P L D 1965 (W (PLP)

(a) Medical Colleges (Governing Bodies) Ordinance (XIII of 1961), Ss. 3 (1), 4 & 8--‑Governing Bodies formed under S. 3 (1) but no Rules as required under S. 8 framed enabling such Bodies to function and discharge their duties‑--Government, in absence of Rules, competent to formulate policy regulating admission to Colleges under its control. Institutions maintained, staffed and financed by Provincial Government‑Special enactment providing for formation of Governing Bodies for purpose of policy‑making, co‑ordination and maintenance of institutions‑--Such Governing Bodies, though formed, not functioning due to absence of Rules required to be framed by enactment‑--Government, under circumstances, held, competent to control and guide affairs of institutions including question of admission of students to such institutions

‑Medical Colleges (Governing Bodies) Ordinance (XIII of 1961), Ss. 3 & 8. (c) Constitution of Pakistan (1962), Art. 6, Fundamental Rights Nos. 12 (3), 12 (6) & 15--‑Admission to College--‑Scheme drawn up making reservation of seats for students' from particular regions‑Such classification of students and reservation of seats‑Not violative of Fundamental Rights Nos. 12 (3), 12 l6)) or 15 embodied in Constitution if discrimination involved tie not arbitrary or unrelated to object underlying Scheme. 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 applicants to first year M.B.B.S. class for session 1964‑

65. According to the instructions different areas of West Pakistan were tagged to different Medical Colleges and in each College a number of seats were allocated for the Tagged Areas and certain number of seats were reserved for the Areas which were not tagged to the particular College. Two students who were otherwise quali fied for admission failed to secure admission on account of the scheme and as such they 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 Instructions, 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. Sc. (pre‑Medical) Examination they stood much higher than several of the candidates who has been admitted. It was, therefore, contended that the scheme of admissions as embodied in the Instructions was invalid for the reason that it violated Fundamental Rights 12(3), 12(6) and 15 guaranteed by the Constitution of Pakistan (1962). It was firstly argued 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. Secondly it was argued that the only reservations which are permissible under the Constitution are those contained in clause (6) of Fundamental Right 12 which deals only with reservation for the advancement of any socially or educationally backward class of citizens and has no reference to areas or geographical entities. Finally the point made was that the scheme of Tagged Areas violated equality clause as embodied in Fundamental Right 15 for the reason that it denied equal opportunities to the citizens of Pakistan from seeking admission in any Medical College of their choice throughout the Province. Held, the scheme of Tagged Areas as embodied in the Instructions was not based on any of the considerations laid down in clause (3) of the Fundamental Right 12 of the Constitu tion. 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 Instructions the qualification, in respect of eligibility for the different Tagged Areas, was permanent residence in those areas. Permanent residence is not the same thing as place of birth. A person may be born at one place and become a permanent resident of another place. The two concepts are clearly distinct and when Fundamental Right 12 (3) prohibits discrimination based on the place of birth, it cannot be read as prohibiting discrimination based on residence. The scheme of the Tagged Areas, therefore, did not violate Fundamental Right 12 (3) as it was not based on considerations of place of birth, and no citizen of Pakistan was discriminated against merely on that ground. Clause (6) of Fundamental Right 12 is only a permissive or an enabling provision and does not in, itself contain any prohibition against reservation in the matter of educational institutions. The clarification contained in clause (6) of Fundamental Right 12, which is worded in a negative form, cannot be interpreted as containing an exhaustive enumeration of the kinds of special provisions or reservations which are permitted by the Constitution in the matter of educational' institutions. This clause does not control any other types of provisions or reservations which a public authority may make in the matter of admission, to educational institutions. Those provisions or reservations will certainly be permissible as long as they do not come into conflict with any other provisions of the Constitution. The scheme of the Tagged Areas was, therefore, not, in any manner, violative of the provisions of clause (6) of Fundamental Right

