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Petitioner: MUHAMMAD AKRAM and others VS Respondent: SELECTION COMMITTEE FOR ADMISSION IN JUDGMENT
Court Name: Balochistan High Court Judge(s): Amanullah Khan, Fazal-ur-Rahman Title:MUHAMMAD AKRAM and others vs SELECTION COMMITTEE FOR ADMISSION IN
JUDGMENT
Reported As: 2003 CLC 18 Result: Petitions allowed Judgment JUDGMENT 'AMAN ULLAH KHAN, J.--- By this common judgment we propose to dispose of Constitutional Petitions Nos.262 of 2002. 44 of 2002. 220 of 2002, 225 of 2002 and 256 of 2002 as identical questions of law and facts are involved in all the petitions. For convenience, brief facts of each petition are given hereinbelow:- Constitutional Petition No,262 of 2002 'Petitioner Muhammad Akram applied to Bolan Medical College (BMC) 1st Year, against the reserved seat of District Killa Abdullah. His application was rejected under para.7 of the Prospectus. It is further contended that respondent No,6 Abdul Basit belonging to the same district applied against a seat reserved for the doctors' children as his father is a Professor in Bolan Medical College. Similarly respondent No,8 Miss Roona also applied against the said seat. Prospectus for the year 20002001 whereby Districts seats have been further bifurcated in proportion of 70:30 i,e, students who have passed Matriculation and F.Sc. From inside and outside can compete for 70% and 30% has been reserved for those students who have passed their Matriculation and Intermediate from within the District. The petitioner has challenged the vires of para.7 and further decision of the Selection Committee by giving admission to respondents Nos.6 and 8 against district quota instead of seats of doctors' children whereas respondent No,7 Sultan Ahmed has been selected on doctors' seat, who was at Serial No,30 of the merit list and had obtained 48.98 marks. Constitutional Petition No,44 of 2002
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Petitioner Arif All applied against the reserved seat of Dera Bugti, his application was rejected under para.7 of the prospectus. He has challenged vires of para.7 of the prospectus. It is additionally argued that the petitioner was admitted to Cadet College, Mastung on merits as a nominee of District Dera Bugti. Thus he passed his Matriculation and F.Sc. From Cadet College, Mastung. It was argued that Members of the Selection Committee have erred in not taking into consideration the said aspect. Constitutional Petition No,220 of 2002 ' Petitioner Sami-ud-Din applied against the reserved seat of Loralai and his application was rejected in view of para.7 of the prospectus; hence he has challenged the vires of the prospectus. It is further averred that on merits he was selected for admission in Government F.C. College, Lahore against the reserved seat of Balochistan from where he passed his F.Sc., thus in his case Selection Committee l as also ignored the said aspect. Constitutional Petition No,225 of 2002 ' Petitioner Ghulam Mustafa applied against the reserved seat of Dera Bugti and his application was rejected under para.7 of the prospectus. Thus he has challenged the vires of para.7 of the prospectus, Constitutional Petition No,256 of 2002 ' Petitioner Azmatullah applied against the reserved seat of District Killa Abdullah and his application was also rejected under para.7 of the prospectus. It is averred that respondent No,4 Abdul Baqi has been, admitted against 30% i,e, passing matriculation and F.Sc. From within the district and has secured less marks than the petitioner. 2. We have heard Mr. H. Shakeel Ahmed for petitioners in Constitutional Petition No,262, 256 and 220 of 2002, Mr. Kamran Murtaza, Advocate for petitioner in Constitutional Petition No,44 of 2002 and Syed Ayyaz Zahoor, Advocate for petitioner in Constitutional Petition No,225 ,of 2202 whereas Mr. Akhtar Zaman, learned Additional Advocate-General appeared for official respondents, Mr. Jamal Khan Mandokhail, Advocate for respondent No,7 in Constitutional Petition No,262 of 2002, Mr. K. N. Kohli for respondents Nos.4 and 5 in Constitutional Petition No,262 and Mr. Raja M. Afsar, Advocate for respondent No,3 in Constitutional Petitions Nos.44 and 225 of 2002 and Mr. Ashraf Khan Tanoli, Advocate appeared as amicus curiae. 3. Mr. H. Shakil Ahmed, Advocate contended as follows:- (i) That para. 7 of the prospectus is discriminatory and violative of Articles 22 and 25 of the Constitution. (ii) That said para. Creates a sub-class between a class of students of the same area and also gives possibility for promoting admission to third divisioners which is against the Pakistan Medical and Dental Council (PMDC) Rules. As per the said Rules, minimum qualification required for admission in Medical Colleges is 60% and is unreasonable. Even amendment has not been made by the Government as required under para.50 of the prospectus. Further the Governor had no jurisdiction to make the amendment in para.7 without referring the same to the Cabinet. 