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Petitioner: MUSSARAT UZMA USMANI AND ANOTHER VS Respondent: GOVERNMENT OF PUNJAB JUDGMENT
Court Name: Lahore High Court Judge(s): Abdul Shakurul Salam Title:MUSSARAT UZMA USMANI AND ANOTHER vs GOVERNMENT OF PUNJAB
JUDGMENT
Reported As: PLD 1987 Lahore 178 Result: Order accordingly Judgment JUDGMENT ' This order will dispose of the following seventy-four petitions by ninety-five girls as these arise in identical circumstances :- ' Writ Petitions Nos. 4799, 4897, 4848, 4849, 4899, 4901, 4935, 4936, 4937, 4939, 5027, 5023, 4995, 4996, 5000, 4983, 4994,5015, 4968, 4979, 4972, 5059, 5078, 5066, 5063, 5084, 5121, 5130, 5146, 5192, 5181, 5163, 5164, 4865, 5209, 5196, 5193,5195,5250, 5252, 5249, 5301; 5307, 5308, 5321, 5364, 5363, 5360, 5412, 5409, 5417,5426, 5427, 5431,5433, 5436, 5475,5482, 5505, 5526, 5535, 5538, 5542, 5549, 5553, 5560, 5555, 5567, 5572, 5595, 5603, 5616, 5621 and 5651 of 1986. 2. After study of twelve years later half of which with a view to becoming doctors and having obtained very high marks, in the first encounter with the public functionaries, the young ladies-the petitioners, have been thwarted in their ambitions and are told that they would not be admitted in Medical Colleges--the reason is that they are girls. They invoke the first, foremost, fundamental law of the land-the ,Constitution. They say that the Constitution forbids discrimination on the ground of sex. They pray that the authorities be directed not to act contrary to the Constitution but carry out its mandate both in letter and. Spirit. ' Relevant facts for the disposal of their petitions are that there are 1,085 seats for admission in seven Government Medical Colleges of Punjab. 227 are reserved for various categories. Out of the remaining (1,085-227), 858 open merit seats, 667 have been allocated to the boys and 181 for girls- out of which 66 have been reserved, leaving 115 seats for them. The grievance is that the open merit seats 858 should have been really kept open for merit and both boys and girls should have been allowed admission on merit i. e. Who had more marks should have been given preference over the
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_ones who had less. It is stated that a girl with 825 marks has been refused admission whereas the boy with nearly hundred marks less, 731 has been granted admission. It is 'submitted that this is clear injustice and plain discrimination on the ground of sex. If the girl with 826 marks were a boy she would get in but being girl she is denied admission. It is patent discrimination and contrary to the Constitutional mandate laid down in Article 25(2) of the Constitution of the Islamic Republic of Pakistan. It is to the following effect :- "There shall be no discrimination on the basis of the sex alone." 4. The case of the respondent-authorities is that the Constitution permits classification of people and, therefore, separate allocation of seats for boys and girls is valid. Moreover, there are six colleges for boys and one for girls, though in the boys' colleges few girls are admitted as a matter of concession but they have no right of admission therein. ' This is in nutshell the case of the contesting parties. 5. Arguments in extenso have been submitted by the learned counsel for the parties. The learned Advocate-General for the respondents also raised a preliminary objection that the boys who have been admitted have not been made parties to the petitions, therefore, these are not maintainable. Reliance is placed on University of the Punjab v. Shahid Nazir (1) and Province of Punjab and another v. Miss Khaqem Mahmood'and others (2). The reply is that no relief is being claimed against the boys. Those who have been admitted may remain admitted. The petitioners too should be admitted. Secondly, if State functionaries contravene Constitutional prOvisions beneficiaries of its illegal acts who may be in large number or majority of citizenry need not all be made parties to the Constitutional petition or petitions. Not only doing so and serving them may delay or defeat the relief to the aggrieved persons but beneficiaries cannot complain that they had been deprived of their illegal gains without hearing them because they had no legal right to the gains. In any case, the learned counsel for the petitioners state that they do not challenge the admission of the boys but they say that the girls who have got equal marks with the last boy admitted may also be admitted as there should be no discrimination on the ground of sex per the Constitutional mandate. Reliance was placed on the following decisions where on account of non-impleadment of admitted students, Constitutional petitions were not held to be non-maintainable : ' Minar A. Peeriakaruppan v. State of Tamil Nadu and others (1971) 1 {{FOOT NOTE}} (1) 1986 SCMR 805 (2) PLD 1985 Lab, 3QO {{FOOT NOTE}} SC C 38, Jacob Mathew and others v. The State of Kerala and others AIR 1964 Ker. 39 (V 51 C 9), Abodha Kumar Mohapatra and others v. State of Orissa and others AIR 1969 Orissa 80 V 56 C 33 at 84 and Surendrakumar and others v. State of Rajasthan and others AIR 1969 Raj. 182 (V 56 C 37) at 191. 