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Petitioner: HUMERA SATWAT YUSUF VS Respondent: THE GOVERNMENT OF THE PUNJAB THROUGH THE JUDGMENT
Court Name: Lahore High Court Judge(s): Nasim Hasan Shah, Muhammad Akram Title:HUMERA SATWAT YUSUF vs THE GOVERNMENT OF THE PUNJAB THROUGH THE
JUDGMENT
Reported As: PLD 1971 Lahore 641 Result: Petitions dismissed Judgment JUDGMENT NASIM HASSAN SHAH, J.--This judgment will dispose of four petitions instituted under Art. 98 of the Constitution of 1962 moved by four female students. By these petitions certain restrictions imposed by Government in the matter of admissions of girl students to the various Medical Colleges of this Province have been called in question. Since the questions falling for determination are similar in all these four petitions, they are being disposed of together. 2. The petitioner in the first petition (W. P. No, 1605/70) is Humera Satwat Yusuf, who is stated to have passed the Intermediate pre-Medical Examination held by the Board of Intermediate and Secondary Education, Lahore, in 1970 in First Division obtaining an aggregate of 687 marks. She is desirous of joining a Medical College in the Punjab in order to qualify to be a medical practitioner, like her father (Dr. Rauf Yusuf) and her grand-father (Col. Muhammad Yusuf) but she is being prevented from doing so on account of the decision of the Government not to admit more than 56 girls in all in the various Medical Colleges of the Punjab (Fatima Jinnah Medical College Lahore-48, King Edward Medical College, Lahore-4, and Nishtar Medical College, Multan), out of which seven are reserved for special categories, thus leaving 49 seats against which the girl candidates of the Punjab have to compete on merits. According to the petitioner this year a girl obtaining 694 marks will be refused admission in any of the Medical Colleges while a boy with 635 marks will be admitted. Accordingly she has not even been invited for interview by any of the above-mentioned college authorities. It is contended that there is no lawful authority vesting in the Government to prevent the petitioner from entering upon the lawful profession and occupation of a medical practitioner. She has, therefore, called upon the
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respondent to show "how it is entitled to take such an arbitrary, unequal and unjust stand" and she has prayed to this Court to direct the respondent-Government to withdraw the restriction it has placed on the admission of girls into the Medical Colleges on the ground that they are girls so that the cases of all applicants including that of the petitioner are considered on merits uneffected by the circumstance that some belong to one sex and some to the other. 3. The petitioner in the second petition (W. P. No, 1608/70) is Qasida Fatima. She obtained 668 marks in F. Sc. (Medical Group). She claims to have taken this examination last year as well wherein she obtained 588 marks and has retaken the examination again this year in order to improve her division and marks so that she may be able to qualify for admission to one of the Medical Colleges. However, owing to the fixation of the number of seats for girl candidates in the King Edward Medical College and Nishter Medical College at the maximum of four seats each, she will not be able to gain admission in any of the Medical Colleges. She has complained that out of 48 seats reserved for the students from the Province of the Punjab in Fatima Jinnah Medical College, seven seats are to be filled by nomination, one from Bahawalpur Division, three from amongst the children of Army Personnel and three by the Governor but no seat has been allocated to the children of doctors or other employees of the Health Department. It is prayed that the respondent-Government be directed not to place any restriction in the matter of admission of girls in any of the three Medical Colleges of the Punjab so that admissions to these Institutions take place solely on the basis of merit. 4. The petitioner in the third petition (W. P. No, 1607/70) is Shagufta Mustafa who is a daughter of a Medical Practitioner. She has urged that under the law no discrimination can be made in the matter of admission to the King Edward Medical College and Nishtar Medical College on the basis of sex. She has further urged that there is no justification in abolishing the seats reserved for the children of the doctors while reservation for the children of the members of the Armed Forces is to be maintained. Similarly she alleges that there is no justification for the provision of nomination by the Governor "as all children should be treated equally by Government and permitted to seek admission on the basis of their merits". 