P L D 1971 Lahore 641 (PLP)

"Medical education, including medical schools and colleges and institutions for dentistry." On the basis of the above references, it is submitted that the orders of the Provincial Government are referable to the powers conferred on the Governor under Article 136 and the impugned orders have been passed under the Rules of Business framed under Article 81 of the Constitution. Hence, it is submitted that the said orders have statutory force.

20. There is no force in this contention. The Rules of Business merely deal with the manner of making of orders and other instruments, allocation of work amongst the different Departments of the Government and the mode and method by which they are transacted. No new powers are conferred upon the Governor by the provisions of Article

81. The only powers of legislation that vest in him are contained in Article 79 of the Constitution, namely, to make and promulgate Ordinances, when the Provincial Assembly stands dissolved, which Ordinances shall have the force of law. The argument of the learned Advocate‑General, however, is that because the Governor of the Province has power to make laws inter alla with regard to subject of Health and under the Rules of Business, promulgated under a provision of the Constitution, power has been given to the Governor to issue orders for conducting the business of the Department falling within the provincial , field, therefore, any order passed by the Governor on a matter which lies in the Provincial sphere will be a lawful order. We cannot accept this argument because if it was correct there would be no necessity for the Governor to promulgate any law. The Governor could then make any order with regard to any matter falling within the sphere of the Province and it would become unnecessary to promulgate any Ordinance or enact any legislation on any such subject. The impugned order is nothing more than an executive order, no doubt on a matter which falls within the competence of the Provincial Authorities, but it is neither a law on the subject nor can it be equated with a law.

21. Coming now to the submission that the view taken by the Dacca High Court with regard to the provisions of Article 2 of the Constitution has not found favour either with the Supreme Court or by this Court, our attention was drawn to some observations contained in the case of Muhammad Yusuf (P L D 1968 S C 101) 4here in the Supreme Court after taking note of the Dacca High Court's judgment in Ghulam Zamin's case and Haft: Ghulam Sabir's case went on to observe, "it is difficult to construe Article 2 as con veying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interests." The cases decided by this Court on which reliance was placed are Narain Das etc. v. The Province of West Pakistan (P L D 1969 Lah. 860) and Mian Arif Iftikhar v. Lahore Improvement Trust (P L D 1969 Lah. 1087). On a closer examination of these judgments it transpires that what has been held therein is that actions taken at a point of time when either no law justified the taking of such action or the action was taken by misapplication of the law, could be validated after such action was taken, by subsequently promulgating a law and giving retrospective operation to it. These judgments do not deal with other point discussed by the Dacca High Court that in the absence of any contemporaneous law to back such action the executive authority is precluded from taking any action at all.

22. In the leading Full Bench case of Ghulam Zamin, the facts were that Ghulam Zamin was carrying on business of exporting pan from East Pakistan to West Pakistan, ever since the Independence. This commodity was carried from East Pakistan to West Pakistan by air through P. I. A. C. (Pakistan Inter national Airlines Corporation). The Commerce Ministry in the Central Government issued a Notification on 2.1‑64 to the effect that inter‑regional trade in betel leaves (Pan) between the two wings which had hitherto been controlled by the P. I. A. C. would in future be handled by the Ministry of Commerce and by a public notice issued on 12‑1‑1964, the Pan Allotment Committee set up by the Government of Pakistan invited applications for allotment of quotas of Pan for air space available with P. I. A. C. for trans portation from the East Wing to the West Wing by a particular date. The effect was that no one who was not allotted a quota of air space, by the Committee, in pursuance of an application made to the Pan Allotment Committee, could carry on the trade even though he might have been carrying on this trade ever since the creation of Pakistan. The observations made in Ghulam Zamin's case, namely, that Art. 2 of the Constitution "furnishes a citizen with a constitutional guarantee that he will not be called upon to do something or to refrain from doing anything without a valid provision of law to that effect must be understood in the above background. These remarks were further explained as follows:‑ "This means that there is a constitutional protection in praesenti or, in other words, whenever an order is made, which invades upon the rights of a citizen or requires him to do something, there must be in existence, contemporaneous a law which would authorise such a course."

