1992 PLP 777 (MLD)

SYED ABDUR REHMAN, J: ‑‑Mona Batool and Mukaram Anis Shaikh have respectively filed these two Constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan.

2. The petitioners had passed Intermediate Examination from the Board of Intermediate Education, Karachi in 1989. Mona Batool secured 760 marks, while Mukaram Anis Shaikh secured 750 marks out of 1100 marks and thus were eligible for admission into 1st year M.B.B.S. and B.D.S. Class in any one of the Medical Colleges run and managed by respondents Nos. 1 and 2 at Karachi against and. District and merit seats. In response to a notice issued in the newspapers dated 19‑1‑1990, the petitioners applied for admission into the 1st year M.B.B.S. Class on the prescribed application forms alongwith the required documents in accordance with the procedure prescribed. The prospectus issued by the Government of Sindh, Health Department for M.B. B.S./B.D.S. for Medical Colleges of Sindh Province, 1989‑90 mentioned in Chapter‑II that there were 500 seats on merit for the District of Karachi. Out of them 301 were for boys and 209 for girls. Besides this there were'8 seats for boys and 2 seats for girls on general merit. In addition to the above 14 seats were reserved to be nominated by the Chief Minister, 10 seats for children of Defence Forces Personnel to be nominated by Ministry of Defence, 18 seats for children of Medical Doctors, etc. The petitioners had filed Constitution Petition Nos.D‑225 of 1990 and 265 of 1990. A Division Bench of this Court, following the judgment of Supreme Court in the famous case of Shirin Munir v. Government of Punjab reported in PLD 1990 SC 295, accepted their petition and struck down Rules 1 and 2 of the Prospectus issued by the Health Department to the extent of allocating seats on the basis of sex and directed that the petitioners be granted admission in the First Year M.B.B.S., on the basis of open merit list in anyone of the co‑education Medical Colleges, if. entitled. The decision is reported in PLD 1990 Kar.

342. In spite of the above decision, respondent did not give admission to the petitioners. The petitioners have alleged that although in the open merit seats the last candidate, who was admitted, had more marks than the petitioners, but alleges that amongst the candidates, who were given admission against the reserved seats, there were students., who had secured less number of marks as compared to the petitioners. Out of them one was Shaukat Mirza, who had secured only 562 marks, while the other was Humera Majid, who had secured less than 60% marks. Hence the petitions with the following prayers:‑‑‑ "It is, therefore, prayed that this Honourable Court may be pleased to:‑‑‑ (a) declare all the admissions into Dow Medical College and Sindh Medical College, Karachi with lower mark, than that of the petitioners are liable to be cancelled or in the alternative to declare the petitioners are entitled to be admitted into any of them forthwith without loss of the session keeping in view also the fact that there are more seats available for admission therein; (b) declare the rules contained in Chapter 11 (I11)(c) 1 & 2, (d) and (g) pertaining to Dow Medical College and Sindh Medical College at Karachi of the aforesaid Prospectus to the extent of allocating, reservation of seats there against being void, without lawful authority and of no legal effect. (c) order the respondents Nos. 1 and 2 to strike down the said rules under Article 8 of the Constitution of Islamic Republic of Pakistan: (d) direct the respondents, specifically the respondent No.2 to admit the petitioners in any of the medical colleges mentioned above forthwith so that she may not suffer the loss of session for no fault of her; (c) to take appropriate action against the respondents Nos. 1 and 2 for showing disrespect to the relevant judgments mentioned above and for compelling the petitioners to knock at the door of this Hon'ble Court once again with mental as well as physical torture; and (f) to grant costs of this petition to the petitioners."

3. Respondents Nos.1 and 2 filed parawise comments in which averments made in the petitions were generally admitted. It was claimed that the admissions against merit seats were made strictly on merit basis. However, admissions against reserved seats were made on the recommendations of nominating agencies according to rules of admissions published in the Prospectus. The seats reserved for all the categories i.e. children of Medical Doctors, Defence Forces Personnel, Foreign Nationals, Azad Jammu and Kashmir, FATA and Northern Area and nominees of the Government/Chief Minister were allocated under the orders/approval of the competent authority. List of candidates admitted on the reserved seats has been filed which shows that amongst others Shaukat Mirza, who had secured 526 marks, has been admitted on the nomination of the Chief Minister. The name of Humera Majeed, however, does not find place in this list.