6. The learned Advocate-General is quite right that in the cases relied upon by him, non- impleadment of the admitted students was held fatal. However, it may be noted that in the first case, the Session for which the applicant was a candidate had finished and for the second Session about which direction- for admission was made by the High Court, the applicant could not be admitted, having lesser marks than the last one admitted. In the second case, the author of the leading judgment after holding the defect of non-impleadment of thirty-seven students as fatal, nonetheless, observed that "This however does not mean that the College authorities stand debarred from considering the case of such of the applicants who stand to gain by para. 14 of this judgment. On grounds of justice and equity, they can reconsider their cases, consider rig that this debacle is their own creation. "Ehsan" is an essential embodiment of the executive process in Islam and has been applied to meet technical B difficulties. It is for the College authorities and the Government now has to decide whether they would like to undo the wrong." Secondly, the dispute
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in the two cases was based on private rights of the competing candidates. Not based on Fundamental Rights guaranteed by the Constitution. In a dispute based on private rights it is the parties inter se who are involved. They are essential parties to the litigation. In the case of Fundamental Rights, not only the parties are interested but it is in the interest of the society and State that Fundamental Rights are enforced and not violated. Take a case of declaration sought that a law is violative or ultra vires. The Constitution. Whole citizenry has not to be impleaded. In the cases relied upon by the learned Advocate-General the dispute was as to who is to get in or out of the competing students. Interpretation or enforcement of Constitutional provision was not in issue. In the case of enforcement of Constitutional document procedural rules are not to be so strictly applied as to nullify or render. Constitutional guarantees, Fundamental Rights illusory. An illustration may suffice. If a law were to be made that a minority's property is forfeited and vested in the majority, would it be legitimate to ask the minority to implead each one of the member of the majority? As stated by the learned counsel for the petitioners and made clear that even if the petitions succeed, the successful boys who have been admitted will not be affected. And further that the petitioners will not claim admission in the colleges where their marks were to take them but in any of the colleges where the authorities caiLadjust them. Besides the Indian cases quoted by learned counsel for 2etitioners in the case of Naqi Muhammad Abbas v. Admission Board for 'Admissions' (1) the petitioner was not considered for admission in the 1st Year M. B., B. S. Class on account of his entry qualification from abroad. He filed a Constitutional Petition and it was held by the learned Judge that he had the requisite qualification for consideration for admission. In para. 9 of the judgment it was observed that: "As regards the objection of the learned Assistant Advocate- General, that the petitioner has not impleaded the affected students as respondents in the writ petition and this petition merits dismissal. I do not feel persuaded to dismiss the Constitutional {{FOOT NOTE}} (1) 1983 CLC 1430 {{FOOT NOTE}} petition on this technical plea ; particularly when petitioner's application for admission was not considered by the competent authority". His petition was allowed and it was directed that he shall be admitted against a vacant seat if available otherwise in the ensuing session. In the case of Islamic Republic of Pakistan v. Abdul Wali Khan (1) it was observed that "In a generic sense, every decision of this Court on a point of law is likely to affect everyone in this country. In whose case a similar point of law arises, but this does not give every person in this country a right to intervene in every proceeding before this Court, merely because it is likely to affect him in some future proceedings". It was held by a learned Division Bench in Syed Ahmed Saeed Kirmani v. Punjab Province and others (2) that, "It is not possible to implead everyone who has been conferred certain advantage by a particular law in a general way which benefit may be lost if the law be struck down for lack of validity. For, otherwise there will be no end of parties". Since the boys admitted are not likely to be affected