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Petitioner: AROOSA NAWAZ & 7 others VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR through Chief Secretary
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Chaudhary Muhammad Ibrahim Zia, Raja Saeed Akram Khan, Mohammad Azam Khan Title:AROOSA NAWAZ & 7 others vs AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR through Chief Secretary,
JUDGMENT
Reported As: PLJ 2014 SC (AJ&K) 133 Result: Appeal partly accepted Judgment JUDGMENT Muhammad Azam Khan, C.J.--The following short order was passed on 22.1.2014: "For the reasons to be recorded in the detailed judgment, this appeal is accepted. The impugned judgment of the High Court is set aside. Resultantly the writ petition filed by the appellants and proforma-respondents in the High Court is accepted. The seats reserved in the medical colleges on self-finance basis are declared to be in contravention of law. The seats shall be allotted on district wise quota." 2. The detailed reasons for the order are as under:-- The Joint Admission Committee of the Government medical colleges through an advertisement dated 21.8.2013 invited applications for admission in the first year, MBBS course in the Government medical colleges of the Azad Jammu & Kashmir as well as against the seats reserved for Azad Jammu & Kashmir students in various medical colleges of Pakistan. The appellants and proforma respondents qualified the entry test and applied for admission on merit basis against the seats allocated to various districts of Azad Jammu & Kashmir. The merit position was determined. After preparation of merit list, Respondent No, 1, Azad Government of the State of Jammu & Kashmir, issued a notification on 23.10.2013, whereby number of seats allocated to the districts and the refugees' quota was changed and ten seats each in the medical colleges were reserved for admission on self-finance basis. Resultantly, 30 students including the appellants and proforma respondents were deprived of the admission against the seats reserved for them in the district quota. Appellants Nos, 1 to 7 and proforma Respondents No, 45 to 62 challenged the said notification through writ petition in the High Court on 25.11.2013. The writ petition was dismissed vide impugned judgment on 2.1.2014. This appeal is filed by the leave of the Court. 3. Appreciating the nature of importance of the legal proposition, involved in the case, we issued notices to some of the senior members from the District Bar Association, Mirpur. Mr. Bostan Chaudhary, Raja Niaz Ahmed Khan, Ch. Muhammad Reaz Alam, Raja Inaamullah Khan and Sh. Masood Iqbal, advocates, appeared as amicus curie to assist the Court. 4. Mr. Abdul Rasheed Abbasi, advocate, while arguing on behalf of the appellants, submitted that the judgment of the High Court is against law and the record. By allocating 30 seats on self-finance basis, fundamental right of equality of the State subjects before law and entitlement of the State subjects to equal protection of law has been violated. The allocation of seats on self-finance basis is unjustified. The notification dated 23.10.2013, has been issued without any reason and has no wisdom behind it except to give edge to the wealthy people on self-finance basis. It is not a reasonable classification. The learned counsel referred to the cases reported as Azad Jammu & Kashmir Government & others vs. Muhammad Younas Tahir & others [1994 SCR 341], Nazir Hussain Hashmi vs. The Capital Development Authority, Islamabad [PLD 1976 Lahore 1115], Shrin Munir & others vs. Government of Punjab through Secretary Health, Lahore & another [PLD 1990 SC 295], I. A Sharwani & others vs. Government of Pakistan through Secretary Finance Division, Islamabad & others [1991 SCMR 1041], Government of Baluchistan through Additional Chief Secretary vs. Azizullah Memon & 16 others [PLD 1993 SC 341] and Mst. Attiyya Bibi Khan & others vs. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad & others [2001 SCMR 1161]. The learned counsel submitted that classification is permissible only if it is reasonable and based on intelligible differentia. By reserving the seats on self-finance basis, a class has been created, which has no reasonable nexus to the subject. A class can be created under Right No, 12(6) of Section 4(4) of the Azad Jammu & Kashmir Interim Constitution Act, 1974 for making the provision for. the advancement of any society or educationally backward class of the State subjects but a class cannot be created for extending the benefit to the privileged ones and wealthy people on the basis of their wealth. The learned counsel argued that the medical education is to be governed under the Pakistan Medical & Dental Council Ordinance, 1962 (to be referred hereinafter as PMDC Ordinance). The admission policy is framed in the light of provisions contained in PMDC Regulations, which has been adapted in Azad Jammu & Kashmir. Regulation 5(c) of the PMDC Regulations provides seats for foreign/self-finance while the seats have been reserved only on self-finance basis through notification dated 23.10.2013. No seat has been reserved for foreign students. It is a violation of PMDC Regulations. The learned counsel submitted that the University of Health Sciences, Lahore, has issued criteria for admission in the medical colleges and the seats have to be reserved' on foreign/selffinance basis. The notification is also violative of the criteria issued by University of Health Sciences, Lahore. The learned counsel submitted that the applications were invited for admission in three medical colleges of Azad Jammu & Kashmir on 21.8,2013. The appellants and proforma respondents, after qualifying the entry tests, applied for admission in the medical colleges. The merit list was prepared and most of the appellants were in the merit position to get admission against 30 seats which were later on transferred to self-finance category
