P L D 1976 Karachi 1248 (PLP)

FAKHRUDDIN G. EBRAHIM, J.--The petitioners are Science Under Graduates and being eligible applied for admission to the Dow Medical College for the academic year 1975-76. The common grievance in these petitions is that in determining their entitlement the College Authorities have denied to them the concession of 20 marks available to the petitioners in terms of section 29 of the National Guards Act, 1973, as amended by Ordinance IV of 1975. The amended section 29 reads as follows :- "

29. Concession.-A person who has either successfully completed the training, or, having successfully completed 4ot less than 75 %. of the total training periods, is still undergoing training- (c) he shall, for the purpose of admission to any institution of advanced studies, be awarded twenty marks in addition to the marks obtained by him in the examination held for the purpose of such admission or, if no such examination is held, in the examination on the basis of having qualified in which he seeks such admission."

2. Clause (c) of rule 2 of the "Rules for working out merit of Candi dates" in the Prospectus for the Medical Colleges in Sind for the year 1975-76 also provides that :- "2(c). Add 20 marks for services rendered under `National Cadet Corps Scheme', subject to the production of a certificate as declared in Act LXI of 1973, 'National Guards Act, 1973' and 'National Guards (Amendment)' amended in Act, 1975. "

3. The petitioners' case is that they were possessed of requisite certificates of completion of their training under the National Guards Act and they were therefore, both under the said Act as well as the Prospectus entitled to the additions of 20 marks. The prayer in the petitions is for the petitioners admission to the Dow Medical College after giving them the benefit of 20 marks, but the learned counsel for the parties agreed that since the College Authorities have not applied their minds to the certificates of training it will suffice if the petitioners are granted limited declaration as to their entitlement to 20 marks, leaving it to the College Authorities to examine each of the petitioners' case on its individual merits.

4. Mr. Nasir Zahid, the learned counsel for the petitioners firstly addressed us on the question of the Prospectus and its aforementioned provision for addition to 20 marks and went on to argue that rules for admis sion contained in the Prospectus were binding and legally enforceable. The learned counsel referred to us to a Division Bench decision of our own Court reported in Sajid Raza and another v. The Commissioner, Quetta Division (P L D 1973 Kar. 332), in which it is observed that :- "If an institution is owned and controlled by the Government then obviously the executing authority of the Government is available for laying down any policy of framing rules. The Prospectus before us of course contains a lot of matter which can hardly be regarded either as laying down policy or framing rules, as for instance, it gives a list of the persons who have been employed as Professors in the College. The relevant part of the instructions however, with which we are not con cerned in t1his case are clearly laid down in precise language of sufficient generality to amount to rules. For this reason I have come to the conclusion that the instructions in question were, in law, binding."

5. Mr. Akhtar Mahmood the learned counsel for some of the respon dents students while not disputing the binding character of the Prospectus contended that the Prospectus should be read as a whole including the reservation contained therein, empowering the Provincial Government to modify or amend it from time to time and that such variations are expressly binding on all concerned. The learned counsel referred to the paragraph 7 in Constitutional Petition No. 274 of 1976 which reads as follows:- "That it appears that a few days ago some decision had been taken by the official respondents including the Government of Sind whereby it was arbitrarily decided that P marks added for services rendered under the National Cadet Corps Scheme should not be accounted for the purpose of working out the merits of the candidates." and argued that it is the petitioners own case that the Prospectus stands amended by the above decision and since it is, conceded that such a power is available to the Provincial Government, the petitioners were not entitled to the addition 'of 20 marks. I am not inclined to non-suit the petitioners on the basis of the aforementioned averment contained in para. 7 for this petition and other petitions read as a whole clearly and emphatically make a grievance that the College Authorities have ignored the provision in the Prospectus providing for addition of 20 marks. I may add here that the official respondents have not filed any counter-affidavit and it was not even argued before us by the learned Assistant Advocate-General the Prospectus has been amended. The learned Advocate-General, however, did invite our attention to a letter dated 19th March 1976, from Additional Secretary Health to the Principals of Dow, Liaquat and Chandka Medical Colleges which letter reads as follows :- "Under orders from Chief Minister it has been decided that candi dates of all categories who qualified Int. Sc. in 1975 examination shall be considered for admission. Besides it has also been decided that as the N. C. C. facilities are not provided in all the Colleges the decision for award of N. C. C. marks is held in abeyance for this year. Schedule caste candidates shall be considered as minorities"

6. Notwithstanding the production of the above letter, the learned Advocate-General expressly disclaimed that the Prospectus had been amended. In the circumstances it would be reasonable to conclude that the provision in the Prospectus regarding 20 marks will have to be given effect to, for, before us at least, it is not the case of the Provincial Government that have deleted this provision from the Prospectus.