4. We have heard Mr. Abu Tahir Mehmood, Advocate for the petitioners, Mr. A.A. Muhammad Ali, A.A: G., Mr. Muhammad Jamil, Advocate and Mr. Mirza Abdul Rasheed, Advocate for the respondents.

5. It was contended by Mr. Abu Tahir Mehmood that the Prospectus and rules regarding admission issued by the Government of Sindh was ultra vires of the Constitution and had no statutory authority. It did not have the force of law. It was against the principles of natural justice, equity and common sense and therefore, it was liable to be struck down. He relied upon the case of. Khalid Sher v. Principal and Chairman, Academic Council, Selection Board and others reported in PLD 1987 Kar.

255. The reported case related to refusal of admission to a candidate on a seat reserved for District Khairpur on the ground that the mother of that candidate had domicile of Shikarpur District and did not have domicile of Khairpur District, although the candidate and his father did have such domicile. The Division Bench, of which one of us (Syed Abdur Rahman, J.) was a member, was of the view that the candidate was a minor and as such his domicile followed that of his father. The fact that after the death of his father, his mother married another person and thus changed her domicile, would not make any difference. It would also not be out of place to mention that the candidate was refused even a seat reserved for. Shikarpur on the ground that his father was not domiciled in that District. Hence the Court took notice of this gross injustice and observed that it was like proverbial saying "Heads I win, Tails you lose". The statutory authority of the Prospectus was questioned because it was not purported to have been issued by any authority in exercise of any power vested in such authority under any statute. The reported case is obviously distinguishable from the present case, because the domicile of the petitioners is not disputed.

6. It may be pointed out that after the reported decision, fresh Prospectus was issued on 9‑12‑1989, which was purported to be issued in pursuance of the provisions of section 3 of Sindh Medical Colleges Act, 1987 by the Government of Sindh and thus the objection of its being without any statutory was eliminated. It is this Prospectus which is being challenged by the petitioners, but they have not been able to show as to how it is ultra vires of the Constitution. The Prospectus was also referred to in PLD 1990 Kar. 342 (Farhat Jaleel v. Province of Sindh) and has been held to be valid and legal and not ultra vires the Sindh Act V of 1987. Mr. Abu Tahir Mehmood then referred to Articles 22(3)(b) and 25(1) of the Constitution of Islamic Republic of Pakistan which read as under:‑‑‑ "

22. Safeguards as to educational institutions in respect of religion, etc.‑‑‑ (1) ... ... ... ... ... (2) ... ... ... ... (3) Subject to law,‑‑‑ (a) ... ... ... ... ... (b) 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. (4) Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens. (23) ... ... ... ... ... ... , (24) ... ... ... ... ... ...

25. Equality of citizens.‑‑‑ (1) citizens are equal before law and entitled to equal protection of law. (2) ... ... ... ... ... ... (3) ... ... ... ... ... He also referred to Articles 33, 37 and 38 of the Constitution. It will be useful to reproduce these Articles as well, which read as under:‑‑‑ "

33. The State shall discourage parochial, racial, tribal, sectarian and provincial prejudices among the citizens. 34. ... ... ... ... ... 35. .. ... ... ... ... 36. ... ... ... ... ... 37, The State shall, (a) promote, with special care, the educational and economic interests of backward classes or areas; (b) ... ... ... ... ... ... (c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit: (d) .., ... ... ... ... ... (e) ... ... ... ... ... ... . (f) enable the people of different areas, through education, training, agricultural and industrial development and other methods, to participate fully in all forms of national activities, including employment in the service of Pakistan. (g) .... .... .... .... .... .... .... .... (h) .... .... .... .... .... .... .... .... (i) .... .... .... .... .... .... .... .... He contended that the above Articles make it obligatory upon the respondents to see that 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, as has been provided in clause (b) of sub Article (3) of Article 22 of the Constitution. He has alleged that the petitioners were denied admission, although those having lesser marks were nominated by Government and granted admission due to discrimination on the ground of. place of birth. Hence there is a clear violation of the Constitutional provisions. As against this, Mr. Mirza Abdul Rasheed, learned counsel for the respondents submitted that the reservation of seats mentioned in the Prospectus is not violative of the Constitution of Islamic Republic of Pakistan. He pointed out to Sub‑Article (4) of Article 22 which makes it quite clear that nothing in this Article shall prevent any public authority from making provision for advancement of any socially or educationally backward class of citizens.

