1. ' M. A. RASHID, J.-This petition challenges the reasonableness of the '12' years' stay rule, as contained in rule 18 under the Heading "Admission Policy" of the Prospectus of the Bolan Medical College Quetta. It is contended that this rule does not apply to the children of Central Government Servants, who are otherwise eligible. Alternately it is contended that this rule is ulta vires of the Fundamental Rights Nos, 4, 15, 22 and 25, as provided in the Constitution. The rule is also attacked on the ground as being unprecendented, being against justice, equity and good conscience. It is also alleged to be unreasonable, oppressive and discriminatory. It is contended to be a fraud on the statutes inasmuch as it runs counter to the provisions of Pakistan Citizenship Act, 1951.
2. ' Petitioner's father was an employee in the earstwhile North-Western Railway. He opted for Pakistan and arrived in Rawalpindi on the 8th August, 1947. During his service on the former North-Western Railway and later Pakistan Western Railway he served at various stations. Detail of such stations is given in Annexure 'A'. It may be mentioned here that one contention raised by the petitioner is that the petitioner's father did not serve at any of such places for more than 8 years. However in 1971, petitioner's father arrived at Quetta on a posting. In 1974 he applied for a domicile certificate to the District Magistrate, Quetta which was granted on 27th December, 1974. Petitioner name duly appears in such domicile certificate (Annexure 'C') at Serial No, 2 in the column of children.
3. ' Petitioner appeared in Matriculation Examination from the Baluchistan Board of Intermediate and Secondary Education in the year 1975. She stood first in the entire province among the girls by securing 678 out of 900 marks. In 1978 she appeared in Intermediate Examination and secured 6th position among girls of the Province by obtaining 648 marks out of a total 1000 marks. In the year 1978 she applied for admission to the Bolan Medical College. Petitioner's application for admission was rejected although respondents 3 to 6 and 8, who secured lesser marks than the petitioner, were admitted. The ground for rejection of the petitioner's candidature was that her parents had not completed 12 years' stay in the province, though they were in possession of a valid Domicile Certificate granted by the District Magistrate, which was later duly verified at the instance of the Selection Committee.
4. ' This decision of the Selection Committee was announced on 25th April, 1978. Earlier however on 22nd April 1978 a news item appeared in the Press stating that certain number of discretionary seats were available with the Zonal Martial Law Administrator, which would be allotted on the basis of merit and would be distributed on divisional basis. Consequently the petitioner, after the rejection of her candidature by the Selection Committee, made an application on 26th April, 1978, to the Zonal Martial Law Administrator for being considered against such discretionary seats. The hardship suffered by her was fully explained in such application. But again she was ignored and other candidates were accomodated against such discretionary seats. The father of the petitioner made a last effort by making a representation to the Chief Martial Law Adminitrator on 22nd May, 1978. The administrator of Bolan Medical College sent a reply to such representation by his letter dated 28th June, 1978. In this letter again the principle of 12 years' stay was reiterated and the petitioner's father was told that the petitioner's claim could not be accepted. This representation to the Chief Martial Law Administrator and its reply appear on record as Annexures 'N' and '0' respectively. Left with no remedy she has filed the present petition.
5. ' The rule of 12 years' stay is contained in rule 18 of the Prospectus of the Bolan Medical College Quetta. This rule reads as follows :- "(18) The admission to the Medical College is open to the local candidates and those domicile candidates whose parents have a minimum of 12 years total stay in Baluchistan.
6. (a)
(b) The candidate shall have to produce before the Selection Committee a Domicile Certificate issued by the District Magistrate under the Pakistan Citizenship Act, 1951 (II of 1951) and the rules made thereunder and other documentary proof in respect of 12 years' stay of the parents or the guardians as the case be, in Baluchistan.
(c) ..
(d) .
