QAZI FAEZ ISA, C J.---This petition has come before me as a referee Judge since a difference of opinion has occurred between two of my distinguished colleagues, namely Justice Jamal Khan Mandokhail, the Senior Puisne Judge, and Justice Muhammad Noor Meskanzai. Mr.S.A.M. Qadri Advocate, the learned counsel for the private contesting respondents, pointed out that the learned judges did not note the points of difference between them. He referred to Section 98 of the Code of Civil Procedure ("CPC") and the cases of Muhammad Akram v. Muhammad Salim PLD 1964 (WP)
Lahore 490 and Muzammil Niazi v. State PLD 2003 Karachi 536. The case of Muhammad Akram was a regular first appeal in which a difference of opinion arose between two learned judges of the Lahore High Court and Justice Muhammad Yaqoob (as he then was) acted as the referee judge; he held (at pages 506-507), that: "4. Mst. Sardar Bibi v. Haiq Nawaz Khan [AIR 1934 Lahore 371], Ch. Muhammad Tufail v. Mst. Barkat Bibi and another [PLD 1955 Lahore 1] and Civil and Military Gazette v. Ghulam Rasul [PLD 1956 Lahore 365] bear observations to the effect that the point or points of fact or law on which the members of a Division Bench have come to disagree must be expressed separately otherwise the reference to the third Judge will be defective; but it was held that if reasons could be ascertained from the dissenting judgments, it was unnecessary to remit the case to the members of the Division Bench for indicating the points of difference. In my humble opinion, it is not the requirement of law that apart from writing dissenting judgments the members of a Division Bench should expressly record the point or points on which they have come to differ, but it is unnecessary to analyse this aspect of the case any further because in each case the point or points on which the members of a Division Bench have differed can invariably be ascertained by the perusal of the dissenting judgment. The matter is, thus, of an academic interest only."
In the case of Muzammil Niazi a difference of opinion arose between two learned judges of the Sindh High Court respectively, Justice Sarmad Jalal Osmany and Rehmat Hussain Jaffery (as their lordships then were) with regard to the grant of bail; one of the learned Judges granted bail and the other rejected it and the matter went before the referee Judge, namely, Justice Shabbir Ahmed, who adduced the following principles from precedents regarding the difference of opinion in a civil appeal: "(a) the referring Judges are required to formulate the point of difference;
(b) the reference may be on the points of law and or of facts;
(c) the Division Bench continues to retain jurisdiction over the matter;
(d) where the referring Judges referred the matter for opinion without formulating the point of difference, the referee Judge can formulate such points;
(e) the referee Judge to decide the points of difference only. The whole case is not before him:
(f) the referee Judge after his opinion to refer back his opinion to the Division Bench seized of the matter;
(g) the final decision in the case is to be on the basis of majority opinion including the Judges who constituted the Division Bench:"
Mr. Qadri is correct that the points of difference have not been formulated by the learned judges, but the same can be ascertained from their respective judgments, therefore, as held in the cited precedents the matter need not be remitted back to them for formulation of such points, A and all that needs to be done is for me to formulate the points of difference between my learned brothers.
2. I may, however, add that another method in which to resolve the difference of opinion between judges is for them to refer the case to the Chief Justice for the constitution of a larger bench before delivering their respective orders/judgments. The case in hand is one where the entire lis has been decided and was placed before me, as Chief Justice, to appoint a referee judge. Since the lis was decided by the Senior Puisne Judge and another senior judge I considered it appropriate to hear the petition myself. I may, however, with respect observe that this was a case in which it would have been appropriate to request for the constitution of a larger bench.
3. There, however, are cases in which the difference of opinion is such that it can be settled during the pendency of the case, and before finally deciding it; for instance a preliminary point of jurisdiction or limitation arises and the judges hearing the case disagree. In such type of cases, the point of difference can be formulated and the same decided by the referee judge. After the point of difference is decided by the referee judge, the bench, which remains seized of the lis can decide the case to the extent that a decision is required.
4. That before I proceed to formulate the points of difference that require my decision, the relevant facts of the case to determine the controversy need to be stated to be able to properly appreciate the disagreement. The petitioners, who are medical doctors, were aggrieved by the method of choosing applicants by the Postgraduate Medical Institute at Quetta ("the Institute"). The Institute was set up by the and major qualifications in the field of different Basic and Clinical Medical Sciences". The preamble of the Institute further stipulates that it should get itself affiliated with the University of Balochistan, and "with Pakistan Medical and Dental Council for the sake of its different postgraduate medical and dental qualification".All the courses offered by the Institute are postgraduate. I have been informed that the Institute has been functioning since 2003.