12. As regards the question whether the scheme of Tagged Areas violated the equality clause as embodied in Fundamental Right 15 of the Constitution it should be remembered that whatever else the expression `equal protection of law' may mean, it certainly does not mean "equality of operation of legislation upon all citizens of the State." Equal protection of the laws, no doubt, means that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed but in the application of these principles it has always been recognised that classification of persons or things is in 'no way repugnant to the equality doctorine 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. The scheme of Tagged Areas is nothing store than a scheme of regional classification intended to make the best use of educational facilities available in the regions concerned by ensuring that students residing in those regions would be given a certain preference over those who did not reside in the area. The discrimination involved was not arbitrary or unrelated to the object underlying the scheme. Such being the case, the scheme of Tagged Areas did not offend against Fundamental Right 15 of the Constitution. A. Rehman Qureshi v: Principal Dow Medical College, Karachi P L D 1957 Kar, 534; Shed Abdul Wadood v. Pakistan P L D 195" Kar. 740; D. P. Joshi v. state of Madhya Bharat and another A I R 1955 S C 334; Jibendra Kishore Aehharyya Chaudhry and 58 others v. Province of East Pakistan P L D 1957 S C (Pak.) 9, Yiek Wo v. Peter Hopkins U S S C R 30 Lawyers Edn. 220 and Om Parkash Dhri and others v. The State of Punjab A I R 1951 Pb. 93 ref. (d) Constitution of Pakistan (1962) Art. 6, Fundamental Right No. 12 (J)‑--"Place of birth" and "permanent residence"--‑Concept of two quite distinct. (e) Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 15‑--Reasonable classification of persons or things‑‑Not repugnant to equality doctrine. JUDGMENT ANWARUL HAQ, J

‑This judgment will dispose of Writ Petitions Nos. 1408 and 1537 of 1964, both of which seek to challenge the validity of "Instructions for applicants for Admission to First Year M.B.B.S. Class for the Session 1964‑65" (hereinafter referred to as the Instructions) issued by the Health Department of the Government of West Pakistan on the 1st of July 1964. The petitioner in the first case is Nasim Mahmood, a resident of Sialkot City who has stated that he passed his F. Sc. (Pre‑Medical) Examination of the Board of Higher Secondary Education in 1962 securing 55‑7 per cent. marks, and thus became eligible for admission to the First Year M.B.B.S. Class at any of the Medical Colleges in the Province. He applied for such admission to Principals of all the Medical Colleges in the year 1962 and again in 1963, but was unsuccessful. In the meantime, he passed his B. A. Examination in the first division in the subjects of Political Science and Islamic Studies, and renewed his application for admission to the Medical Colleges in 1964. He was, however, not, even invited for an interview by any of the Colleges, presumably in consequence of the operation of the Instructions issued by the Provincial Government regulating the manner of admission to the Medical Colleges. This petitioner has, therefore, impleaded, besides the West Pakistan Medical Council and Secretary to Government of West Pakistan in the Health Depart ment, Lahore, the Principals of the five Medical Colleges in the Province, namely, the King Edward Medical College, Lahore, Nishtar Medical College, Multan, Liaqat Medical College, Hyderabad, Dow Medical College, Karachi and Khyber Medical College, Peshawar.

2. The petitioner in the second case is Irfan Majid who claims to have his residence at two places, namely, in the districts of Layallpur and Multan. He passed the F. Sc. (Pre‑Medical) Examination of the Board of Higher Secondary Education in 1964 securing 553 marks out of 1000 and was placed in the second division in the aggregate, but obtained first division marks in Chemistry and Physics. He was thus qualified for admission to the First Year M.B.B.S. Class. He made applications in this behalf to the Medical Colleges at Lahore, Multan and Karachi but he was not admitted, again in consequence of the Instructions referred to above.

3. The grievance of the petitioners is that due to the scheme of "Tagged Areas" and the reservation of seats for various categories of students, introduced by the Instructions, the petitioners have been 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. Sc. (Pre‑Medical) Examination, they stand much higher than several of the candidates who have been admitted. It is contended on their behalf that the scheme of admissions as embodied in the Instructions is invalid for the reason that it violates Fundamental Rights 12 (3), 12 (6) and 15 guaranteed by the Constitution of Pakistan. A further argument put forward is that the Government of West Pakistan has no authority under the law to regulate admission of students to Medical Colleges which are affiliated to the various Universities in the Province. The prayer made in both the petitions is that it may be declared that the admission of the candidates to the various Medical Colleges on the basis of the scheme of Tagged Areas and reservation of seats for particular categories of students is illegal and of no consequence, and that the seats so filled are still available for the petitioners on the basis of merit.

4. In order to fully appreciate the contentions raised in this case it would be useful to briefly outline the scheme embodied in the Instructions issued by the Provincial Government on the 1st of July 1964. (These Instructions have been placed on the file by both the petitioners as Annexures "A" and "B", respectively). Paragraphs 1 to 11 of the Instructions are mostly procedural, laying down the method of submission of applications, the documents required and the last date for their submission. Paragraph 12 of the Instructions deals with what are called "Tagged Areas" and may be reproduced here in full:‑ "

12. Tagged Areas

Different areas of West Pakistan have been tagged to different Medical Colleges as follows:‑ (1) Khyber Edward Medical College, Peshawar. Peshawar and Dera Ismail Khan Divisions. (2) King Edward Medical College, Lahore. Rawalpindi and Lahore Divisions and. the Layallpur and Sargodha Districts. (3) Nishtar Medical College, Multan. Bahawalpur and Multan Divisions and the Districts of Jhang and Mianwali. (4) Liaqat Medical College, Hyderabad and Dow Medical College, Khairpur, Hyderabad, Karachi, Quetta and Kalat Karachi. Divisions."