23. The facts of the present cases are altogether different. It is stated in the written statement, and this has not been controverted by the petitioners, that the Government has since the very beginning been prescribing the number of seats to be allocated to the girl students of the Punjab Region in the Medical Colleges of this Province. All that has been done this year is that the distribution earlier made in regard to the filling up of the 56 seats reserved for girl students, before the break up of the integrated Province of West Pakistan, has been altered and the categories from which admissions are to take place have been modified but the number of girls from the Punjab, who shall be admitted to the three Medical Colleges, remains the same, namely,

56. The petitioners have not been called upon to do something which they were not doing before or refrained from doing anything which they were hitherto fore entitled to do. In a recent case entitled Arif Ali Hazoor v. The Administrator, K. E. M. C., Lahore (C. P. S. L. A. 124/1970 decided by the Supreme Court of Pakistan on 29‑5‑1970) it has been held that there is no authority for the proposition "that the right to apply for admission to an educational institution carries with it a legal right to be admitted which can be enforced under Article 98 of the Constitution." The petitioners, therefore, did not have any public or private right to claim in admission to any Medical College in pursuance of the applications submitted in that behalf and the orders fixing the number of seats for the various categories of students to be admitted to the institutions concerned has not injured any legal right inhering in them. It appears to us that the aid of Article 2 of the Constitution can only be invoked by a citizen if any of his public or private right has been infringed and not otherwise and we conceive that it is in this light that the proposition that before any executive action can be taken it must be backed by a contemporaneous law, is to be understood. If the wider interpretation canvassed by the petitioners was accepted to be correct, the massive relief operations taken through executive action for bringing succour and relief to the unfortunate victims of the tidal bore in Bhola, Hatiya, Patuakhali, Noakhali and other affected areas of East Pakistan, the actions taken to dig mass graves to bury the dead and the other in number-able acts that have been done to put life on an even keel in the devastated areas, being not all backed by any contemporaneous law, would have to be held as illegal. An interesting discussion of the power of the executive to take action in the absence of statutory authority is contained in a judgment of the Supreme Court of the United States in Cunningham v. Neagle (135 17 S 1), the relevant portion may be reproduced with advantage as follows: "The United States is the owner of millions of acres of valuable public land and has been the owner of much more which it has sold. Some of theme lands owe a large part of their value to the forests which grow upon them. These forests are liable to depredations by people living in the neigh bourhood, known as timber thieves, who make a living by cutting and selling such timber and who are trespassers. But until quite recently, even if there be one now there was no statute authorising any preventive measures for the protection of this valuable public property. Has the President no authority to place guards upon the public territory to protect its timber? No authority to seize the timber when cut and found upon the ground? Has he no‑ power to take any measures to protect this vast domain? Fortunately we find this question answered by this Court in the case of Wellas v. Nickles 104 U S 444 (26: 825). That was a case in which a class of men appointed by local land officers, under instructions from the Secretary of the interior having found a large quantity of this timber cut down from the forests of the United States and lying where it was cut, seized it. The question of the title to this property coming in controversy between Wellas and Nickles, it became essential to inquire into the authority of these timber agents of the Government thus to seize the timber cut by trespassers on its lands. The Court said: "The effort we have made to ascertain and fix the authority of these timber agents by any positive provision of law has been unsuccessful". But the Court notwithstanding there was no special statute for it, held that the department of the interior, acting under the idea of protecting from depredation timber on the lands of the Government, had gradually come to assert the right to seize that is cut and taken away from them wherever it can be traced, and in aid of this the registers and receivers of the land office had, by instructions from the Secretary of interior been constituted agents of the United States for these purposes, with powers to appoint special agents under themselves. And the Court upheld the authority of the Secretary of the Interior to make these rules and regulations for the protection of the public lands." Although in the above discussion no reference is made to any provision similar to the provisions of Article 2 of our Consti tution, it does highlight some of the circumstances in which executive action is not only permissible but even called for notwithstanding the absence of any antecedent Statute covering the subject in respect of which the said action is taken. The observations made in the Dacca High Court judgments therefore must be read in the context of the facts and circumstances obtaining in those cases, namely, an activity that was being lawfully carried on was sought to be interfered with, without the backing of any contemporaneous law. This action was found to be unjustifiable on the ground that Article 2 of the Constitution forbade the taking of any action detrimental to the life, liberty, body, reputation or property of any person, except in accordance with law and in these cases there was no law authorising interference with the carrying on of the business that was being carried on by the petitioners. Their Lordships of the Dacca High Court were not dealing with a case in which neither any public nor any private right of the party approaching them, under Article 98 of the Constitution, was infringed. The judgments of the Dacca High Court relied upon by the petitioners are, therefore, of no avail to them. In order to establish that the petitioners have a right to secure admission in the relevant Colleges, reference has been made to para. 12 of the Fundamental Rights set out in Chapter T of Part II of the Constitution, which provides for safeguards as to educational institutions in respect of religion, etc. It is submitted that this Fundamental Right is not included amongst the Fundamental Rights suspended under Article 3(3) of the Provisional Constitution Order, 1969 and is, therefore, still alive. On the basis of the provisions of para. 12(3) it is argued that the petitioners have a right to be admitted to the Medical Colleges concerned. Under sub‑para. (3) of para. 12 of the Fundamental Rights, it is laid down as follows: -- "No citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth." Mr. M. Anwar, Advocate, has contended that both the King Edward Medical College, Lahore, and Nishtar Medical College, Multan, are co‑educational institutions and no one who is qualified to be admitted on the basis of merit can be deprived of the right of admission to any of these educational institutions. The word "citizen" in Right 12(3), it is submitted, is a word of a very wide connotation and includes both sexes male and female and, therefore, girl students, who are included in the term "citizen", cannot be denied admission, if he or she is otherwise qualified. In this connection, it is urged that an invidious distinction has been drawn between girl students and boy students in the matter of admission to the co‑educational Medical Colleges of the Province in so far as it is laid down that not more than four girls shall be admitted into either the King Edward Medical College, Lahore or Nishtar Medical College Multan, with the result that boys who have secured less marks will be admitted while girls with far higher marks will be refused admission. The discrimination being made against the girls in the matter of admission to Medical Colleges has been illustrated by compiling four charts. As the correctness of the facts mentioned thereon was not challenged by the learned Advocate‑General, they may be deemed to be correct. The figures contained in these charts are not without interest and they may be reproduced as follows: I Admission of Girls v. Boys (from Punjab) (a) In 1955, about 140 boys were admitted on merit and about 47‑50 girls, girls being about 30 % of boys. In 1960, about 75 girls were admitted (58 in F. J.). (b) From 1964, girls seats were as follows: F. J. M. C. K. E. M. C. N. M. C. Total Merit 19 18 11 48 Rural - 5 3 8 Doctors 3‑5 1‑2 1‑2 5‑9 Defence 2‑3 1 1 5‑6 Total 24‑27 25‑26 16 66‑71 Boys seats in K. E. and Nishtar Medical Colleges were about 200 (Tagged, Rural, non‑tagged and Doctor's Children's seats). (c) Present position is 56 girls' seats against 260 boys, including reserved seats and 49 girls against 248 boys for on merit seats.

