NASIM HASSAN SHAH, J.--This judgment will dispose of four petitions instituted under Art. 98 of the Constitution of 1962 moved by four female students. By these petitions certain restrictions imposed by Government in the matter of admissions of girl students to the various Medical Colleges of this Province have been called in question. Since the questions falling for determination are similar in all these four petitions, they are being disposed of together.
2. The petitioner in the first petition (W. P. No, 1605/70) is Humera Satwat Yusuf, who is stated to have passed the Intermediate pre-Medical Examination held by the Board of Intermediate and Secondary Education, Lahore, in 1970 in First Division obtaining an aggregate of 687 marks. She is desirous of joining a Medical College in the Punjab in order to qualify to be a medical practitioner, like her father (Dr. Rauf Yusuf) and her grand-father (Col. Muhammad Yusuf) but she is being prevented from doing so on account of the decision of the Government not to admit more than 56 girls in all in the various Medical Colleges of the Punjab (Fatima Jinnah Medical College Lahore-48, King Edward Medical College, Lahore-4, and Nishtar Medical College, Multan), out of which seven are reserved for special categories, thus leaving 49 seats against which the girl candidates of the Punjab have to compete on merits.
According to the petitioner this year a girl obtaining 694 marks will be refused admission in any of the Medical Colleges while a boy with 635 marks will be admitted. Accordingly she has not even been invited for interview by any of the above-mentioned college authorities. It is contended that there is no lawful authority vesting in the Government to prevent the petitioner from entering upon the lawful profession and occupation of a medical practitioner. She has, therefore, called upon the respondent to show "how it is entitled to take such an arbitrary, unequal and unjust stand" and she has prayed to this Court to direct the respondent-Government to withdraw the restriction it has placed on the admission of girls into the Medical Colleges on the ground that they are girls so that the cases of all applicants including that of the petitioner are considered on merits uneffected by the circumstance that some belong to one sex and some to the other.
3. The petitioner in the second petition (W. P. No, 1608/70) is Qasida Fatima. She obtained 668 marks in F. Sc. (Medical Group). She claims to have taken this examination last year as well wherein she obtained 588 marks and has retaken the examination again this year in order to improve her division and marks so that she may be able to qualify for admission to one of the Medical Colleges.
However, owing to the fixation of the number of seats for girl candidates in the King Edward Medical College and Nishter Medical College at the maximum of four seats each, she will not be able to gain admission in any of the Medical Colleges. She has complained that out of 48 seats reserved for the students from the Province of the Punjab in Fatima Jinnah Medical College, seven seats are to be filled by nomination, one from Bahawalpur Division, three from amongst the children of Army Personnel and three by the Governor but no seat has been allocated to the children of doctors or other employees of the Health Department. It is prayed that the respondent-Government be directed not to place any restriction in the matter of admission of girls in any of the three Medical Colleges of the Punjab so that admissions to these Institutions take place solely on the basis of merit.
4. The petitioner in the third petition (W. P. No, 1607/70) is Shagufta Mustafa who is a daughter of a Medical Practitioner. She has urged that under the law no discrimination can be made in the matter of admission to the King Edward Medical College and Nishtar Medical College on the basis of sex. She has further urged that there is no justification in abolishing the seats reserved for the children of the doctors while reservation for the children of the members of the Armed Forces is to be maintained. Similarly she alleges that there is no justification for the provision of nomination by the Governor "as all children should be treated equally by Government and permitted to seek admission on the basis of their merits".
5. The petitioner in the fourth petition (W. P. No, 1676/70) is Hafeez Akhtar who has passed the F. Sc.
(Medical Group) Examination in First Division securing 623 marks and is stated to have obtained first position in the Bahawalpur Division. She has submitted that owing to the fixation of seats for girl students in the Medical Colleges of the Punjab a boy student obtaining 610 marks will get admission to the King Edward Medical College, Lahore and the Nishtar Medical College, Multan, while a girl student obtaining more than 650 marks will not be able to gain admission either to the Fatima Jinnah Medical College, Lahore or to the last two mentioned Colleges. She has challenged the basis of the allocation of the seats in the Medical Colleges on the same grounds as taken by the other petitioners and also questioned the provision of nomination of candidates by the Government.