5. Paragraph 13 provides for reservation of seats in the following words:‑ "A certain number of seats are allocated for the tagged areas and certain number of seats are reserved for the areas which are not tagged to the particular College."

6. Paragraphs 14 and 15 contain instructions for the Principals of the various Colleges with regard to the interviewing of candidates and preparing separate lists on the basis of merit as well as of candidates belonging to the Tagged Areas for the College concerned, and it is contemplated that the final selection for non‑tagged areas shall be made at a meeting of the Adminis trators/Principals of all the Colleges to be held in the office of the Health Secretary.

7. These Instructions were followed up by detailed instruc tions to the Administrators/Principals of the various Medical Colleges in the Province, indicating the total number of seats available in each College, and their distribution among tagged and non‑tagged Areas as well as among the various categories of students. The Provincial Government was good enough to furnish a summary of the finial allocation of seats at the various Medical Colleges in the Province, and this will be found at Annexure "R/D" in the first petition. This summary indicates the total number of seats available at each College, the number of seats reserved for, various categories of students, the number of seats available on merit for the non‑tagged areas and the number of seats allocated to candidates belonging to Tagged Areas. This last category of seats is further divided among the rural and urban students, and even in these two categories there is further sub division for men and women' students. The categories of students for whom seats are reserved are as follows:‑ "(1) Tribal Areas of Peshawar and D. I. Khan Divisions. (2) Frontier States. (3) Quetta Division. (4) Kalat Division. (5) Former Khairpur State. (6) Excluded Area of Dera Ghazi Khan. (7) East Pakistan. (8) Azad Kashmir, Gilgit and Baltistan. (9) Junagarh. (10) Manavadar. (11) Foreign countries. (12) Doctor's children. (13) Children of University employees. (14) Sportsmen."

8. In order to give an idea of the practical working of the scheme as embodied in the Instructions mentioned above we may at this place give the relevant figures for one College only, say the King Edward Medical College, Lahore. The total number of seats available in this College is 150 out of which 23 are reserved for the following categories of students:‑ (1) Tribal Areas of Peshawar and D. I. Khan Division.

8 (2) East Pakistan.

2 (3) Azad Kashmir, Gilgit and Baltistan

3 (4) Foreign countries

5 (5) Doctor's children

5 Out of the remaining 127 seats only 13 are earmarked for allocation on merit to students belonging to the non‑tagged Areas. This leaves us with 114 seats for the Tagged Areas, and this number is further sub‑divided so as to make 89 seats available on general merit for students of the Tagged Areas and 25 are reserved for students from the rural areas of the Tagged Areas. The 89 seats to be filled on general merit are further sub divided so as to allocate 71 to men students and 18 for women students. Out of the 25 rural seats 20 are reserved for men and five for women.

9. These figures would show that out of a total of 150 seats available at the King Edward Medical College Lahore for the First Year M.B.B.S. Class only 13 are to be filled on the basis of merit irrespective of any other considerations, whereas all the remaining seats are allocated to specified categories. The peti tioners have given facts and figures to show that several students with lower marks have gained admission against some of the reserved categories` of seats, thus resulting in strong discrimination against the petitioners and depriving them' of their right of admission which had accrued to them on the basis of merit. We do not think it necessary to mention the names of students who have gained admission with marks lower than those obtained by the petitioners in the F. Sc. (Pre‑Medical) Examination; but suffice it to say that this fact is conceded by the learned Advocate‑General, although he strenuously contends that if the entire admission had been on the basis of pure merit as judged by the marks alone, the petitioners would not have gained admission.

10. There can be no doubt that the scheme of admissions as framed by the Government of West Pakistan has resulted in certain anomalies inasmuch as tire petitioners have been unsuccessful in obtaining admission to any of the Medical Colleges in the Province, whereas students with marks lower than those obtained by the petitioners in the F. Sc. (Pre‑Medical Examination) have gained admission simply on account of the various reservations. Another anomaly pointed out to us is that although there is a full‑fledged Medical College functioning at Peshawar, yet a substantial number of seats have been reserved in the Colleges at Lahore, Multan and Hyderabad for students coming from the Tribal Areas of Peshawar and D. I. Khan Divisions. Dr. Javaid Iqbal, the learned counsel for the petitioner Irfan Majid, took great pains in explaining to us some further anomalies in the scheme by showing that even assuming the scheme of Tagged Areas to be valid and lawful, the number of seats made available for the various areas was not at all proportionate to the population of those areas and accordingly there was a denial of equal opportunities to the residents of those areas.

