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Petitioner: IMTIAZ BASHI R VS Respondent: SPECIAL HIGH POWERED COMMITTEE THROUGH SECRE
Court Name: Balochistan High Court Judge(s): Mir Hazar Khan Khoso, M. A Rashid Title: IMTIAZ BASHI R vs SPECIAL HIGH POWERED COMMITTEE THROUGH SECRE Case No.: Constitutional Petition No. 157 of 1977 Date of Judgment:1978-04-11 Reported As: PLD 1978 Quetta 131 Result: Petition allowed
JUDGMENT
JUDGMENT MIR HAZAR KHAN KHOSO, J.-These two petitions relate to admissions of students in the Bolan Medical College, Quetta. As common questions of law and fact are involved in these two Writ Petitions Nos. 157/1977 and 169/1977, we, therefore propose to dispose of them by this one judgment. The necessary facts giving rise to the writ petitions are being given here separately. Writ Petition No. IS711977 The petitioner Imtiaz Basbir, a first divisioner from Quetta Urban area, had requested for admission for the first year M. B. B. S. Course for the academic sessions of 1977 in the Bolan Medical College. He had also applied for admission in Bachelor of Dental Surgery Course in the alternate. The Urban Quetta District was allocated six general seats and one seat for girl candidates. The petitioner was placed at S. No. 10 on the merit list. The Selection Committee nominated first six candidates for the admission in the Medical College and left the petitioner the top of the remaining list. The petitioner appealed before the High Powered Appellate Committee against selection of candidate Khalid Pervez. His appeal was accepted, but in his place one Ehsan Siraj was allowed admission and the petitioner remained at the same position. However, the petitioner continued on his efforts for getting admission in the Medical College. He made several representations, i. e. Representation to the then Prime Minister of Pakistan, the then Chief Minister of Baluchistan and the Chief Martial Law Administrator Pakistan. Having failed in his efforts, he sought admission in the Bachelor of Dental Surgery Course at Multan at last. Writ Petition No. 169/1977
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The petitioner Miss Farida Naz, a first divisioner from Quetta Urban area had applied for admission in the first year M.B. B. S. Course in the Bolan Medical College, Quetta for the academic session of 1977. She was placed third on the merit list. The first two girl candidates got admission in the Bolan Medical College; while she was left at the top of the waiting list. In the alternative, she had applied for admission in the Dental Surgery Course, she applied for admission in the Dental Surgery Course, she therefore was accommodated in the Nishter Medical College, Multan. Despite getting admission in the Bachelor of Dental Surgery Course, the two petitioners cherished for having admission in the Bolan Medical College in M.D., B. S. Course. However, on numerous representations from the various quarters, the Chief Secretary of Baluchistan requested the Federal Government for creating some additional seats in the Bolan Medical College for accommodating deserving candidates. In response, the Central Government allowed creation of ten additional seats in the Balan Medical College for accommodating first divisioner and hardship cases. The selection was left at the discretion of the Martial Law Administrator, Baluchistan. The two petitioners vied for the ten additional seats. However, the seats were allotted to deserving candidates by the Committee constituted by the Martial Law Administrator, Buluchistan on 13th September 1977. The decision is reproduced as under :---- "In this connection it is pointed out that on the request of the Chief Secretary, Baluchistan, the Federal Government in the Health Division had allocated 10 additional seats to be given at the discretion of the Martial Law Administrator, Zone 'D' Baluchistan for accommodating certain hardship cases and the first divisioners who could not get admission in the Bolan Medical College. The Martial Law Adminis--trator constituted a Special Committee for the purpose consisting of the following :---- (1) Martial Law Administrator, Zone 'D', Baluchistan ... Chairman. (2) Chief Secretary, Baluchistan... Member. (3) Brigadier, Martial Law Member. Member (4) Col. Safdar Mahmood Member. (5) Secretary. Health Department Member. (6) Administrator, Bolan Medical College, Quetta Member. The Special