5. The petitioner in the fourth petition (W. P. No, 1676/70) is Hafeez Akhtar who has passed the F. Sc. (Medical Group) Examination in First Division securing 623 marks and is stated to have obtained first position in the Bahawalpur Division. She has submitted that owing to the fixation of seats for girl students in the Medical Colleges of the Punjab a boy student obtaining 610 marks will get admission to the King Edward Medical College, Lahore and the Nishtar Medical College, Multan, while a girl student obtaining more than 650 marks will not be able to gain admission either to the Fatima Jinnah Medical College, Lahore or to the last two mentioned Colleges. She has challenged the basis of the allocation of the seats in the Medical Colleges on the same grounds as taken by the other petitioners and also questioned the provision of nomination of candidates by the Government. 6. In the written statement filed on behalf of the Provincial Government, a preliminary objection is taken to the effect that these petitions are not maintainable because there is no legal right vested in the petitioners that has been violated or denied by the respondent. It is submitted that the right to apply for admission to an Educational Institution does not carry with it a legal right to be admitted which can be enforced under Art. 98 of the 1962-Constitution. It is further submitted that admissions to the Colleges particularly to Medical Colleges or Professional Colleges are governed by the respective prospectus which are framed and issued by the governing bodies or by the Governor. The King Edward Medical College and Nishtar Medical College are Government Institutions and the admissions to these Colleges are regulated by the Government. The admissions to these colleges is also regulated by the prospectus for the year 1970-71 which was issued with the approval of the Governor of the Punjab.
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7. The prospectus of the Fatima Jinnah Medical College for Women has been issued by its governing body which consists of eight members; five official members belonging to the Central and Provincial Governments and three non-official members. It is, however, expressly provided in the prospectus that the allocation of seats as laid down therein is "subject to any modification that the Government of the Punjab and Central Government may order" and it was admitted before us by the respondent that the allocation of seats detailed in the prospectus has been made in accordance with the directions of the Government. 8. The allocation of seats in the three Medical Colleges is as follows: F. J. M. College for Women. There are 90 seats for admission to this College on All-Pakistan basis.Its distribution is as under: Central Government. Foreign Nationals 14 Azad Kashmir 5 East Pakistan 15 Punjab (former Bahawalpur State one seat)3 Sind (former Khairpur State one seat) 3 Baluchistan (Baluchistan State Union one seat)2 N.-W. F. P. (Tribal Area 2) 3 Punjab Government General Merit from Punjab 39 Children of Army Personal 3 Nomination by the Governor 3 90 (Out of 90 seats, one seat will be allotted to candidate belonging to minority community). Allocation of seats, as shown above is subject to any modification that the Government of the Punjab and Central Government may order." K.E.M. College, Lahore. 1. The Administrator will admit 154 students and the allocation of seats for various categories is as under: Nature of Seats 1. On open merit of Punjab men candidates129 2. Women candidates on merit basis from Punjab only4 Reserved Seats 1. East Pakistan 2 (number liable to change). 2. Azad Kashmir (Gilgit and Baltistan Agency)3 3. Foreign Nationals 10 4. Armed Forces 3
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5. Nomination by the Governor from Punjab area only3 Table seats 154 2. At least 2 seats reserved for men candidates of minority community in the College. If no or one candidate of minority community is taken on merit two or one seat(s) as the case may be, will be given to minority community candidate(s) provided that no third divisioner is admitted. The vacancy on this account will go on general merit of men candidates N. M. College, Multan. 1. Admission to the 1st Year M.B., B.S. Class is limited to 134 of which 119 seats are to be filled on merit basis from Punjab. 2. The following statement shows the detailed distribution of seats: (a) Merit Seats No. of Seats (i) On open merit of Punjab men candidates119 (ii) Women candidates on merit basis from Punjab only4 (b) Reserved Seats (i) Azad Kashmir, Gilgit and Baltistan Agencies5 (ii) Armed Forces 3 (iii) Nominations by Governor from Punjab area3 Total134 B.--At least 2 seats reserved for men candidates of minority community in the College. If no or one candidate of minority community is taken on merit, two or one seat(s) as the case may be, will be given to minority community candidate s) provided that no third divisioner is admitted. The vacancy on this account will go on general merit of men candidate." 9. In the v, ritten statement filed on behalf of the Government, the details of the number of girl students admitted in the various colleges of the Punjab has also been supplied. It is stated that before the formation of One-Unit the representation of the girls students in various medical colleges of the Punjab F. J. M. College, Lahore 45 K. E. M. College, Lahore 5 N. M. College, Multan 6 Total56 After Integration of the various Provinces into one Unit, the seats allocated to these three Institutions from the areas of the Punjab were as follows: F. J. M. College, Lahore 19 K. E. M. College, Lahore 18+5 rural=23 N. M. College, Multan 11+3 rural=14 Total56 After break up of the One Unit, the position is as follows: F. J. M. College, Lahore 48