1953 Boys Girls Ratio Girls to Boys 1958 140 50 37 % 1960 135 65 48 % 1964 140 75(56 F. J., 10 K. E. + Nishtar) 53 % 1970 200 (Punjab) 70 35 % 260 (Merit 248) 56 (Merit 49) 22 %

Intermediate Result 1970. Appeared No. per Seat Passed No. per Seat 1st Class No. per Seat Boys 3813 15.4 2100 8.4 558 2.3 Girls 1240 25.3 787 16.1 231 4.7 Ratio of Opp ortunity Girls to Boys. 61 % 52 % 48 %

Ratio of Girls to Boys (Passes). Total appeared Passed Girls Boys % Girls Boys Ratio of Girls to boys admitted 1955 2055 642 108 534 20 37 % 1956 2087 479 94 385 25 48 1961 2209 649 124 525 24 53 (1960) 1966 3646 1379 339 1040 33 35 1967 3837 1786 460 1326 35 35 1970 787 2100 37 20

On the basis of the above facts, it was contended that an unequal and unwarranted distinction is being made on the basis of sex.

24. It is also contended that in the Fatima Jinnah Medical College for Women amongst 90 seats to be filled up. 48 are reserved for Punjabi girls while 42 seats have been earmarked for girls from outside areas. This it is contended, amounts to discrimination against the Punjabi girls on the ground of their place of birth being the Punjab and, therefore, the reservation made on this basis tantamounts to an infringement of Right 12(3) of the Fundamental Rights.

