1999 PLP 1547 (CLC)

(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. 25.‑‑ (1)

(2)

(3) Nothing in this Article shall prevent the Sate from making any special provision for the protection of, women and children.

34. Steps shall be taken to ensure full participation of women in all spheres of national life." As far as Article 25(3) is concerned, it has bestowed powers upon the State for making any special provision for the protection of women and children. As regards Article 34, it speaks, that steps shall be taken to ensure full participation of women in all spheres of national life. Learned counsel for petitioners contended that the Provincial Government by abolishing the special reserved seats for girl students of each District, had negated its earlier policy, according to which, special provision was made for providing one special seat to girl students of each District throughout the Province, as they had only chosen the girl students of Quetta Rural, Ziarat and Barkhan Districts, to provide them special reserved seats. As observed hereinabove that no justification has been shown, as to why the Government selected only two Districts and Quetta Rural area, for providing special reserved seats for girl students, and omitted to extend this facility to the girl students of other Districts, therefore, in absence of any reason it was within the programme of Provincial Government to allocate one special reserved seat to girl students of each District, for the advancement of education in backward areas, where the girl students receive education up to Matric or F.Sc. after great deal of hardships. Had the Government not allocated these seats to the girl student of Quetta Rural, Ziarat and Barkhan Districts, we would have not felt any difficulty, in holding that there is no discrimination with the girl students of other Districts, but by allocating three special seats for girl students of Quetta Rural, Ziarat and Barkhan Districts, element of discrimination is clearly indicative. We agree with the learned counsel for respondents, that the Government has an authority of making classification amongst the persons living in the same circumstances and conditions, but there must be some reasonability in doing e such classification, otherwise, the action on behalf of the Authority responsible to do so, shall be deemed discriminatory. In this behalf, in the case of Ehsanul Haque and another v. Federation of Pakistan through the Secretary to Government of Pakistan, Ministry of Education, Islamabad and 2 others PLD 1976 Lah. 501 it was held as under:‑‑

"The last point argued was that in Lahore Medical College 100 seats had been reserved for female students. It was submitted that this amounted to discrimination and was violative of fundamental right of equality of law' as contained in Article 25(2) of the Constitution where it was written that 'there shall be no discrimination on the basis of sex alone'. The contention has no merit, because in clause (3) of the same Article it was written that 'nothing in this Article shall prevent the State from making any special provision for the protection of women and children'. It cannot be seriously disputed that for protection of females and children and to safeguard them against diseases, ill health and ailments peculiar to their own class, laws and provisions can be made inter alia for fixing quota of seats for lady candidates and lady doctors in the Medical Colleges. Speaking for ourselves we were really astonished to note that the male candidates who were otherwise low in merit, were trying to score not over their own class but against ladies who even otherwise needed special protection and treatment under the Constitution. The attitude adopted instead of point out any discrimination in favour of the womenfolk depicted class hatred on the part of the petitioners. At this place reference may be made to Naseem Mahmood v. Principal, King Edward Medical College, Lahore and others PLD 1965 Lah. 272 (Anwarul Haq and Muhammad Akram, JJ.) were at page 277 is a list of various reserved seats for certain categories of students. That list included reservation of certain seats for women. Though the question regarding reservation for women was not especially attended to and the main discussion was confined to reservation on regional basis but an implied support can be had from certain passages occurring at pages 278 and 288 for the proposition that various reservations made thereunder ‑‑ (including reservations for women) were not illegal in any manner." The passage at page 278 reads as follows:‑‑