6. In the written statement filed on behalf of the Provincial Government, a preliminary objection is taken to the effect that these petitions are not maintainable because there is no legal right vested in the petitioners that has been violated or denied by the respondent. It is submitted that the right to apply for admission to an Educational Institution does not carry with it a legal right to be admitted which can be enforced under Art. 98 of the 1962-Constitution. It is further submitted that admissions to the Colleges particularly to Medical Colleges or Professional Colleges are governed by the respective prospectus which are framed and issued by the governing bodies or by the Governor. The King Edward Medical College and Nishtar Medical College are Government Institutions and the admissions to these Colleges are regulated by the Government. The admissions to these colleges is also regulated by the prospectus for the year 1970-71 which was issued with the approval of the Governor of the Punjab.
7. The prospectus of the Fatima Jinnah Medical College for Women has been issued by its governing body which consists of eight members; five official members belonging to the Central and Provincial Governments and three non-official members. It is, however, expressly provided in the prospectus that the allocation of seats as laid down therein is "subject to any modification that the Government of the Punjab and Central Government may order" and it was admitted before us by the respondent that the allocation of seats detailed in the prospectus has been made in accordance with the directions of the Government.
8. The allocation of seats in the three Medical Colleges is as follows: F. J. M. College for Women.
There are 90 seats for admission to this College on All-Pakistan basis.Its distribution is as under: Central Government.
Foreign Nationals 14 Azad Kashmir 5 East Pakistan 15 Punjab (former Bahawalpur State one seat)3 Sind (former Khairpur State one seat) 3 Baluchistan (Baluchistan State Union one seat)2 N.-W. F. P. (Tribal Area 2) 3 Punjab Government General Merit from Punjab 39 Children of Army Personal 3 Nomination by the Governor 3 90 (Out of 90 seats, one seat will be allotted to candidate belonging to minority community).
Allocation of seats, as shown above is subject to any modification that the Government of the Punjab and Central Government may order."
K.E.M. College, Lahore.
1. The Administrator will admit 154 students and the allocation of seats for various categories is as under: Nature of Seats
1. On open merit of Punjab men candidates129
2. Women candidates on merit basis from Punjab only4 Reserved Seats
1. East Pakistan 2 (number liable to change).
2. Azad Kashmir (Gilgit and Baltistan Agency)3
3. Foreign Nationals 10
4. Armed Forces 3
5. Nomination by the Governor from Punjab area only3 Table seats 154
2. At least 2 seats reserved for men candidates of minority community in the College. If no or one candidate of minority community is taken on merit two or one seat(s) as the case may be, will be given to minority community candidate(s) provided that no third divisioner is admitted. The vacancy on this account will go on general merit of men candidates N. M. College, Multan.
1. Admission to the 1st Year M.B., B.S. Class is limited to 134 of which 119 seats are to be filled on merit basis from Punjab.
2. The following statement shows the detailed distribution of seats:
(a) Merit Seats No. of Seats
(i) On open merit of Punjab men candidates119
(ii) Women candidates on merit basis from Punjab only4
(b) Reserved Seats
(i) Azad Kashmir, Gilgit and Baltistan Agencies5
(ii) Armed Forces 3
(iii) Nominations by Governor from Punjab area3 Total134 B.--At least 2 seats reserved for men candidates of minority community in the College. If no or one candidate of minority community is taken on merit, two or one seat(s) as the case may be, will be given to minority community candidate s) provided that no third divisioner is admitted. The vacancy on this account will go on general merit of men candidate."