4. Mr. Kamran Murtaza learned counsel while adopting the arguments of Mr. H: Shakeel Ahmed contended that amendment could not have been made with retrospective effect. 5. Syed Ayyaz Zahoor, Advocate also adopted the said arguments. 6. Mr. Akhtar Zaman, learned A.A.-G. Contended that since the Governor had power under the Rules of Business to make amendment in the prospectus, thus the same is in accordance with law. While supporting para.7 he contended that said amendment has been introduced to promote poor children of the backward areas who had no means to go out of their district and could not avail better education. 7. Mr. K.N. Kohli, Advocate for the respondent also contended that the Governor was competent to make any amendment. He referred to Rules of Business wherein Governor was authorized to act as
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Chief Minister, and further stated that petitioners are estopped to challenge the vires of para.7 as they participated in the admission and after rejection, they are challenging the same and further respondents on the principle of locus poenitentia are also entitled to admission as vested right has been accrued in their favour which cannot be snatched away. 8. Mr. Raja M. Afsar, Advocate for the other respondents, adopting the arguments of Mr. K:N Kohli contended that if para.7 is struck down as ultra vires to the Constitution, it will create an anomaly of problems and it will further add to the misery of the students and would be waste of time, as the session has already begun. 9. Mr. Ashraf Khan Tanoli, amicus cruiae highlighted the source of prospectus and further contended that under the rules, Governor was not empowered to amend the prospectus without the approval of cabinet. Thus, the very amendment is without jurisdiction. He further contended that classification within a class cannot be permitted as it is against the spirit of Articles 25, 22(4), 37 and 38 of the Constitution. He further stated that the said para. Be struck down, being unreasonable. 10. We have perused the record with the assistance of the learned counsel. It may be pointed out that during the course of arguments it was pointed out that in case of acceptance of this petition, those students who have been admitted under clause (7) of the para. Will.Be affected. Most of such students were not a party before us. Thus notices were sent to all the students who had been admitted under para.7 of the prospectus, who have been impleaded. In response to the same, most students who were admitted under para.7 appear. Details of the said students are given in order-sheet dated 22-7-2002. Besides, notice was also affixed on the notice board of the college and personally also summons were sent and delivered to students who were admitted-under the said clause only students mentioned in the instant petition appeared and contested the case through their counsel. Rest of the students who were served and did not appear probably for the reason that in any case if the petition is accepted, there is no likelihood of their being affected adversely. 11. Before dilating upon the merits of the petition, it would be convenient to refer to para.7 of the prospectus, which reads as follows:- 12. ' All seats in the above Districts/Agencies are open for competition within each,District to the Local/domicile candidates of the Province of Balochistan and nobody shall be denied admission on the grounds of race, religion, colour or cast. Competition in each District/Agency shall take place between the candidates of that District/Agency in the following manners:- (a) 70% seats shall be allocated to those local and domicile candidates who got their education (Matric and F.Sc.) from within and outside their native district. (b) 30% seats shall be allocated to those local and domicile candidates who got their education (Matric and F.Sc.) from their native district. (c) Wherever the reserved seats are Only 2, these seats shall be allocated on 50% basis. (d) If the distribution of seats are not in whole figures, but fractions, - the benefit of fraction .0 to .5 would go .To the students who have acquired education within the district and conversely a benefit of faction .5 to .9 would go to students who have education outside their native district. (e) In case a candidate has acquired his/her education from two different districts, his/her case shall be decided by the Selection Committee. Whereby the candidates from Quetta District shall allocate only on merit basis." 12. Coming to the arguments of Mr. H. Shakeel Ahmad, Advocate, it may be observed that the very object of allocating seats on quota basis for every district, is to bring the backward areas at par with the developed areas of the Province where better facilities of getting education are available. Classification of students, on District quota, is in no way, repugnant to the concept of equality before law; rather legal protection has been accorded to the quota system. Such classification is
