P L D 1993 Karachi 83 (PLP)

NASIR ASI-AM ZAHID, CJ.-- This judgment will dispose of C.P. No.D-691 of 1992 filed by Shahab Matloob and C.P.No.D-1008 of 1992 filed by Yar Muhammad, as common questions arise for consideration in these petitions. In C.P. No.13-691 of 1992, respondent No.1 is the Government of Sindh; respondent No.2, is the Secretary, Education Department and respondents Nos.3, 4, 5 and 6 are Abdul Kadir Khan, Syed Adeel Haider, Amir Hameed Mirza and Muhammad aheed. In Petition No.13-1008 of 1992, respondent No.1, is Government of Sindh through Secretary, Education Department and the other four respondents a ' re the same private respondents as in Petition No.D-691 of 1992. We have heard Mr. Muhammad Aftab Alain, Advocate for the petitioner in Petition No.D-691 of 1992 and Mr.Nuruddin SarkL Advocate for the petitioner in Petition No.13-1008 of 1992. Mr. Syed Sarfraz Ahmed, Additional Advocate-General, Sindh, has appeared for the Government. For the private respondents in the two petitions, only Muhammad Waheed and Syed Adeel Haider are represented; the first by Mr. Ali Bakhsh Leghari and the second by Mr. Mushir Alain. Private respondents Abdul Kadir and Amir Hameed Mirza have not appeared. They have been called absent.

2. The Balochistan Engineering College, Khuzdar, has for the current academic session four (4) seats reserved for students from Sindh; two (2) from Urban Areas and two (2) from Rural Area's of Sindh. For each area, one seat is reserved for Mechanical Engineering and the other f6r Electrical Engineering. The students from Sindh for admission to the Balochistan Engineering College, Khuzdar, are nominated by the Sindh Government. For the current academic session, classes whereof are still to commence, the four (4) private respondents in the two petitions have been nominated by the Sindh Government-- two against the seats reserved for Urban Areas of Sindh and two (2) for Rural Areas of Sindh. The case of the petitioners in these petitions is that all the four (4) private respondents have secured less marks- than petitioners. This is an admitted position. The following two contentions have been raised on behalf of the petitioners by Mr. Muhammad Aftab Alam and Mr. Nuruddin Sarki, Advocates:-- "(a) The four nominations were required to be made strictly on merits and as admittedly the petitioners have secured much more marks than all the private respondents, the petitioners 'were entitled to be admitted against the reserved seats in the Balochistan Engineering College for Sindh students. It may be observed here that petitioner Shahab Matloob in Petition No.D-691 of 1992 belongs to the Urban Area of Karachi, whereas, petitioner Yar Muhammad in Petition No.D-1008 of 1992 belongs to Rural Area of Taluka Ratodero, District Larkana:-- "(b) The nominations of the four respondents are, in any case, mala fide. it is submitted that respondent Abdul Kadir Khan is nephew of Mr. Abdul Raziq Khan, Speaker, Sindh Assembly. Respondent Syed Adeel Haider is the son of sitting Senator Syed Ali Haider. Respondent Amir Hameed Mirza is a son of Abdul Hameed Mirza, Deputy Secretary, Education' Department, Sindh Government, and Muhammad Waheed is a grandson of Dr. Nabi Bux' Baloch, Chairman of the Sindh Language Authority."

3. Mr., Mushir Alam, Advocate for respondent Syed Adeel Haider admits that his client is a son of the sitting Senator and Mr. Ali Bakhsh Legbari on behalf of respondent Muhammad Waheed also accepts the aforesaid averment made against his client. The allegation about the relationship of Abdul Kadir Khan with Speaker of the Sindh Assembly and of respondent Amir Hameed Mirza as a son of the Deputy Secretary, Education Department, has gone uncontroverted.

4. According to learned counsel for the petitioners, the respondents have been nominated on account of their high connections as aforesaid and this being a mala ride exercise of power is liable to be declared as illegal by the Court.

5. Mr. Syed Sarfraz Ahmed, A.A.-G., and M/s. Mushir Alarn and Ali Lhsh Khan Leghari had argued that it is the discretion of the Government to ainate any student irrespective of merit. It was argued that such discretion Id not be challenged in a Court of law. 6, In our view, the stand taken by the learned AA.-G.- and by M/s. sbir Alain and Ali Bakhsh Leghari is not correct. It may be observed that in prospectus of the Balochistan Engineering College, Khuzdar, four seats are .rved for students from Sindh. It is not laid down that the nomination or section of students against such reserved seats is left to the discretion of the 1h Government. It may further -be mentioned that at page 28 of the Prospectus, in ,graph 6.2.18, it is clearly mentioned that selection of candidates for admission shall be made by Selection Committee appointed by the judgment, strictly on the basis of merit in each category of seats amongst applicants, according to the prescribed conditions. This signifies that the I notion of the makers of the prospectus was also that in all categories merit did be the only consideration for selection. In this context, reference may be to Article 37(c) (in Chapter 2--Principles of Policy of Part II) of the constitution, which provides that the State shall make technical and professional education generally available and higher education equally accessible to all on the basis of merit. No doubt, clause (2) of Article 30 of the constitution provides that the validity of an action or of a law shall not be in question on the ground that it is not in accordance with the Principles policy, and no action shall lie against the State, any organ or authority of the or any person on such ground, yet it is the responsibility of each organ authority of the State, and of each person performing functions on behalf , organ or authority of the State, to act in accordance with the 'Principles policy' in so far as they relate to the functions of organ or the authority, Article 29 of the Constitution. In any case, it may be observed that principles of Policy enshrined in Chapter 2 of Part 11 of the Constitution can always be called in aid for the purpose of interpretation of any legal provision or instrument and an interpretation which seeks to comply or advance the .said Principles of State Policy is always to be adopted as against an,-interpretation which goes against such Principles. 7 . In the present case, apart from the provisions in the Prospectus itself It the merit being the criteria for admission in all categories, Article 37(c) also be called in aid of interpreting the prospectus for holding that the ; reserved for Sindh students in Balochistan College are to be filled strictly merits and not at the uncontrolled discretion of the Executive. In view of the relationships of the private respondents with the Dos mentioned in the petition and admitted (or not controverted), who very high positions in the Government, coupled with the fact that the its respondents had obtained much less marks than petitioners and several other students, it can be safely inferred that the nomination of the four private respondents was made an extraneous reasons. Their nomination can be described as mala fide.

8. In the circumstances, we are allowing these petitions to the extent that the nomination of the four private respondents by the Sindh Government and their admission to the Balochistan Engineering College, Khuzdar are without lawful authority and of no legal effect. It is informed that classes have not yet started for the current session and are expected to commence in March, 1993. In the circumstances, it is directed that Sindh Government will issue notices to all such candidates who had applied for admission to the Balochistan College against the reserved seats for Sindh and the cases of those who are interested in such admission will be considered and decided strictly on merit and this exercise will be completed by 31st December, 1992. There will be no order as to costs. AA./S-954/K Petitions accepted