7. ' First submission made by Mr. Chishti on behalf of the petitioner is that this rule of 12 years' stay is not a rule of universal application in the case of domiciled residents of the province and that it does not apply to the types of cases to which the petitioner belongs, because otherwise it would lead to anomalous and unreasonable results. It is contended that the petitioner's father has not roots in any of the other provinces of the Federation and that by virtue of being a Central Government Employee he could not have any control over his posting, it being one of the conditions of his service that he could be transferred anywhere within the country in the exigencies of service. It is also submitted that same thing could happen to a Provincial Government Employee as well, who, according to the Provincial Civil Servants Act, is liable to serve anywhere in Pakistan.
8. Therefore, it is contended, the condition of 12 years' stay cannot be insisted upon in :the case of Central Government and Provincial Government Employees who do not have any control over their posting. Second the submission made is, the rule is unresonable in as much as it requires the parents of the domiciled residents to have an aggregate stay of 12 years in the province. Thus even those students would be excluded who may have resided for this much period within the province but whose parents do not fulfil this condition.
9. ' The Courts have always leaned in favour of saving a legislation, and have placed such construction upon its words as would give reasonable results and would avoid artificial and anomalous construction. But the question of applying the principle of interpretation as to reasonable. Results arises only where there is a case of doubtful significance, or where words of the statute admit of two meanings or present two possible constructions. In case where a statute uses plain words, which are clear and quite unambiguou in their import there is no room, in the words of Scott L. J. 'for applying any of these principles of interpretation which are merely presumptions in cases of ambiguity in the Statute Crawford v. Universal Insurance Co. (1). In the present case the language of the rule is quite unambiguous and leaves no room for more than one interpretation.
10. ' Another cardinal rule of interpretation is that a law should be construed in accordance with the intention expressed in the law itself. And Maxwell B in his book on Intrepretation of Statutes states that where literal application of the words 'would defeat the obvious intention of the legislation and produce a wholly unreasonable result, some violance to the words' should be done to achieve such obvious intention. But from the language used we are unable to gather any other intention of the framers of the Prospectus, than to exclude those domiciled residents whose parents have not completed twelve years stay in the province. In the face of such an obvious intention there is no room for application of such principle of interpretation as well.
11. ' The fact remains that the rule is obviously patently unreasonable when it requires the parents of a candidate to spend 12 years period in the aggregate within the province. A rule as contained in a prospectus is nothing better than a bye-law as held by the Supreme Court in Mohammad Iqbal Khan Niazi's case (2). This authority has further held that such bye laws could be held invalid on the ground of unreasonableness. Same principle was followed in case of Shahnaz Maqbool v. Province of Sind (3) where it was held that rules, as contained in the prospectus, could be struck down as illegal. Therefore a rule, as distinct from a Statutory Provision, can always be challeged on the ground of reasonableness and held invalid. In the present case the rule of 12 years that is patently unreasonable on the ground that it requires the parents of a prospective candidate to a medical College, rather than himself, to fulfil the condition of twelve years in the province and therefore cannot be held valid.
(1) (1936) All E R 151 (2) PLD 1979 SC 1
(3) PLD 1979 SC 32 ' The rule is contended to be discriminatory inasmuch as no such condition is attached to the locals. A local is not defined in the prospectus. But genarally it is believed that a local is a person who belongs to one of the recognized tribes of the province. We are further informed that such recognized tribes have been duly notified by the Government. It is submitted on behalf of the respondents that even a local is required to submit a residence certificate. Such certificate is required to be submitted, in terms of rule 5 under the Chapter "Procedure of Admission". A permanent certificate is actually required to be submitted along with the application by each candidate, irrespective of the fact whether he is local or a domicile. Secondly this certificate is not a condition of eligibility, as distinct from the condition of twelve years' stay. It may be mentioned that the later rule occurs in the Chapter 'eligibility of candidates', which means failure to fulfil any of the conditions mentioned therein debars such person from competing for admission to the Bolan Medical College. Thirdly a permanent residence certificate nowhere requires that such residence should be for a period of twelve years'. In fact no period is prescribed for the same; nor is any standard laid to show who is a permanent resident. Thus it is left to the descretion of the certificate issuing authority to follow the criteria of its own choosing to arrive at a decision if a candidate is entitled to such certificate. It is therefore obvious that a domiciled resident is discriminated against inasmuch as his parents are required to show a period of residence of twelve years' within the province. This condition is violative of equality before law clause as contained in Article 25 of the Constitution as it amounts to denial of the privilege of admission to a medical college by reason of being a domiciled resident. The principle as enshrined in article 25 of the Constitution means that among equals the law should be equally administered. This invidious distinction between locals and domiciled residents, which is patently racial in character, is violative of the principle. The distinction also violates the constitutional gaurantee as contained in Article 22(3)(b) that no citizen shall be denied admission to an educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth. Denial to enjoy these rights impinges upon the guarantee contained in Article 4 of the Constitution.