5. The petition assails letter bearing No. SO-M-01/15/2011/ 4219-26 dated 25th February, 2012 ("the impugned letter"), written by Mr. Abdul Wajid Panezai, Under Secretary-I of the Health Department, Government of Balochistan, to "the Dean/Director" of the Institute. The relevant portion of the impugned letter is reproduced hereunder: "The undersigned is directed to refer to correspondence resting with your letter No.Admn:210/5-12 dated 9-5-2011, on the subject noted above and to convey approval of the competent authority with regard to distribution of 64 seats of Minor Diplomas and 46 Major Degree courses (comprising of a total 10 specialties of Minor Diplomas and 10 specialties of Major Degree courses)..."
"The distribution pattern of above mentioned 110 seats on Provincial and Zonal / Divisional Merit basis as approved by the competent authority is as under:-
(1) Distribution of 46 major seats on Zonal allocation/ Provincial merit: S.No. Number of seats Prososed Distribution 1 15 On open Merit 2 01 Quetta City 3 30 Equal Distribution @ 05 seats amongst each respective Divisions.
2. Distribution of 64 (diploma seats on Zonal allocation/Provincial merit: S.No. Number of seats Prososed Distribution 1 15 On open Merit 2 01 Quetta City 3 48 Equal Distribution @ 05 seats amongst each respective Divisions.
6. That, in addition to assailing the impugned letter, the petitioners also seek a direction, that, the written test should be conducted through the National Testing System ("NTS"). The judgment of Justice Jamal Mandokhail does not attend to whether admission tests should be conducted through NTS, whereas Justice Muhammad Noor Meskanzai has held that the said prayer is beyond the scope of writ jurisdiction. I, therefore, enquired from the learned counsel whether it would be appropriate for me, acting as the referee Judge, to decide the same or should I not refer the petition back to my learned colleagues for determination of this point. The learned counsel for all the parties stated that if the matter of NTS is referred back for decision it will further delay the process of admission and that this point need not be decided for the time being. Consequently, I am not deciding the same.
7: Justice Jamal Mandokhail has struck down the impugned letter and directed the Institute to select candidates for the respective courses strictly on merit, whereas, Justice Muhammad Noor Meskanzai has upheld the same and held that the admissions to the Institute should be on the basis of the prescribed quota. From the judgments of both my learned brothers the following points of difference arise:
(1) Whether the High Court in exercise of jurisdiction under Article 199 of the Constitution can determine the suitability of the admission criteria to an educational institution?
(2) Whether admissions to the Institute can be made on the basis of the quota stipulated in the impugned letter?
8. The learned counsel for the petitioner assailed the impugned letter on the following points:
(1) That the advertisement published in the daily 'fangnewspaper of 18th March 2012 (page 18 of the petition), whereby applications for admission to the Institute were invited, did not mention that admissions to the Institute will be on the basis of any quota, let alone that it will be on the basis as mentioned in the impugned letter, in that there shall be reserved seats for different Divisions of Balochistan and only a few seats will be filled on merit;
(2) That after publication of the said advertisement the admission criteria for admission to the Institute could not be changed;
(3) That the purported changes made to the admission criteria, through the impugned letter, were not published;
(4) Since the establishment of the Institute in the year 2003 all admissions to the Institute have been on the basis of merit;
(5) That in other provinces admissions to institutions which are similar to the Institute are on the basis of merit;
(6) Clause 4 of the Charter of the Institute stipulates that admission is open to all, "who are academically qualified and fulfil the admission's criteria for admission";
(7) That the Institute is required to abide by the Pakistan Medical and Dental Council (Postgraduate Education) Regulations, 2011 (hereinafter "PMDC" and "PMDC Regulations"), which stipulate that admission shall be, "strictly on the basis of their academic merit" (Regulation 15 of the PMDC Regulations) and "must not discriminate" (Regulation 17 of the PMDC Regulations);
(8) That if the PMDC Regulations are violated the degrees granted by the Institute will not to be recognized by PMDC;
(9) That any one who has become a doctor by studying in Balochistan has attended the same institution, i.e. Bolan Medical College ("BMC") at Quetta, and have not obtained their MBBS or BDS degrees in their respective Divisions, therefore, there is no logic in providing a Divisional basis for granting admission to the Institute, and the same does not attend to any disadvantage;
(10) That Article 37(c) of the Principles of Policy, contained in Chapter 2 of the Constitution of Pakistan, stipulates that, "the State shall make technical and professional education generally available and higher education equally accessible to all on the basis of merit";
(11) That admission to the Institute on Divisional basis violates Article 25(1) of the Constitution, which mandates the equality of citizens; The learned counsel also placed reliance upon the following cases: Fiaqat Hussain v. Federation of Pakistan, PLD 2012 SC 224 Pakcom Limited v. Federation of Pakistan, PLD 2011 SC 44 Attiyya Bibi Khan v. Federation of Pakistan, 2001 SCMR 1161
9. The Government of Balochistan has been arrayed as the respondent No.1 and the Dean/Director of the Institute as the respondent No.2. Subsequently, thirty eight doctors submitted an application to be joined as interveners and, after grant thereof by consent, were arrayed as respondent numbers 3 to 40 respectively; they opposed the petition and by Mr S.A.M. Oadri. Senior Advocate.