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meant to foster the object of the Constitution, as envisaged under Article 37(c). The State is under an obligation to promote higher education amongst the people of backward areas on merits and simultaneously, also to accommodate the interests of socially or economically disadvantaged sections of the people, for purpose of nurturing genuine rather than ostensible equality. It may be observed here that, principles of equality as enshrined in Article 25 of the Constitution, emphasize that, amongst the equal class, law should be equally administered. Denial to enjoy such rights impinges upon the guarantees contained in Article 4 of the Constitution. It may further be observed that for the purpose of justifiable classification, provisions of Article 25 have to be read with Articles 22(4), 37 and 38 of the Constitution. The view of the superior Courts has been consistent on the above proposition. Reliance is placed on case-law Mst. Attiya Bibi and others v. Federation of Pakistan and others 2001 SCM R 1161 wherein following observations were made:-- 11. However, with respect to disabled persons and candidates from the backward and underdeveloped district and FATA, position is altogether different. It must be remembered that the concept of a reasonable classification is premised on the principle that the object is not to secure nominal or formal equality but genuine equality amongst different classes or groups of citizens. As observed by the Supreme Court of India in Dr. Pradeep Jain v. Union of India AIR 1984 SC 1420, where actual inequality exists, the State must resort to compensatory State action and, therefore, scheme of admission in Medical Colleges who make a certain percentage of reservation for those having suffered some initial disadvantage owing to their social and economic conditions. In the same spirit Articles 22 and 25 of the Constitution per special provision to be made for women and children or socially or educationally backward and undeveloped classes. Therefore; reservation of seats for such category may be justified. It must, however, be pointed out that the benefit of such reservation should only be confined to those who have acquired their school and intermediate education from such less developed areas and not to anyone who manages to obtain a domicile certificate from that area. I am fortified in my view by an order rendered by a Bench of this Court in C.P.L.As. Nos.474-P and 494-P of 2000, decided on 2nd January, 2001. Similarly reservation of seats for disabled persons is eminently reasonable inasmuch as because of their disabilities these candidates could not compete with their more fortunate compatriots and, therefore, it is the obligation of the State to take some compensatory action for them to fulfil its obligation to create genuine equality amongst all classes of citizens. There is yet another class of students which deserves serious consideration i,e, reservation of seats for foreign students domiciled and studying in foreign countries on the basis of reciprocity. Likewise, a provision can be legitimately made for children of Afghan Refugees who otherwise might not be eligible for admission on open merit basis. Students belonging to Azad Kashmir and Northern Areas also might fall within the purview of socially, economically and educationally less developed areas and they deserve some kind, of indulgence till such time those territories come up to the level of developed areas. 12. For this purpose it would be in the fitness of things that respective Governments take appropriate steps to identify socially and educationally backward areas in order to enable the children receiving education in such areas to qualify for admission to Medical Colleges against reserved seats." 13. an elementary rule of interpreting the provisions of Constitution is to give effect to every part and every word of the Constitution. The Courts to reconcile Constitutional provisions harmoniously, instead of pointing out inconsistencies and contradictions between different provisions. The Courts to avoid interpretation which renders any article meaningless or inoperative, thus should construe the provisions which will render every word operative rather than leaning in favour of one which may render some words idle and inoperative. 14. The provisions of Article 25 of the Constitution, have been elaborated by his Lordship Mr. Justice Ajmal Mian, as he then was, in the case of I.A. Sherwani and others v. Government of Pakistan and