12. ' The learned Advocate-General contends that Article 4 of the Constitution is not attracted in the circumstances of the present case because this article, according to the learned Advocate- General, is available only where there is a right vesting in the citizen, which is shown to have been violated. Reliance in this behalf is made upon Mohammad Sharif v. Saeed-uz-Zaman (1) where it is held that the question of application of Article 2 of the 1962 Constitution (which used the same language as Article 4 of the present Constitution) arises only when violation of some right is involved. The learned Advocate-General further contends that no statutory right inheres in the petitioner to be granted admission to Bolan Medical College. If ever she has any such right it is contingent upon the fulfilment of condition of twelve years' stay in the province. For this second proposition the learned counsel seeks support from the view expressed by M. R. Khan J., (as he then was) in Rafi-ud-Din v. Chief Settlement and Rehabilitation Commissioner (2) wherein it is held that if a right, benefit or advantage conferred by a Statute is dependent on the happening of a contingency, then the same becomes a "vested or accrued right" after the contingency has happened. In the first place it may be stated that the view of
(1) PLD 1968 Lah. 122 (2) PLD 1971 SC 252 M. R. Khan, J., though entitled to the greatest respect, is a minority view and therefore is not to be deemed to be a decision of the Supreme Court as held by this Court in Mohammad Raza v.
13. Province of Baluchistan (1). Secondly the view is otherwise not attracted in the circumstances of the present case because here this very condition is under attack by the petitioner and therefore the question of application of principle of the accrual of the right admission on the happening of the contingency of the stay of twelve years would not arise.
14. ' A right need not necessarily be a statutory right. But according to a broad definition of the term 'right', given by A. K. Brohi in his treatise Fundamental Law of Pakistan (p. 301), it is 'a legal relationship between two juristic persons recognized by. Courts concerning their conduct and, so regarded, it would appear to be the very stuff out of which the legal order is itself built up. The learned author goes on to state that a legal right need not have been created by states, and that, it must needs be such that the law Courts would recognize it and would give to it support of their decision, which would then be backed by the force of the state for its enforcement.'
15. ' In the present case, however, the right sought to be enforced is a right having the solemn backing of no less a document than the Constitution itself. A denial of such right, therefore, would always attract the provisions of Article 4 of the Constitution.
16. ' Another objection to the invocation of Article 4 of the Constitution is that fundamental rights stand suspended by virtue of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. This provision has been held to be a valid piece of legislation by the Supreme Court in Nusrat Bhutto's case (2). It is therefore contended that such rights cannot be enforced through the present petition. However the learned Advocate-General readily conceded that the limitation imposed by Article 8(2) of the Constitution upon the State not to promulgate laws in contravention of the rights other than those enumerated in Article 232(1), is not removed by virtue of imposition of emergency.
17. Emergency powers of Art. 2'33 to suspend some of the fundamental rights does not extend to Articles 22 and 25 of the Constitution and therefore, the State cannot, under any circumstances, make laws in violation of such rights. If the State trensgresses such limits the validity of such laws can always be challenged in the Courts. It may also be mentioned that Article 4 falls outside the chapter of Fundamental Right and is, therefore, not affected by a proclamation of emergency.