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by creating a special category. After qualifying the entry test and preparation of merit list, a right has vested in the appellants and proforma respondents, which has been snatched arbitrarily by issuing notification dated 23.10.2013. Without hearing a person, a vested right cannot be snatched subsequently by changing the admission policy. The case reported as Mst. Attiyya Bibi Khan and others vs. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others [2001 SCMR 1161], relates to admission in medical colleges. While elaborating the principle of equal protection before law the Supreme Court of Pakistan observed that reasonable classification is permissible. Equal protection of law doesn't mean that every citizen shall be treated alike in all circumstances. Different laws can be enacted for the persons of different' age groups, financial standings or in relation to crime and sex. No universal application or test for laying down a standard of classification can be laid down. Equal protection of law means that all persons equally placed be treated alike and classification shall be based on intelligible differentia and must have rational nexus to the object. In the case reported as Azad Jammu and Kashmir Government and others vs. Muhammad Younas Tahir and others [1994 SCR 341], it was observed that fundamental Right No, 15 of the Constitution guarantees that all State subjects are equal before law and are entitled to equal protection of law. It was further observed that fundamental Right No, 15 holds out a firm and forthright guarantee that all, State subjects are equal before law and are entitled to equal protection of law. In the case reported as Government of Baluchistan through Additional Chief Secretary vs. Azizullah Memon and 16 others [PLD 1993 SC 341], it was observed that any law made or action taken in violation of the principles contained in Article 25 of the Constitution of Islamic Republic of Pakistan is liable to be struck down. In the case reported as Shrin Munir and others vs. Government of Punjab through Secretary health, Lahore and another [PLD 1990 SC 295], the facts of the case were that the Government allocated 677 seats to the boy students on open merit and 181 seats to the girl students out of total 858 seats. Some of the girl students challenged the allocation of seats on the ground that they have the right to compete on open merit. The Court reached the conclusion that debarring the girl students from participating on open merit with the boys is discriminatory and allowed the girl students to participate on open merit. It was observed by the Court that classification based on intelligible and reasonable standard is permissible within the framework of Article 25 on the ground of sex and sex alone. In the case reported as I. A. Sharwani and others vs. Government of Pakistan through Secretary Finance Division, Islamabad and others [1991 SCMR 1041], it was observed in Para 25 that all the citizens are equal before law and are entitled to equal treatment, however, the treatment of citizens by a State on the basis of reasonable classification is not prohibited. It was observed in Para 25 as under:-- "25. As pointed out hereinabove earlier that the case of the petitioners is not founded on the ground of violation of any provision of the Civil Servants Act or the relevant statutory rules but is grounded on the violation of Article 25 of the Constitution. It would, therefore, be advantageous to reproduce hereinbelow the above Article, which reads as follows:-- 15. (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.' It may be noticed that above-quoted clause (1) enshrines the basic concept of religion of Islam. However, this is now known as the golden principle of Modern Jurisprudence, which enjoins that all citizens are equal before law and are entitled to equal protection of law. The above clause corresponds to 14th Constitutional Amendment of the American Constitution, which inter alia provides that 'no State shall deny to any person within its jurisdiction the equal protection of law'. However, the above clause does not prohibit treatment of citizens by a State on the basis of a reasonable classification. The question, therefore, arises what should be the basis or criterion for classification as to avert violation of the above clause. In this regard, it may be pertinent to refer the following cases of this Court and of the Indian Supreme Court:-- (i)Brig. (Retd.) F. B. Ali and another u. The State PLD 1975 SC 506; in which this Court considered the scope of Fundamental Right No, 15 of the late Constitution of 1962 in context with Article 25 of the Constitution and Hamoodur Rehman, C.J. who delivered the leading judgment, made the following observations:-- Equal protection of the law does not mean that every citizen, no matter what his condition, must be treated in the same manner. The phrase 'equal protection' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty property, or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides this, all law implies classification, for, when it applies to a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference of distinction. Thus different laws can validly be made for different sexes, for persons in different age groups, e.g. minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed the bulk of the special laws made to meet special situations come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain anti-social effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of the State, maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency." In the case reported as Nazir Hussain Hashmi vs. The Capital Development Authority, Islamabad [PLD 1976 Lahore 1115], it was observed that reasonable classification is permissible but such classification, which is arbitrary is not permissible. 