9. In the v, ritten statement filed on behalf of the Government, the details of the number of girl students admitted in the various colleges of the Punjab has also been supplied. It is stated that before the formation of One-Unit the representation of the girls students in various medical colleges of the Punjab F. J. M. College, Lahore 45 K. E. M. College, Lahore 5 N. M. College, Multan 6 Total56 After Integration of the various Provinces into one Unit, the seats allocated to these three Institutions from the areas of the Punjab were as follows: F. J. M. College, Lahore 19 K. E. M. College, Lahore 18+5 rural=23 N. M. College, Multan 11+3 rural=14 Total56 After break up of the One Unit, the position is as follows: F. J. M. College, Lahore 48 K. E. M. College, Lahore 4 N. M. College, Multan 4 Total56 Thus, it is submitted that the number of seats available for girl students has been maintained at the same level hitherto fore and that no change has been made in the prospectuses of 1970-71 on this particular point. It is further submitted that both the Nishtar Medical College, Multan, as well as the King Edward Medical College, Lahore, are institutions which are primarily meant for male students and the girl students have, therefore, no legal right to get admissions in these colleges. It is only as a matter of concession that some seats are reserved for female students whereas the Fatima Jinnah Medical College is only meant for the girl students and the Admission to that college is also on the merits.
10. On the question of limiting the number of girl students to a maximum of 56 seats in the three Medical Colleges, it is explained that this number is fixed on the ground of public policy and public interest keeping in view the limited resources available at the disposal of the Government. As regards the objections about the nomination, it is submitted that three seats are reserved for the nomination by the Governor and this has been done in public interest so as to accommodate poor students on compassionate grounds who are really poor but deserving ones and for these seats first divisions alone will be considered. The decision to reserve three seats in Fatima Jinnah Medical College for the children of the Army personnel, is also claimed to be a decision taken in public interest, and one seat is reserved for a female permanent resident of Bahawalpur. It is further submitted that the Government is competent to frame regulations with regard to the admissions of students into the Medical Colleges and to allocate seats for boys and girls in the public interest.
It is urged that neither any law nor any provision of the Constitution forbids the fixation of seats for girls and boys in Educational Institutions. Moreover, the fixation of seats is neither unreasonable nor arbitrary nor unfair and is based upon public policy and public interest.
12. Before us the first submission, made by Mr. M. Anwar learned counsel for the first writ petitioner, was that the respondent-Government had no power to make allocations of seats in connection with the admission of candidates to the various Medical Colleges as this was a function to be performed by the Governing Bodies of the Medical Colleges concerned. Our attention was drawn to the Medical Colleges (Governing Bodies) Ordinance, 1961 (Ord. XIII of 1961) which was notified in the Gazette of Pakistan, Extraordinary on 18th April 1961. This Ordinance came into force at once, vide section 1(3) thereof, and was promulgated to provide for the constitution of Governing Bodies for Medical Colleges in Pakistan for the efficient administration and management of the affairs of such colleges. Section 3 of the Ordinance provided for the constitution of Governing Bodies as follows: "Constitution of Governing Bodies.--(1) As soon as may be after the commencement of this Ordinance, the Provincial Government shall, for the efficient administration and management of the affairs of all Medical Colleges within the Province, by Notification in the official Gazette, constitute for each such college a Governing Body consisting of such number of members not exceeding 15 as may be appointed by it with the approval of the Central Government.
(2)Not more than one-third of the members shall be chosen directly by the Provincial Government and the remaining members shall be chosen from amongst persons proposed by such institutions, bodies or organisations as the Central Government may, from time to time, by notification in the official Gazette, specify: Provided that in the case of the Governing Body for a Medical College in a distance in which there is a University the Vice-Chancellor of such University shall be appointed as one of the members.
(3)The Provincial Government shall appoint one of the members to be the Chairman of the Governing Body : Provided that where the Vice-Chancellor of a University is a member of the Governing Body, he shall be the Chairman thereof.
(4)The Chairman as such and the members chosen directly by the Provincial Government shall hold office during the pleasure of the Provincial Government and the other members shall, unless earlier required to vacate by the Provincial Government hold office for a term of three years and shall be eligible for re-appointment.
Provided that the Chairman or a member shall not be removed or required to vacate by the Provincial Government except with the approval of the Central Government."
And, under section 4 it was the Governing Body, as constituted above that was to administer and manage the affairs of the Medical College for which it was constituted.