"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." Then at page 288 it was concluded as follows:‑‑ "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 factors and not merely the marks obtained in the F.Sc. (Pre- Medical) examination‑" In Muller v. Oregon (1908) 208 US 412 (also reported in U.S. Supreme Court Reports (207‑210) 53 Law Ed. (October term 1907) at page 411) there occurs a useful passage regarding position of woman under an ordinary social status of life. Though the law involved there was about fixing and regulating her hours of work but the passage which we wish to reproduce being of general nature is a good guidance for keeping the various aspects of this species of mankind in view. It reads as follows:‑‑-- "That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burden of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day‑to‑day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical well being of woman becomes an object of public interest and care in order to preserve the strength and vigour of the race. Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by super physical strength, and his control in various forms, with diminishing intensity, has continued to the present. As minor, though not to the same extent, she has been looked upon at the Courts as needing special care, that her rights may be preserved. Education was long denied her, and while now the doors of the school room are opened and her opportunities far acquiring knowledge are great, yet even with that and consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitation upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real quality of right. Doubtless there are individual exceptions and there are many respects in which she has an advantage over him; but looking at it from the view‑point of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained. It is impossible to close one's eye to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted chat she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal function having in view not merely her own health; but the well‑being of the race justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labour, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long continued labour, particularly when done standing the influence of vigorous health upon the future well being of the fact, the self‑reliance which enables one to assert full rights, and in the capacity to maintain the struggle for 'subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rests upon her. " In the light of above passage we have no intention to limit the sphere of laws and provisions which can be made for protection of women and children, but just to give certain illustrations we think that (a) provision for maternity relief for women; (b) provision for free education for girls and children, and (c) provision for separate accommodation and entrance etc., for women and children at places of public resort etc., will not be violative of equality clause in any manner and we would conclude that inter alia the provisions for reserving certain seats for women for admission in Medical Colleges are all steps for the protection of that class and cannot, therefore, be said to be illegal in any manner especially when it cannot be denied that medical educated not only intends to procure protection of the person who is education but also of those whom he is to treat after completing his studies and joining the profession. At this stage reference may also be made to Jai Chand Rai v. State of Punjab AIR 1955 Him. Pra. 9 which was a case under Estate Punjab University Act where the Senate was empowered to make regulations providing for the course of the studies to be followed and the conditions to be complied with by the candidates for any University Examination. The relevant rules gave a list of compulsory subjects. One of the compulsory subjects was a classical language or Hindi, Punjabi, French or German, European, Anglo‑Indian and women candidates could offer Urdu but no other candidates. It was contended that the University had made a discrimination on the basis of sex alone and thereby infringed the equality clause. It was held that the classification made by the University was neither arbitrary nor capricious. In Ajmali Roy v. State of West Bengal and others AIR 1962 Cal.

822. Bose, J. held that setting up a new College for women and making provision for students of that college to receive lectures in another College was in no way illegal. The whole object behind this scheme, it was held, was to promote the development of the new college for women and ultimately to make it a well‑established and self‑sufficient organisation for the education of women. In other words it was a special provision as contemplated by Article 15(3) of the Indian Constitution which had been made in the interest of and for the benefit of women students in the country. The contention raised for all these reasons and in the face of the above‑quoted law is hereby repelled." Similarly the Honourable Supreme Court in the case of I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance, Division, Islamabad and others 1991 SCMR 1041, laid down following principles with regard to "equal protection of law" and reasonable classification:‑‑ "Following are the principles with regard to equal protection of law and reasonableness of classification‑‑ (i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different, financial standings, and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be reasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike, both in privileges conferred and liabilities imposed. That in order to make a classification reasonable, it should be based‑‑‑ (a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification. " Testing the case in hand, at the touchstone of above principles it can conveniently be inferred that the Government of Balochistan in abolishing one special reserved seat for girl students of each District except Quetta Rural, Ziarat and Barkhan Districts, has failed to point out that what were the reasons of such classification and whether it is founded on reasonable distinction or reasonable basis. It may be noted that in the Province of Balochistan, except few urban towns, as far as its remaining part is concerned, it falls within the definition of "rural area". Therefore, if the Government had decided to allocate one special seat for girl students of Quetta Rural area, which is adjacent to the Quetta area, and the latter being the Provincial capital also cater and provides facilities to its adjacent rural area, then as to why it was not considered to allocate such special seat to other rural areas of the Province, which are situated far away from the Provincial capital, having less educational facilities as well as congenial atmosphere, particularly for female students to receive education, like we have pointed out hereinabove. Thus, for these reasons, we are of the opinion, that the classification is not based on reasonable distinction and in a highly discriminatory manner, the girl students of other Districts, including Pishin, Zhob and Dera Bhugti were deprived of special reserved seats for girl students, and definitely in view of such distinction, there is a clear case of irrational classification, contrary to the principles of clause (3) of Article 25 of the Constitution. In this very context, learned counsel for petitioners, referred to another judgment, reported in 1989 MLD 3935. At this juncture, reference to another land-marking judgment of Honourable Supreme Court in the case of Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295, would be of significance. In this judgment the Honourable Supreme Court has held that "Clause (2) of Article 25 prohibits distinction on the basis of sex alone. However, the very next clause (3) controls the rest of Article 25 by providing that "nothing in this Article shall prevent the State from enacting any special provision for the protection of women and children". It implies, therefore, that while the difference on the basis of sex can be created and maintained, it shall be done only in those cases where it operates favourably as a protective measures for and not against women and children. The field of prohibition, of adopting sex, as a criteria for making a distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only if its not as a measure protective of females. Discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility". It was further observed by Honourable Supreme Court with regard to harmony and consistency between Articles 25 and 22 of the Constitution. Relevant para. therefrom for guidance is reproduced hereinbelow:‑‑