Committee considered the cases of those candidates who had failed to get admission in the Medical College and were either hardship cases or first divisioner. The cases of those candidates who had filed constitutional petitions in the High Court of Baluchistan were also considered by the Committee. The selection of the 10 students by the Special Committee was unanimous according to their discre tion. It is further pointed out that these additional seats were crested with the approval of the Federal Government outside the regular district quota of seats and hence did not fall under the purview of the provisions of the Prospectus of Bolan Medical College, Quetta for the academic session, 1977. The cases of two petitioners were rejected on the mere ground that they had already sought admission in the first year Bachelor of Dental Surgery Course. Being aggrieved against this decision, the petitioners have challenged the selection through these constitutional petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan of 1973 before this Court. Petitioner Imtiaz Bashir has questioned the admission of Muhammad Imrnn Afzal and Sardar Humayun Rashid in Writ Petition No. 157 of 1977, whereas Miss Farida Naz has assailed the selection of Miss Parveen Akhtar and Miss Naila Rashid in Constitutional Petition No. 169 of 1977. The Bolan Medical College was established by the Government of Baluchistan for catering to the medical needs of its people and for promoting medical education in the Province of Baluchistan. In order to lay a uniform policy for admission in the first year M.B., B. S. Course in the Medical College, rules in the shape of a Prospectus were being issued' regularly for each academic year separately.
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As per usual. Prospectus for the Academic Session of 1977 was published. The relevant rules are reproduced here for convenience :---- "I. Number of Seats 1. The total number of seats in the Bolan Medical College, Quetta for the Academic Session 1977 shall be 128. In addition to these seats 5 seats will also be provided for the girl students of Baluchistan in Fatima Jinnah Medical College for Women, Lahore by the Federal Government. 2. The break-up of these seats shall be as under :--- (1) District merit seats (on population basis) 100 (2) Reserved seats 28 (3) Girls seats (in Fatimah Jinnah, Medical College, Lahore) ... 5 Total133 II. Allocation of Seats 1. The 100 District merit seats are distributed among the districts of the province strictly on population basis. The allocation of seats to each district is as under :------ Districts Population Allocation (1) Quetta District (Urban)1,55,6276.47=7 seats (2) Quetta District (Rural)95,3643.96- 4 seats (3) Pishin District 2,43,93710.1=10 seats (4) Zhob District1,61,1277.68=7 (5) Loralai District1,84,7977.68=8 (6) Chagai District62,1712.58=3 (7) Kalat Districts1,43,9085.98=6 (8) Khuzdar District:1,95,5708.13=8 (9) Mekran District2,93,41412.20=12 (10) Lasbela District1,24,6315.18=5 (11) Kharan District75,5093.13=3 (12) Sibi District1,05,9294.40---4 (13) Kachhi District2,25,0739.35=9 (14) Nasirabad District2,22,4529.25 =9 (l5) Marri Bugti Agency1,15,4744.48=5 Total100 seats 4. Except for Quetta District, no difference has been made between the urban and rural areas of Province. In Quetta District, Quetta City and Quetta Cantonment will be considered as urban areas. The rural areas will also include the newly constituted Municipal Committee of Sirki and Huddah. 5. Out of the seats allocated to a district, one seat per district is reserved for the girl students in each district except in the case of Quetta District where one seat for girls students will be reserved for rural areas and one for urban areas. 9. The break-up of 28 reserved seats is given below :----- (i) Iranian Nationals. 10 Seats. (ii) Reserved seats for the Federal Government for Fata /Northern Area and Azad Kashmir etc, 13 Seats. (iii) Doctor's Children.3 seats (iv) Defence Personnel's Children. 2 seats 11. The nomination of students against the seats reserved for Iranian National shall be made by the Federal Government in Ministry of Foreign affairs. The nomination against the Federal Government seats reserved for Fata(Northern Areas and Azad Kashmir shall be made by the Ministry of Health. Nomination against the Defence Personnel's children seats shall be made by the Ministry of Defence/GHQ.