Thereafter and their application too was granted by consent, and they were arrayed as respondent numbers 41 to 52 respectively; they support the petitioners and are represented by Mr. Naseebullah Tareen, Advocate. Mr.Naseebullah Tareen, Advocate adopted the arguments of Mr. Qahir Shah and also .Placed reliance upon the case of Muhammad Ikram v. Principal and Chairman Admission, Committee, 2014 MLD 1.
10. Mr. Qadri relied upon the judgment of Justice Muhammad Noor Meskanzai and the precedents mentioned therein. He further stated that the impugned letter is justified and admission to educational institutions on a regional basis is permissible to encourage the citizens of far flung areas to compete in the main stream. He lastly contended that the first proviso to Article 27(1) of the Constitution permits seats being reserved for persons belonging to any particular area to secure their adequate representation. The following precedents were cited by Justice Muhammad Noor Meskanzai in his judgment: Muhammad Ilyas v. Bahauddin Zakaria University, 2005 SCMR 961; Muhammad Majeed v. Government of Pakistan, PLD 2002 Lahore 290; Tufail Muhammad v. Muhammad Ziaullah Khan, PLD 1965 SC 269; Abdul Baqi v. Muhammad Akram, PLD 2003 SC 163 Muhammad Afaq v. Federal Public Service Commission, 2001. CLC 2001 Attiyya Bibi Khan v. Federation of Pakistan, 2001 SCMR 1161
11. That there is no disagreement amongst either side on the following matters, that, (1) since the establishment of the Institute admissions thereto have been made on merit, (2) the Institute only provides postgraduate courses, (3) all doctors / dentists in Balochistan qualified in Balochistan did so by attending the Bolan Medical College and (4) the Institute is affiliated with PMDC.
12. That it would be appropriate to mention the policy that is generally referred to as the zonal quota policy and which appears to be the inspiration behind the Divisional distribution of seats prescribed in the impugned letter. The Government of Balochistan vide document titled 'Recruitment Policydated 25th August 1988 inter alia stipulated, as under: "...The Government has decided that the quota reserved for Zhob, Nasirabad, Mekran, Quetta and Sibi in respect of initial recruitment vacancies shall be allocated on the basis of population by rotation".
It is not necessary to set out the methodology of the said 'rotation', except to state that if for instance there were eight posts available each of the six Divisions (Kalat, Zhob, Nasirabad, Mekran, Quetta and Sibi) would get one candidate, one would go to the metropolis of Quetta and only one candidate would be appointed on merit. The point to note is that the said Recruitment Policy does not stipulate that the said quota would also apply in respect of admissions to any educational institution.
13. I now proceed to examine whether distributing the seats on the basis of the Divisions constituted by the Government of Balochistan is permissible and whether the impugned letter violates the Charter of the Institute, the PMDC Regulations and/or the Constitution of Pakistan. The 'Entry Procedure(appearing at page 34 of the Charter) is reproduced hereunder: "2.1 The entry procedure must be transparent.
2.2 The entry result will be based upon merit.
2.3 The merit will be-made as follows:
(a) Percentage of sum of all marks obtained in all University Examination will be determined and given 40% value.
(b) Entry test will be conducted in which knowledge of the Candidates in basic sciences will be tested. The percentage of marks obtained in entry test. The percentage of the marks obtained in entry test will be given 30% value.
(c) Interviews will be held in which Candidates will appear before the concerned Supervisors. The percentage of marks obtained in interview will be given 20% value.
(d) The additional qualifications if possessed by the Candidates will be awarded not more than ten
(10) marks.
2.4 Final merit will be made as follows: MBBS / BDS 40% Entry Test 30% Interview 20% Additional Qualifications 10%
(a) (the successful Candidates will be enrolled by the concerned University.
(b) The enrolled Candidates will be admitted by the Dean of the PGMIQ.