11. We consider that we are not called upon to comment on the various anomalies which may be inherent in the scheme, or which may appear during the course of its practical implemen tation. Those are matters primarily for the executive Government to consider and rectify. We are concerned solely with the question whether the Instructions are invalid either for the reason that they have been issued by the Provincial Government without lawful authority or for the reason that they come into conflict with any of the fundamental rights guaranteed to the citizens by our Constitution. We accordingly proceed to examine the matter from these angles.

12. On the question of the authority of the Provincial Government to issue instructions for regulating admission of students to the Medical Colleges in the Province, the argument on behalf of the petitioners is that the Colleges being affiliated Colleges of the various Universities, their affairs are to be conducted and controlled by their respective Principals Administrators, without interference from any outside agency like the Provincial Government. In support of this argument reliance was placed on two decisions of this Court, namely, A. Rehman Qureshi v. Principal Dow Medical College; Karachi. (P L D 1957 Kar. 534) and Syed ' Abdul Wadood v. Pakistan (P L D 1957 Kar. 740),' respectively. It was laid down in these two cases that the 'Ministry ` of Health of the Government of Pakistan 'wag not authorised to, issue directions so as' to restrict the discretion of the Principal of the 'Dow Medical College `in the matter of admissions where the number of applicants exceeded the number .of `available seats. It was observed that it was the Governing Body of the College which alone was entitled to regulate this matter, although the Ministry of Health might influence those members of the Governing Body which were to be nominated by it under the University of Karachi Act, 1950 and Statute 26 (3) framed by the University. In that case it was discovered that the Governing Body, of the Dow Medical College had not been constituted in spite of repeated requests from the Karachi University, and the learned Judges were pleased to issue a direction by way of mandamus that the Governing Body should be constituted as required by law.

13. The two decisions just cited are not directly applicable in the instant case for the reason that the relevant provisions of law considered by the learned Judges in those two cases are no longer alive, and in any case, the Colleges other than the Dow Medical College were not governed by the legislation obtaining in Karachi in the year 1957.

14. Dr. Javaid Iqbal referred to sections 6 and 7 of Ordinance 22 of 1961, called the West Pakistan (University of the Punjab) Ordinance, 1961 promulgated on the 18th of September 1961, to shoe the jurisdiction of the University and also the desire of the Legislature to ensure equality of rights of admission to the institutions governed by the University, but conceded that there was no provision in this Ordinance dealing directly with the question of admission to affiliated Colleges, except that the University had fixed a final date in regard to late admissions: It thus becomes clear that the legislation with which we are now dealing is different from that which was before their Lordships of the Karachi Bench.

15. Dr. Javaid Iqbal next drew our attention to section 30 of Ordinance 22 of 1961 to show that an affiliated College had to be under the management of a regularly constituted Governing Body. It was contented by the learned counsel that the manage ment of the two Colleges situated within the jurisdiction of the Punjab University, naively, the King Edward Medical College at Lahore and the Nishtar Medical College at Multan, was to be regulated in accordance with this provision of law. However, we find that there is another piece of legislation, namely, Central Ordinance 13 of 1961 which specifically deals with Medical Colleges throughout Pakistan. It is clear, therefore, that the matter is to be governed by the special Central law dealing with this subject and not by section 30 of the Provincial Ordinance which deals generally with all Colleges affiliated to the Punjab University. Now, section 3 (1) of Central Ordinance 13 of 1961, called the Medical Colleges (Governing Bodies) Ordinance, 1961 provides that "as soon as may be after the commencement of this Ordinance the Provincial Government shall, for the efficient administration and management of the, affairs of all Medical Colleges within the province, by Notification in the official Gazette, constitute for each such College a Governing Body consisting of such number of members not ‑exceeding ‑15 as may be appointed by it with the approval of the Central Government." Subsection (1) of section 4 of this Ordinance lays down that "a Governing Body shall administer and manage the affairs of the Medical College for which it has been constituted and shall; subject to any rules made in this behalf, have all powers necessary for the purpose." Subsection (2) of the same section contemp lates that "in the exercise, of its powers and performance of its functions, a Governing Body shall, in respect of policy‑making, co‑ordination and maintenance of educational standard, be guided by such directions as the Central Government may, from time to time, give". Section 7 of the same Ordinance prescribes that the Central Government or the Provincial Government may require a Governing Body to furnish it with any report, return, state ment, estimate, statistics or other information regarding any matter under the control of the Governing Body or any subject with which that Governing Body is concerned. Section 8 of the Ordinance gives the Central Government the power to make rules for carrying out the purposes of the Ordinance. It will be seen that Ordinance 13 of 1961 is a self‑contained legislation on the subject of the constitution and functioning of the Governing Bodies of Medical Colleges throughout Pakistan. It was stated by the learned Advocate‑General that Governing Bodies were formed in the various Medical Colleges in this Province, but they did not, and could not, function as no rules were framed by the Central Government as required by section 8 of the Ordinance. This position was not controverted by the two learned counsels for the petitioners.

