1999 PLP 2353 (YLR)

IFTIKHAR MUHAMMAD CHAUDHARY, C. J.‑‑‑In Constitutional Petitions Nos. 77 and 262 of 1999 identical question of interpretation of paras. 4(c)(1)(5) and 12 of the Prospectus of Bolan Medical College, Quetta for the Session 1997‑98 is involved, therefore, we have proposed to dispose them of by instant common judgment. Briefly stating facts of the case are that petitioner Miss Shaista labeen Qureshi daughter of late Professor Doctor Shafiq Ahmed Qureshi and Beenish Nagi daughter of Abdul Sattar Nagi being children of Doctors applied for admission in Bolan Medical College for the year 1997‑98 against the reserve seat of children of Doctors of Balochistan, but their request for admission was not conceded to and private respondent Muhammad Arsalan Khan son of Abdul Wahid Khan being the son of non‑Doctor employed was admitted in first year M~B.,B.S. 1997‑

98. Raja M. Afsar learned counsel appeared on behalf of petitioner, Miss Shaista Jabeen and contended that in the break‑up of seats reserved for different categories in Bolan Medical College, three seats have been earmarked for the children of Doctors; whereas one seat has been reserved for the children of non‑Doctors, therefore, respondent No: 4 has been wrongly admitted against the seat of Doctors' children and in. Category "A" of para. 12 of the Prospectus word "non‑Doctor" has been added without any reasonable justification, therefore, according to him this portion of Prospectus be struck down holding that respondent No.4 Muhammad Arsalan Khan was entitled to have a seat from quota of children of non -Doctors. In this behalf he had referred to the Prospectus of Bolan Medical College of different years prior to 1996‑97 and stated that it was never the intention of Prospectus Makers to tag the children of non‑Doctors with the children of doctors for admission in B.M.C. Learned counsel to substantiate his contentions placed reliance on PLD 1979 SC 1 and 32, 1981 SCMR 1002. On the other hand Malik Sikandar Khan learned Advocate‑General contended that addition of word non‑Doctor in Cate gory A of para. 12 of the Prospectus neither is unreasonable nor unjustified because Muhammad Arsalan Khan (respondent No.4) is also son of teaching staff as his father is Professor of Islamiat in Bolan Medical College, therefore, he can only compete with the children of teachers notwithstanding the fact whether they are Doctor teachers or otherwise. According to him the Prospectus was competently amended by the Provincial Government, therefore, presence of the word "non‑Doctor" in Category A of para. 12 of the Prospectus cannot be termed to be unreasonable or without any legal justification. He placed reliance on PLD 1994 Quetta 47 and 64, PLD 1993 Quetta

14. Mr. Ali Ahmad Kurd learned counsel appearing for private respondent adopted the arguments advanced by the Advocate‑General and further contended that no check can be placed on the powers of the Government to amend the Prospectus of B.M.C. at any stage because the Institution is being run by the Government, therefore, it has full competency to amend the same at any time according to requirements. He further stated that private respondent Muhammad Arsalan Khan has secured highest marks amongst the children of teaching staff, of B.M.C. including Doctors and non‑Doctors, therefore, he had a right comparing to the petitioners who have less marks as per their academic qualification as well as in the entry test held by Selection Committee of B.M.C. Learned counsel stated that the amendment was incorporated by adding the word "non -Doctor" in Category "A" of para. 12 of the Prospectus as back as in 1996‑97, thereafter no one challenged it. Inasmuch as when petitioners applied for admission against the reserve seat they did not challenge the same at the time of filing of their application forms and when after competition both of them could not get the seat on lame excuse vires of same cannot be challenged, but as they are estopped by their conduct, therefore, they are not entitled for any discretionary relief as it has been held by this Court in C. P. No.473 of 1998. Reliance was placed by him on PLD 1973 Kar. 332 and PLD 1976 Quetta

64. Syed Ayaz Zahooor learned counsel for Selection Committee supported the contention/arguments put forth by Malik Sikandar Khan, Advocate‑General. Mr. Basharatullah learned counsel in C.P. No. 262 of 1999 on the last date of hearing, however, had argued that as per the cardinal principle of interpretation of the Statute it is the duty of the Court to examine the Statute in a manner so there should be consistency and harmony in its different parts and if there is any variation, confrontation, contradiction in any one of those parts, the Court is competent to delete/strike down the same in order to make any law or statute workable, practical. Learned counsel was also of the opinion that as there is inconsistency in para. 4(c) (1) and para. 12, Category A read with explanation appended thereto, therefore, the words "non‑Doctor" used in Category A deserves to be declared as "non‑existent" or merely the words which can be termed to be as flouting portion of a statute having no effect etc. We have heard learned counsel for parties at length and have also gone through the various provisions of the prospectus requiring interpretation in instant petitions. In our opinion it would be appropriate to reproduce hereinbelow para.4(c) (1) and (5) alongwith the note appended at the end of this para as well as complete para. 12 herein below:‑‑ PARA. 4.‑‑‑The break‑up of Medical seats of Bolan Medical College Quetta, for the Session 1997‑98 shall be as under:‑‑ a . b . c. Reserved seats for:‑‑