(c) The admitted Candidates will join the. Supervisor at the Education site."
That under the heading 'Evaluations and Examinations(at page 36 of the Charter) the following is set out: "(A) Entry Evaluation: If the number of candidates will be more than the available seats, then the Post Graduate Medical Institute Quetta will hold Entry evaluation, every year on the date as announced by the Dean of Post Graduate Medical Institute Quetta. The examination will consist of Written Paper or Interview or both, as approved by the Boards of Studies of Medicine and Dentistry.
The Board of Studies of Medicine and Dentistry will determine the fee for Entry.
The admission procedure in this case will be:-
1. Merit on the basis of Marks MBBS / BDS = 40%
2. Credit for additional qualifications = 10%
3. Entry Marks by PGMIQ = 30%
4. The candidate who will qualify will appear before selection committee= 20%
5. Composition of MCQ Anatomy 10% Physiology 5% Biochemistry 5% Pharmacology 5% Medicine and allied 15% Surgery and allied 15% Gynae Obst 5% Related subject Anaesthesia or Pathology etc. 40%
7. Level of MCQ.
The whole process will be vacancy based, competitive and transparent."
14. That clause 4 of the Charter (on page 2) is titled, 'Post Graduate Medical Institute Quetta open to all classes, creeds etc" and is reproduced hereunder: "The Postgraduate Medical Institute Quetta shall be open to persons of either sex of whatever religion, race, creed, colour, or domicile who are Academically qualified and fulfil the admission criteria for admission to the Courses of study offered by the Postgraduate Medical Institute Quetta; and no such person shall be denied the privileges of the PGMIQ on the ground only of sex, religion, creed, race, class colour or domicile."
15. That the Charter of the Institute does not reserve any seats in respect of any Division or any other area of Balochistan. On the contrary Clause 4 of the Charter specifies that the Institute is "open to all"and does not discriminate on the basis of "domicile". The 'Entry Procedureand the method of 'Evaluation and Examinationsof the Charter do not reserve seats for different Divisions or Quetta City. On the contrary the Charter of the Institute under item 2.2 of the 'Entry Procedurestipulates that, "the entry result will be based upon merit". And item 7 of the 'Entry Evaluationprescribes that, "The whole process will be vacancy based, competitive and transparent". Therefore, the impugned letter by reserving seats for different Divisions and Quetta City clearly contravenes the Charter of the Institute and as such is illegal.
16. The Pakistan Medical and Dental Council (Postgraduate Education) Regulations, 2001, made pursuant to Section 33 of the Medical and Dental Council Ordinance, 1962, sets out the requirements for postgraduate education. Regulations 15 and 17 are relevant and are reproduced hereunder: "15. Admission Policies and Selection.--The competent authorities and the medical professional organizations must agree upon a policy on the criteria and process for selection of trainees and must publish and implement it. Students for Postgraduate medical courses shall be selected strictly on the basis of their academic merit. For determining the academic merit, the university and institution may adopt any procedure both for. Level II and Level III courses as prescribed and approved by their board of studies and postgraduate selection committees." [emphasis added] "17. Selection and Registration of Postgraduate Trainee.---
(1) The teaching Institution must ensure that the Council recognized programs select from among eligible applicants on the basis of residency program-related criteria such as their preparedness, ability, aptitude, academic credentials, communication skills, and personal qualities such as motivation and integrity. These may be evaluated by considering performance in MBBS or / and a competitive test conducted for the purpose. The Council-accredited programs must not discriminate with regard to sex, race, age, religion, color,- national origin, disability, or any other applicable legally protected status." [emphasis added] Regulation 15 clearly stipulates that students for postgraduate medical courses "shall be selected strictly on the basis of their academic merit". Regulation 17 mandates that there must not be any discrimination, "with regard to sex, race, age, religion, color, national origin, disability, or any other applicable legally protected status" and the "eligible applicants" must be selected, "on the basis of residency program-related criteria such as their preparedness, ability, aptitude, academic credentials, communication skills, and personal qualities such as motivation and integrity". The PMDC Regulations do not permit selecting applicants on the basis of the area to which they belong.
Therefore, if admission to the Institute is to be made on the basis of a Divisional distribution of seats the same contravenes the PMDC Regulations. Moreover, since the Institute is affiliated with PMDC it must abide by the PMDC Regulations, and failure to do so may result in de-affiliation of the Institute and/or PMDC not recognizing the degrees awarded by the Institute and rendering such degrees mere pieces of paper.
