancy and since militant groups operating
in the area were challenging writ of Government Military operations were
started which resulted in mass migration of population of that
area--Educational institutions located in that area were either destroyed by
militants or were closed due to fear of imminent attack or
destruction--Petitioner after getting provisional admission in M.B.B.S. Programme was presently in third year of his programme--Petitioner falls under definition of Hardship
case--Petitioner was one of example of genuine cases, moreso
adjusting regularizing petitioner would not affect admission--Petition was
allowed. [Pp. 173 & 174] A,
B & C
2001
SCMR 1161.
Mian Muhibullah Kakakhel, Advocate for
Petitioner.
Mr.
Taskeen-ud-Din Khattak, Advocate & Mr. Muzamil
Khan, D.A.G. for Respondents.
Dates of
hearing: 3.4.2013.
Judgment
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
1st year F.Sc exam in Government
Degree College,
Hayatabad, Peshawar
whereas Respondent No. 3 cleared his all education up till F.Sc
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 alongwith 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 aboard 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 carrier.
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 1st 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 S C M R - 1161 (Mst. Attiyya
Bibi Khan and others Vs. Federation of Pakistan
through Secretary of Education (Ministry of Education) Civil Secretariat,
Islamabad & others) and also followed by this Court in W.P. No. 288/1998 (Maimoona Kalsoom etc. Vs. Khyber College
of Dentistry etc. ) 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 any body else".
(R.A.) Petition
allowed