25. The criticism made against fixing the number of seats of girls residing in the province of the Punjab is, therefore, two fold. Firstly, on account of the alleged discrimination being practised on the ground of sex and, secondly, on the ground of the alleged discrimination being made against them on the ground of their place of birth. The terms of clause (3) of Right 12, reproduced above, shows that this Article does not prohibit the refusal of admission to educational institutions on the ground of sex and any restrictions placed on the admission of girl students is not hit by the provisions of clause (3) of Right

12. According to the said clause any citizen who is denied admission to any educational institution receiving aid p from public revenues only on the ground of race, religion, caste or place of birth can complain of a breach of his funda mental right under the present clause, but cannot complain of a breach of fundamental right if he or she is denied admission in any such educational institution on the ground of "sex." Thus educational institutions intended exclusively for men can be maintained by the State without violation of the Constitution. We may note here that at the resumed hearing of these petitions, after the adjournment, the learned Advocate‑General informed us that the Governor of the Punjab had passed an order clarifying that the King Edward Medical College, Lahore and the Nishtar Medical College, Multan were male colleges, subject to the reservation that some girls could be admitted if need be G as a matter of concesssion. Thus, even if the contention of Mr. M. Anwar that the word "citizen" includes both males and females is accepted as correct, there is no breach of clause (3) of Right 12 even if discrimination on the basis of sex is practised in the matter of admission to the educational institutions in question. The fact is that the right which could possibly be invoked against the perpetration of discrimination on the ground of sex could only be Right 15, contained in the Fundamental Rights Chapter of the Constitution, which lays down, "All citizens are equal before law who are entitled to equal protection of law" but unfortunately this rights stands suspended by Article 3(3) of the Provisional Constitution Order, 1969.

26. We may now turn to the second part of the criticism based on the alleged discrimination on the ground of place of birth. It is manifest from the term of clause (3) of Right 12 of the Fundamental Rights that discrimination on the ground of place of birth is forbidden under it. The object of this provision is to declare that no citizen will be discriminated against by any State‑aided educational institution on the ground of his birth in any particular part of Pakistan. We have, therefore, to see whether any applicant is being denied admission to the Colleges in question on the ground of her place of birth. A perusal of the prospectus of Fatima Jinnah Medical College shows that 48 seats are reserved for residents of the Punjab and the remaining 42 earmarked for girls resident outside it. However, admission is not on the basis of place of birth of the candidates but is on the basis of their permanent residence. This is made clear by reference to para. 11 of the prospectus, which deals with submission of applications for admission. Clause (e) of Para. 11 provides that amongst the documents to be attached with the application for admission, a certificate of permanent residence is to be submitted by each applicant. It does not require the submission of a certificate about the place of birth. It is well established that permanent residence is not same thing as the place of birth. K A person may be born at one place and become a permanent resident of another place. When Fundamental Right 12(3) prohibits discrimination based on the place of birth, it cannot be read as prohibiting discrimination based on residence.

27. In a recent judgment delivered by this Court, in the case of Mir Nasim Mahmood v. Principal, King Edward Medical College, Lahore (P L D 1965 Lah. 272) this question has been elaborately discussed. In that case the Government of West Pakistan for the purpose of admitting students to various Medical Colleges in the Province issued instructions embodying a scheme for admission of applications to the first year M. B., B. S. Class for the session 1964‑

65. According to the instructions different areas in West Pakistan were tagged to different Medical Colleges and in each college a number of seats were allocated for the tagged areas and certain seats were reserved for the area which were not tagged to particular college. The students who were otherwise qualified for admission, failed to secure admission, and as such then filed writ petitions in the High Court. The grievance of the petitioners before the High Court was that due to the Scheme of tagged areas and the reservation of seats for various categories of students introduced by the Institutions the petitioners were deprived of admission to any of the Medical Colleges in the Province although in the order of merit as judged by the marks obtained by them in the F. Se. (Pre‑Medical) Examination they stood much higher than those of the candidates who had been admitted. It was argued, inter alia, that the Scheme of tagged areas was in conflict with the Fundamental Right 12(3) because it created distinction among the various classes of students on the basis of their place of birth. It was held that the Scheme of tagged areas as embodied in the instructions was not based on any of the consideration laid down in clause (3) of Fundamental Right 12 because the instructions did not specify that only those persons could apply to the colleges in question who were born in the tagged areas. According to the said instructions, the qualification in respect of eligibility for the different tagged areas was permanent residence in those places. It was held, relying upon a judgment of the Indian Supreme Court, that residence and place of birth are two distinct concepts and the prohibition against discrimination based on the place of birth cannot be equated as a prohibition against discrimination based on residence. We respectfully agree. The objection on this ground, therefore, also fails.