18. ' The learned Advocate-General while relying upon Zain Noorani v. Secretary of National Assembly
(3) Atta Elahi v. Parveen Zohra (4) contended that the classification createdy by Rule 13 of the prospectus is a reasonable classification and cannot be held to violate the equality before law clause of the Constitution as contained in Article 25. In the case of Zain Noorani, the petitioner had objected to different modes of filing of casual vacancies in the National Assembly, from East and West Pakistan. Their Lordships of the West Pakistan High Court, Karachi Bench, observed that Article 5 of the 1956 Constitution, which contained the Equality Before Law Clause, permitted reasonable classification and that such classification is to be based upon some real and substantial dintinction bearing a reasonable and just
(1) PLD 1976 Quetta 64 (2) PLD 1977 SC 657
(3) PLD 1957 Kar. 1 (4) PLD 1958 SC (Pak.) 289 relation to the object sought to be achieved. It was held that classification could not be made arbitrarily and without substantial basis. By applying this principle it was held that different rules could be made regarding filing casual vacancies from East Pakistan and those from West Pakistan.
19. Similarly in the Supreme Court authority where in the electoral rules for the District Board of Lyallpur only three seats were provided for women, both Muslimsand minorities. Against that 84 seats were provided for Muslim males and two for minority males. It was contended that registered Male Voters in the District were 6,23,127 while famale voters were 2,94,999. On this basis it was urged that this inequality between men and women was regards the representatives to be elected by them, violated the equality before law clause of the Constitution. It was held that in view of the factors, which were taken into consideration for granting franchise to women for election to the local bodies, the classification being, based on history, ideology and reason, could not be contended to be arbitrary, fanciful or unreasonable. In view of those authorities the learned Advocate-General contends that classification made by twelve years' stay rule is not arbitrary and Therefore does not violate the equality before law clause.
20. ' The equality before law does not mean that all citizens are to be treate alike in all manner of circumstances. A reasonable classification has alway been accepted to be valid while granting the right of equality before law and to illustrate the point I can do no better than quote from Jibendra Kishore and other v. Province of East Pakistan (1). Their Lordships of the Supreme Court while observing that the provision as regards equal protection of laws introduced by 14th Amendment to the American Constitution has been invoked on more occasions than any other constitutional guarantee but still no rule has been formulated by the Supreme Court of that country as to what may be regarded as a denial of the equal protection of laws, that will embrace every case. The application of this principle has always been held to depend on facts of each case. Their Lordships of the Supreme Court proceeded to observe:- "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 of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to equality doctrine provided the classification is not arbitrary or capricious and is reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the 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 pr fanciful. A classification
(1) PLD 1957 SC (Pak.) 9 that proceeds on irrelevant consideration, such as differences in race, colour or religion will certainly be rejected by the Courts."
21. ' Thus a classification can be held to be valid only if it is based on actual and real differences existing between different groups to be treated different) and the law or the rule while recognizing such differences adopts itself to such situation. A class legislation is particularly forbidden by this rule o equality before law. Applying this principle in the present case where rule 18 clearly discriminates against domicile residents viz-a-viz the locals in th province it cannot stand the test of equality before law. Here it would pertinent to examine the reason given by the Government in making this provision. This reason is contained at page 7 of the Parawise Comments provided by the respondents Nos, 2 and 7 and read as follows:- "In case the condition of 12 years stay of the parents of the candidates in the province is abolished then local and the real domiciled candidates of this province will not be able to get admission in the Bolan Medical College, Quetta. It will be very easy for the students of other provinces, who fail to get admission in the medical Colleges of their provinces of domicile, to acquire a demicile Certificate from any district of Baluchistan by submitting an "Affidavit" with regard to the intention of settling down in Baluchistan and secure admission in the Bolan Medical College on the strength of Domicile Certificate so obtained by them. The condition of twelve years stay in Baluchistan of the parents of the candidates is neither discriminatory nor ultra vires."