and they are in large number more than 600 and their individual impleadment would have caused delay so as to defeat the very purpose of the petitions, their non-impleadment is not fatal. According to the figures supplied by the Officer attending the Additional Advocate-General, upto 825 mark the ratio of the boys and girls was nearly equal though boys had an edge. The girls who have got upto 731 marks, the marks obtained by the last boy, are about 625. Ali have not come forward. Only 95 have filed Constitutional petitions. Others have to know what Supreme Court of India in Minar A. Peeriakaruppan v. State of Tamil Nadu and others (3) said in somewhat similar circumstances : "Other non-selected candidates have evinced no interest in challenging the selection made. Under the circumstances it is reasonable to assume that they have abandoned their claim and it is too late for them to press their claim." There has always been the old Maxim-Delay defeats equity. Eternal vigilance and constant endeavour to
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pursue the aim, object, right or truth is essential for the successful result. Therefore, there are only 95 candidates who have to be adjusted in seven colleges, if their petitions succeed-13/14 in each college which will by no means disturb the arrangements or require creation of additional seats as these have been there since 1974. Only the authorities have recently chosen not to fill them which they may not. Some inconvenience, if there be any, will have to be borne by the authorities because of their own action contrary to the Constitution, if the petitions succeed. Therefore, there is no justifiable or good ground to dismiss these petitions for the technical reason of non-impleading of the boys who have already been admitted. They have rather been left without A worry and expense and their admission is 'neither challenged nor is to be affected. 7. Learned Additional Advocate-General also pointed out a Single Bench decision in W. P. No, 932 of 1982, dated 2-10-1983 and submitted that it should be followed or the case may be referred to a larger Bench. Facts of the case were that a girl filed a writ petition saying that she had more marks than the last boy admitted and the rule which allowed that was unfair and discriminatory against women. It was prayed that it should be struck down on the ground of unreasonableness and discrimination against women. In opposition, the learned Advocate-General has submitted that Article 22 of the Constitution of 1973 which guards against discrimina- {{FOOT NOTE}} (1) PLD 1975 SC 463 (2) 1982 CLC 590 (3) (1971) 1 SC 38 {{FOOT NOTE}} tion in admission to educational institutions has pointedly excluded sex which, according to the learned Advocate-General, was a deliberate omission keeping in view the social conditions prevailing in this country. He contended that the classification of men and women for separate allocation of seats to medical colleges is a reasonable classification as it is based on consideration of public policy. In reply, the learned counsel for the girl petitioner argued that even though Article 22 of the Constitution makes an omission with regard to consideration of sex in seeking admission to educational institutions, discrimination on ground of sex nevertheless will not be approved of as it is contrary to the principles of reasonableness and a rule can be struck down for want of reasonableness independently of the written word of law. The learned Judge observed that "The point is well taken and the fact that the term sex has been omitted from Article 22 does not by itself permit a deliberate discrimination against women in various walks of life and if it could be shown that the rule providing for this discrimination is not backed by any reasonable consideration such a rule could be struck down. This, however, takes us to the question whether the classification of men and women for allocation of seats to the medical seats is a reasonable classification or not". The learned Judge held that "classification, therefore, of men and women for allocation of separate seats in the medical colleges is reasonable and a reasonable classification does not amount to discrimination". Two points may be noted ; firstly, that the girl had applied for relief when she had no right not to be discriminated against. Secondly, in spite of omission of sex against discrimination, Article 22 was held applicable but the action was justified on the ground of reasonable classification. I agree on both the points.. The position in the present cases, however, is that there is now Fundamental Right in Article 25 of the Constitution which grants her the right not to be discriminated against. Therefore, if a decision declines relief on the ground that there is no right, it is not departed from when a right is created and relief sought. As regards the second point, I respectfully agree with the decision that notwithstanding omission of word sex in Article 22, classification has to be reasonable. The decision in question was challenged in ultra-Court Appeal No, 51 of 1983. The girl appellant was granted admission. Therefore, the appeal was withdrawn on 25-2-1984. The submission of the learned counsel for the petitioners is that the authorities themselves accepted that they were not right in their opposition before the learned Single Judge
