' KARIMULLAH DURRANI, J.-In this Constitutional Petition, the petitioners who are three in number, have assailed the recent amendments brought in the prospectus of the Khyber. Medical College, Peshawar and the Ayub Medical College, Abbottabad, in the method of admission in the first year of these two institutions as being arbitrary, unlawful, unjust and unreasonable. They pray for striking down the amendments as without lawful authority. They have also prayed for a direction to respondent No, I, the Selection Board through its Chairman, Khyber Medical College, Peshawar to select the candidates in accordance with the seats allocated to boys and girls in accordance with the merits in their respective fields and not to usurp the seats of the boys for the sake of girl students. This petition has been preferred in the following circumstances :- ' The petitioners Muhammad Arshad, Musaddiq Shah and Syed Riaz All have secured in the F. Sc.
(Pre-Medical) Examination of 1979, 612, 612, and 611 adjusted marks, respectively. The petitioners applied for admission to the Khyber Medical College. Peshawar and Ayub Medical College, Abbottabad. The break-up of seats in the above-named Institution is as follows :- 190 seats have been allocated in the Khyber Medical College for the students from the settled districts. These are called open merits seats. Prior to the amendment brought for the next academic session, these seats were called open merits seats for boys of the settled Districts. In addition, there were 20 seats called open merits seats for girls of the settled districts. Similarly in the Ayub Medical College out of 100 total seats 50 were reserved for the students from the province of N.-W. F. P. While the remaining 50 were ear-marked as Federal seats. These were allocated to Fata, Azad Kashmir and Northern area. In this institution provincial 50 seats were further divided into 46 seats for the settled districts, 2 for Chitral and 1 each for Kohistan and PATA (in Kala Daka), District Mansehra. Out of the above number of seats 12 were reserved for the female candidates.
The male candidates were allowed to compete for the remaining seats. Similarly in the Khyber Medical College only male students were to compete on the open merits seats, while' the 30 seats reserved for girls were distributed exclusively between them in . The order of merits. Neither of the sex was allowed to compete for the seats reserved for the other. It is a common knowledge that this practice used to result in discrimination between the sexes in that while a large number of seats were available to the boys a very limited number of seats was ear-marked for girls. This practice was adversely affecting the females that in many a case a girl having secured a higher percentage of marks was denied admission in the Medical College while a boy candidate who had secured much less than that had a chance to get admission because of the large number of available seats. In order to avoid such situation the authorities concerned which in the present case are the Board of Governors of these two institutions, thought desirable to allow the girls candidates to compete for open merits seats with boys in the order of merits. At the same time 12 seats in the Ayub Medical College and 40 in the Khyber Medical College were also reserved for the female students as their exclusive quota. The petitioners and for the matter of that a very large number of the boys who had applied for the admission into these two institutions became much disappointed and felt it most unfair that the female candidates shall be allowed to compete with them on the open seats and at the same time they would retain their exclusive quotas for which the boys were not allowed to compete. Their grievance is that by the impugned amendments a vast opportunity has been made open to girls against the boys who have been left to compete in a restricted field.
2. The impugned amendment was brought into prospectus of the Khyber Medical College by removing the words "for boys" from the nomenclature of the above mentioned 190 general seats and with the appendage of a note thereto, which reads as under :- "Allocated Seats (Rules for Admission):
(a) Allocated seats for settled area girls : 30 seats Admission will be made purely on Merit basis.
Note.-They will also compete for open merit seats for boys (Settled Districts)."
' The amendment in the prospectus of the Ayub Medical College Abbottabad was brought about on 20th January 1980, in the following terms "Out of the 55 seats reserved for settled Districts, 12 seats shall be exclusively reserved for girls and the remaining 43 seats shall be open to boys as well as girls on merit."
3. The learned counsel for the petitioners has termed these amendments is unfair and unreasonable, being voilative of Article 25 of the Constitution, 1973, in that these amendments bring in discrimination of sexes and impart a different and more advantageous position to the female students qua the males. The said article of the Constitution reads as under :- "(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in the Article shall prevent the State from making any special provision for the protection of women and children." ; Relying on Muhammad Iqbal Khan Niazi v. Vice Chancellor, University of Panjab (1), the learned counsel contends that the prospectus of an Educational Institution are at par with bye-laws framed under the statutory authority by a local body. These prospectus could not be allowed to have such terms which are arbitrary or whimscial but should be such as can withstand the test of reasonableness. Their Lordships of the Supreme Court in the above-quoted decision have enumerated the requirements of a prospectus to be valid and legal by pressing into service a passage on bye-laws by Craies in his 'Treatise on Statute Law' (Seventh Edition) and have laid down the five grounds on which a bye-law or for that matter the prospectus of an Educational Institution can be treated as ultra vires:- "(a) That they are not made, sanctioned and published in the manner prescribed by the Statute which authorises the making of them.