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K. E. M. College, Lahore 4 N. M. College, Multan 4 Total56 Thus, it is submitted that the number of seats available for girl students has been maintained at the same level hitherto fore and that no change has been made in the prospectuses of 1970-71 on this particular point. It is further submitted that both the Nishtar Medical College, Multan, as well as the King Edward Medical College, Lahore, are institutions which are primarily meant for male students and the girl students have, therefore, no legal right to get admissions in these colleges. It is only as a matter of concession that some seats are reserved for female students whereas the Fatima Jinnah Medical College is only meant for the girl students and the Admission to that college is also on the merits. 10. On the question of limiting the number of girl students to a maximum of 56 seats in the three Medical Colleges, it is explained that this number is fixed on the ground of public policy and public interest keeping in view the limited resources available at the disposal of the Government. As regards the objections about the nomination, it is submitted that three seats are reserved for the nomination by the Governor and this has been done in public interest so as to accommodate poor students on compassionate grounds who are really poor but deserving ones and for these seats first divisions alone will be considered. The decision to reserve three seats in Fatima Jinnah Medical College for the children of the Army personnel, is also claimed to be a decision taken in public interest, and one seat is reserved for a female permanent resident of Bahawalpur. It is further submitted that the Government is competent to frame regulations with regard to the admissions of students into the Medical Colleges and to allocate seats for boys and girls in the public interest. It is urged that neither any law nor any provision of the Constitution forbids the fixation of seats for girls and boys in Educational Institutions. Moreover, the fixation of seats is neither unreasonable nor arbitrary nor unfair and is based upon public policy and public interest. 12. Before us the first submission, made by Mr. M. Anwar learned counsel for the first writ petitioner, was that the respondent-Government had no power to make allocations of seats in connection with the admission of candidates to the various Medical Colleges as this was a function to be performed by the Governing Bodies of the Medical Colleges concerned. Our attention was drawn to the Medical Colleges (Governing Bodies) Ordinance, 1961 (Ord. XIII of 1961) which was notified in the Gazette of Pakistan, Extraordinary on 18th April 1961. This Ordinance came into force at once, vide section 1(3) thereof, and was promulgated to provide for the constitution of Governing Bodies for Medical Colleges in Pakistan for the efficient administration and management of the affairs of such colleges. Section 3 of the Ordinance provided for the constitution of Governing Bodies as follows: "Constitution of Governing Bodies.--(1) As soon as may be after the commencement of this Ordinance, the Provincial Government shall, for the efficient administration and management of the affairs of all Medical Colleges within the Province, by Notification in the official Gazette, constitute for each such college a Governing Body consisting of such number of members not exceeding 15 as may be appointed by it with the approval of the Central Government. (2)Not more than one-third of the members shall be chosen directly by the Provincial Government and the remaining members shall be chosen from amongst persons proposed by such institutions, bodies or organisations as the Central Government may, from time to time, by notification in the official Gazette, specify: Provided that in the case of the Governing Body for a Medical College in a distance in which there is a University the Vice-Chancellor of such University shall be appointed as one of the members. (3)The Provincial Government shall appoint one of the members to be the Chairman of the Governing Body :