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and, therefore, conceded the right of the appellant by granting her the admission. In any case, I agree with the enunciation of law with respect to Article 22. Article 25 of the Constitution was not referred to nor dealt with as it was not enforceable at the time because of abeyance of the Constitution. And it is this Article which is the basis of the claim of the petitioners in these petitions. Therefore, the course suggested by the learned Additional Advocate-General either to blind-folded follow the judgment or refer the cases to a larger Bench, though easier and less burdensome, yet cannot be pursued. It has to be recognized that the case relied upon was decided on general principle of reasonableness of the rule of classification. Fundamental Rights were not then enforceable. Now with the revival of the Constitution and the Fundamental Rights being enforceable, this new legal phenomenon has to operate. If rights were not recognized when those were not in existence, they cannot be refused to be recognized or given effect to when they are created as Fundamental Rights in the Constitution. If it were otherwise Fundamental Rights would never be operative because earlier to the incorporation of the Fundamental Rights in the Constitution, those were not recognised as rights or given effect to. Therefore, it is quite clear that the present cases have to proceed as to whether the Fundamental Rights incorporated in the Constitution and made enforceable through Courts have any application to the controversy in issue. Question of non-following the precedent when Fundamental Rights are enforceable, therefore, does not arise. Consequently, the crux of the controversy has to be grappled with and day of judgment cannot be deferred for procedure or cease, especially in view of the fact that time is running out for the petitioners who seek Constitutional remedy. 8. Proceeding to the problem in hand, Mr. Abid Hasan Minto, Advocate, who led the arguments, submitted that a Constitution is an organic whole. It must be interpreted in a dynamic, progressive manner. Otherwise it will come to stand still and break down in due course.. He referred to treatise on interpretation of laws and Constitution. He quoted American experience. He submitted that the simple Equality Clause or Equal Protection of Law under the Fourteenth Amendment of the American Constitution, as interpreted by the American Courts, has advanced from separate treatment of Negroes to their equal participation in all spheres of life as far as the law can go for the time being and sex differentiation has disappeared in enjoyment of equal opportunities to participate in public life except where that is in their own interests. He submitted that while interpreting Equality Clause, classification is permissible. But that has to be reasonable and must have nexus to the object sought to be achieved which is justifiable in law. I need not burden this order with all the quotations as the learned counsel has submitted that as far as this Court is concerned the matter is simple and solveable with reference to the clear Constitutional provision. Article 25, especially sub-Articles (2) and (3) which prohibit discrimination on the basis of sex, except for making provision for their protection. References he quoted were to American Jurisprudence Vol. 12, West Coast Hotel Company v. Ernest Parrish and Elsie Parrish, His Wife (1), Abdul Wadood v. Pakistan (2), .Humera Satwat Yusuf v. Govt. Of the Punjab (3), Government of Baluchistan v. Rifat Parveen (4), Ejaz Aslam etc. v. Peshawar University etc. (5), G. Venkataswami v. Pogaku Rarnanna and another (6), The State of Madras v Srimathi Champakam Dorairjan (7), M. R. Balaji v. State of Mysore (8), Basu's Commentary on Indian Constitution, 2nd Edn., pp. 330, 331 and Broome's Maxims, pp. 444, 445, 452, 453. 9. Syed Munir Hussain Shah. Advocate, referred to Muhammad Arshad and 2 others v. Selection Board, Khyber Medical College, Peshawar and 3 others (9), Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and others (10), General Manager, Southern Railway and another v. Rangachari (11), Dattatraya Motiram More v. State of Bombay (12) and Shamsher Singh Hukam Singh v. The Punjab State and others (13). 10. Khawaja Haris Ahmed, Advocate. Referred to Constitutional Interpretation, Cases -Essays- Materials Second Edition by Harold W.