22. ' These comments indicate that provincial Government is very concerned as regards the Real Domiciled residents of the Province, and is apprehensive that any body would be able to secure a domicile on the basis of an affidavit. This in other words means that the respondent is not confident of the efficacy of its own machinery dealing with the grant of Domicile certificates. In any case the fear of the Government, that wrong person would be able to obtain Domicile certificate, which in our view is ill-founded if the provisions of Citizenship Act are properly followed, cannot be made the basis of discriminating against those candidates who are domiciled residents of the province. The restraint and burden of this nature cannot be validated for the reasons given by the respondent Government.
23. ' It is also contended by the learned Advocate-General that the object of this provision is to exclude outsiders from competing for the seats in the Bolan Medical College. But unfortunately the provision is not in line with the object for which it is intended to have been made. The effect of these provisions is that genvine residents of the province. Who do not fulfil this condition, are excluded from competing for such seats.
24. ' The next contention raised by the learned Advocate-General is that the locals and real domiciled residents of the province are not in a position to compete with students who come from outside and are educated at better educational institutions. This being a laudable object, according to the learned Advocate-General, a departure can always be made from the general policy in favour of such class of students. The general 100 seats of Bolan Medical College are exclusively reserved for residents of the Province. No outsider can otherwise compete for such seats. 'On the other hand the rule of twevle years' stay tends to exclude genuine residents of the Province, rather than achieve the object canvassed by the learned Advocate-General.
25. ' Another submission made by the learned Advocate-General is that the petition has become infructuous inasmuch as the prayer made was that rejection of application of the petitioner for admission to first year M. B., B. S. Class of Bolan Medical College for the year 1978 is without lawful authority and that concerned respondent may be directed to admit her during that academic Session. It is contended that academic year 1978 having passed the petition itself has become infructuous. Reliance in this behalf has been placed on Pakistan v. Ali Afzal (1). In this authority the law laid down was that where there was a prayer for a writ of mandamus the Court granting in substance a writ of Prohibition had committed an error of fundamental nature and therefore such a direction could not be sustained. The facts of that case were that Ali Afzal had prayed that he could not be retired from a particular post of Joint Secretary on a date falling after the institution of the writ Petition. But before the writ petition could be decided that post was oblished and therefore the High Court granted a relief in the nature of a direction to the Government of Pakistan not to interfere with the right of the petitioner as an employee of that Government for a period extending to 3 years. The facts of the authority, relied upon and the present case are quite different. In the cited case the circumstances had undergone a change as a result of a valid act of the respondent Government. And in the circumstances of such changed facts the direction given by Court were entirely of different nature as prayed for. In the present case the petition was duly filed within time.
26. It could not be taken up during 1978 because of factors beyond the control of the petitioner; facts which are relatable with the working of this Court. The petitioner therefore cannot be penalized for circumstances of this nature. In any case the nature of the direction sought to be issued to the respondent is not being changed. The only change that is going to occur is that the petitioner admitted be during the current academic year rather than during the academic year 1978. And for this purpose no specific amendment in the petition need be made. This is a type of relief which may always be given by the Court, in terms of rule 7 of Order VII of the Code of Civil Procedure. Such relief would be just and proper in the circumstances of this Case.
27. ' The final prayer of the learned Advocate-General is that this Court is not competent to issue a direction for creating an additional seat in the Medical College if the petitioner is otherwise found entitled to the relief prayed for. We have not been able to understand the reasons for such a submission. While we are conscious of the fact that creation of a seat in the Medical College costs the Government a substantial amount, but legal and constitutional rights of citizens are not to be measured in terms/ of the costs involved. Cases are not wanting where-the superior Courts have, for giving relief of this nature issued such directions. In this connection I may refer to the case of Abdul Sattar v. Government of Sind (2) where the Division Bench of the Sind High Court held that if due to wrong action and default of authorities an eligible candidate was deprived of admission to Medical College a direction can be given to admit such candidate to the Medical College and, in case of non-availability of seats, to create an additional seat. In that case the petitioner was refused admission in academic year 1975-76. The admission in the succeeding year had also been over.