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12. The selection of candidates against the reserved seats of Doctor's children shall be made by the Selection Committee purely on merit basis from amongst the children of local/domiciled local doctors of Baluchistan. One seat shall be reserved for the children of medical teaching staff of Bolan Medical College, Quetta. One seat shall be reserved for the children of doctor's serving in the Baluchistan Health Department except the medical teaching staff of Bolan Medical College, Quetta. One seat shall be reserved for the children of Registered Medical Practitioners with minimum of 12 years of general practice in Baluchistan. III. Eligibility of Candidates for Admission to Bolan Medical College/Fatima Jinnah Medical College. 17. Admission to medical College is open only to the local candidates end those domiciled local candidates who have a minimum of 12 years continuous stay in Baluchistan. 18. The minimum qualification for a candidate for admission to First Year M.B., B. S. Class is Intermediate-Science (Medical Group) of the University of Baluchistan or an equivalent examination of any Board or University as recognised by the University of Baluchistan. 19. The candidates must have passed the Matriculation and Intermediate Science (Medical Group) examination from Baluchistan unless the candidates could satisfy the Selection Committee with cogent reasons for not studying in Baluchistan and claiming exemption from the operation of this condition. IV. Interview and Selection of Candidates. 22. The selection of candidates for admission against the District merit seats, girls reserved seats and Doctor's children seats shall be made by a Selection Committee, consisting of the following members :- (1) Secretary, Health Department Chairman (2) Secretary, Education Department Member (3) Director, Health Services, Baluchistan Member (4) Principal, Bolan Medical College Member/Secretary. 23. The appeals against the decisions of the Selection Committee will be preferred to the High Powered Appellate Committee within a week of declaration of the results of the Selection Committee and will consist of the following members :-- (1) Miss Fazila Alianai Chairman (2) Moulvi Saleh Muhammad Member (3) Mir Sabir A.I Baluch Member (4) Mr. Mahmood Khan Achikzai Member Procedure of Admission 7. The following marks shall be added or deducted from the total marks of the candidates, and the final merit list shall be prepared on the basis of adjusted marks :----- (i) 5 marks shall be deducted for each failure or attempt in the F. Sc/B. Sc. Examination. (ii) 5 marks shall be deducted per year if a candidate fails to pass F. Sc. Examination in two academic years after Matriculation Examination and B. Se. Examination after F. Sc. Examination. (iii) 20 marks shall be added if a candidate on completion of N. C. C. Course submits a Certificate to this effect. (iv) According to the adjusted marks, when two candidates are bracketed, the total marks obtained in Matriculation Examination shall be counted to decide the position. If even these are equal the one senior in age will be given preference over the other for the purpose of admission. 8. Admissions shall be made strictly on the basis of merit in each category of seats from amongst the applicants, according to the conditions laid down, except in case of reserved seats. 19. The Government of Baluchistan/the Principal reserves the right of additions and alterations of any rules in the Prospectus, Admission Form and admission policy."