13. It was next urged that none of the prospectuses issued by the three Colleges was issued by a Governing Body constituted under the Ordinance. The prospectus of the King Edward Medical College, Lahore and Nishter Medical College, Multan, was issued by the Administrator of these Colleges respectively with the approval of the Governor of the Punjab, and the prospectus of Fatima Jinnah Medical College for Women though expressed to have been issued by the Governing Body of the Fatima Jinnah Medical College for Women, Lahore, was not issued by the Governing Body contemplated by the Ordinance because the Governing Body issuing it was merely constituted on an ad hoc basis and not under the provisions of Ordinance XIII of 1961. The learned Advocate-General admitted that this was the correct position and frankly conceded that no Governing Body was ever set up under the provisions of the Ordinance, although the same had been on the Statute Book for over nine years. On our enquiry as to whether the Government had any intention to act in accordance with the provisions of the Ordinance, the learned Advocate- General prayed for a short adjournment in order to ascertain the exact position. The cases were accordingly adjourned to enable the learned Advocate-General to obtain instructions on this point.
After about ten days, when the hearing of these cases was resumed, the learned Advocate- General informed us that the Governor of the Punjab had decided to repeal the Medical Colleges (Governing Bodies) Ordinance XIII of 1961. A copy of the Punjab Gazette Extraordinary Issue dated November 21, 1970, was submitted in Court, which to the extent relevant, is to the following effect : "1. (1) This Ordinance may be called the Medical Colleges (Governing Bodies) (Punjab Repeal)
Ordinance, 1970.
(2)It extends to the whole of the Punjab.
(3)It shall come into force at once.
2. The Medical Colleges (Governing Bodies) Ordinance, 1961, in its application to the Province of the Punjab is hereby repealed."
14. Mr. M. Anwar, Advocate, bitterly criticised the Provisions of this Ordinance on the ground that it was not moral on the part of the Government to intervene during the pendency of the proceedings in this Court by promulgating the above Ordinance. He also submitted that as a result of this legislation other unhappy consequences are also likely to follow. In this connection our attention was drawn to the provisions of section 30 of the West Pakistan University of the Punjab Ordinance, 1961, (Ordinance XXII of 1961) which lays down inter alia that a College applying for affiliation to the University shall make an application to the UniVersity and shall satisfy the University that the College is , put under the management of a regularly constituted Governing Body. It is submitted that by the repeal of Medical Colleges Governing Bodies Ordinance, 1961, all the Medical Colleges in the Punjab are liable to be disaffiliated by the University of the Punjab and no student belonging to any of the said Medical Colleges will be eligible to the grant of a degree from the Punjab University.
However much we may regret the action of the respon-dent in repealing the Medical Colleges (Governing Bodies) Ordinance, 1961, especially at a point of time when the validity and propriety of the actions of the respondent in the matter of regulating admission to the Medical Colleges in the Punjab was before us, it is not possible to ignore it. The law, as laid down by their Lordships of the Federal Court in Punjab Province v. Malik Khizar Hayat Khan Tiwana is that the Court is duty bound to ascertain the intention of the law-maker and to carry it out irrespective of the consequences that may ensue to a particular party. In view of the above rule, we must proceed to examine the matter on the basis that the Medical Colleges (Governing Bodies) Ordinance, 1961, is no longer law, so far as the Province of the Punjab is concerned. Whatever may be the consequences of the repeal of this Ordinance upon the status of the Medical Colleges, namely, whether they can still remain affiliated to the Punjab University or not and howsoever unfortunate this action may be regarded on the ethical plane, the consequence of the repeal of the Medical Colleges (Governing Bodies) Ordinance cannot be escaped but has to be given its full effect. Under the Medical Colleges (Governing Bodies) Ordinance (XIII of 1961) the Provincial Government was required to set up a Governing Body for the efficient administration and management of the affairs of all Medical Colleges but such Bodies were, in point of fact, never set up. The learned Advocate-General argued that as no Governing Body ever came into existence, hence in its absence the Provincial Government was competent to make regulations concerning the question of admission to the Medical Colleges of the Province and the prospectuses issued under the directions of the Provincial Government were not invalid. This position was controverted by the petitioners who asserted that in not constituting the relevant Governing Bodies and in usurping their powers, the Government was perpetrating a fraud on the Statute, which could not be tolerated by the Courts. A passage from Fox v. Bishop of Chester quoted in Craies on Statute Law in support of this submission was cited wherein it was observed, "it is well known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance." Be that as it may, the position as it stands today is that before admission to the Medical Colleges has taken place, the Medical Colleges (Governing Bodies) Ordinance, 1961, stands repealed. It is not the case of the petitioners that they had acquired any right to be admitted into the Medical Colleges by virtue of any regulation made by a Governing Body before the repeal of the Medical Colleges (Governing Bodies) Ordinance, 1961. All that they assert is that if the Governing Bodies had indeed been constituted, as visualised by Ordinance XIII of 1961, the principles on which admission would have been prescribed by such a Body would have been more fair and equitable. But after the repeal of the law requiring the Government to set up Governing Bodies to administer the affairs of the Medical Colleges, the petitioners cannot insist that the prospectuses in question must be issued by the Governing Bodies under the repealed Statute.