1. Children of Doctors of Balochistan 3 seats 2 . ............... 3. ............... 4. . .............

5. Children of non‑Doctors Government 1 seat servants of Balochistan Health Department, and Para‑Medical Staff of Provincial Health Department on Yearly Rotation basis: PARA. 12.‑‑‑The selection of candidates against the three seats reserved for the children of doctors of Balochistan shall be made from amongst the eligible children of doctors who are local/Domicile of Balochistan or possess valid permanent residence certificate of Balochistan, and their selection will be effected according to the following three categories. CATEGORY A.‑‑‑Teaching Staff of Bolan Medical College. Children of Teachers/doctors, non‑Doctors in Bolan Medical College, Quetta with at least ten years' service and the children of retired and deceased teachers of Bolan Medical College, are eligible for the seat provided that the deceased teacher had at least ten years' service at his credit‑‑ One Seat. CATEGORY B.‑‑‑ Children of doctors serving the Provincial Health Department with at least ten years service other than those mentioned in Category A above. The children of retired and deceased doctors shall also be eligible for the seat provided that the deceased doctor had at least ten years' service at his credit‑ One Seat. CATEGORY C.‑‑‑ The children of only those doctors who are full‑time Medical Practitioners in Balochistan and are local/domicile and permanent resident of Balochistan and are not employees in Provincial Government and the children of deceased doctors falling in this category would also be eligible for the seat, provided that the deceased's family Is permanently residing In Balochistan, and they should have served the people of 9alochistan as private practitioner for at least ten years.‑--One Seat. EXPLANATION,‑‑‑ The doctors should be one registered with the Pakistan Medical and Dental Council and the candidate shall have to produce the certificate of registration valid/up to date of his/her father/ mother, as the case may be from the Council on the date of application., On careful consideration of para. No.4 of the Prospectus one can conveniently visualise that it deals in respect of break‑up of medical seats in B.M.C. Undoubtedly under sub‑para.C(1), three seats have been reserved for the children of Doctors of Balochistan. At this stage it may be noted that this provision does not define the Doctors whose children shall be entitled for admission because in subsequent provisions like in the note appended with this para. and para. 12 as a whole defines or categorise those Doctors whose children are entitled for admission in B.M.C against the reserve seats. At the same time it is also to be borne in mind that as per sub‑para. C (5) one seat has been categorically reserved for the children of non‑Doctors Government Servants of Balochistan Health Department and Para Medical Staff of Provincial Health Department on yearly rotation basis. It may be noted that this sub‑para. had defined two categories of non‑Doctors' children who shall be authorised to claim a seat in academic session. Surprisingly, note appended with this provision had enlarged Its scope by adding that the seats reserved for the children of non Doctor Government servants of Balochistan Directorate‑General Health Service cadre, Para‑Medical Staff Cadre and the children of non‑Doctor Government Services cadre of B.M.C. In this manner addition of the category of children of Directorate General, Health Service cadre has been made. But in our opinion it does not militate against the original provisions incorporated in sub-para.5, clause (c) of para.4 because the non-Doctors' Government servants of Balochistan Health Department also Includes the children of Government servants of Balochistan Directorate-General Health Services. Even otherwise there is no controversy between the parties as far as addition of the categories of children of non‑Doctor Government Servants of Balochistan Directorate-General Health Service cadre is concerned. The controversy as generated by Category A under para.12 of the Prospectus which has been reproduced hereinabove, in the teaching staff of B.M.C the children of non‑Doctors have also been added. To highlight this expression "non Doctor" under Category A emphasis has been provided by us. It is the case of petitioners that controlling/governing part of para. 12 does not speak in respect of allocating seats to the children of the staff of B.M.C who are non -Doctors because this para. in its terms speaks that the three seats reserved for the children of Doctors of Balochistan shall be made from amongst the eligible children of Doctors who are local/domicile of Balochistan or possess valid permanent residence certificate of Balochistan. Explanation attached thereto has further elaborated the definition of Doctors whose cases are covered by any of the three categories namely "A", "B", "C" of para. l

2. Explanation defines the Doctors whose children/child will be entitled for admission to be the one registered with the Pakistan Medical and Dental Council and the candidate shall have to produce the certificate of registration valid up to the date of his/her father/mother as the case may be, on the date of application. Placing para. 12 in juxtaposition with the explanation and para.4(c), sub para.1 it abundantly makes it clear that para. 12 was enacted to provide a machinery/procedure for the purpose of bifurcation of three seats amongst the Doctors out of which Category is most relevant for resolving instant controversy. As we have noticed that neither in para. 4(c) (1) and 'note' appended therewith or in operative portion of para. 12 word "children of non- Doctors" has not been used, therefore, without any hesitation it can be interpreted that the three seats reserved for the children of Doctors are to be distributed amongst the Doctors of different categories including teaching Doctors, but not those teachers who are non‑Doctors because for such‑like employees one seat has been categorically allocated, but in rotation on yearly basis. Mr. Basharatullah learned counsel contended that Abdul Wahid Lecturer of Islamiat in B.M.C had earlier availed a seat out of the quota meant for non‑Doctors' children by getting admitted his daughter in the earlier academic session, but as this time on year‑wise rotation he had no chance for admission of his son, i.e., respondent No.4, therefore, he managed to get added the words "non‑Doctors, teachers" in Category A of the Doctors under para.