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Provided that where the Vice-Chancellor of a University is a member of the Governing Body, he shall be the Chairman thereof. (4)The Chairman as such and the members chosen directly by the Provincial Government shall hold office during the pleasure of the Provincial Government and the other members shall, unless earlier required to vacate by the Provincial Government hold office for a term of three years and shall be eligible for re-appointment. Provided that the Chairman or a member shall not be removed or required to vacate by the Provincial Government except with the approval of the Central Government." And, under section 4 it was the Governing Body, as constituted above that was to administer and manage the affairs of the Medical College for which it was constituted. 13. It was next urged that none of the prospectuses issued by the three Colleges was issued by a Governing Body constituted under the Ordinance. The prospectus of the King Edward Medical College, Lahore and Nishter Medical College, Multan, was issued by the Administrator of these Colleges respectively with the approval of the Governor of the Punjab, and the prospectus of Fatima Jinnah Medical College for Women though expressed to have been issued by the Governing Body of the Fatima Jinnah Medical College for Women, Lahore, was not issued by the Governing Body contemplated by the Ordinance because the Governing Body issuing it was merely constituted on an ad hoc basis and not under the provisions of Ordinance XIII of 1961. The learned Advocate-General admitted that this was the correct position and frankly conceded that no Governing Body was ever set up under the provisions of the Ordinance, although the same had been on the Statute Book for over nine years. On our enquiry as to whether the Government had any intention to act in accordance with the provisions of the Ordinance, the learned Advocate- General prayed for a short adjournment in order to ascertain the exact position. The cases were accordingly adjourned to enable the learned Advocate-General to obtain instructions on this point. After about ten days, when the hearing of these cases was resumed, the learned Advocate- General informed us that the Governor of the Punjab had decided to repeal the Medical Colleges (Governing Bodies) Ordinance XIII of 1961. A copy of the Punjab Gazette Extraordinary Issue dated November 21, 1970, was submitted in Court, which to the extent relevant, is to the following effect : "1. (1) This Ordinance may be called the Medical Colleges (Governing Bodies) (Punjab Repeal) Ordinance, 1970. (2)It extends to the whole of the Punjab. (3)It shall come into force at once. 2. The Medical Colleges (Governing Bodies) Ordinance, 1961, in its application to the Province of the Punjab is hereby repealed." 14. Mr. M. Anwar, Advocate, bitterly criticised the Provisions of this Ordinance on the ground that it was not moral on the part of the Government to intervene during the pendency of the proceedings in this Court by promulgating the above Ordinance. He also submitted that as a result of this legislation other unhappy consequences are also likely to follow. In this connection our attention was drawn to the provisions of section 30 of the West Pakistan University of the Punjab Ordinance, 1961, (Ordinance XXII of 1961) which lays down inter alia that a College applying for affiliation to the University shall make an application to the UniVersity and shall satisfy the University that the College is , put under the management of a regularly constituted Governing Body. It is submitted that by the repeal of Medical Colleges Governing Bodies Ordinance, 1961, all the Medical Colleges in the Punjab are liable to be disaffiliated by the University of the Punjab and no student belonging to any of the said Medical Colleges will be eligible to the grant of a degree from the Punjab University. However much we may regret the action of the respon-dent in repealing the Medical Colleges (Governing Bodies) Ordinance, 1961, especially at a point of time when the validity and propriety of the actions of the respondent in the matter of regulating admission to the Medical Colleges in the
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Punjab was before us, it is not possible to ignore it. The law, as laid down by their Lordships of the Federal Court in Punjab Province v. Malik Khizar Hayat Khan Tiwana is that the Court is duty bound to ascertain the intention of the law-maker and to carry it out irrespective of the consequences that may ensue to a particular party. In view of the above rule, we must proceed to examine the matter on the basis that the Medical Colleges (Governing Bodies) Ordinance, 1961, is no longer law, so far as the Province of the Punjab is concerned. Whatever may be the consequences of the repeal of this Ordinance upon the status of the Medical Colleges, namely, whether they can still remain affiliated to the Punjab University or not and howsoever unfortunate this action may be regarded on the ethical plane, the consequence of the repeal of the Medical Colleges (Governing Bodies) Ordinance cannot be escaped but has to be given its full effect. Under the Medical Colleges (Governing Bodies) Ordinance (XIII of 1961) the Provincial Government was required to set up a Governing Body for the efficient administration and management of the affairs of all Medical Colleges but such