17. That having determined that the impugned letter offends both the Charter of the Institute and the PMDC Regulations I now proceed to consider whether it complies with the Constitution of Pakistan and in this regard all possibly relevant provisions of the Constitution are being referred to.
Article 22(3)(b) and (4) of the Constitution respectively stipulate, that: "22(3) Subject to law,
(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.
(4) Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educationally kackward class of citizens."
Article 25-A of the Constitution of Pakistan casts an obligation on the State to, "provide free and compulsory education to all children of the age of five to sixteen years." Article 37 (c) (contained in Chapter 2, wherein the Principles of Policy are set out) requires the State to, "make technical and professional education generally available and higher education equally accessible to all on the basis of merit". And Article 29(1) of the Constitution requires that, "each person performing functions on behalf of an organ or authority of the State, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority". Whilst the Principles of Policy are not enforceable per se guidance can be had from them. Admittedly, the Institute provides technical and professional education at the highest level to medical doctors/dentists, therefore, institute must be, "equally accessible to all on the basis of merit." There is also a fundamental premise on which the entire Constitution of Pakistan rests, which is also stipulated as a Fundamental Right and that is the equality of all citizens (sub-Article (I) of Article 25). However, the Constitution does accept departure from the - general equality of all citizens principle - and permits positive discrimination, for instance in respect of women and children (sub-Article (3) of Article 25) and of any socially or educationally backward class of citizens (sub-Article (4) of Article 22).
17. That Justice Muhammad Noor Meskanzai and Mr. Qadri have relied upon the first proviso to Article 27(1) of the Constitution. Article 27(1) safeguards against discrimination in the service of Pakistan and provides, that, "No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against any such appointment on the ground only of race, religion, caste, sex, residence or place of birth". However, the first proviso to Article 27 (1) creates an exception in respect of persons belonging to any class or area for a period of "forty years from the commencing day". The "commencing day" is, "the fourteen day of August, one thousand nine hundred and seventy-three" (sub-Article (2) of Article 265). Therefore, the stipulated forty years period (the first proviso) expired on 13th August 2013. Justice Muhammad Noor Meskanzai in his judgment also referred to the appointments made in the district judiciary to support the Divisional quota basis for admissions to the Institute. This contention, however with respect, is not applicable to the present case. The appointments that were made in the district judiciary were made at a time when the said forty year period had not expired. Moreover, the scope of the said first proviso was restricted to appointments "in the service of Pakistan" and the said exception did not cover admissions to any institution of higher education, like the Institute. The first proviso to Article 27 (1) therefore has no relevancy to the facts of this case.
19. That in view of the fact that Mr. Qadri has relied upon the citation contained in the judgment of my learned brother Justice Muhammad Noor Meskanzai the same also need examination and to see whether the same support the kind of action that was taken by the impugned letter. The case of Muhammad Ilyas (supra) is completely distinguishable on facts as therein the petitioner had agitated against the removal of his name from the roll of the University, as he had failed to secure the minimum required marks. It was in this context that the Hon'ble Supreme Court held that the University was the best judge to determine what the passing grades should and it would not be appropriate for the High Court or the Supreme Court to interfere in such discretion. With respect I do not see the relevance of the said judgment to the facts of this case. Be that as it may, in the present case the Dean/Director of Institute and the Government of Balochistan are themselves violating the Charter of the Institute, which mandates that admission must be merit based.