7. Coming to the other contention based on section 29 of the National Guards Act, 1973, I find that the petitioners are on firmer ground in claiming their entitlement to 20 marks.

8. It is clear to me from the plain reading of the section, except for the slight ambiguity to which I will presently revert, that the members of the National Cadet Corps who have successfully completed training or having successfully completed not less than 75 % of the total training periods and are still undergoing that training, are entitled to addition of 20 marks in the Intermediate Science or B. Sc. examinations being the examination which qualify them to seek admission in a Medical College. The contention of the learned Assistant Advocate-General and the learned counsel appearing for the respondent students was that this concession is available only when admission is sought to an 'institution of advanced studies", and a profes sional college like the Medical College cannot be said to be an institu tion of advanced studies. The contention was that this concession is limited to Post-Graduate Courses of studies. The expression "institution of advanced studies" is not defined in the Act. The learned Assistant Advocate-General, however, conceded that this expression is capable of wider connotation so as to include therein a professional college but he contended that a stricter view should be adopted for the petitioners are seeking benefit of a concession not ordinarily available to other students. The learned counsel invited our attention to a decision reported as Munawar Ali v. Secretary to the Government of Punjab and others (P L D 1975 Lah. 544), in which the Court in another context observed as follows :- "The National Guards Act, 1973, by the provisions contained in its section 29 confers exceptional privileges on the personnel who receives training in National Cadet Corps. These concessions correlatively trench on general rights of the citizens of the country. And rights, whether public or private, cannot be hampered by mere implication from the language used in enactment and, therefore, the National Guards Act which on the one hand gives different kinds of concessions to a particular class of persons, on the other effects to the same extent, the rights, advantages and privileges having accrued to a greater number of citizens in the ordinary course of things, has to be construed strictly ; nothing can be holden to come under its operation that is not expressly within its letter and spirit."

9. In all humility I am, in some measure, in doubt as to the view taken 4bat section 29 of the Act confers privilege. As its worst it is a well-earned and well-merited privilege following a strenuous period of training in the National interest. Be that as it may, I, for a more decisive reason, am of the view that a Medical College is included in the expression "an institution of advanced studies", for, the Prospectus for Medical Colleges in Sind itself, as aforesaid, makes a provision for addition of 20 marks to the total marks secured in Intermediate Science or B. So. examinations for services rendered ,under "National Cadet Corps Scheme". In the circumstances it is not open to the Provincial Government to urges that a Medical College is not an institution of advanced studies for the purpose of the said Act

10. Faced with this situation the learned Assistant Advocate-General went on to argue that Prospectus cannot vary or alter the letter of the law as contained in section 29 of the Act and should, therefore, be ignored. I am, however, unable to see any conflict between the Act and the Prospectus for the Act does not define an institution of advanced studies which in its wider connotation would also include a Medical College and the Prospectus merely .confirms this wider import. It may be noted here that Prospectus has been issued by the Government of Sind who have reserved for themselves the power to modify or amend it from time to time and such variations are expressly binding on all concerned. Even if I were to hold that the Chief Minister's instructions contained in letter dated 19-3-1976, reproduced above, -had the effect of amending the Prospectus, it is significant to note that the purported withdrawal of the concession of 20 marks is limited to the year 1975-76 and is not based on the ground that a Medical College is not an institution of advanced studies.

11. The learned Assistant Advocate-General next argued that section 29 .contemplates addition of 20 marks in an examination in the nature of a test held by the institution in which the admission is sought and not to qualifying .examination, in this case intermediate Science Examination, which makes an under-Graduate in Science eligible to seek admission to a Medical College. Originally under the unamended -section 29 10 % marks were to be added in an examination held for the purpose of admission to an institution of advanc ed studies, which examination, it is obvious, could have been in the nature of a test oral or otherwise. It is the amending Ordinance which makes it clear that if no such examination is held by the college in which the admission is sought, 20 marks shall be added "in the examination on the basis of having qualified in which he seeks such admission". The quoted words are not happily worded but they certainly do not refer to an examination in the nature of a test held by the admitting College. The amendment it may be noted was introduced subsequent to the judgment of the Lahore High Court, referred to above, in which the contention that was repelled, and rightly so, was that the original section provided for addition of certain marks in the examination held for the purpose of admission to an institution of advanced studies and not to the qualifying examination, namely, Intermediate Science. It was with a view to extend the benefit of the addition of 20 marks to the result .of the qualifying examination that the amendment was made to section 29 of the Act. The learned counsel for the non-official respondents contended that the aforesaid words were wholly incapable of bearing any rational mean 4ng and, should therefore, be ignored. The well-settled rule of interpretation however, is that Courts must make every effort not to make redundant any part of the statute and must if necessary stretch the language so as to give it some meaning justified by the context in which such-words appear and the object in view before the Legislature. I am clear in my mind, though the aforesaid quoted amendment appears to be grammatically incorrect, it is quite clearly capable of being understood as referring to the qualifying examination which entitled a student to seek admission to a Medical College which in the present case would be the Intermediate Science examination.