5. Mr. Abdul Majeed Mallick, advocate, while arguing on behalf of the respondents, submitted that the notification dated 23.10.2013 is not violative of the fundamental rights. The classification is permissible under the Constitution if it is based on intelligible differentia and has reasonable nexus to the subject. The learned counsel referred to Right. No, 12(3) and (6) of Section 4(4) of the Azad Jammu and Kashmir. Interim Constitution Act, 1974. The learned counsel referred to PMDC Regulations, 2013 and argued that the Regulations recognize the classification and reservation of seats on self-finance basis. The learned counsel further submitted that the seats have also been reserved in the admission policy issued by the admission committee of Punjab which is approved by the Government of Punjab and seats are also reserved on self-finance basis in Khyber Pakhtunkhwa province. The admission policy for medical and dental institution of Punjab and Khyber Pakhtunknwa provinces is in line with PMDC Ordinance and Regulations made thereunder. The reservation of seats on self-finance basis is not violative of fundamental rights. He requested for dismissal of appeal. 6. Raja Ghazanfar Ali Khan, the learned Advocate-General, defended the notification dated 23.10.2013 and submitted that the scats have been reserved on self-finance basis due to financial crunch for raising the revenue. As the Azad Jammu and Kashmir Government was not
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in a position to meet the expenses, therefore, thirty seats have been reserved in the self-finance category. The learned Advocate-General submitted that PMDC Regulations recognize reservation of seats on self-finance basis, therefore, reservation of seats on self-finance basis by the Government is not violative of fundamental Right No, 15. The learned Advocate-General submitted that Misbah Siddique, one of the appellants, has also applied for admission on self-finance basis. After applying for the same, she is estopped by conduct to challenge the reservation of seats on self-finance basis. The learned Advocate-General requested for dismissal of appeal. 7. Sardar Shahid Hameed Khan, advocate, one of the counsel for the respondents, submitted that the judgment of the High Court is perfectly legal. The PMDC Regulations recognize the reservation of seats on self-finance basis. The admission policy has been issued in the light of the provisions contained in PMDC Ordinance and Regulations made thereunder. The PMDC Ordinance has been adapted in Azad Jammu and Kashmir. The learned counsel submitted that the seats have been reserved in most of the higher educational institutions of Azad Jammu and Kashmir and Pakistan on self-finance basis. The learned counsel referred to the breakup of seats in Azad Jammu and Kashmir University, Muzaffarabad, Mirpur University of Science and Technology (MUST), Sindh University, Karachi, Peshawar University, Peshawar and argued that in all the said institutions, more than 40% seats are reserved in different science subjects on self-finance basis. For improving the standard of education, the Government has allowed the higher educational institutions to reserve seats on self-finance basis. The learned counsel referred to and relied upon the cases reported as Chairman, Joint Admission Committee, K.M.C. Peshawar etc. vs. Raza Hassan etc, [PLJ 1999 SC 810], Miss Uzma Sabbir Qureshi and others vs. Government of Baluchistan through Secretary Health Department, Quetta etc. [PLJ 2000 Quetta 64(DB)], Mian Muhammad Afzal vs. Province of Punjab and others [2004 SCMR 1570] and Secretary Economic Affairs Div., Islamabad and others vs. Anwarul Haq Ahmed and others [PLJ 2013 SC 850]. In the case reported as Chairman, Joint Admission Committee, K.M.C. Peshawar etc. vs. Raza Hassan etc. [PLJ 1999 SC 810], one Raza Hassan applied for admission to one of the medical colleges in the province of NWFP on self-finance basis. After completion of process, the admission policy for self-finance was withdrawn, whereupon he filed a writ petition in the High Court which was dismissed but on appeal, the Supreme Court observed that the Government has powers to amend or alter any rule laid down in the prospectus but it cannot be done so after completion of process of admission. It was observed in Para 5 as under: ".....But in the present case, it would not be out of place to observe that for this litigation the petitioners have only themselves to blame. Even if the petitioners have power to amend or alter any rule embodied in the prospectus, such action appears to be completely ill-advised after the process of admissions had already commenced." 8. Sardar Muhammad Azam Khan, advocate, counsel for Respondents No, 17 and 18, while adopting the arguments of Mr. Abdul In the case reported as Miss Uzma Shabbir Qureshi and others vs. Government of Baluchistan through Secretary Health Department, Quetta etc. [PLJ 2000 Quetta 64(DB)], initially seats were reserved on self-finance basis. Some students applied for admission on self-finance basis. Later on the prospectus was changed and seats earmarked on self-finance basis were withdrawn. On writ petition, the Baluchistan High Court observed that no right vests in the students who applied on self-finance basis. In the case reported as Mian Muhammad Afzal vs. Province of Punjab and others [2004 SCMR 1570], the upper age limit was fixed for admission in MBBS course as 25 years. One of the candidates challenged the same. It was observed by the Supreme Court of Pakistan that authorities were not debarred from prescribing the maximum age limit for admission to such courses of studies. In the case reported as Secretary Economic Affairs Div., Islamabad and others vs. Anwarul Haq Ahmed and others [PLJ 2013 SC 850], one Anwarul Haque got admission in MBBS course on self-finance basis. Later on fee structure was revised vide notification dated 3.2.2003. Anwarul Haque challenged the said notification