The result is that the prospectuses issued by the three Medical Colleges of the Punjab under the directions of the Government of the Punjab, cannot be held to be invalid on the ground that these have not been issued by the Governing Bodies visualised by the Ordinance XIII of 1961.
15. This brings us to the question whether the Government is competent to pass orders in relation to questions upon which there exists no law on the Statute Book. Mr. M. Anwar contended that the effect of the repeal of Ordinance XIII of 1961 is that there is now no law on the Statute Book regulating the matter of admission of students to Medical Colleges in the Punjab and the orders passed by the respondent-Government fixing certain number of seats for special categories and limiting the number of girl students seeking admission to King Edward Medical College and Nishtar Medical College to a specified number only and not permitting admission to them in the two Colleges mentioned above, on the basis of merit, are not lawful orders, because these orders do not have the backing of any contemporaneous law. Reliance for this contention was placed on the provisions of Article 2 of the 1962-Constitution, which are as follows : (1)To enjoy the protection of the law and to be treated in accordance with law and only in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan : (2)In particular--1 2 (a)no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
(b)no person shall be prevented from, or be hindered in, doing that which is not prohibited by law, and (c)no person shall be compelled to do that which the law does not require him to do.
16.In two judgments delivered by the Dacca High Court reported as Haji Ghulam Zamin etc. v. A. B.
Khondkar etc. and Haji Ghulam Sabir v. Pan Allotment Committee etc. the view has been taken that the words in accordance with the Constitution and the law used in Article 2 imply that for every executive act done by the Government there must exist either in the Constitution or the law some authority for the doing of such specific act and that the executive authority cannot perform any executive action which is not authorised by a provision in the Constitution or the law. On the basis of these decisions it has been contended that the orders impugned before us not being authorised by any provision of the law or by any provision of the Constitution are lacking in legal validity and are of no effect.
17.In reply, the learned Advocate-General has submitted that the question of admission to Medical Colleges being a matter within the scope of the authority of the provincial authorities, the orders that have been passed to regulate this matter have been passed under the Rules of Business framed under the Constitution of 1962 by the Executive Head of the Province and are, therefore, to be treated as the law on the law on the subject. In the second place, it is submitted that the view taken by the Dacca High Court that any action taken by the Executive can only be treated as lawful if it has the backing of any contemporaneous law is not correct and that this view has not been upheld by our Supreme Court and has also not been followed by this Court.
18.To support his contention that the fixation of seats for various categories in the prospectuses issued by the three Medical Colleges, under the authority of the Governor of the 'Punjab, can be treated as law on the subject of regulating admissions to these colleges our attention was invited to the West Pakistan Government Rules of Business 1962 framed under Article 81 of the 1962- Constitution. Under Article 136 of the said Constitution, the Executive Authority of the Province extends to all matters with respect to which the Legislature of the Province has power to make laws.
The subject of Health not being included in the III Schedule, which deals with matters with respect to which the Central Legislature has exclusive powers to make laws, the subject of Health automatically falls within the sphere of the Provincial Legislature vide Article 132 ibid.