28. (1)PLD1960 SC1 (2) PLD 1978 Kar. 59 ' Therefore a direction was given that in case seats were not available a new seat should be created. Our own Court in Miss Safia Hameed v. Chairman Selection Committee (1) issued a similar direction. There are, therefore, no such limitations on the powers of this Court to issue such directions for providing the relief of the nature prayed for.
29. ' In the light of the above discussion I have come to the conclusion that the rule of twelve years' stay is discriminatory and therefore ultra vires o k the Constitution. The petitioner therefore, who is admittedly a domiciled resident of Baluchistan, cannot be denied admission on this sole ground. It is not the case of respondents that she is not eligible otherwise. I would therefore direct that she be admitted in the first year class of the Bolan Medical College. An acadamic year 1978 is long past therefore she should be admitted during the current year. In order to comply with such directions of this Court, a seat should be created if none is otherwise available. The petitioner would be entitled to costs.
30. ' ZAKAULLAH LODHI, J.-While agreeing with the judgment proposed to be delivered by my learned brother in this case I will take the privilege of adding few lines of my own.
2. Mr. Chishti severally criticised the Rule of 12 years' stay as contained in the prospectus and referred to in the judgment of my learned brother on the ground of discrimination which according to him had two fold aspects, namely (a) it created discrimination between the old residents of the Province and belonging to indigenous tribes popularly described as "locals" and those residents who had acquired domicile in the Province by migration from across the boarder and other Provinces of the Country and were known as "domicile"; and (b) it also created discrimination between the domiciles themselves who had stayed in the Province for 12 years or more and the others who had lived here for a lesser period. His argument mainly rested on the point that such discrimination was violative of the principles of "equality before law" as enshrined in Articles 4, 15, 22 and 25 of the Constitution. Examining this contention in the light of Article 4 may add that it reiterates the principles of supremacy of law which is also recognized by the Constitution of almost all the civilized countries of the World, and declares that every citizen of, and every person in Pakistan was entitled to protection of law and further guaranteed that he shall not be treated in a manner not provided by law. This principle presupposes that it will apply to all persons placed in similar situation alike, unless otherwise discrimination of any kind was permissible constitutionally.
31. Accordingly when we examine the matter of admission in educational institutions in the light of the Constitution, it is manifest that the present Constitution by virtue of Article 22(4) ha enabled the public authorities to make such provisions for the advancement o any socially or educationally backward classes of the citizens as they ma deem fit. Precisely this is what the authorities have done in case of certain-educational institutions imparting professional education which is evidence from their prospectuses and Bolan Medical College is one such institution in which seats have been allocated district-wise as well as some seats have been reserved for such clases of citizens who require prefrential treatment in order to uplift them socially and educationally. The merits or demerits of such policy hardly fall within our province to be gone into, unless, of course, the are pointed out to be in conflict with or contrary to any constitution a
(1) PLD 1979 Quetta 66 guarantee or are in any manner opposed to an existing law. However such is not the case here.
32. Accordingly the discrimination as far as it concerns the citizens belonging to indigenous tribes of the province on the one hand and those who have acquired domicile of the Province on the other cannot reasonably be challenged. Such discrimination is also not unprecedented. In Indian Constitution as well in matters of education and service some such privileges were reserved for economically and educationally backward classes of the citizens, and it was done only with a view to ensure speedy advancement of such classes of the citizens. However, such provisions are always to be regarded purely temporary in nature and are liable to be erased from the statute book, once it is realised that such backward classes of the citizens had come at par with those who were ahead of them in such matters earlier.
