P L D 1957 (W (PLP)

(ix) East Pakistan 5 (x) Sind 5 (xi) Karachi 18 (of whom 6 may be girls) (xii) Children of Central Government servants 5 (including two for sons, daughters of doctors in Central Government employ). (xiii) Foreign Nations 3 The remaining seats, along with those of the reserved seats which fall vacant, will be filled on the basis of merits. 2. ............... 3. ............... 4. ...............

5. The list of approved candidates will not be announced until it has been scrutinised and approved by this Ministry. The applications of all the candidates along with the recommendations of the Selection Committee should be sent to this Ministry to facilitate the finalisation of admission." The above quoted circular was further subject to the following direction contained in circular No. F. 15-25-55-P.S. dated 4th August 1955 :- "It is requested that candidates whose applications have been officially forwarded by the Administration concerned should alone be considered against seats allotted to them. Other candidates from those areas may be considered against the general seats on merits." We have analysed the list of candidates on the basis of pure merit and it is clearly established that the petitioner would have got admission but for reservation ordered by the Ministry of Health. These circulars are challenged on three main grounds:- (1) The Dow Medical College is affiliated to the Karachi University which is governed by Karachi University Act LIX of 1950 and under this enactment the University authorities are entitled to frame Ordinances for the admission of the students in the Colleges affiliated to the University. The power of admission vests in the Principal of the College subject to control by the University and the governing body under the relevant provisions. The Ministry of Health as such has no power to control admissions to the College. (2) The directions and reservations contained in the two circulars issued by the Ministry of Health contravene the provisions of Article 13 (3) of the Constitution. (3) The said Circulars are repugnant to the provisions of Article 5 of the Constitution which laid down that all citizens are equal before law and are entitled to equal protection of law. The question as to authority and power of the Ministry of Health-in regard to admissions in Dow Medical College was considered by a Bench comprising Constantine and Wahiduddin, JJ. in Writ Petition No. 487 of 1956, decided on 13th April 1957. A. Rehman Kureshi v. Principal, Dow Medical College, Karachi etc. (P L D 1957 (W. P.) Kar. 534). Their Lordships reached the following conclusion :- " We have searched in the University Act and ordinance issued under the University Act to find out any authority and power vesting in the Ministry of Health in respect of admissions in Dow Medical College, but none was pointed out to us by the learned counsel for the respondent, and in fact no such powers vest in the Ministry of Health, Government of Pakistan. We have carefully considered the administrative machinery controlling the Dow Medical College, and in our judgment, according to Statute 26, each college recognised by the University shall be managed by a regularly constituted Governing body which shall include the Principal and at least two other members of the teaching staff of the College elected by the teaching staff including the Principal, and not less than two members appointed by the University." We see no reason to take a different view. Ordinance II to be found at page 3 of the Ordinance and Regulations of University of Karachi lays down "Admission will fall under two categories." (i) Admission to University classes. (ii) Admission to College classes Ordinance IV is to the following effect. " The Principals of Colleges in the case of admissions to the College classes may admit students provisionally from the date of the opening of the session to the expiry of the third week of the session but all such admissions shall be liable to cancellation if the students so admitted are not in possession of necessary documents." Statute No. 26 included in the Schedule of the University of Karachi Act LIX of 1950 runs as follows 26 (1) . . . . . . . . . . . . . . . - 26 (2) . . . . . . . . . . . . . . . 26 (3) . . . . . Each college recognised by the University shall be managed by a regularly constituted Governing Body which shall include the Principal and at least two other members of the teaching staff of the College elected by the teaching staff including the Principal and not less than two members appointed by the University. The rules relating to the constitution and powers of the Governing Body and the appointment, powers and duties of the Chairman and other officers of the Governing Body shall be such as may be prescribed by the Ordinances." Ordinance I to be found at page 64 of the Ordinances and Regulations of University of Karachi lays down the composition of the Governing Body contemplated by the above quoted Statute No.