16. In other words, it is clear that although it was a requirement of law that the Medical Colleges should be managed by Governing Bodies, yet the requirement has not so far been complied with and the result is that the Colleges are being managed by the Principals or Administrators who are, except in the case of the Khyber Medical College, Peshawar, employees of the Provincial Government and thus directly subordinate to it. All the Medical Colleges, except the one at Peshawar, are Government institutions, maintained, staffed and financed by the Provincial Government, although affiliated to the respective Universities in whose jurisdiction they are geographically located. The Khyber Medical College at Peshawar is, however, a University institution and not merely an affiliated College. In' Annexure "R/D", to which reference has already been made in an earlier part of this judgment, Note No. 3 makes it clear that "the admissions to the Khyber Medical College are made in accordance with decisions of the University of Peshawar which controls the institution." Now, the question is whether in the absence of Governing Bodies, the Principals/Administrators of the Government Medical Colleges are to be regarded as completely independent and autonomous officials, not amenable to the control of any superior authority. We think that the answer to this question must clearly be in the negative. The institutions being Government institutions and their Heads being Government employees, not much argument is needed to see that the Provincial Government clearly retains a right to control and guide the affairs, including the question of admissions,, of these Colleges. The Heads of these institutions cannot claim to be 'independent of Governmental control. We consider, therefore, that the Provincial Government has authority 'to lay down a policy in the matter of admissions to the various Government Medical Colleges under its control, so long as the Governing' Bodies contemplated by Central Ordinance 13 of 1961 do not start functioning. It was stated by the learned Advocate‑General that this Ordinance stood repealed by implication, but the point was somehow not pursued during the course of arguments and we, therefore, express no opinion on this aspect of the matter, except to say that if Ordinance 13 of 1961 is still alive, it is the duty of the Provincial and the Central Governments to take steps to constitute Governing Bodies as required by this law, and to frame rules as required by section 8 of the Ordinance so as to enable these Governing Bodies to function properly and effectively.

17. Having found that the Provincial Government had authority to issue the Instructions in question, we may now proceed to examine whether the scheme of admissions as embodied in these Instructions is, in any way, violative of the fundamental rights as given in the Constitution. It. has already been stated that the fundamental rights invoked by the petitioners are 12 (3), 12 (6) and

15. These rights may be reproduced here in .the words of the Constitutions: "12 (3) 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 "12(6) Nothing in this paragraph shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens. "(15) Equality of citizens.--‑All citizens are equal before law and are entitled to equal protection of law."

18. It is contended that the scheme of Tagged Areas is in conflict with the rights mentioned above for the reasons that, in the first place, it creates distinction among the various classes of students on the basis of their place of birth and denies them admission in certain Colleges simply on the ground that they were not born in the areas which are tagged to those Colleges. In the second place, it is argued that the only reservations which are permissible under the Constitution are those contained in clause (6) of Fundamental Right 12 which deals only with reserva tions for the advancement of any socially or educationally backward class of citizens and has no reference to areas or geographical entities. Finally, the point is made that the scheme of Tagged Areas violates the equality clause as embodied in Fundamental Right 15 for the reason that it denies equal opportunities to the citizens of Pakistan from seeking admission in any Medical College of their choice throughout the Province.