12. We have perused the counter -affidavit filed on behalf of respondent No.4 wherein this fact has not been denied that in previous academic session sister of respondent No.4 got admission against the reserved seat for children of non‑Doctors in terms of para.4(e)(5). From the above discussion there is no difficulty to infer that in Category A of para. 12 by adding the word "non‑Doctors" an artificial contradiction has been created in order to make this para. inconsistent to para.4(c)(1) of the Prospectus for the purpose of accommodating the children of those who are non‑Doctors because without any fear of contradiction one can safely contend that the three seats meant for the children of Doctors would be allocated only to those candidates whose parents fall under any of the categories of Doctors defined by para. 12 itself as well as by Categories "A", "B", "C" read with explanation and no one else can be held to have a seat being a child of non‑Doctor because if such interpretation is accepted it would mean that the three seats are not reserved only for the children of Doctors but for the children of non‑Doctors as well provided they are attached in B.M.C. for the purpose of teaching other subjects than the medicines like Islamiat, Pakistan Studies etc., which is also a compulsory subject for the students of Ist Professional M. B., B. S. Thus, in view of the above discussion we are of the opinion that expression "non‑Doctor" has been used in Category "A" of para.12 in contradiction to para.4, clause (c) (1) and these words being superfluous can be termed to be unreasonable and unjustified, thus, to make provisions of para. 4(c)(1) and (12) Cate gory "A" read with explanation consistent and uniform, these words are liable to be struck down Now the question for consideration would be whether this Court is competent to strike down this provision or not. In this behalf reliance to the judgment reported in "Muhammad Iqbal Khan v. University of Punjab etc." (PLD 1979 SC 1) can be made, relevant para. therefrom reads as under: "These observations relate to the rules affecting a man's right to earn his livelihood, whilst the rules in the instant case, namely: the prospectus, relate to admissions to educational institutions, but I do not think anything turns on this difference, because the appellant wants to earn his livelihood by practising the honourable profession of a doctor, and as he cannot become a doctor except by receiving his training in a medical college, to deny him admission to a medical college would, for almost all practical purposes, amount to depriving him of his right to earn his living as a doctor, so I see no reason in principle why the rule in Bonser's case should not be applied to the instant case. It is true that the college in which the appellant was admitted is owned by the Government, but the authorities running Government Colleges cannot administer them as if they were their private fields, therefore, in my opinion, the rule of strict construction should be applicable with greater force to the instant case. Indeed for reasons which I will presently give, the prospectus must be construed even more strictly than the rules of Trade Unions, and, therefore, any provision in the prospectus which is unfair or unreasonable must be struck down as invalid." Similarly in the judgment of "Shehnaz Maqbool v Province of Sindh and others (PLD 1979 SC 32) and in another report 1981 SCMR 1002 (Government of Balochistan and others v. Riffat Perveen), the above principle was reiterated by Honourable Supreme Court. Now turning towards the objection of Mr. Ali Ahmad Kurd learned counsel for the respondent No.4 that petitioners are estopped by their conduct to challenge his admission on highly technical ground at a belated stage when they have themselves submitted to the jurisdiction of Selection Committee and competed for admission alongwith him but when they failed to get seat, they raised instant objection. In this behalf he placed reliance on C.P. No.473 of 1998. In our opinion this argument is not available because petitioner Beenish Nagi (in C. P. No.262 of 1999) before final announcement of the result by the Selection Committee had been submitting objections to the eligibility of respondent No.4 for claiming seat against reserve quota of Doctors' children and in this behalf she filed objections/representations on 5‑11‑1995 and on 15‑12‑1995. Both the representations were duly received but were not disposed of finally by taking into consideration objections raised therein. For the foregoing reasons words' "non‑Doctor" added in Category A of para. 12 of the Prospectus of B.M.C. for the yeah 1997‑95 are declared superfluous, unreason able and unjustified, thus. struck down by holding that the same may not be read as part of Category A of para. 12 and be deemed to have been deleted for the purpose of admissions against three reserve seats of Doctors' children in the Academic Session 1997‑95, as a consequence whereof it is declared that admission of respondent No, 4 is illegal and without lawful authority. Next question crops up for consideration that who amongst bath the petitioners is entitled to get seat reserved for Doctors' children. In our opinion we should leave this question for determination by the Selection Committee an examining merits of each of theta in view of the provisions of the prospectus. For the foregoing reasons petitions are allowed leaving the parties to bear their own costs, Q,M.H/M.A.K/777/Q