"The harmony and the consistency between Article 25 and Article 22 of the Constitution is obvious notwithstanding the generality pf the one and the particularity of the other, only if we keep this important fact in view that, classification based on intelligible and reasonable standards in sex alone. If in Article 22 the word 'sex' had also been introduced then there would have occurred a conflict instead of consistency between Article 25 and Article 22 inasmuch as the classification permissible under Article 25 would have become impermissible in education institutions with regard to admission therein. The girls would have sought admission in institutions exclusively reserved for boys and the boys would have sought admission in institutions reserved exclusively for girls unless it was shown as a fact that the institution for girls war kept exclusive for the purpose of and within the limitation of clause (3) of Article

25. As the two Articles 25 and 22 stand at present for discrimination except for advancing the cause of women and children as permitted by clause (3) of Article

25. On that principle of reasonable and intelligible classification it is possible to have educational institutions exclusively catering to the needs of the male population and also educational institutions catering exclusively the female population in our context and in our society. However, when an educational institution is thrown open for co‑education, as has been done in the case of six medical institutions excluding Fatima Jinnah Medical College, then a further restriction of numbers on the ground of sex is permissible only as a protective measure of women and children but in no case so as to protect comparatively less meritorious boys to the prejudice and exclusion of women. This amounts to gross violation of Constitutional mandate." Once again applying the above test laid down by Honourable Supreme Court, with regard to equal protection of law to the citizens, both male and females, on the facts of instant case, we feel no difficulty in observing, that the Government of Balochistan, either should have abolished totally all special reserved seats for girl students and have thrown these seats in open merit for boys 'and girls, throughout the Province, notwithstanding the fact whether they belonged to a particular area or not or should have provided one special reserved seat for girl students to each District, instead of giving. approval for this purpose only to Quetta Rural, Ziarat and Barkhan Districts. Then, in such situation, there would have not been any discrimination amongst the girl students, competing on merits, for admission. But by creating unreasonable classification, distinction has been done by the Government in not allocating special reserved seats for girl students of other Districts. At this stage, reference to the judgment relied upon by Mr. Basharatullah, learned counsel in the case of Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court and others 1997 SCMR 1043, will suggest that the law laid in this judgment, has not advanced the case of respondents; because, a different question, pertaining to interpretation of fundamental rights, enshrined in Articles 18, 27 read with 25 and 2A of the Constitution of Islamic Republic of Pakistan, were under consideration. Even in this report, it has been held that "all citizens are equal before law and are entitled to equal protection and that they shall not be discriminated on bass of sex alone" But if this principle is examined in view of earlier judgment of Honourable Supreme Court in the case of Sherin Munir, referred to herinabove, one can safely hold that clause (3) controls the rest of Article 25 by providing that "nothing in this Article shall prevent the State from enacting special provision for the protection of women and children". It has been further held, that the field of prohibition, of adopting sex, as a criteria for making distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only, if it is not as a measure protective of females. It, was also laid down in the‑ judgment that discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility. As, far as the judgment relied upon by Syed Ayaz Zahoor, learned counsel; reported in PLD 1985 Lah. 300, is concerned, it needs no discussion, because in this case, scope of powers of Provincial Government to frame policy for admission and a vested right of a candidate to seek admission etc. was considered. However, the question under consideration was not discussed in this judgment. As regard the other judgment reported in PLD 1987 Lah. 336, of course in it, the scope of Article 22(3)(b) of the Constitution was examined, but there too, it was held that "undoubtedly the discrimination made on basis of sex coupled with other grounds is permissible". We may observe that this principle again is to be considered, in view of the accepted principle with regard to "equal protection of law" that the reasonable classification is permissible, but it must be founded on reasonable distinction or reasonable basis and that "equal protection of law" does not envisage that every citizen is to be treated alike in the circumstances, and it contemplates that persons similarly situated or similarly placed are to be treated alike. As in the instant case no reason has been advanced E that when in whole of the rural areas of the Province of