7. Mr. Abu Tahir Mehmood then referred to sub‑Article (1) of Article 25 of the Constitution and contended that since, according to this provision, citizens are equal before law and entitled to equal protection of law, hence no discrimination whatsoever can be made by the respondents in the matter of granting admission to the candidates. Any such discrimination would amount to violation of the above provisions. Mr. Mirza Abdul Rasheed, Advocate for respondent No.3 submitted that Article 25 of the Constitution is also controlled by sub‑Art. (4) of Article 22 and therefore, the respondents could not be prevented from making provisions for the advancement of any socially or educationally backward class of citizens, as has been done in the Prospectus of Medical Colleges

8. Referring to Article 33 of the Constitution, Mr. Abu Tahir Mehmood contended that it was incumbent upon the State to discourage parochial, racial, tribal, sectarian and provincial prejudices amongst the citizens, while the prospectus by making reservation for different classes of citizens and empowering the Government to nominate candidates was encouraging such prejudices as have been mentioned above. He also referred to clause (c) of Article 37 of the Constitution which makes it incumbent upon the State to make technical and professional education generally available and higher education equally accessible to all on the basis of merit. To this also Mr. Mirza Abdul Rasheed submitted similar reply. Reliance was placed by Mr. Mirza Abdul Rasheed on the Division Bench decision of this Court in the case of Miss Samina Nighat v. P.R.C. Appellate Tribunal and 3 others (PLD 1983 Kar. 324). In this case it was held by the Division Bench consisting of Mr. Justice Fakhruddin Shaikh and Mr. Justice Ajmal Mian (as they then were) as follows:‑‑ "

9. It has on the other hand been contended by the learned Additional Advocate‑General Mr. Muhammad Ibrahim Memon that these rules, have not been framed in exercise of any statutory powers but they are intended Government policy in respect of allocation of quota of seats to different Districts in respect of admissions in Medical Colleges. The Prospectus of the Medical Colleges has prescribed different quotas for students having permanent residence in various Districts of the Province. Now in order to implement the provisions of the Prospectus regarding allocation of quota the Government has to form policy so as to determine the qualifications of the competing candidates from each District for the purpose of selecting those who are most eligible. It is for this purpose that the rules have been framed. Strictly speaking the P.R.C. Rules are not statutory rules. They have been issued in exercise of executive authority vested in the Government in respect of framing policy. We are inclined to agree with the view convassed by the learned Additional Advocate‑General and also supported by Mr. Shaikh Haider learned counsel for respondent No.3. In support of this view reference has been made to the case of Sajjad Raza and 3 others v. Commissioner, Quetta Division and others PLD 1973 Kar.

332. In this case also the question of framing rules by the Government under its executive authority for the purpose of admission to educational institutions was under consideration. Mr. Fakhruddin G. Ibrahim, J, who delivered judgment of the Division Bench observed as under about the executive authority of the Government to issue rules in this behalf:‑‑ `

21. With these observations I find myself in entire and in respectful agreement. If an institution is owned and controlled by the Government then obviously the executive authority of the Government is available for laying down any policy or 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 College. The relevant part of the instructions, however, with which we arc concerned in this 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'. We are in full agreement with the view taken in the above case. The P.R.C. Rules are nothing but administrative instructions for the guidance of the authorities concerned for the purpose of determining eligibility of candidates applying for scats in Medical Colleges from various Districts in conformity with the quota allocated by the prospectus of the Colleges. We, therefore, hold that the P.R.C. Rules, which have been subject‑matter of consideration in various. decision of the Supreme Court and High Court for the last 10 years and are still holding the field and never before vires of the rules was challenged on the ground that the Governor was not competent to issue the same."