26. It reads as under :- "Subject to the foregoing Statutes in so far as they are applicable to Government Colleges shall consist of not less than 11 and not more than 12 members. Provided that if the total number of members of a Governing Body is 11 the University shall have two representatives on it, but if the total number exceeds 11 the number of University representatives shall be three." According to Ordinance III at the same page the Chairman shall be nominated by the Government from among the members of the Governing Body while according to Ordinance I V the Principal of the College shall be ex officio Secretary of the Governing Body. The effect of the Statute and relevant Ordinances is that the Governing Body may consist of 11 or 13 members. On it there shall be two members elected by the teaching staff and not less than two members appointed by the University. The Chairman and the remaining members will be nominated by the Government. Admissions are to be made by the college subject of course to the directions issued by the Governing Body. The Min's of Health may influence the members nominated by it but hash no direct hand in the administration or admission to the Dow Medical College. The Government apparently gets a voice in the administration inasmuch as the majority of the members of the Governing Body including the Chairman will be its own nominees. The Dow Medical College was recognised by the Syndicate, Karachi University at its meeting held on 28th March 1953. A letter dated 28th April 1953 was addressed by the Registrar, University to the Principal, Dow Medical College wherein the attention of the Government in the Ministry of Health was drawn to the absence of a Governing Body for the College as required under Statute 26 (3) of the Statutes of the University. The Chief Commissioner by a letter dated 4th September 1953, asked for the representatives of the University on the Governing Body of the Dow Medical College. The Registrar by means of a letter dated 13th October 1953, intimated the names of two representatives of the University on the proposed Governing Body. It seems that the Governing Body was not set up. The Registrar by means of a letter dated 29th July 1954, again drew the attention of the Chief Commissioner and also enclosed copy of the Ordinance. Absence of a Governing Body for the Dow Medical College was noted by the Senate at its meeting held on 31st December 1955, and the Govern ment was called upon to set up a Governing Body in accordance with the Statutes and Ordinances. The Govern ment remained inactive. The Registrar addressed a letter to the Secretary, Ministry of Health on 16th December 1956 wherein the necessity of a Governing Body was stressed and, it was requested that early steps be taken to set up a Govern ing Body for the Dow Medical College. The request of the University was not acceded to. The Registrar addressed another letter dated 10th March 1957 to the Educational Advisor to the Ministry of Education whereby attention was invited to the following resolution passed by the Academic Council of the University at its meeting held on 17th January 1957. " In view of the fact that the Karachi University Act, Statutes and Ordinances make it incumbent on the University not to affiliate such colleges as have no properly constituted Governing Body it is resolved that the Government of Pakistan and the Government of West Pakistan should immediately set up Governing Bodies for the Colleges maintained by them in Karachi, in accordance with the Statutes and Ordinances of the University." It would be seen that from 1953, onward the University has been pressing the Government and the relevant authorities to set up a Governing Body for Dow Medical College. But the Ministry of Health has totally failed to comply with the imperative provisions of the relevant Statutes and ordi nances. If the responsible Ministries of the Central Govern ment themselves fail to comply with the requirements of law what respect for the same can be expected from other persons and authorities. It was argued that the Governing Body has not been purposely set up so as to enable the officials of the Ministry concerned to exercise a direct control over the affairs of the Dow Medical College. We are not in a position to accept or reject this suggestion but the persistent failure of the Ministry concerned provides good ground for this insinuation. The University of Karachi would have been fully justified if they disaffiliated the college but they presumably refrained from taking this extreme step as it would have affected the students and not the defaulting officials. There is therefore force in the contention that the Ministry of Health was not authorised to issue the directions contained in circulars marked Exh. A-5 and A-6 so as to restrict the discretion of the Principal. It is the Governing Body, of the College which is entitled to lay down the directions to be followed by the Principal in the matter of admissions where the number of applicants exceeds the number, of available seats. Article 13 (3) of the' Constitution lays down that ' no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground of race, religion, caste, sex or place of birth. This Article has no application whatsoever to the facts of this, case. The impugned circulars did not purport to deny admission on the ground of race, religion, caste, sex or place of birth alone I G The circulars therefore are not hit by the provisions of this Article. 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 to children of Central Government's servants and foreign nationals as well as restriction of considerations to applications officially forwarded was not based on reasonable classification and consequently hit the provisions of Article 5 of the Constitu tion. Mr. Jam 'I Alain appearing on behalf of the respon dents 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 considera tion 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 Alain 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 candi dates 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 Administrations con cerned. This, to us is the worst form of patronage and should not be allowed to invade the precincts of educational institu tions wherein admissions would 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 more 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 admissions to the Dow Medical College such directions must not contravene the provisions of L 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 Yickwo v. Hopkins (U. S. Supreme Court Reports 30 Lawyers Ed. p. 222) approved by our Supreme Court in case Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan, Secretary to the Finance and Revenue (Revenue). Department, Government of East Pakistan (P L D 1957 S C (Pak.) 9) it is well estab lished 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 E reserved seats to candidates officially forwarded by adminis trations are wholly repugnant to equality clause of the Constitution and cannot be sutained. Admission was refused to the petitioner in 1956 and now we are in the middle of the year 1957. We can not unsettle settled things and are not in a position to direct the admission of the petitioner. We cart only hope that the Petitioner's application will be considered on merits for admission this year. In view of the foregoing discussion it is clear that the facts of the case justify issue of a writ of mandamus to res pondents 1 and 2 directing them to set up a Governing Body for the College in accordance with the relevant Statutes and Ordinances of the Karachi University and a further writ prohibiting the respondent No. 1 from interfering with the admissions to the Dow Medical College which can only be made by the Principal in the light of directions given from time to time by the Governing Body of the College in the light of observations made and subject to confirmation by the Karachi University. The petitioner is entitled to get the costs of the petition from respondent No. 1 who alongwith other respondents shall bear their own costs. We order accordingly. A. H. Petition accepted.