(b)That they are repugnant to the laws of the country.
(c) That they are repugnant to the statute under which they are made.
(a) That they are uncertain.
(e) That they are unreasonable."
' By adopting the aforesaid critera their Lordships of the Supreme Court were pleased to strike down a disciplinary rule in the prospectus of the institution concerned empowering the principal thereof to expel a student not only from his college but also from all other Medical Colleges by declaring such power questionable due to its having no statutory sanction. Their Lordships further held that provisions of a prospectus, if unfair or unreasonable were liable to be struck down as invalid. On the basis of this authority the learned counsel for the petitioners urges for striking down the impugned amendments brought in the prospectus of the above-named two Institutions in the method of allocation of seats for the next annual session.
4. The learned Advocate-General appearing on behalf of the respondents has raised a preliminary objection to the competency of this petition on the ground that the petitioners who have secured the number of marks mentioned above, stand much behind those candidates, who, according to the List prepared by the authorities, have been found entitled to admission. The petitioners according to the learned counsel, therefore have no locus standi in that, even, if their request is acceded to and all the seats available on open merits and those reserved for girls of these two institutions are combined for open competition ir-regard of the sex of the candidates, the (1) PLD 1979 SC I petitioners would lag far behind and by no stretch of imagination would be held entitled to get admission. According to the calculation of the learned Advocate-General, supported by the prepared list of qualifying candidates, which has not yet been published due to the deference felt by the respondents for this Court because of the admission of this writ petition for full hearing and in spite of no restraining order having been issued by this Court, the combined total number of the seats available in these Educational Institutions comes to 275 against which the petitioners Nos. 1 and 2 stand at a position of 296 each and the petitioner No, 3 at Serial No, 301. What the learned counsel for the respondents desires to stress by placing those figures before us is that in view of the fact that even in case the seats are allocated without any reservation of quota for girls, the petitioners would have no chance to be selected. Thus the petitioners could not be called aggrieved persons for the purposes of this petition. We are afraid, we cannot agree to the view point of the learned Advocate-General in holding the petitioners not aggrieved persons because, firstly the list of the successful candidates has not yet seen the light of the day and no one could be assured of the position of any candidate as in many a case even after the preparation of the list, it has to slide down to encompass a number of those candidates who occupied a much lower position due to absentation of many a successful candidate, who for one reason or the other do not finally obtain admission. Secondly that according to the notification for admission to the seats in question, every candidate who had secured 600 or more marks in the F. Sc. (Pre-Medical)
Examination was made eligible to apply for the admission. Thus there could be no denying the fact that the petitioners who have undoubtedly secured more than 600 marks were entitled to apply for the admission. Any such candidate for admission as that in our opinion has a vested right for the consideration of his application for admission if he is otherwise qualified for selection. The apprehension of the petitioners that by the newly adopted methods by the Board of Governors of these institutions, their rights and interest would be affected was therefore, not without substance.
We, therefore, hold the petitioners as aggrieved persons for the purpose of invoking the Constitutional Jurisdiction of this Court under Article 199 of the Constitution.
5. The learned Advocate-General in rebuttal on merits has drawn our attention to Articles 22 and 37 of the Constitution of 1973, which empower the Authorities concerned to take practical steps to remove the backwardness of a class of citizens. Parts of these two Articles relevant to the matter in hand are as under :- "22.-(1) No person in any Educational Institution shall be required to receive religious instruction or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.
' Nothing in this Article shall prevent any Public authority from making provision for the advancement of any socially or educationally backward class of citizens.