28. We may mention in passing that the Fatima Jinnah Medical College for Women is not controlled‑ exclusively by the Provincial Government but the Central Government has a share in the management of the said institution as well, as already pointed out in Para. 7 above. We were informed that a part of the funds utilised for running this institution were provided by the Central Government. Consequently, the Chairman of the ad hoc Governing Body which administers its affairs is the Director‑General of Health and ex officio Joint Secretary to Governor of Pakistan (Health Division) and one of its members is the Director of Health Services, East Pakistan Dacca. It is for this reason that the Central Government has laid down the categories for filling half of the 90 seats reserved for admission to this College (details of which have already been reproduced in Para. 8 above) and the remaining half, namely, 45 are to be filled in by the Punjab Government, in the manner also reproduced in Para. 8 above. Three seats out of the seats reserved for being filled up by the Central Government have been allocated to the Punjab. In this manner, the number of seats to be filled in the Fatima Jinnah Medical College from the Province of the Punjab comes to 48 and from the other areas

42. The Central Government was not imp leaded as a party by any of the writ petitioners and no criticism has been made before us, as to the manner relating to the filling up of the 45 seats allocated to the Central Government.

29. Learned counsel for the petitioners, however, did argue that as a result of the regulations limiting admission of girl students up to the maximum number of 56, in all the Medical Colleges of the Punjab, brilliant girl students will be refused admission while mediocre male students, who have got 50 or 60 less marks, than the girl students in the very same examination will gain admission. Such a result, it was argued, could not be countenanced under the principles of natural justice. We have, however, found above that under the Constitution, especially after the suspension of Fundamental Right 15, the discrimination that is being practised on the ground of "sex" in the matter of admission to the Medical Colleges, cannot be declared to be illegal. We are; however, not unmindful of the strength of righteous indignation which the girl students can understandably entertain at being ignored, although better qualified, merely because they were girls. This anamolous position, however, can only be set right by the Executive Government. One way of correcting it could be to increase the number of seats for admission in the Fatima Jinnah Medical College for Women now that the doors of the King Edward Medical College, Lahore, and the Nishtar Medical College, Multan, are being closed to the girls. We have no doubt that the Government will give its earnest consideration to this aspect of the question.

30. Aground was taken in the three writ petitions filed by Mr. Talib Haider Rizvi, Advocate, that the exclusion of seven seats, out of 56 seats allowed to the girls residing in the Punjab, for the purpose of filling up these seats through nomination was not justified and further that the categories devised for this purpose, namely, nomination of three children of members of the armed personnel and nomination of three students, considered to be poor, who have obtained first divisions and one student from Bahawalpur was an arbitrary and fanciful exercise of power, especially when a category such as "children of doctors" which category appeared to be a more appropriate category than the other two cate gories from which nomination is to be made, has been excluded. This point however, was not pressed before us during the course of arguments. The order passed reserving seven seats to be filled up by nomination is an executive order and the same can be interfered with if it can be shown that it is arbitrary, fanciful and based on extraneous considerations vide S. S. Miranda Ltd. v. Chief Commissioner, Karachi (PLD 1959 S C 134). However, as no argument has been addressed on this point, we would refrain from expressing our opinion on this question in the present cases.

31. The result is that these writ petitions must fail and are accordingly dismissed. Since, however, one of the most important questions raised in the petition, namely, the validity of the instructions of the Government in the matter of regulating admissions, in the face of the provisions of the Medical Colleges (Governing Bodies) Ordinance, 1961, was disposed of by legislation by promulgation of the Medical Colleges (Governing Bodies) (Punjab Repeal) Ordinance, 1970, which law was enacted in the midst of the hearings of the writ petitions and further the decision declaring the King Edward Medical College, Lahore and the Nishtar Medical College, Multan, to be male Colleges was also taken during the pendency of the writ petitions and these decisions, principally the former, has affected the result of these writ petitions, we order that the costs of these proceedings shall be borne by the respondent Government. K. B. A. Petitions dismissed.