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others 1991 SCMR 1086 wherein following principles have been laid down:-- "26. From the above-cited cases the following principles of law are deducible:-- (i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances but it contemplates that persons similarly situated or similarly placed are to be treated alike. (ii) That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis. (iii) That different law can validly be enacted for different sexes, persons in different age groups, persons having different financial standings and persons accused of heinous crimes. (iv) That no standard of universal application to test reasonableness of classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances. (v) That a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25. (vi) That equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed. (vii) That in order to make a classification reasonable, it should be based--- (a) On an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) That the differentia must have rational nexus to the object sought to be achieved by such classification." 'From the aforesaid observations it can be safely deduced that, classification is to be based on lucid and reasonable standards, permissible within the frame-work of Article 25 of the Constitution as it is also an obligatory duty of the State to bring the backward areas at par with the developed areas and the object of such classification is not only to secure formal and nominal equality but in reality to provide genuine equality amongst different classes or groups of citizens. The aforesaid principle as to reasonable classification in context of equality before law and equal protection of law, have been also approved/concurred by the Honourable Supreme Court, reference if needed be made to Muhammad Sabir Ahmed v. Secretary, Finance Division, Islamabad 1997 SCM R 1026, Mushtaq Ahmed Mohal v. Honourable Lahore High Court 1997 SCMR 1041 and Mst. Attiya Bibi Khan v. Federation of Pakistan 2001 SCM R 1161. ' While reading Article 25 with Article 2A, as observed above, it would show that, only such classification is permissible which is reasonable and promotes the object of the Constitution ice, to make higher education available on merits and at the same time to accommodate the interest of the socially and economically depressed sections of the people, for the purpose of fostering equality amongst the different classes of Society. 15. Thus, Article 25 of the Constitution guarantees, equal rights to all citizens before law and entitles them equal protection of law, further no one shall be discriminated on the basis of sex alone. Articles 2A, 18 and 25 are designed to bring about a Society based on Islamic concept of justice. Article 22 forbids discrimination on ground of race, religion, caste or place of birth in admission to Educational Institutions receiving aid from Public Revenues and also enables a Public Authority for making provisions for the uplifting any socially or economically backward class of Society. Article 37 demands of the State, to ensure availability of technical and professional education in general and higher education equally accessible to all on basis of the merit. Discrimination on basis of sex was discussed at length in Sherin Munir's case PLD 1990 SC 309, wherein Honourable Mr. Justice Shafi-ur-Rahman as he then was made following observations, while interpreting the provisions of Articles 22 and 25 of the Constitution:--
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"15. The words relevant for understanding the full impact of Article 25(2) of the Constitution of 1973 are 'discrimination' and 'alone'. The ordinary meaning of 'discrimination' is very inoffensive. It means 'making a distinction or difference between things; a distinction; a difference; a distinguishing mark or characteristic; the power of observe in differences accurately, or of making exact distinctions; discernment'. The Oxford English Dictionary, Volume III). 16. Clause (2) of Article 25 prohibits distinction on the basis of sex alone. However, the very next clause (3) controls the rest of Article 25 by providing that 'nothing in this Article shall prevent the State from enacting any special provision for the protection of women and children'. It implies, therefore, that while the difference on the basis of sex can be created and maintained, it shall be done only in those cases where it operates favorably as a protective measure for and not against women and children. The field of prohibition, of adopting sex, as criteria for making distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only if it is not as a measure protective of females. Discrimination against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility. All pervasive nature of this Constitutional provision is self- evident. In interpreting Constitution and also in giving effect to the various legislative measures, one distinction has to be consistently kept in view and it is that classification based on reasonable considerations is permissible and not violative of the principle. 