Muhammad Majeed's case (supra) is on the general principle that a person seeking relief must show that a right, the infringement of which is challenged, had accrued to him and that the same is being violated. The Charter of the Institute, the PMDC Regulations and the Constitution of Pakistan prescribe that admissions be given on the basis of merit alone, therefore, the petitioners and respondent numbers 41 to 52, who support the petitioners, had rights accrued in their favour which were being infringed. That in the case of Muhammad Tufail (supra) the Hon'ble Supreme Court held, that, jurisdiction will not be exercised, "in aid of injustice", which is a well established principle, but is not applicable in the instant case, as injustice is being worked through the impugned letter. Muhammad Afaq's case (supra) pertains to the appointments made in the service of Pakistan by the Federal Public Service Commission in respect of the areas in which the individual had lived and acquired a substantial part of their education, irrespective of the area to which their respective fathers belonged and involved the interpretation of Article 27 of the Constitution. As stated earlier the present case is not one of appointments being made in the service of Pakistan, but with regard to admissions to an institution providing higher technical and professional education, therefore, the said precedent is not relevant to determine the present controversy. Abdul Baqi's case pertains to admissions to Bolan Medical College ("BMC") for the year 2000-2001. BMC, through its Prospectus, reserved 30% of seats for those students who had acquired their education (Matriculation and F.Sc.) from their native districts.. To such extent the Prospectus was assailed. It was contended that reserving the said 30% of the total seats was discriminatory, unreasonable and irrational and that a person should be entitled to avail of the reserved seats irrespective of where he had acquired his/her education and seats should be reserved on the basis of a person possessing a local certificate of a particular district, notwithstanding that he/she had not acquired Matriculation and F.Sc. From such area. The Hon'ble Supreme Court allowed the appeal filed against the judgment of the High Court (reported in 2003 CLC 18) and held- that the change in the Prospectus of BMC accorded with the judgment in Attiyya Bibi Khan's case as it attends to the interest of the socially and economically disadvantaged sections of the people and fosters genuine rather than nominal equality, However, in the present case all the applicants who have obtained their MBBS or BDS in Balochistan have done so from BMC, and not from any remote or backward area. Therefore, having received education at the very same institution (BMC) it cannot be contended that they suffer any disadvantage. Moreover, the admission criteria contained in the impugned letter is similarly based on the Division to which the applicant belongs, irrespective of whether he/she received education in his/her Division. The judgment in Abdul Baqi's case can therefore not be cited as precedent to support the Divisional quota contained in the impugned letter. The last judgment referred to by Justice Muhammad Noor Meskanzai is one, which is also relied upon by Messrs Muhammad Qahir Shah and Naseebullah Tareen, Advocates, i.e. The judgment in Attiyya Bibi Khan's case.
20. That Justice Muhammad Noor Meskanzai has quoted two portions from Justice Rana Bhagwan Das judgment (at pages 1186 and 1187 respectively) in Attiyya Bibi Khan's case. However, the following important paragraph from the judgment removes all doubt: "Therefore, reservation of seats for such category may be justified. It must, however, be pointed out that the benefit of such reservation should be confined to those who have acquired their school and intermediate education from such less developed areas and not to anyone who manages to obtain a domicile certificate from that area." (Page 1187W)
The judgment of Justice Bhagwan Das specifically referred to "admission in Medical Colleges against reserved seats". Admissions to medical colleges are obtained after having done Intermediate (F.Sc.). The judgment in Attiyya Bibi Khan's case does not extend to educational institutions providing postgraduate education nor can the principle contained therein be applied to the Institute as the thrust of the judgment is to create a level playing field for "educationally backward class of citizens" in terms of Article 22(4) of the Constitution. Moreover, even in respect of medical colleges Justice Bhagwan Das held, that, if any seats are to be reserved, the same should "be confined to those who have acquired their school and intermediate education from such less developed areas and not to anyone who manages to obtain a domicile certificate from that area".
However, as stated earlier all those applying to the Institute. If they were educated in Balochistan would have received College, therefore, no student would have any advantage over another in terms of the quality or standard of education. If, therefore, the ratio decidendi of the Attiyya Bibi Khan's is applied, it means that, simply holding a domicile or local certificate of a particular district, albeit of a remote area, will not be sufficient to gain entry even into a medical college.
21 I can, therefore, conclude that by reserving seats in the Institute for applicants belonging to specific Divisions contravenes Article 25(1), Article 22(3)(b) and Article 37(c) of the Constitution of Pakistan. Article 8 of the Constitution stipulates that the State shall not make any law, "which takes away abridges the rights so conferred [Fundamental Rights] and any law made in contravention of this clause shall, to the extent of such contravention, be void." The impugned letter, which does not have even the status of law, violated the Constitution of Pakistan and therefore is ultra vires the Constitution.
22. That for the aforesaid reasons I answer the points of difference, which arose between the two learned judges, and. Hold, that the present petition is maintainable and the High Court whilst exercising jurisdiction under Article 199 of the Constitution can refrain the official respondents from granting admissions to the Institute on the basis of the impugned letter that allocates seats to different Divisions and Quetta City, which neither the Charter of the Institute, the PMDC Regulations or the Constitution of Pakistan permit. The impugned letter and the basis of granting admission on a Divisional quota basis prescribed therein is ab initio void, illegal and ultra vires of the said Charter, the PMDC Regulations and the Constitution of Pakistan and is therefore set aside.
Therefore, the official respondents should admit applicants to the Institute strictly on the basis of merit. I thus agree with the judgment authored by my learned brother Justice Jamal Khan Mandokhail and respectfully disagree with the judgment of my learned brother Justice Muhammad Noor Meskanzai.
