1981 PLP 1002 (SCMR)

The respondent's father Mr. Rashid Ahmad, was an employee of the North Western Railway, and opted for Pakistan at the time of Partition, and arrived at Rawalpindi on the 8th of August, 1947. After serving at different places in Pakistan, he was posted to Quetta in 1971, and in 1974 he applied for the grant of a domicile certificate to the District Magistrate, Quetta, which was granted to him on the 27th of December, 1974. This certificate contains the name of the respondent Rifat Parveen as one of his children.Rifat Parveen passed the Matriculation examination of the Baluchistan Board of Intermediate and Secondary Education in the year 1975 ; and in 1978 she passed the Intermediate examination of the same Board, securing sixth position amongst the girl candidates of the Baluchistan Province by obtaining 648 marks out of a total of 1000 marks. In the year 1978, the respondent applied for admission t' the Bolan Medical College, Quetta, but her application was rejected by the Selection Committee by its order dated the 25th of April, 1978 on the ground that she did not fulfil the condition of 12 years stay in Baluchistan as required under the Prospectus of the Bolan Medical College. As a result, admission was granted to other girl candidates, who had secured lower marks than Rifat Parveen in the Intermediate examination. The respondent's father maderepresentations to the Zonal Martial Law Administrator, as well as the Chief Martial Law Administrator, but without success. Thereafter the respondent invoked the writ jurisdiction of the Baluchistan High Court. It was contended in the High Court that the rule requiring 12 years stay in the province of Baluchistan did not apply to the children of Central Govern ment Servants, who were otherwise eligible that in the alternative, the rule was ultra vires of Fundamental Rights Nos. 4, 15, 23 and 25 as provided in the Constitution ; that the rule was also repugnant to all notions of justice, equity and good conscience ; that it was unreasonable, oppressive and discriminatory; and that it amounted to a fraud on the statute inasmuch as it ran counter the provisions of the Pakistan Citizenship Act, 1951. The writ petition was opposed on behalf of the Government of Baluchistan on the ground, inter alia, that rule 18 was based on a reasonable classification between locals and non-locals, and was, therefore, valid. However, the learned Judges of the High Court have held that the rule was invalid as it was unreasonable and discriminatory and inconsistent with the provisions of the Constitution. On this view of the matter, they have allowed the respondent's petition, and have directed that a seat should be created for her, if non was otherwise available, in the 1979 session of the College. It appears that she is at present studying provisionally under this arrangement. It is submitted by the learned Advocate-General that the prospectus and rules for admission of candidates to medical colleges have been issued under a statute, namely, the Governing Bodies of Medical Colleges Ordinance, 1961. under which Government has to right to regulate these matters that the rule in question, namely, rule 18, requiring 12 years residence in the case of domiciled persons, could not be regarded as unreasonable, as it is intended to keep out only those persons, who are not bona fide residents of the Baluchistan province, for whose benefit the Bolan Medical College has been primarily established that the learned Judges have not correctly applied the judgment of this Court in the case Muhammad 1qbal Khan Niazi v. Vice- Chancellor, University of the Punjab and others (PLD1979SCI) and that similar rules are to be found in the prospectuses of many professional colleges. He further contends that, in any case, the High Court did not have the jurisdiction to order the creation of an extra seat for the academic session of 1979, as the candidate had applied for the academic session of 1978, which was over by the time the judgment of the High Court was delivered in June, 1979, and the respon dent did not qualify on merits for admission to the 1979 session. The nature and source of power under which the rules for admission of candidates to medical colleges have been framed and incorporated in their respective prospectuses came up for consideration before this Court in the two recent cases of Muhammad Iqbal Khan Niazi v. Vice-Chancellor, University of Punjab, and Shahnaz Maqbool v. Province of Sind and another (PLD 1979 SC32) in both of which the view expressed was that the source of power remained shrouded in mystery and at best the rules could be equated with bye-laws framed by the Government or the college authorities in exercise of power of delegated legislation. In the present case, the learned Advocate-General bad submitted before us that the rules have, in fact, been made by the Government in exercise of the power conferred by section 8 of the Medical Colleges Governing Bodies Ordinance, 1961, which permits the Central Government to make rules for carrying out the purposes of this Ordinance. The expression Central Govern ment was substituted (Adaptation Order 1964, Art. 2) by Provincial Govern ment. The rules framed under this section were required to be notified in the official Gazette. The Regulations framed under section 9 by the Governing Body required the previous approval of the Provincial Government. The status of the rules or Regulations embodied in the prospectus could not, in any case, be placed higher than rules or bye-laws framed in exercise of dele gated powers, or executive authority. Proceeding on this assumption, we have no hesitation in endorsing the view previously taken by this Court in the two recent cases mentioned above, to the effect that such a bye-law or rule can be struck down on the ground unreasonableness. As observed by Craies in his Treatise on Statute Law, 7th Edition, page 325, there are five main grounds on which a bye-law may be treated as ultra vires :- (a) That it is not made, sanctioned and published in the manner pres cribed by the statute, which authorises its making ; (b) That it is repugnant to the law of the land ; (c) That it is repugnant to the statute under which it is made ; (d) That it is uncertain and (e) That it is unreasonable. The reason for this view is not far to seek. If the Legislature delegates it powers to a specified executive or statutory authority so as to make rules for the application and administration of a law made by it, it clearly proceeds on the assumption that such authority will confine its rule-making within the a ambit of the power conferred on it, and that it will not make a rule, which suffers from uncertainty or unreasonableness, as such an infirmity was bound to defeat the very purpose of the parent legislation. The learned Judges in the High Court have expressed the view that while the distinction made between the local and the domiciled candidates was based on a reasonable classification, yet the distinction between different categories of domiciled candidates, as embodied in rule 18, was not justified, and not", related to the purpose of the main classification. The main submission of that learned Advocate-General is that the rule in question is intended to safeguard the interest of bona fide domiciled candidates as against those, who may manage to obtain domicile certificates, but are, in fact, not bona fide residents of Baluchistan province. The argument proceeds, as the learned Judges in the High Court have rightly pointed out, on the assumption that some un scrupulous persons will succeed in obtaining false domicile certificates, to the prejudice of those candidates, who are, in fact, truly and genuinely domiciled in Baluchistan. Now, as observed by this Court in the case of. Jabendra Kishore Achharyya Chowdhury v. The Province of East Pakistan (1) classification of persons or things is in no way repugnaet to the concept of equality before law, provided the classification is not arbitrary or capricious it is natural and reasonable, and bears a fair and substantial relation to the underlying object of the parent legislation. 1f the classification is relevant to the object of the Act, it must be upheld but a classification, which proceeds on irrelevant and extraneous considerations can certainly not be upheld. Viewed in the light of these principles, there is justification for classification of candidates for medical colleges into the categories of, locals and domiciled candidates but it is difficult to see how a further classification among the domiciled candidates can be creat ed by prescribing an arbitrary period of 12 years residence for parents of such E candidates, simply owing to the apprehension that otherwise unscrupulous persons will manage to obtain false domicile certificates from the Distric Magistrates concerned. Once 4 person has satisfied the requirements prescribed under the law for obtaining a domicile in th a province of Baluchistan it is clearly an unreasonable requirement to insist that his parents must have resided in the province for a period. of 1,2 years. No such requirement. is prescribed under the Pakistan Citizenship . Act, or the rules relating to acquisition of domicile. We notice further that, the requirement 'of 12 years residence has been prescribed not for the candidate, but for his parents or guardian, thereby rendering ineligible a domiciled candidate, who may himself have spent all his life in the province of Baluchistan, although the parents or guardian may not satisfy such a requirement. In such cases also the rule would obviously be highly reasonable and discriminatory, having no relationship to the main classification between local and domiciled candidates. We are, therefore, in agreement with the view expressed by the High Court that rule 118, which has been invoked by the Selection Committee against the respondent, was indeed, invalid on account of its being unreasonable. Although Mi. Basharatullah submitted that similar provisions - were embodied in the prospectuses of some other medical colleges, but no such document was placed before the Court. We may, however, observe that mere inclusion of such a requirement in the prospectuses of other medical colleges would not, by itself, tend