12. Mr. Imam Ali Kazi, the learned counsel for some of the respondent students challenged the validity of section 29 of the said Act on the ground that it violated the Fundamental Rights enshrined in Articles 22 and 25 of the Constitution. With reference to Article 22 the argument was that it guaranteed that no citizen shall be denied admission to any educational, institution receiving aid from public revenue on the ground only of race, religion, caste or place of birth, the only exception being that provisions can be made for advancement of any socially or educationally backward class of citizens and, therefore, the argument was, that in matters of admission there can be denied by law only if such denial becomes necessary for the advancement of any socially or educationally backward class of citizens and not otherwise. The learned counsel is quite clear in error in the understanding of Article 22 for all that it provides for is that in the matter of admission to, an educational institution there shall be no discrimination on the ground, of race, religion or caste or place of birth but if such discrimination results from a provision in law made for the advancement of any socially or educationally backward class of citizens such a law will not, by reason of' its clause (4) violate the right guaranteed by Article 22(1). There is no justification for reading clause (4) of Article 22 as limiting the powers of the Legislature to control any other type of provision or reservation which may be made in the matter of admission to an educational institution.

13. Coming to Article 25 of the Constitution which gives equal protection of law to all citizens the argument was that section 29 of the Act; discriminates between students who have obtained training under the National. Cadet Corps Scheme and the students who have not, inasmuch as upon the former is conferred the benefit of 20 marks. In other words, the contention was that this discrimination denies equal opportunity to compete for the admission in an institution of advanced studies on merits. Equality before law does not and cannot mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. In the celebrated words of Jennings-"Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated as alike." The right, guaranteed under Article 25 is a right to equal treatment in similar circumstances. In other words, there should be no discrimination between one person and the another if as regards the subject-matter of the legislation their position is the same. In the application of these principles, to quote our Supreme Court in the case reported a Jibandra Kishore etc. v. Province of East Pakistan (P L D 1957 S C (Pak.) 9), "It has, however, always been recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation." It follows, therefore, that if the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. The equal protection clause, therefore, does not forbid discrimination with respect to things that are different. Applying these principles can it be said that the classification of students who had obtained training as National Cadet Corps and those who have not is a unreasonable classification ? The two are quite obviously distinct an distinguishable classes ; it is not a case of arbitrary selection but a reasonable classification. The next question that arises is whether there is any reasonable justification for treating those who had taken training under the National Guards Act for the purpose of admission to an institution of advanced studies by giving them a grace of 20 marks ? Mr. Shahenshah Hussain, the learned counsel for one of the respondent-students vehemently argued that there is no nexus between the training obtained by a student under the said Act and his admission to an institution of advanced studies and, therefore, the classification does not bear fair and substantial relation to the object to the Act. The learned counsel relied on an American decision reported in George Marallis v. City of Chicago (83 A L R 1222). In this case the question was whether or not there was reasonable basis for extending to honourably discharged soldiers and sailors as a separate class the privilege of peddling and vending the marchandise in a municipality without a licence. The majority judgment came to the conclusion that service as a soldier or sailor and the receipt of an honourable discharge cannot bear any relation to the business of pedlar as defined by the law under consideration and there was no difference between the present conditions and circumstances of such veterans and those of other citizens regarding the relations to the law or the attempted classification which was, therefore, not based upon any reasonable grounds. The minority dissenting view of no less than three Judges was expressed in the following words :- "A very great majority served in the late War were between the ages of eighteen and thirty-one. They were in the formative period of their lives. It is at such a time that young men make their vital preparations for occupational and professional careers. But the war definitely interrupted their studies, vocations, and businesses. The men of similar ages who remained at home enjoyed exceptional and un precedented opportunities for gainful employment. The soldiers came home handicapped by absence from business and schools and burdened with the baneful effects of tremendous inflation of values which set in soon after their discharge. Under the circumstances it seems apparent that they constituted a distinct class quite competent to be distinguished from the rest of our citizenry in matters of legislation-a class created by their defence of country and the consequent deprivation of opportunity which had been open to others."

14. In the present case in my humble view there is quite clearly a relation between the military training obtained by the students and their admission to an institution of advanced studies. We have for long clamoured for compulsory military service for students. National Guards Act, 1973 is in fact an admirable effort to encourage young men to obtain military training and thereby not only become disciplined citizens but be equipped to answer the call of the Nation in case of emergency. The training and the discipline acquired under the Act will have considerable influence on the acquisition of higher knowledge. A disciplined mind and an able body are vital possession in pursuit of higher knowledge, say, the life itself. If, therefore, the act with a view to encourage the students to obtain military training gives an incentive not only in the larger interest of the country itself, but to better equip such students to pursue their further studies, it cannot be said that there is no nexus between the classification made and the object sought to be attained.