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Mr. S. H. Jaffary the learned counsel for the petitioner Imtiaz Bashir vehemently argued that the Secretary, Ministry of Health, of the Province of Baluchitan, the respondent No. 1 had not sent his client's case to the Selection Committee for consideration. He submitted that having failed to do so, he bad deprived his client from right of being heard, otherwise he surely would have been selected. The learned counsel maintained that this act of the respondent No. 1 was in utter violence of the principles of audi alteram partem." Indeed, this objection of the learned counsel is not supported by the record. The Annexure R-3/A and the rejoinder clearly indicate that case of the petitioner Imtiaz Bashir was sent to the Selection Committee for consideration, but it repelled his request for the reason that he had already sought admission in Bachelor of Dental Surgery Course. The learned counsel next contended that the Selection Committee had neither followed the rules of the Prospectus nor the policy of the Federal Government. According to him the Selection Committee's decision was without jurisdiction. Mr. Jafrary further said that besides that the decision was an arbitrary one. He reiterated that at one hand case of his client was rejected on the ground that he bad sought admission in the Bachelor of Dental Surgery Course, whereas on the other hand, the same Committee had granted admission to Sardar Hamayun Rashid, who had also sought admission in the Bachelor of Pharmacy Course at Karachi. Mr. Munwar Ahmad Mirza, the learned counsel for Muhammad Imran Afzal vehemently repudiated the contentions of Mr. Jaffary. He stressed that the Selection Committee was not bound to follow the rules of Prospectus of 1977. According to him the ten additional seats were outside the total quota of the reserved seats of the Bolan Medical College. He maintained that the Committee had followed the instructions of the Federal Government. According to him, his client was allowed admission on the ground of hardship. The learned counsel submitted that his client's case was earlier rejected by the Selection and the High Powered Appellate Committees on account of bias, the Government of Baluchistan had against him as, the petitioner's mother had instituted Writ Petition No. 5/77 against the Govern--ment of Baluchistan in this High Court. The learned counsel maintained that the Government transfused the bias in the mind of the Committees which resulted in refusal for his admission in the Medical College. The learned counsel further submitted that the petitioner was a domicile of Baluchistan. It was immaterial whether he had residence in District of Quetta or Nasirabad. According to him the only residence of Baluchistan had entitled him admission in the Medical College. Hence the Committee had mala fidely rejected his request for admission in the Medical College on ground of being not domicile of Nasirabad. In the end the learned counsel submitted that the distribution of these seats was at the `will' of Martial Law Administrator, Baluchistan and indeed be had exercised it judiciously. The decision was obviously within his domain, as such the decision is not amenable to writ jurisdiction of this Court. Mr. Zafar submitted on behalf of Sardar Humayun Rashid that the selection was made by the Martial Law Administrator. Baluchistan who had the sole authority of doing so. He maintained that decision of the Martial Law Administrator could not be challenged in writ petition before this Court. The learned counsel further maintained that the Martial Law Administrator was not bound to follow the Prospectus or the instructions of the Federal Government. He next argued that the petitioner had no vested right against the additional seats. He maintained that the petitioner was conscious of this fact at the outset while drafting the petition. It was on account of that he had chosen to lay his own objectives in para. 8 of the petition. He further submitted that the petitioner having failed to substantiate his objectives based on the principle "audi alteram pertem" could not plead any other ground except the one raised in the petition. On this account the petitioner had no locus standi to pursue the petition. According to him the petition became per se infructuous. In the end the learned counsel tenuously raised the objections that the seats having been created at the request of Sub-Martial Law Administrator, Baluchistan, he should have been arrayed as necessary party,
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that as his client had scored 604 adjusted marks, he should be deemed to be a first divisioner and that the petitioner was a local resident of Baluchistan, as such he had the preferential right over the domiciles. Mr. Raja Muhammad Afsar, the learned counsel for Miss Farida Naz with confidence argued that the merit was always counted. He said that the petitioner was the first on the merit list, she therefore was entitled for the admission in the Medical College. He strenuously argued that the respondent candidates had less than 12 years continuous stay in Baluchistan. According to the learned counsel this factor alone was sufficient for refusing them admission. Having failed to consider so, the decision of the Committee was ab initio without jurisdiction. The learned counsel then stressed that the Selection Committee had either to follow rules laid down in the prospectus or in the alternative had to adopt the instructions of the Federal Government. The learned counsel maintained that the Committee did not follow either of the two. The learned counsel further submitted that the decision of the Committee was inconsistent and arbitrarily one. In the end, the learned counsel submitted that the petitioner was refused admission in the Medical College on a very fallacious ground. Replying to the contentions of Mr. Raja Muhammad Afsar, Mr. Haji Muhammad Sarfraz, the learned counsel for Miss Parween Akhtar strongly argued that these seats were neither controlled by the rules of the Prospectus nor by the direction of the Central Government. The learned counsel reiterated that the selection of the candidates was left at the discretion of the Martial Law Administrator alone. He maintained that it was why that the Martial Law Administrator, Baluchistan bad constituted a Committee of his own choice who made the decision. The learned counsel in the end emphasized that the decision of the Committee was not amenable to the jurisdiction of this Court nor it was subjected to the judicial review under the constitutional petition. The learned A. A.