19. It will be seen that Fundamental Right 12 (3) lays down that there can be no discrimination, in the matter of admission to any educational institution receiving aid from public revenues, on the ground only of race, religion, caste or place of birth. The scheme of Tagged Areas as embodied in paragraph 12 of the Instructions is not based on any of these considerations. It does not specify that only those persons can apply to the Colleges in question who were born in the Tagged Areas. Paragraph 10 of the Instructions makes it clear that the qualification in respect of eligibility for different Tagged Areas is permanent residence in those areas, as this paragraph prescribes the submission of certificates in respect of permanent residence of candidates, and no mention is made of their place of birth. Permanent residence is not the same thing as place of birth. A person may be born at one place and become a permanent resident of another place. The two concepts are clearly distinct. If any authority were needed for this view, one may refer to D. P. Joshi v. State o B Madhya Bharat and another (A I R 1955 S C 334) in which it was observed that "residence and place of birth are two distinct concepts with different connotations both in law and in fact, and when Article 15 (1) prohibits discrimination based on the place of birth, it cannot be read as prohibiting discrimination based on residence." It seems to us, therefore, that the scheme of Tagged Areas does not violate Fundamental Right 12 (3) as it is not based on considerations of place of birth, and no citizen of Pakistan is discriminated against merely on that account.

20. Fundamental Right 12 (6) is not directly relevant in connection with the scheme of Tagged Areas, for the concept of Tagged Areas has not been introduced to provide reservations for any specified category of students. It is more in the nature of a regional classification. However, even if the scheme of Tagged Areas be regarded as a scheme for the reservation of a certain percentage of the available seats for students belonging to the areas concerned, the question is whether such a reservation is in conflict with the provisions of clause (6) of Fundamental Right 12.

21. In order to answer this question it is necessary to take a comprehensive view of the various clauses of Fundamental Right

12. The first clause of this Right lays down that no person attending any educational institution shall be required to receive religious instruction etc., if such instruction etc., relates to a religion other than his own. The second clause enjoins that no religious community or denomination shall be prevented from providing religious instructions for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination. The third clause, which has already been reproduced in an earlier, part of this judgment, prohibits the denial of admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth. The fourth clause lays down that there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation in respect of any religious institution. The fifth clause prescribes that every religious community or denomination shall have the right to establish and maintain educational institutions of its own choice, and the State shall not deny recognition to any such institution on the ground only that the management of such institution vests in that community or denomination.

22. It will be seen that the provisions made in the first five clauses of Fundamental Right 12 are intended to ensure that there is no discrimination in favour of or against any citizen, in the matter of admission to and maintenance of educational institutions, on the ground only of religion, race, caste or place of birth. A further intention appears to be to ensure freedom of religious instruction in certain types of institutions, and to safeguard the right of the individual to follow his/own religion and to be free from any pressure to observe the rites or ceremonies of a religion other than his own, while studying in any educational institution. In clause (6) a clarification is made that the provisions embodied in the preceding five clauses shall not be construed as preventing any public authority from making provision for the advance ment of any socially or educationally backward class of citizens. It seems to us that this clarification, which is worded in a negative form, cannot be interpreted as containing an exhaustive enumera tion of the kinds of special provisions or reservations which are permitted by the Constitution in the matter of educational institutions. This clause does not control any other types o provisions or reservations which a public authority may make ii the matter of admission to educational institutions. Those provisions or reservations will certainly be permissible as long as they do not come into conflict with any other provisions of Constitution. To put it differently, clause (6) of Fundamental Right i2 is only a permissive or an enabling provision and does not in itself contain any prohibition against the type of reservations with which we are dealing in the present case. We are, therefore, of the view that the scheme of Tagged Areas is not, in any manner, violative of the provisions of clause (6) of Fundamental Right 12.

23. We may now turn to the question whether the scheme of Tagged Areas violates the equality clause as embodied in Fundamental Right No.