15. It was next contended in relation to Article 25 that section 29 of the Act is in its administration or enforcement discriminatory. The contention was based on the fact that N. C. C. course were available in a limited number of science colleges and even in these colleges some students were either by reason of minority or lack of requisite physique or non-availability of vacancy unable to join the N. C. C. course. As to the latter there is no substance inasmuch as it has been conclusively established by oral evidence before us of Major Shahid Mahmood that no such student who had applied for joining N. C. C. course had been denied admission. As to the argument that this facility of N. C. C. course was not available in certain colleges and its students were, therefore, deprived of the opportunity of obtaining necessary training apart from the fact that if a law in its application results in discrimina tion in a few stray cases, it will not amount to discriminatory administration of the law, the short answer is that nothing prevented the students from joining Science colleges where such training facility was available if they wanted to take the training under the National Cadet Corps Scheme and obtain the benefit of 20 marks. It is not even the-case of the respondents-students that they were prevented from joining such colleges. Nobody can be heard to complain about a self-invited impediment.

16. Finally, Mr. Shahenshah Hussain challenged section 29 of the Act on the ground that it trespasses upon the provincial field, namely. education. Even if I were to assume that this is a case of trespass upon the provincial G jurisdiction which does not appear to be correct for this legislation in view of item No. 38 of the Concurrent Legislative List was within the competence of the Central Legislature, the constitutional provisions contained in sub -clause (a) of clause (2) of Article 232 furnishes complete answer to the contention for it empowers the parliament while a proclamation of emergency is in force (as was the case here), to make laws for the province with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List as if it were a matter specified in para. 1 of the Federal Legislative List. The learned counsel argued that this provision enables the parliament to make laws for the provinces but not for the Federation and unless the law expressly states that it is made for a province or provinces, it is not one contemplated by the said Article

232. The argument is totally misconceived, for it is sufficient if the law so made extends to the provinces which is the case here.

17. The other aspect of the question to which our attention was invited is whether or not a student who has passed Intermediate Science examination in Second Division and whose percentage by addition of 20 marks is raised to more than 60 % will be entitled to admission to the Medical College in preference to a First Divisioner having lesser marks. The argument was that under the Prospectus First Divisioner in Intermediate Science Medical Group has the first preference ; a First Divisioner in B. So. with Intermediate Science in Medical Group, has the second preference ; and a Second Divisioner in Intermediate Science has the third preference, in selecting the candidates for admission and that these preferences cannot be ignored. In other words, a Second Divisioner entitled to the benefit of 20 marks will be higher in merit list in his own division but will not displace a First Divisioner. The answer is provided by the Prospectus itself which after giving the order of -preference as aforesaid, provides that :- "A candidate would be considered to have secured the Division that has been conferred on him/her or declared for him/her by the Board/University. However, the actual merit of the student within the Division awarded shall be fixed at the level of the adjusted marks according to the formula given in the following paras. " These paras are the Rules for working out Merit of Candidates, para. 2 of which states that addition of 20 marks shall not alter the Division of the candidate.

18. Mr. Khalid M. Ishaque, learned counsel for the petitioners contended that the Act in unqualified to me provides for addition of 20 marks to the result of the qualifying examination which must be given effect to notwith standing the provisions to the contrary in the Prospectus. The learned counsel would have been certainly right if there was irreconcilable conflict between the Act and the Prospectus. The Legislature was not unaware of the preferences created in the Prospectus, and that the adjustments by addition of marks will be made within the division secured by the student. In other words, the addition of marks will not jeopardise a genuine First Divisioner. If the Legislature intended that this provision in the Prospectus should not be given effect to it should have so affirmatively provided at least in the amending Ordinance. By the omission to so provide, the intention, to our mind, appears to be not to disturb the preferences which even otherwise appears to be fair and reasonable.

19. The result, therefore, is that the Science Under-Graduates who produce requisite certificate of training will be entitled to the addition of 20 marks and this will be adjusted, according to paragraph 4 of the Prospectus, in the division secured by them in the intermediate Science Examination. They will be competing against their fellow divisioners and cannot supersede a higher divisioner. The College Authorities will, therefore, examine individually the cases of the petitioners in the light of these observations after giving them an opportunity of being heard and produce such document or documents as they may chose to produce.

20. These petitions are disposed of in terms aforesaid with no order as to cost. ABDUL KADIR SHEIKH, C. J.-I agree. S. Q. Order accordingly.