33. ' Now adverting to the discrimination between various groups of the domiciles (who already stand as an independent separate class of citizens in matters of admission to colleges of professional education and enterance in services by dint of above referred discrimination) on the ground of 12 years stay or otherwise, it is apparently highly uncalled for as neither the prospectus creates any justification for geasuring the rights of their children, otherwise entitled to admission, with different yardsticks nor we find anything on this subject in any law known to .The country. The words used by the learned counsel to justify such discrimination, such as "genuine domiciles" and "real domiciles" in an effort to substantiate his view point that this condition was introduced only to prevent abuse of the facility of admission to educational institutions, by such persons who, in fact neither belonged to this Province nor intended to live here permanently and somehow obtained the domicile certificates only to achieve the dishonest purpose of admitting their children to educational institutions does not satisfy reason. Such phrases are absolutely meaningless or at least foreign to law. Once we carve out the category of domiciles as a class of citizens to be treated differently than others then all of them should be considered equal for all intents and purposes. There is no legal justification, whatsoever, for any discrimination between them. All that is required in such circumstances is that executive machinery should be so perfected that undeserving and ingenuine persons may not be able to obtain domicile certificates in order to usurp the rights of such persons who have, in fact, acquired domicile in the Province. Mr. Ansari, made a feable attempt to justify the rule of 12 years' stay on an additional ground also and argued that in case of such students whose parents had stayed in Baluchistan for such long period there was every reason to believe that their children had received education from the educational institutions of Baluchistan which are comparatively less efficient in imparting education being illequipped in many respects, and thus, the students that come out from such institutions are of a lower standard then those who have received education elsewhere, therefore, preferential treatment to such domiciles who have lived here for the said period is not wholly unjustified. This argument is also absolutely devoid of force, neither any embargo already exists, nor it can ever be imposed upon any citizen, whether he be a local or a domicile, to necessarily educate his children in any particular institution inside Baluchistan or outside it. Accordingly consideration of such ground for justifying existing discrimination or cteating some more of them to satisfy trivial consideration would carry things too far and make them unmanagable, for, scores of reasons can be advanced to create distinctions between students hailing from different places and having different backgrounds. That is why only such factors which are of basic importance have been kept in view for allowing such discriminations and minute details have been left unattended. Hence, while concurring with the views of my learned brother, I would confine myself to holding that the discrimination which creates a distinction between the citizens belonging to indigenous tribes on the one hand and those who have acquired domicile in the province on the other migrating from other provinces and also from across the border is valid constitutionally and has both legal and moral justification to continue as long as such classes of citizens for whom it caters have not come at par with others. The argument that this kind of privilege amounts to providing aid sticks to the students and eliminating the splirit of competition in them is also not of much force, for aid sticks are sometimes necessary for multiple reasons, and then it is more a matter of policy formed by the Government then a pure question of law which alone falls within the perview of our constitutional jurisdiction. What can further be said here is that the Government will itself remove such discrimination once it is felt unnecessary. That is in so far as the "local" students are concerned. As far as the domiciles are concerned no discrimination of any kind is justificable under law in their cases and they should be treated alike in all matters, if they are similarly situated and the only criteria in their case should be merit, if no other legal impediment otherwise comes in their way. As to the reasonableness of this Rule much need not be said in the light of above discussion. However, it may be mentioned that this Court has jurisdiction to strike down any rule or bye-law which is found to be unreason-0 able and precisely this is what we have done in this case. A reference may be made to Muhammad Iqbal Khan Niazi v. Vice-Chancellor University of Punja etc. (1), wherein placing reliance on the observations of Craise in his Treatise on Statute law, Seventh Edn , p. 325 that prospectus of an educational institution could be equated with a bye-law, it was held by his Lordship Mr. Justice Dorab Patel that, among others, a prospectus of an educational institution can be struck down as a whole or partially on the ground of unreasonableness. The precedent case takes care of a large number of cases on the point emanating from English and Indian jurisdictions and is conclusive on the point; accordingly I have no hesitation in holding that the Rule of 12 years stay in p the Province being discriminatory and unreasonable is ultra vires and is thus liable to be struck down.
(1) PLD 1979 SC 1