23. That before parting with the judgment I need to address a very important matter, which does not affect my aforesaid decision. Both my distinguished colleagues have delivered their respective judgments on the assumption that the impugned letter dated 25th February 2012 was issued on the approval of the competent authority. However, whilst hearing the petition discrepancies were noted in the comments filed by the official respondents, therefore, I sent for the original file with regard to the matter, which was revelatory. A 'Summary for Chief Ministertitled "Resumption of Entry of Test/Interviews for Post-Graduate Diploma Course in PGMI, Quetta" was moved on 8th December 2011 by the Secretary Health Department, Government of Balochistan (hereinafter "the Summary") proposing that out of the forty-six "major seats" thirty should be distributed amongst the six Divisions of Balochistan at the rate of five per Division, one seat should be reserved for Quetta City and admission to the remaining fifteen should be 'on open merit'. As regards the sixty-four "minor diploma seats" it was proposed that forty-eight should be distributed amongst the six Divisions at the rate of eight per Division, one seat should be reserved for Quetta City and the admission to the remaining fifteen should be on open merit. The. Minister for Health did not support the Summary and wrote on the file that whilst he supported the distribution of the sixty-four minor diploma seats as proposed he opposed the distribution of the forty-six major seats on Divisional basis. The file further disclosed that, on 15th January 2012 the Chief Minister wrote, "Please discuss" on the Summary. On 28th January 2012 Mr. Abdul Basit, the Principal Secretary to the Chief Minister, wrote on the Summary that, "The matter was discussed with the Chief Secretary. There is agreement between the Health Department and PGMI therefore, it is submitted that para 8 may kindly be approved." The said paragraph eight sets out the distribution of the seats as set out in the impugned letter. There is, however, no noting of the Health Minister confirming that he had changed his earlier written view or that the Chief Minister had approved the Summary. Instead the official respondents placed reliance on the receipted copy of a facsimile message, where upon the Chief Minister had purportedly inscribed "OK" on 2nd February 2012; the original of the said page where the Chief Minister is said to have written "OK" is not available with the Department. Mr. Saleh Nazar, Additional Secretary stated that by writing "OK" on the Summary it can be presumed that the Chief Minister had approved the same. He further stated that the page whereon the said "OK" was inscribed was a fax received by the Department from Islamabad. When facsimile messages are received the top of the receipted page indicates the number from which it was sent. The subject facsimile message mentions the following at the top: "Jan 28 2012 12:52 PM HP LASERJET FAX" in type.
There is no telephone number to show where the facsimile message emanated from, let alone having been sent from an official number.
24. That, the aforesaid circumstances give rise to the following questions:
(1) Whether the Health Minister had approved the Summary, and whether the noting of the Principal Secretary of the Chief Minister, that there was "agreement", means that the Health Minister had approved it?
(2) Whether in the absence of the original endorsement whereon the inscription "OK" was stated to have been made by the Chief Minister can it be presumed that the Chief Minister had written the same.
(3) What does the term "OK" in the context of the Summary mean?
25. We need to know how the business of the Government of Balochistan is required to be executed before we can answer the aforesaid questions. The Government of Balochistan has enacted 'Rules of Businessin exercise of the powers conferred by Article 139 read with Article 129 of the Constitution of Pakistan. The Rules of Business presently applicable were enacted on 14th December 2012, repealing the Rules of Business enacted on 3rd April 1976 ("the Rules of Business, 2012" and "the Rules of Business, 1976" respectively) . At the relevant time the Rules of Business, 1976 were in effect and as such the Summary has to be examined in the light of the Rules of Business, 1976. The 'General Procedure for disposal of businessof the Government is prescribed in Rule 5 of the Rules of Business, 1976, reproduced hereunder: -5. (1) The framing of the policy of the department is the responsibility of the Minister, and it shall be the duty of the Secretary to advise the Minister in the formulation of policy,
(2) The business of the department shall be disposed of by, or under the authority of, the Secretary.
He shall be responsible to the Minister for the proper conduct of business and for ensuring that the sanctioned policy of the Minister is duly executed.
(3) While submitting a case for the orders of the Minister, it shall be the duty of the Secretary to suggest a definite line of action.
(4) The Secretary shall keep the Minister generally informed of the working of the department and of any important cases disposed of without reference to him.
(5) Where the Minister's order appears to involve a departure from rules and regulations or from Government policy, the Secretary shall resubmit the case to the Minister inviting his attention to the relevant rules or regulations or Government policy and if the Minister still desires that his order should stand, the case shall be submitted to the Chief Minister.
(6) The channel for obtaining or transmitting the orders of the Minister is the Secretary or an officer specifically authorized in this behalf by the Secretary.