through writ petition before the High Court and prayed that revised fee structure in self- finance scheme for foreign students of Pakistani origin be declared ultra vices the provisions of Articles 2-A, 3, 4 and 25 read with 37(c) of the Constitution of Islamic Republic of Pakistan, 1973 and depositing of bank guarantee for remaining period may also be declared illegal. After necessary proceedings, the High Court allowed the writ petition to the extent of letter dated 3.2.2003 laying down a different fee structure for the foreign students under the self-finance scheme in different colleges of the Punjab and the condition of furnishing bank guarantee was set aside. The Supreme Court dismissed the appeal of Secretary Economic Affairs Division, Islamabad and others. It was observed as under: "Thus, it is held that the classification between the students, who secured more marks and succeeded in getting admission on open merit and the students, who, after failing to get admission on open merit, opted to get the benefit of Self-Finance Scheme, is based on an intelligible differentia as such reasonable. Therefore, students who opted to apply for admission on Self-Finance basis, after being failed to get admission on open merit, cannot claim the protection of Article 25 of the Constitution as they are neither similarly placed nor such classification is unreasonable." Majeed Mallick and Sardar Shahid Hameed Khan, advocates, submitted that the notification is not ultra vires the Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned counsel requested for dismissal of appeal. 9. Raja Niaz Ahmed Khan, advocate, (amicus-curie) submitted that the Constitution guarantees the equality of citizens before law and equal protection of law. It is le duty of the Government to provide free quality education to the State subjects. The reservation of seats on self-finance basis is discriminatory because students having superior merit are deprived of the admission in the medical colleges on the ground that they are financially poor. The learned counsel submitted that reservation of seats for privileged class on the basis of self finance is discriminatory and not recognized by the injunctions of Islam. The learned counsel submitted that once merit list has been prepared in the light of advertisement issued by the admission committee, valuable right vests in the students who have secured the merit position. They cannot be deprived of the admission by changing the admission policy. 10. Mr. Bostan Chaudhary, advocate, submitted that reservation of seats on self-finance basis is against the fundamental rights. The PMDC Regulations offends the provisions of the Constitution. The learned counsel distinguished the categories VII and VIII of the admission policy of Punjab, where seats are reserved for foreign students under the technical assistance program and on self-finance basis only for foreign students while in the Azad Jammu and Kashmir, the seats have been reserved for local students on self-finance basis. The act of admission committee is discriminatory and offend the constitutional provisions. He further submitted that after inviting the applications a merit list has been prepared and a right has accrued to the students for admission who secured the merit position, which cannot be snatched later on by issuing a notification. Such notification is against the provisions of the constitution. 11. Ch. Muhammad Reaz Alam, advocate, who appeared as amicus curie on Court notice, submitted that under the PMDC Regulations made under the PMDC Ordinance, the seats can be reserved on self-finante basis. The learned counsel referred to clause 5(2)c of the PMDC Regulations, 2012, and argued that regulation provides that a foreign admission/self-finance seat shall only be given to the foreign students who meet the Council criteria for admission on such seat. If foreign admission/self-finance seats are left vacant in any institution, a local student can only be admitted on such seat if he fulfills the eligibility criteria for admission as laid down in regulation 5(2)a. The learned
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counsel submitted that it a seat can be reserved under the PMDC Regulations on self-finance basis for a Pakistani student residing Broad, then why the seat cannot be reserved for a local student on selffinance basis. The learned counsel argued that reservation of seats on self- finance basis is not violative of PMDC Ordinance and Regulations. The notification is not open to challenge. 12. Raja Inaamullah Khan, advocate, submitted that reservation of seats on self-finance basis offends the provisions of equality before law and equal protection of law, as enshrined in Right No, 15 of Section 4(4) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The reservation of seats on self-finance basis by decreasing the number of seats reserved on merit is discriminatory and such classification is not reasonable and not permissible under the Constitution. The learned counsel submitted that a class can be created for better education of an ignored class but seats cannot be reserved for extending an edge to the upper strata of the society on the basis of wealth and financial position. The learned counsel argued that the notification is violative of fundamental rights of the State subjects provided under Right No, 15 of Section 4(4) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned counsel referred to the case reported as Imdad Hussain vs. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others [PLJ 2007 Karachi 91 (DB)]. In the case reported as Imdad Hussain vs. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others [PLJ 2007 Karachi 91 (DB)], one Imdad Hussain got admission in the medical colleges of Sindh on self-finance basis on, a seat reserved for self- finance. Later on, the admission policy was…
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