15. This constitutional safeguard has been interpreted in a large number of authorities, but we think it is unnecessary to refer to all of them for the reason that the essence of this concept has been very succinctly summed up by Muhammad Munir, C. J. in Jibendra Kishore Achharyya Chaudhry and 58 others v. Province of East Pakistan etc. (P L D 1957 S C (Pak.) 9). While dealing with Article 5 of the 1956 Constitution which was identical with the present Fundamental Right 15 of the 1962 Constitution, his Lordship observed as follows:‑ "Whatever else the expression `equal protection of law' may mean, it certainly does not mean "equality of operation" of D legislation upon all citizens, of the State. The expression has been borrowed from the Fourteenth Amendment to the Con stitution of the United States which was intended to secure to the emancipated negroes equal rights to the enjoyment of life, liberty and property. Though in the United States the guarantee of equal protection of the laws has been invoked upon more occasions than any other constitutional guarantee, with the possible exception of the due process of law guarantee, also contained in the Fourteenth Amendment, no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the `equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case as it came before the Court. But notwithstanding the disinclination of the Court to give an all inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application o these principles, however, it has always been recognized the classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary o capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is no for the Courts in such cases, it is said, to demand from the Legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant considerations, such as differences in race, colour or religion will certainly be rejected by the Courts." 24 In coming to these conclusions the learned Chief Justice considered several American cases including the case of Yick Wo v. Peter Hopkins (U S S C R 30 Lawyers Edn. 220.) which is regarded as a leading case on the subject. The learned Chief Justice also took note of several decisions from the Indian jurisdiction which it is not necessary to mention here. It will be seen, therefore, that reasonable classifica tion, having relation to the object of the legislation in question, does not offend against the equality clause and is not regarded as depriving the citizens of equal protection of the laws. Now, in the present case the various Medical Colleges, with which we are dealing, are situated in certain important towns of the Province of West Pakistan, and those towns are, by reason of their geographical location and historical association, centres of learning and seats of administration for certain well‑defined regions of the Province. It is reasonable to provide that the Colleges situated in these towns shall cater primarily for the needs of students residing in the regions concerned. In other words, the scheme of Tagged Areas is nothing more than a scheme of regional classification intended to make the best use of educational facilities available in the regions concerned by ensuring that students residing in those regions will be given a certain preference over those who do not reside in the area. The discrimination involved is not arbitrary or unrelated to the object underlying the scheme. Such being the case, the scheme of Tagged Areas does not appear to us to offend against Fundamental Right No. 15.

25. A somewhat similar question came up before the Court in Om Parkash Dhri and others v. The State of Punjab (A I R 1951 Pb. 93) and the contention raised was that the rules for admission to the Engineering College, Rurki, were in conflict with several of the Fundamental Rights guaranteed by the Indian Constitution, including the equality clause contained in Article 14 of that Constitution, for the reason that the rules made provision for reservation of seats on territorial basis and for certain categories of students who were to be nominated by the Minister for Public Works etc. The learned Judges held that these reservations and nominations did not violate the equality clause as contained in Article 14 of the Indian Constitution for the reason that reasonable classification was permitted, and that there was no discrimination on the ground only of race, religion or caste etc. Again in D. P. Joshi v. State of Madhya Bharat and another it was observed that a classification might validly be made on a geographical basis, and that such a classification would be eminently just and reasonable where it relates to education which is the concern primarily of the. State. In the case before their Lordships the rule under consideration was the one relating to admission to the Medical College at Indore, which required payment of a capitation fee by non‑Madhya Bharat students, thus creating a discrimination against them as compared to the residents of Madhya Bharat. These two authorities support the conclusion at which we have arrived in this matter.

26. Our attention was, however, drawn by the learned counsel for the petitioners to the fact that in Syed Abdul Wadood v. Pakistan to which a reference has earlier been made in another context, a contrary view has been expressed on this point. The observations on which reliance is sought to be placed appear on pages 745‑746 of the Report and it will be well to reproduce them here in full: "The last submission on behalf of the petitioner was to the effect that reservation of seats for candidates from N. W. F. P., Sind, East Pakistan and for children of Central Government's servants and foreign nationals as well as restriction of considera tion to applications officially forwarded was not based on reasonable classification and consequently hit by the provisions of Article 5 of the Constitution. Mr. Jamil Alam appearing on behalf of the respondents 1 and 2 conceded, and rightly, that he could not defend reservation for East Pakistan children of Central Government's servants, foreign nationals and restriction of consideration to those applications which were received officially. The reservations, according to the respondents Nos. 1 and 2 were Made as certain areas had no Medical Colleges. This could be a good ground for a classification but it was argued on behalf of the petitioner that N. W. F. P. and Sind have their own Medical Colleges. Mr. Jamil Alam countered this by saying that no doubt N. W. F. P. and Sind have Medical Colleges but they had started recently. There is force in the contention of Mr. Jamil Alam. The reservations for candidates hailing from N. W. F. P. and Sind can be justified for a few years more 'on the ground that they have not yet fully established Medical Colleges. We are not able to appreciate as to why the consideration was limited to those applications which were officially forwarded by the Administra tions concerned. This, to us, is the worst form of patronage and should not be allowed to invade the precincts of educa tional institutions wherein admissions should generally be made on the basis of merit except where reservations are essential for compelling reasons. The children of Central Government's servants are much mere favourably placed than others and there can be no justification for reservation of any seats for them. Even if we assume that the Ministry had power to issue directions in regard to admission to the Dow Medical College such directions must not contravene the provisions of Article 5 of .the Constitution which lays down that all citizens are equal before Law and are entitled to equal protection of law. On the basis of principles laid down in Yick Wo v. Hopkins approved by our Supreme Court in case Jibendra Kishore Achharyya Chaudhry v. The Province of East Pakistan, Secretary to the Finance and Revenue, Revenue Department, Government of East Pakistan, it is well established that if a law is applied and administered with an evil eye and an unequal hand the action taken under it will not be sustained by a Court. The reservations for areas which have their own Medical Colleges and restriction of these reserved seats to candidates officially forwarded by administrations are wholly repugnant to equality clause of the Constitution and cannot be sustained."