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{{FOOT NOTE}} (1) 300 U S 379 (3) PLD 1971 Lah. 641 (5) PLD 1975 Pesh. 186 (7) 1951 SCR 525 (9) PLD 1980 Pesh. 208 (2) PLD 1957 (W P) Kar. 740 (4) 1981 SC 1\4 R 1002 (6) AIR 1960 A P 168 (8) AIR 1963 SC 649 (10) AIR 1961 SC 564 (11) AIR 1962 SC 36 (12) AIR 1953 Born. 311 (13) AIR 1970 P & H 372 {{FOOT NOTE}} Chase and Chaig R. Ducat, especially to the Classification based on gender and changes brought about after decision by the Supreme Court of United States in Reed v. Reed from pages 608 onward, Constitutional Law, Cases & Comments, by Peter Woll, Minor A. Peeriakaruppan v. State of Tamil Nadu and others, Jacob Mathew and others v. The State of Kerala and others (1). 11. Ms. Hina Jillani, Advocate, referred to Califano v. Webster (2), 97 S. Ct. 1192, 51 L. Ed. 2d 360 (1977), Anil Mahajan v. State and others (3), Miss Nishi Maghu and others v. State of J & K and others (4), Surendrakumar and others v. State of Rajasthan and others (5), Dr. Pradeep Jain etc. Etc. v. Union of India and others (6) and Dr. Jagadish Saran and others v. Union of India (7), a United Nations Document., The Nairobi Forward-Looking Strategies for the Advancement of Women, stated to have been ratified by Pakistan Universal Declaration of Human Rights, Pakistan Year Book, 12th Ed. 1984- 85. She also raised a point, anticipating the argument of the Additional Advocate-General, that Article 22 (3) (b) applies to educational institutions which receive "aid from the public revenue" not to the Government Colleges, as the ones in the case, which are owned and run by the State. She also submitted that although international covenants may not be enforceable by Courts until enacted but interpretation of laws should be such that if possible violation of international covenants is avoided. She referred to Ahmad v. Inner London Education Authority (8). Further that similarly though Principles of Policy in the Constitution may not be enforceable by Courts but if there is possible interpretation which gives life to Principles of Policy that should be adopted. She referred to the Principle of Policy mentioned in Article 29. ' Mr. Bashir Ahmad, Advocate, submitted that the statistics show that the seven Colleges over the years have expanded and are better equipped and staff has acquired greater experience since 1974 when the seats for the students were around seventeen hundred and now the admission limit is eleven hundred. Therefore, admission of about ninety-five girls would make no difference. They can easily be absorbed in the student community. In 1974, 424 girls were admitted on open merit. This year only 115. Therefore, addition of another 95 would still be less than 424 girls for which there was space in 1974 which has undeniably been expanded and more facilities made available. ' Khawaja Muhammad Habibullah, Advocate, referred to an Article on the Equal Protection of the Laws and to Anjali Roy v. State of West Bengal and others (9) ; The State of Andhra Pradesh and others v, U. S. V. Balram etc. (10) and Suneel Jatley and others v. State of Haryana and others (11). ' Sardar Ahmed Naeem, learned counsel for W. P. No, 5078/86, referred to a guide to Sex Discrimination Act, 1975 of England and to Gill and {{FOOT NOTE}} (1) AIR 1964 Kerala 39 (3) A 1 R 1980 J K 34 (5) AIR 1969 Raj. 182 (7) (1980) 2 SC C 768 (9) AIR 1952 Cal. 822 (2) 430 U S 313 (4) (1980) 4 SC C 95 (6) AIR 1984 SC 1420 (8)(i978) 1 Ali E R 574 (10) (1972) 1 SC 660 (1984) 4 SC 296 {{FOOT NOTE}}
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another v. El Vino Co. Ltd. (1) and Mississippi University for Women v. Joe Hogan (2), Harvard Law Review Vol. 95, 1981-82. ' Sh. Abdul Majid, Advocate referred to General Steel Tools Company, Gujranwala v. Presiding Officer, Punjab Labour Court No, 2 Lahore and 2 others (3). ' Mr. S. M. Masood, Advocate referred to Ahmad v. Inner London Education Authority (4). ' Mr. Muhammad Ashraf, Advocate referred to Young v. Britol Aeroplane Co. Ltd. (5). ' Mr. I. Khokhar, Advocate referred to Miss Rifat Parveen v. Selection Committee (6), Jibendra Kishore Achharyya Chowdhury etc. v. Province of East Pakistan (7), Srimathi Champakam Dorairajan and another v. The State Of Madras (8) and Bishambhar Dayal Chandra Mohan and others v. State of Uttar Pradesh and others (9). ' Mian Hatwedud Din Kasuri, Advocate in W. P. No, 5023/86, referred to P. Sagar and others v. State of Andhra Pradesh (10). Other learned counsel too argued for the petitioners. 12. Mr. Khalil Ramdey, learned Additional Advocate-General submitted that in spite of Equality Clause in the Fourteenth Amendment of the U. S. Constitution differential treatment is permissible if that is necessitated by some legitimate object of State. Therefore, different treatment of girls in the matter of admission is justifiable as the object of the State is to have as many lady doctor as are required. More man doctors-because they are more required to man rural dispensaries and hospitals where lady doctors do not go. He referred to U. S. Decision in 1873 (83) U S 130, 1961 (368) U. S. 57. He emphatically submitted that principles and precedents from United States are not relevant or important because the matter is clinched by the Constitutional provision. He submitted that for admission in educational institutions, the provision is Article 22(3)(b) which lays down that subject to law :- "(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth." ' He submitted that since sex is not mentioned, therefore,…
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