Balochistan, the girl students are facing same difficulties, which are being‑faced at least by the girl students of Ziarat and Barkhan Districts, then what was the wisdom of not providing them equal treatment of having one special seat for girl students of each District. Thus, the above discussion persuades us, to hold that the classification of providing special reserved seats to girl students of Quetta Rural, Ziarat and Barkhan Districts, is irrational/unreasonable and as such is not sustainable in the eye of law. Now, we would take up the objection put forth by learned counsel Syed Ayaz Zahoor, regarding non‑maintainability of petition, on the ground of laches as well as conduct of petitioners, because, they accepted the terms and conditions, incorporated in the Prospectus of 1997‑98, whereby special reserved seats for girl students, were abolished pertaining to Pishin, Zhob and Dera Bugti, and on having been declared "fail" opted to file instant Constitutional petitions According to learned counsel, it is an admitted fact that before submitting the application Forms, none of them raised objection, nor challenged that they have been discriminated and participated in the entry test. Learned counsel further, stated that in such situation, petitioners cannot be allowed to blow, hot and cold, to one breath. According to him, either they should have not participated in the examination and had straightaway challenged the action of the Government in abolishing the special reserved seats for girl students of each District including the Districts, from which, they belong. He further stated that in fact they had also conceded to the decision of Selection Committee, as promptly no proceedings were launched by them, therefore, the petitions, being barred by lacks deserve to be dismissed. On the other hand, learned counsel for petitioners contended that as far as the Prospectus is concerned, it has attained the status of a statutory document, because except it, there is no other instrument to regularize admissions in Bolan Medical College, therefore, against a statutory provision, the principle of estoppel, shall not be applicable, nor the petitioners can be denied relief on hypertechnical objection of laches. In the judgment, Muhammad Ismail v. Abdul Rashid and 2 others reported in 1983 SCMR 169 it has been held as follows:‑‑ "Even if the transfer order be void, the assumption that a Court must always strike it down regardless of the consequences of such decision is, as held in Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore 1978 SCMR 367, a total fallacy. In this connection it was further observed in this cited case that there is also ample authority for the proposition that a writ against a void order may be refused if it was meant to enable the petitioner to circumvent the provisions of a statute of limitation or if he was estopped by his conduct from challenging the order or if he had been guilty of laches. " In Muhammad Yaqoob Khan v. Member, Board of Revenue, Punjab and others 1984 SCMR 940, with regard to the petition being barred by laches, the Honourable Supreme Court has held as follows:‑‑ "Laches expressed in simplest terms, implies a failure to do something that a party should have done. In this case if the appellant wanted to re‑agitate against the declaration of this portion of the building as a Big Mansion and its disposal as such he should not have reconciled himself to the decision dated 22‑3‑1979 given on his Constitutional petition (941 of 1971). Further. laches as a concept of law, is not synonymous with delay alone but it signifies such delay as works to the disadvantage of another. In this case by not asserting his rights be permitted by his conduct the compromise between three sets of contestants on one side and the auction‑purchaser on the other thereby concluding the dispute in its entirely. He by his inactivity and by not playing a positive role in the litigation denied himself the chances of any improvement resulting from subsequent litigation. His remaining as a respondent in the arena at his own request with no relief against auction‑purchaser could not be of any avail to him in the matter of seeking further redress. " Likewise in the case of Messrs Dawood Yamaha Ltd. v. Government of Balochistan and 3 others PLD 1986 Quetta 148, this Court with regard to the effect of laches, estoppal or acquiescence, held as follows:‑‑ "We are inclined to hold that the question whether laches or estoppel or acquiescence can defeat a Constitutional petition will depend on the facts and circumstances of each case. In some cases, the delay of few months may be fatal to a Constitutional petition may be explainable and may not be fatal. We are also inclined to hold that if the condonation of laches is to prejudice the other party, the delay is not condoned generally unless there are some other compelling reasons, which will foster the cause of justice. Furthermore, in a case of continuing wrong the petitioner may have a cause of action to maintain a petition even after the expiry of a few years, at least for the recurring cause of action. " There is no dispute that all the petitioners, without expressing any reasons concerning abolishing of special reserved seats for girl students of District Pishin, Zhob and Dera Bugti, submitted applications for admission against open merit seats, for the Sessions 1997‑