27. It will be seen that these observations do not help the petitioners in so far as the attack on the validity of the scheme of Tagged Areas is concerned. Their Lordships agree that regional classification could be a good ground for reservation of seats and they are only objecting to the allotment of seats in the Dow Medical College, Karachi, to those areas which have their own Colleges. Even here they are prepared to allow such reservation for an interim period during which the regional Colleges may be developing to their full capacity. These observa tions, therefore, do not run counter to the view which we have formed about the validity of the Tagged Areas scheme. As to the observations regarding the validity of other reservations, we shall have occasion to refer to them when we deal with the second aspect of the case before us.

28. As regards the question of reservations for specified categories of students, it has once again to be stated that the reservations are not hit by clause (3) of Fundamental Right 12 for the reason that they are not based on any of the considera tions or grounds mentioned in that clause, namely, race, religion, caste or place of birth. Nor are they, in any manner, affected by the provision contained in clause (6) of that Fundamental Right, as we have already stated that clause (6) cannot be interpreted to contain a prohibition against the provision of facilities or reservations for classes of citizens who are not mentioned in this clause. If anything, reservations for the tribal areas of Peshawar and D. I. Khan Divisions may be said to fall within the ambit of this clause, and we have already remarked that it is not for us to comment upon the wisdom of allowing these reservations in Colleges other .than the one Situated at Peshawar.

29. There is no doubt that this question of reservations did come up for consideration before their Lordships in the case of Syed Abdul. Wadood, referred to earlier, but it will be seen, from the observations already quoted, that the point was conceded by the learned counsel who appeared on behalf of the respondents and accordingly there is no discussion of this question in that judgment. Their Lordships have not considered at any length the question whether the reservations could not be regarded as falling under the description of a reasonable classification which is permitted under the equality clause. The reservations which are allowed by the‑ Instructions are for students belonging to certain specified . categories, and those categories appear to us to have a direct relationship with the object of the scheme, namely, to ensure adequate facilities for medical education to certain categories of students who may not other wise be able to obtain admissions in the Medical Colleges due to the number of applicants for exceeding the available seats. Reservations for students, belonging to categories mentioned at Serial Nos. 1 too in paragraph 7 supra can be justified not only on the basis of reasonable regional classification but also on the basis of the provisions contained in clause (6) of Fundamental Right No. 12 as the areas mentioned in these categories are generally recognised to be educationally backward. The reservations for categories mentioned at Serial Nos. 7 to 11, namely, for students from East Pakistan, Azad Kashmir, Gilgit and Baltistan, Junagarh and Manavadar, and foreign countries are also reservations based on a reasonable classification and cannot be interpreted as meaning any discrimination against the citizens of the Province of West Pakistan. It is common knowledge that in educational institutions all over the world a certain number of seats are made available for students from other countries, and such provision can always be justified in the public interest. Provision of facilities to students from East Pakistan and foreign countries on a reciprocal basis cannot be objected to on any of the grounds mentioned in the Constitution.

30. More or less similar considerations apply to reservations for Doctors' children, children of University employees and for sportsmen. It is to be borne in mind that marks and marks alone cannot be the sole criterion for determining the suitability of a person for admission to Medical College. By providing facilities for the children of Doctors or of University employees and for sportsmen the authorities are recognising the weight of other factors which may legitimately be considered in relation to admission to educational institutions. We have already referred to an Indian case, namely, Om Parkash Dhri and others v. The State of Punjab, in which nomination of certain categories of students by the Minister of Public Works for admission to the Engineering College was held not to be in conflict with any provision of the Indian Constitution. In that case the equality clause was specially considered. These reservations do not appear to us to offend against any of the provisions of our Constitution, as they are based on a reasonable classification, related to the object of the Scheme, viz., an equitable distribution of the available seats, taking into consideration all the relevant factor and not merely the marks obtained in the F. Se. (Pre‑Medical) Examination.

31. For the foregoing reasons, we would dismiss both the petitions, but leave the parties to bear their own costs. K. B. A. Petitions dismissed.