9. Mr. Abu Tahir Mehmood submitted that by refusing admission to the petitioners, who had secured 760 and 750 marks respectively, and by granting admission to Shaukat Mirza, who had secured only 520 marks, and Humera Majid who was also a Second Division, Respondents Nos.1 and 2 have ignored merit in the matter of admission to the Medical Colleges and have also discriminated. In this connection he relied upon the case of Shirin Munir and others v. Government of Punjab reported in PLD 1990 S.C. 295 and the Division Bench decision in Miss. Farhat Jaleel and others v. Province of Sindh and others reported in PLD 1990 Kar. 342 In these cases certain female candidates had challenged the denial of admission to them on the seats of open merit reserved for boys, although they had secured higher marks than some of the boys, who were admitted on such scats. It was held that discrimination on the ground of sex was permissible only when it was for providing protection to the females, but it could not be reserved so as to provide protection to the males at the costs of females. These rulings also, therefore, do not help the petitioners. The petitioners' counsel then referred to the case of Miss. Khola Jabeen and 2 others v. Government of N.‑W.F.P. reported in PLD 1976 Pesh.

97. In the reported case Miss Khola Jabeen and 2 others sought the order of the Court on the ground that while they were First Division, the Government had nominated four candidates, who were Second Division and as such the nomination was not only mala fide, but highly capricious against all canons of justice, equity and good conscience and also in violation of Article 22 of the Constitution. A Division Bench of Peshawar High Court consisting of Abdul Hakeem Khan and Abdul Ghani Khan Khattak, JJ. referring to nominations made by the Government held as follows:‑‑ "

7. It is true that in paragraph 9 of the prospectus the word `nomination' has been used, but this does not mean that the Government can act despotically and throw the rules of equity, justice and good sense to the winds. Even in respect of purely administrative acts there is a duty to act justly, fairly and reasonably, and if the concerned authority failed, such order would be invalid in law. 8. . .... ... .. .. .

9. Be that as it may, in the instant case a look at the Prospectus of 1974 75 will show that the authorities concerned laid much emphasis on merits and that it was never the intention of those who made the prospectus to allow the nominating authorities to disregard merit in such a way that Second Division should be preferred over the First Division. If the Government of Azad Kashmir and for that matter other Provincial Governments were given power to nominate candidates from their respective regions, this does not mean that these Governments could act arbitrarily and in utter disregard of the criteria for admission and rules for working out merit of candidates' . ....

10. AA.‑G. has filed the list of candidates, who have been given admission on various reserved quotas. It shows that there were three candidates, who were admitted against the quota of Defence Forces Personnel and 8 candidates on the quota reserved for children of Medical Doctors in Dow Medical College, Karachi. Another list has also been filed which shows that 9 ,candidates belonging to seats reserved for Doctors' children, 2 on reciprocal seats and 3 on Army seats, were admitted in Sindh Medical College.

11. The petitioners have not challenged the scats reserved for the children of Defence Forces personnel, Medical Doctors or Reciprocal scats. Even otherwise, since they do not claim that they belong to either of these categories, therefore, they cannot claim preference over any one of these reserved seats. Besides the above reserved seats the lists also show that 10 candidates were nominated for admission in Dow Medical College and 7 in Sindh Medical College by the Chief Minister. Of them one is Shaukat Mirza Respondent No.3, who has secured only 562 marks. It is complained by Mr. Abu Tahir Mehmood that no reasons whatsoever for these nominations have been given by the Chief Minister. Even marks secured by candidates nominated for Sindh Medical College are not shown. The order of Chief Minister granting admission to Humera Majeed in People's Medical College, Nawabshah has been produced by Humera Majeed herself along with her application. It also contains order granting migration to her from Peoples Medical College, Nawabshah to Dow Medical College, Karachi. It is, therefore, quite clear that both Shaukat Mirza and Humera Majeed have been nominated by the Chief Minister for admission to co‑education college of Karachi. We find that no reasons whatsoever have been given in the orders nominating candidates in the reserved quota of the Chief Minister, nor even the same are shown in the parawise comments. Since against these reserve scats nominations arc to be made by the Chief Minister for special considerations, it is incumbent that such special considerations for nominating the candidates, particularly for those having conspicuously low number of marks, should be given, so that the sane could be subjected to judicial scrutiny. We would like to observe that the constitution casts a duty on the Government in power to take equal care of all the sections of people of the province. It fails in its duty, if it confines its favours to its nears and dears or to those, who vote for it. Propriety, therefore, requires that the Government should invite applications from the candidates for nominations against this reserved quota. i ~1 It is also incumbent upon it even while passing such purely administrative orders to act justly, fairly and equitably. Otherwise the order would be mala fide and liable to be struck down. We would, however, not dilate any further on I this point as we find that the petitions are incompetent and not maintainable, as is shown hereinafter.