to validate the rule impugned before us. Turning now to the submission made by the learned Advocate-General that the High Court did not have the jurisdiction to order the creation of an extra seat for the benefits of the respondent, we find that this question already stands decided by the Court in Chairman, Selection Committee, Bolan Medical College v. Miss safia Hameed, etc. in which it was held that: - "The High Court had no lawful authority under Article 199 of the Cons titution in thus interfering with the internal management of the Bolan Medical College by the authorities, and issue any such directions to them. Strictly speaking, it was entirely for the College authorities to see how best to comply with the lawful directions issued by the High Court in the exercise of the jurisdiction vested in it under Article 199 of the Constitution and provide a seat to respondent No, I to which she was declared entitled. Beyond that, it was for the College autho rities to devise ways and means in making any suitable consequential changes as a result of the judgment, with due regard to the circum stances of the case." In Civil Appeal No. Q-3 of 1980 (Province of Baluchistan and others v. Abdul Khaliq and others) recently decided by another Bench of this Court, this view has been endorsed. Nothing was said at the Bar on behalf of the respondent in derogation of this view, and accordingly, we would respectfully follow the same, and hold that the correct legal position is that, in the exercisel of its constitutional jurisdiction, the High Court has power to order the creation of extra seats for particulars session in medical, or, for that matter in other professional colleges and it should confine itself to determining the question of eligibility of the petitioner before it. However, once a finding is recorded by the High Court that a candidate was unlawfully deprived of admission to a particular session of the medical college concerned, then as a consequence, that candidate is entitled to one of the existing seats, of which he was deprived. Strictly speaking, therefore, an extra seat does not have to be created to accommodate the candidate, who was lawfully entitled, in the first instance; and accordingly, no such direction is necessary for his benefit. An extra seat may have to be created as a conse quential arrangement to accommodate the candidate, who was wrongly taken in place of the lawfully entitled candidate, and would not have been admitted if the proper decision had been taken in the beginning. But this is, indeed, a matter which rests with the internal management of the College. It was no doubt in recognition of these considerations that in the case of Miss Safia Rameed, referred to above, this Court was constrained to observe that :- "The unhappy situation in which the affected students appearing before us are placed, arose because of the erroneous and unsustainable order passed by the Selection Committee m the first instance. The responsi bility for it solely lies on them for no fault on the part of these students. In the fitness of circumstances, the College authorities while making consequential changes in providing the seat to respondent No. I in compliance with orders passed by the High Court, should be guided by humane considerations not to do injustice or incalculable. Wrong to the others for no fault on their part. These are mere guide lines for the benefit of the College authorities to follow in the exercise of the lawful discretion vested in them." Having thus clarified the legal position, we may now consider what should have been the proper order for the High Court to make in the circum stances of this case, It was, indeed, for the College authorities to make suit able arrangements to implement the declaration given by the High Court as to the entitlement and eligibility of the respondent. However, a complication had arisen owing to the fact that the first year of the 1978 session was over by the time the case came to be decided by the High Court. In the peculiar cir cumstances of the case, the High Court's direction to admit the respondent to the first year of the 1979 session was eminently just and proper, and we are not inclined to interfere with the same on a technical ground. Before parting with this case, we would like to observe that the unhappy situation, which arose in this case, and which frequently keeps on arising in other cases, and in other provinces as well, could certainly be avoided if the High Courts were to make an imperative rule that writ petitions relating to the G admissions to professional colleges shall be given priority, and decided, without delay, during the currency of. the sessions to which they relate. In the light of our own judicial experience we see no difficulty at all as to way such petitions cannot be disposed of in a few weeks time after giving due notice to all concerned. We would like to express the hope that the High Courts will keep this imperative requirement in mind while dealing with such matters. With these observations, the appeal is disposed of, and the parties are left to bear their own costs. Appeal dismissed.