Bodies were, in point of fact, never set up. The learned Advocate-General argued that as no Governing Body ever came into existence, hence in its absence the Provincial Government was competent to make regulations concerning the question of admission to the Medical Colleges of the Province and the prospectuses issued under the directions of the Provincial Government were not invalid. This position was controverted by the petitioners who asserted that in not constituting the relevant Governing Bodies and in usurping their powers, the Government was perpetrating a fraud on the Statute, which could not be tolerated by the Courts. A passage from Fox v. Bishop of Chester quoted in Craies on Statute Law in support of this submission was cited wherein it was observed, "it is well known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance." Be that as it may, the position as it stands today is that before admission to the Medical Colleges has taken place, the Medical Colleges (Governing Bodies) Ordinance, 1961, stands repealed. It is not the case of the petitioners that they had acquired any right to be admitted into the Medical Colleges by virtue of any regulation made by a Governing Body before the repeal of the Medical Colleges (Governing Bodies) Ordinance, 1961. All that they assert is that if the Governing Bodies had indeed been constituted, as visualised by Ordinance XIII of 1961, the principles on which admission would have been prescribed by such a Body would have been more fair and equitable. But after the repeal of the law requiring the Government to set up Governing Bodies to administer the affairs of the Medical Colleges, the petitioners cannot insist that the prospectuses in question must be issued by the Governing Bodies under the repealed Statute. The result is that the prospectuses issued by the three Medical Colleges of the Punjab under the directions of the Government of the Punjab, cannot be held to be invalid on the ground that these have not been issued by the Governing Bodies visualised by the Ordinance XIII of 1961. 15. This brings us to the question whether the Government is competent to pass orders in relation to questions upon which there exists no law on the Statute Book. Mr. M. Anwar contended that the effect of the repeal of Ordinance XIII of 1961 is that there is now no law on the Statute Book regulating the matter of admission of students to Medical Colleges in the Punjab and the orders passed by the respondent-Government fixing certain number of seats for special categories and limiting the number of girl students seeking admission to King Edward Medical College and Nishtar Medical College to a specified number only and not permitting admission to them in the two Colleges mentioned above, on the basis of merit, are not lawful orders, because these orders do not have the backing of any contemporaneous law. Reliance for this contention was placed on the provisions of Article 2 of the 1962-Constitution, which are as follows : (1)To enjoy the protection of the law and to be treated in accordance with law and only in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan : (2)In particular--1 2
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(a)no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. (b)no person shall be prevented from, or be hindered in, doing that which is not prohibited by law, and (c)no person shall be compelled to do that which the law does not require him to do. 16.In two judgments delivered by the Dacca High Court reported as Haji Ghulam Zamin etc. v. A. B. Khondkar etc. and Haji Ghulam Sabir v. Pan Allotment Committee etc. the view has been taken that the words in accordance with the Constitution and the law used in Article 2 imply that for every executive act done by the Government there must exist either in the Constitution or the law some authority for the doing of such specific act and that the executive authority cannot perform any executive action which is not authorised by a provision in the Constitution or the law. On the basis of these decisions it has been contended that the orders impugned before us not being authorised by any provision of the law or by any provision of the Constitution are lacking in legal validity and are of no effect. 17.In reply, the learned Advocate-General has submitted that the question of admission to Medical Colleges being a matter within the scope of the authority of the provincial authorities, the orders that have been passed to regulate this matter have been passed under the Rules of Business framed under the Constitution of 1962 by the Executive Head of the Province and are, therefore, to be treated as the law on the law on the subject. In the second place, it is submitted that the view taken by the Dacca High Court that any action taken by the Executive can only be treated as lawful if it has the backing of any contemporaneous law is not correct and that this view has not been upheld by our Supreme Court…
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