(7) All orders should be passed in writing. Where a verbal order is given, it should be reduced to writing at the earliest opportunity by the officer receiving it.
(7 A) Verbal orders given by a functionary of the Government should as a matter of routine be reduced to writing and submitted to the issuing authority. If time permits, the confirmation shall invariably be taken before initiating action. However, in an exigency where action is required to be taken immediately or it is not possible to obtain written confirmation of the orders before initiating action, the functionary to whom the verbal orders are given shall take the action required and at the first available opportunity obtain the requisite confirmation while submitting to the issuing authority a report of the action taken by him.
The Minister shall submit cases to the Chief Minister as required by the provisions of rules 39 and 40.
(9) The Minister shall submit cases to the Governor as required by the provisions of rule 49.
(10) If any doubt or dispute arises as to the Department to which a case properly pertains, the matter shall be referred to the Chief Secretary, who shall obtain the orders of the Chief Minister, if necessary.
(11) Detailed instructions for the disposal of busine s in the Secretariat shall be issued by the Chief Secretary."
26. Rule 45 of the Rules of Business, 1976 prescribes the 'Procedure in case of difference of opinion, doubt or dispute', which is reproduced hereunder: "45.(1) In the event of difference of opinion between departments, the Minister of the department primarily concerned shall submit the dispute to the Chief Minister for direction.
(2) In case of difference of opinion between the Minister and the Secretary, the views of the Minister shall prevail if not inconsistent with Government's sanctioned policy and standing rules and regulations if the Minister's opinion be derogatory to such policy and rules etc the Secretary shall be re-submitted [sic] the case to the Minster explaining the requirements of the law and rulas and, if the difference of opinion still persists, the case shall be submitted to the Chief Minster for orders.
(3) In case of any doubt or dispute as to the department to which a case primarily pertains, the Chief Minister may, on such case being brought to his notice give general or special directions."
That since the Minister had disagreed with his Secretary and such disagreement did not derogate from any sanctioned Government C polity the views of the. Minister should have prevailed as per Rule 45(2) of the Rules of Business, 1976.
27. That, even if for argument's sake it is accepted that the Chief Minister had written the word "OK" and, it is further assumed, that the same meant his consent/agreement, it is still not clear whether the same indicates agreement with the opinion of the Minister or the Secretary. The Chief Minister's Principal Secretary wrote on the Summary that, there was "agreement between the Health Department and PGMI", however, his said note is inconsequential on two counts; firstly, because no role has been assigned to him in the Rules of Business, 1976, therefore, his writing on the Summary will have no legal effect, and, secondly, by writing, "agreement between Health Department and PGMI, does not answer whether the Health Minister and his Secretary were in 'agreementespecially since the Minister had written his disagreement on the Summary. Therefore, the first question in paragraph twenty-four (above) is answered thus; there is nothing on record to indicate that the Health Minister had approved the Summary, and the Chief Minister's Principal Secretary had no authority under the Rules of Business, 1976.
28. I shall now attend to the remaining two questions in paragraph twenty-four (above). The original document containing the inscription of "OK" purportedly written by the Chief Minister is not in existence. Though Rules 5(7) and 5(7-A) of the Rules of Business, 1976 envisage the passing of verbal orders the same require to be "reduced to writing" at the earliest opportunity and before "initiating action" thereon. However, in this matter neither ex post facto approval was obtained nor was it obtained ally time subsequently. Therefore, in the absence of the original document containing the inscription - "OK" - it cannot be presumed that the Chief Minister had granted his approval. Moreover, the use of the term "OK" in the context of the Summary is far from clear; does it indicate whether the Chief Minister approved or disapproved the Summary or did he agree with the Minister or the Secretary. The working of the Government cannot be on the basis of D conjunctures and surmises. In the present case the Minister of Health had not approved the Summary, nor is there anything to indicate that the Chief Minister had approved it, and I cannot bring myself to presume that he had.
(8) In view of the aforesaid circumstances for Mr. Abdul Wahid Panezai, the author of the impugned letter dated 25th February 2012, to state that it was issued under the "approval of the competent authority" was a misstatement. The Minister of Health had specifically written his disagreement with the Summary, therefore, the impugned letter should not have been issued. There is also nothing on record to allow that the purported 'decisionmentioned in impugned letter dated 25th February 2012 was taken by the Chief Minister. Without the approval of the of the imniwned letter was clearly without the approval of the competent authority. The lack of authority is further confirmed by the fact that when applications were solicited by the Institute vide advertisement appearing in daily 'Jang(published on 18th March 2012) no mention therein was made of the distribution of seats on the basis of six Divisions and Quetta City.