12. The petitioners do not claim to have applied for being nominated by the Chief Minister against reserved seats. Perusal of the list of candidates, who were nominated by the Chief Minister for special considerations on behalf of the Government for admission against seats reserved under Item III (i) of Chapter II of the Prospectus would show that there are three candidates, whose marks are less than that of the petitioners and even less than that of Shaukat Mirza. They are:‑‑ Sr. No: Name. Numbers secured.

9. Miss Sofia ‑529

10. Miss Najma Khatoon. ‑501

11. Sohail Ahmad Usmani ‑501 The marks secured by Shaukat Mirza are

562. He is on a better footing than the above three candidates. As such if any persons, who were to be affected, if the petition was allowed, were these three as they had secured the lowest marks, yet they were nominated. But the petitioners have not made them party in the petitions and thus the petitions are bad for non‑joinder of necessary parties. No adverse order can be passed in the absence of such candidates, particularly when they have completed one year. The petitioners. were provided the complete list of such students well in time by the Government under the direction of the Court. It was obligatory upon the petitioners to have joined all such persons, who were likely to be affected in case the p<.titions were allowed, but the petitioners have deliberately failed to join such person; as parties to these petitions. Hence the petitions are liable to be dismissed on this score alone. 13 In their prayer clause the petitioners have not challenged the admissions made on the nomination by the Government to be made by Chief Minster for special consideration under Chapter II (III) (h) (i) of the Prospectus. The petitioners have challenged the admission under rules under Chapter 11, Items (111) (d) R (g) in both their petitions. in this respect para‑2 of the Ground‑, from each petition was referred. Therefore, the admission of Shaukat Mirza is not affected. Prayer clause (b) of both the petitions was also referred which does not speak about Chapter 11 (11I) (h) (i) of the Prospectus under which Shaukat Mirza was given admission and as such the petitions are liable to be dismissed on this ground also.

14. Moreover, the petitioners had earlier filed Const. Petitions Nos 7.25 of 1990 and 265 of 1990 against rejection of their admission, but they had nut asked for relief against reserved scats a5 is clear from the petition, although such reliefs were available to them. Therefore, both these petitions are barred under Order I1, Rule 2, C.P.C. Reliance is placed in the case of Abdul Habib etc. v. Mst. Anwar Sultan, etc. reported in 1987 CLC 895 where it was held that a prayer which is left out in a suit or application cannot be made in a subsequent suit or application, in view of bar under rule 2 of Order 11 and principle of res judicata under section

11. C.PC. 15 Respondents Shaukat Mirza and Humera Majeed have completed one year in the college if the petitioners are given admission in place of respondents Nos.3 and 4 in the college now, one year of the respondents will be wasted. At the same time the petitioners will not be able to complete their attendances Therefore, the cancellation of admission given to Shaukat Mirza and Humera Majeed is likely to create complications.

16. We therefore, dismiss both these petitions. We would, however, direct that the Chief Minister would also consider the case of the petitioners for the nomination in this session or in the next session before nominating persons, who have secured lesser marks than the petitioners. H.B.T./M‑1570/K Petitions dismissed.