"37.-The State shall-
(a) promote, with special care, the educational And economic interests of In addition to the above provisions of the Constitution the learned Advocate-General pressed into service sub-Article (3) of Article 25 and contended that the allocation of reserved quota for female students is a sort of protection which has been allowed for women and children under the said Article. This, according to the learned counsel, is a proviso to the preceding two sub-Articles of the Article under reference enjoying that there should be no discrimination on the basis of sex alone. It has been contended on behalf of the respondents that females in our society have not progressed much and are left far behind the males during the several decades past after the Independence. Under the conditions obtaining prior to the impugned amendments in these institutions the girls were only allowed to compete for the limited number of seats reserved for them which resulted in the denial of admission to a large number of competent girls who had much higher qualification than the majority of boys who were successful in obtaining seats even on a much lesser percentage of marks than those girls. To avoid such a situation as that it was thought advisable by the respondents to allow the girls to enter into open competition on the basis of merits with the boys and to obtain as many seats as they deserved. Also it was in order to assure the presence of a minimum number of girl students in these institutions that special quotas of 12 seats in the Ayub Medical College and 32 in the Khyber Medical College was reserved for their exclusive admission.
The learned Advocate-General, therefore, contends that the steps taken by the Board of Governors in the matter of impugned amendments was, in real sense, a step towards the progress of female sex who have always been neglected and left to lag behind the males. These steps could, therefore, by no stretch of imagination be termed at arbitrary, unfair or unreasonable. The women folk being always considered as backward , class these amendments are nothing but a step to promote the educational interests of this class of citizens as has been desired under Article 37 which was incorporated in the Constitution as one of the principles of policy for the administration of the country.
6. The learned counsel for the petitioners in order to rebut the contention of the learned counsel of the respondents has referred to Article 5 of the erstwhile Constitution of Pakistan (1956) for placing reliance on Syed Abdul Wadood v. Pakistan through Secretary Ministry of Health, Government of Pakistan and others (1), which in its turn was based on a decision of the Supreme Court of Pakistan.
Namely Abendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and another (2). In the Supreme Court decision the vires of sections 3 and 37 of the East Bengal State Acquisition and Tenancy Act, 1950 came into consideration to determine whether these provisions were against Article 18 of the Constitution (1956) and, therefore, void and inoperative on the ground of violation of the fundamental right of equality before the law and equal treatment of law. The rule of admission in an Educational Institution came under consideration in the Karachi decision and it was held that directions in the matter of admission must not contravene the provision of Article 5 of that Constitution which lays down that all citizens are equal before' law and are entitled to equal protection of law.
7. We find much force in the contentions of the learned counsel for the respondents. By no stretch of imagination it can be said in the instant case that the amendments in question are violative of fundamental rights (1) PLD 1957 Kar. 740 (2) PLD 1957 SC (Pak.) 9 even if such rights were justiciable at the moment. The authority referred to above would also be not applicable for the additional reason that instead of according to sexes equal treatment in law, the present Constitution under its Article 25 rather accords protection to women and children. It is another matter whether this protection made available to the women and children can be so extended as to bring under its scope in the field of right of admission in an Educational Institution or it confines to the availability of extraordinary facilities or benefits allowed to females and children in such laws as relate to employment of labour and regulate wages, in view etc. Of the special physical requirements of this class of citizens. What the learned Advocate-General wants from us is to read "provisions" for the word 'protection' used in sub-Article (3) of Article 25 which would not be possible. We are, therefore, of the opinion that the amendments carried out by the Governing Bodies of the two institutions in their prospectus are neither violative of the first two sub-Articles of Article 25 of the Constitution nor are in furtherance of the requirement of its 3rd sub-Article. But find much force in the contention of the learned counsel for the respondent that it has been enjoined on the administrative authority of this country to take, as a principle of policy such measures as are for the advancement of the Educational interests of backward classes. We are also firm in nu opinion that it would not be much out of place to pronounce females o our country as a class of backward citizens. Any step, therefore, on behalf of an Educational Institution or some such other body to provide means for promoting their interests would not be a violation of the Constitution, nor could it be termed as usurpation of power not vesting in that body. As fa as the contention of unreasonableness of the amendments in question, on the basis of the reservation of a special quota of seats for the girls over and above qualifying them to compete for every open general merits seat raises them to a higher pedestal than of the boys and accords them an advantageous position in derogation of the rights of the male students, is concerned in spite of its soundness, we do not find such legal force in it, in view of what has been discussed above, as to warrant their striking of the prospectus or to declare them without lawful authority or of not having legal effect.
' Before parting with the case, we may venture to suggest to the Governing bodies of these two Medical Institutions to take into consideration the feasibility of discarding, in future, the practice of allocating additional 30/12 seats to the female candidates over and above the number of seats secured by them from the open merits seats' quota by competition with boys in case their number exceeds or equals the number of seats presently reserved for them.
' With these observations, we dismiss this petition and leave the parties to bear their respective costs.