17. The harmony and the consistency between Article 25 and Article 22 of the Constitution is obvious notwithstanding the generality of the one and the particularity of the other, only if we keep this important fact in view that classification based on intelligible and reasonable standards is permissible within the framework of Article 25 on the grounds of sex and sex alone. If in Article 22 the word 'sex' had also been introduced then there would have occurred a conflict instead of consistency between Article 25 and Article 22 inasmuch as the classification permissible under Article 25 would have become impermissible in educational institutions with regard to admission therein. The girls would have sought admission in institutions exclusively reserved for boys and the boys would have sought reservation in institutions reserved exclusively for girls unless it was shown as a fact that the institution for girls was kept exclusive for the purpose of and within the limitation of clause (3) of Article 25. As the two Articles 25 and 22 stands at present, the general rule is that 'sex' cannot be adopted as the sole criteria for discrimination except for advancing the cause of women and children as permitted by clause (3) of Article 25. On that principle of reasonable and intelligible classification it is possible to have educational institutions exclusively catering to the needs of the male population and also educational institutions catering exclusively the female population in our context and in our society. However, when an educational institution is thrown open for co-education, as has been done in the case of six medical institutions excluding Fatima Jinnah Medical College, then a further restriction of numbers on the ground of sex is permissible only as a protective measure of women and children but in no case so as to protect comparatively less meritorious boys to the prejudice and exclusion of women. This amounts to gross violation of Constitutional mandate." 16. Now judging the vires of para.7 of the Prospectus, on the touchstone of aforementioned Articles of the Constitution and in the light of the above discussion. It is to be seen; whether para.7 creates a class distinction between the people belonging to same area being discriminatory, unreasonable and not workable. Whether it promotes admission to such students having third divisions, in violation of the Pakistan Medical and Dental Council Rules and does not give minimum academic standard of education as prescribed by the PMDC, where the requirement is 60% and whether Selection Committee has been given unridled powers to exercise jurisdiction in an arbitrary manner.
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17. As observed hereinabove that classification amongst a class is permissible, but has to be reasonable and based on intelligible differentia. 18. By introducing para.7 in the Prospectus, a further classification has been created amongst the students of the District competing each other, by 70% and 30% basis. Thus, rationality of such classification is to be seen. By inclusion of para.7, 30% of the seats have been reserved for those students who have completed their education i,e, Matric and F.Sc. From within the District. 19. The contention of Mr. H. Shakeel Ahmad, learned counsel has substance that the classification of the prospectus creates a class within a class and deprives a student from entering the medical college only because he did not study in his district and otherwise qualified for admission, even on merits has more marks than a student who is getting admission on 30% basis. After giving our anxious consideration to the policy of para.7 dividing the students on 70% and 30% basis seems to be discriminatory, as discussed hereinabove in Sherin Munir's case (supra). 20. Mr. H. Shakil Ahmed learned counsel further argued with vehemence that the students who get admission in Cadet Colleges or in Colleges outside the Province as nominees of the Districts or on Provincial merit basis are deprived from admission in medical college only for the reason that they did not study in their home district, as in the case of petitioner Azmatullah (C.P. No, 265/256 of 2000), he received his education from 6th Class up to F.Sc. From Cadet College, Mastung. He got admission on district merit. In the case of Samiuddin who passed his F.Sc. Examination from Government F.C. College, Lahore also got admission on Provincial merits. 21. We are in agreement with the learned counsel, that classification under para.7 is discriminatory and unreasonable. The petitioners Azmatullah and Samiuddin, received education outside their Districts, as they were selected on merits on District and Provincial quota. It may be observed that at the time when they were admitted in Cadet College, Mastung and F.C. College,…
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