-G. Mr. Yousuf Ch. Vehemently repudiated the contentions of the petitioners. He said that these ten additional seats were a token of grace shown by the Federal Government. According to the learned A. A.-G. These seats were never subject to the rules. He maintained that the Federal Government had in unequivocal words left the distribution of these seats at the discretion of the Martial Law Administrator, Baluchistan. He emphasized that neither the petitioners had locus standi to file the writ petitions nor this Court has the jurisdiction to interfere with the decision. In the end, the learned A. A.-G. Took the stand that even if for the sake of arguments, it be presumed that the seats were covered by the Prospectus, then the Martial Law Administrator, Baluchistan, who exercises the powers of the Provincial Government had the authority under rule 19 to amend the Admission-Policy. The jurisdiction of this Court was under heavy attack of the learned defence counsel. As such before dealing with the other objections in the case, it would be pertinent to deal with this aspect at the beginning. The first question would arise as to "who has to resolve this controversial issue". It is, the parties or the Court itself ? Certainly it would lead to absurdities, if question is left at the mercy of the former. Obviously then it would follow that the Court itself has jurisdiction to decide the initial dispute of its jurisdiction too. Such identical proposition was a controversial issue before the Supreme. Court of Pakistan in case of Miss Asma Jilani v. The Government of Punjab and another (PLD1977SC139). However their Lordships have laid down the rule;--- "The provision, as very appropriately pointed out by Mr. Brohi, strikes at the very root of the judicial power of the Court to hear and determine a matter, even though it may relate to its own jurisdiction. The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The superior Courts are, as is now well settled, the Judges of their own jurisdiction."
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The proposition has been followed by superior Courts in numerous cases. By this time a wealth of law has been treasured on this proposition Indeed, it has become an established principle of law that the Courts of this country are the Judges of their own jurisdiction and they hive to determine amongst other controversial issues the issue of its own jurisdiction. On the same principles as discussed above, we have reached to the conclusion that this Court has the jurisdiction to review the decision of the Selection Committee. The next point followed was the scope of judicial review under the constitutional jurisdiction of this Court. The latest authority on this proposition is that of Begum Nusrat Bhutto v. Chief or Army Staff and Federation of Pakistan (PLD 1977 SC 657) where it has been held :--- "This last point needs a little explanation. In the body of this judgment opinions of certain textbook writers and contemporary jurists have been quoted in support of the proposition that the Courts established under the pre-existing Legal Order continue to have the power and jurisdiction to adjudicate upon the validity and effectiveness of the new Legal Order. As I have held that the new Legal Order is only for a temporary period, and for a specified and limited purpose, and doses not seek to destroy the old Legal Order but merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle of `salus populi supreme lei', the superior Courts continue to remain the Judges of the validity of the actions of the new regime in the light of the doctrine of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity. There is yet another, and a stronger reason for holding that the power of judicial review continues. The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power not stands combined in one authority, for the reasons that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March 1977, but no such considerations arose in regard to the Judicial organ of the State. Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away. Next, even, if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to be available under the new dispensation, the fact remains that the ideology of Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be exercised on His behalf as a sacred trust by the chosen representatives of the people, strongly militates against placing the ruler for the time being above the law, and not accountable to any one in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provide an effective safeguard for the rights of the subjects. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the superior Courts. Lastly the Court is bound to take note of the fact that already several instances have been brought to its notice where the ordinary civil rights of the people are being interfered with by the subordinate Martial Law Authorities even though the laws of the land, which have been kept alive under the Laws (Continuance in Force) Order, 1977, made full provision for their adjudication. In some cases, interference has occurred…
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