98. Their applications were found entertainable, as such, they were allowed to sit in entry test, where they competed with the other candidates. The result, after processing admission forms, was announced on 15th January, 1998. The completion of process of admission remained pending for a period of more than six months and during this period, no one amongst the petitioners agitated that, as to why, they are being discriminated, by not allocating one special reserved seat for girl students of their Districts. However, after the announcement of result, when the private respondents in Constitutional Petitions Nos.473 of 1998 and 212 of 1999, were selected, they filed petitions. It may be noted that in Constitutional Petition No.106 of 1999, Miss Safia Jan, did not implead the successful candidate as party and later on, during hearing of petition, on 28th April, 1999, an application was submitted for impleading one Abdul Ghaffar son of Haji Abdullah Khan, as respondent, but that application was not decided because it was too late. In view of above facts, it is clear that petitioners are estopped to question the discriminatory action of the Government of Balochistan, in abolishing the special reserved seats of girl students of Districts Pishin, Zhob and Dera Bugti. Likewise, the petitions having been filed much after the issuance of Prospectus, suffer from laches, in addition to the fact that in the meantime, the private respondents in Constitutional Petitions Nos.473 of 1998 and 212 of 1999, were also granted admission. Therefore, in such situation, at this belated stage, no relief can be granted to them, as it was done so, by Honourable Supreme Court in the case of Sherin Munir PLD 1990 SC

295. Relevant para. therefrom is reproduced hereinbelow:‑‑ "In view of the discussion that has proceeded on merits, the claim of the girl students merited acceptance on the ground that they have been discriminated against in the matter of admission of co‑educational medical colleges by suppressing their merit as against the boys admitted thereto. As regards the relief to be granted, certainly these girls students cannot substitute the boys students who have been admitted for more than one reason, the most important being that they have not been impleaded so as to oust them from the seats that they had obtained under the earlier arrangement. Besides, now more than two years have elapsed and they have advanced in their studies and it would be not at all proper and fit to unseat them and let two years of studies go waste without it being availed of by the appellants either. We are also opposed to creating additional seats because that is a matter purely administrative. However, the declaration should be given enabling them to compete on merit with the boys seeking admission in the next session over and above the seats reserved for them whenever admission taken place. On the facts of the case as they stand today that would appear to be the only relief to which the appellants would be entitled." Thus, for the foregoing reasons, the writ is issued to the extent, that the Provincial Government of Balochistan, has made irrational/unreasonable classification in the Prospectus of Bolan Medical College, Quetta, for the academic Session 1997‑98, by allocating one special reserved seat for girl students, each to Quetta Rural, Ziarat and Barkhan Districts, and abolishing such seats of other Districts of the Province, including Pishin, Zhob and Dera 1 Bugti. Therefore, such provision of the Prospectus, is liable to be struck down, with the observations, that in the forthcoming Session, to avoid discrimination, amongst the girl students, the Government of Balochistan through Health Department, either should abolish special reserved seats for girl students of Quetta Rural, Ziarat and Barkhan Districts, or to restore all special reserved seats for girl students of remaining Districts, as well. However, as regards the relief of admission to petitioners, same is declined, for the discussion, made hereinabove. Parties are left to bear their own costs. ‑ A copy of this judgment be sent to the Government of Balochistan, through Secretary, Health Department, for further action, keeping in view, the observations made hereinabove. M.B.A./765/Q Order accordingly.