19. Article 81 of the Constitution provides as follows: "The Governor of a Province may-- (a)specify the manner in which orders and other instruments made and executed in pursuance of any authority or power vested in the Governor shall be expressed and authenticated and (b)regulate the allocation and transaction of the business of the Government of the Province and establish departments of that Government."
Rule 3(3) of the Rules of Business, which deals with the allocation of business provide that the business of Government shall be distributed amongst the several Departments in the manner indicated in Schedule II. Reference to the relevant entry in Schedule II under the Head "Health Department", namely, entry 4 states : "Medical education, including medical schools and colleges and institutions for dentistry."
On the basis of the above references, it is submitted that the orders of the Provincial Government are referable to the powers conferred on the Governor under Article 136 and the impugned orders have been passed under the Rules of Business framed under Article 81 of the Constitution. Hence, it is submitted that the said orders have statutory force.
20. There is no force in this contention. The Rules of Business merely deal with the manner of making of orders and other instruments, allocation of work amongst the different Departments of the Government and the mode and method by which they are transacted. No new powers are3 4 conferred upon the Governor by the provisions of Article 81. The only powers of legislation that vest in him are contained in Article 79 of the Constitution, namely, to make and promulgate Ordinances, when the Provincial Assembly stands dissolved, which Ordinances shall have the force of law. The argument of the learned Advocate-General, however, is that because the Governor of the Province has power to make laws inter alia with regard to subject of Health and under the Rules of Business, promulgated under a provision of the Constitution, power has been given to the Governor to issue orders for conducting the business of the Department falling within the provincial field, therefore, any order passed by the Governor on a matter which lies in the Provincial sphere will be a lawful order. We cannot accept this argument because if it was correct there would be no necessity for the Governor to promulgate any law. The Governor could then make any order with regard to any matter falling within the sphere of the Province and it would become unnecessary to promulgate any Ordinance or enact any legislation on any such subject. The impugned order is nothing more than an executive order, no doubt on a matter which falls within the competence of the Provincial Authorities, but it is neither a law on the subject nor can it be equated with a law.
21. Coming now to the submission that the view taken by the Dacca High Court with regard to the provisions of Article 2 of the Constitution has not found favour either with the Supreme Court or by this Court, our attention was drawn to some observations contained in the case of Muhammad Yusuf wherein the Supreme Court after taking note of the Dacca High Court's judgment in Ghulam Zamin's case and Haji Ghulam Sables case went on to observe, "it is difficult to construe Article 2 as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interests." The cases decided by this Court on which reliance was placed are Narain Das etc. v. The Province of West Pakistan and Mian Arif Iftikhar v.
Lahore Improvement Trust. On a closer examination of these judgments it transpires that what has been held therein is that actions taken at a point of time when either no law justified the taking of such action or the action was taken by misapplication of the law, could be validated after such action was taken, by subsequently promulgating a law and giving retrospective operation to it.
These judgments do not deal with other point discussed by the Dacca High Court that in the absence of any contemporaneous law to back such action the executive authority is precluded from taking any action at all.
22. In the leading Full Bench case of Ghulam Zamin, the facts were that Ghulam Zamin was carrying on business of exporting pan from East Pakistan to West Pakistan, ever since the Independence. This commodity was carried from East Pakistan to West Pakistan by air through P. I.
A. C. (Pakistan International Airlines Corporation). The Commerce Ministry in the Central Government issued a Notification on 2-1-64 to the effect that inter-regional trade in betel leaves
(Pan) between the two wings which had hitherto been controlled by the P. I. A. C. would in future be handled by the Ministry of Commerce and by a public notice issued on 12-1-1964, the Pan Allotment Committee set up by the Government of Pakistan invited applications for allotment of quotas of Pan for air space available with P. I. A. C. for transportation from the East Wing to the West Wing by a particular date.
The effect was that no one who was not allotted a quota of air space by the Committee, in pursuance of an application made to the Pan Allotment Committee, could carry on the trade even though he might have been carrying on this trade ever since the creation of Pakistan. The observations made in Ghulam Zamin's case, namely, that Art. 2 of the Constitution "furnishes a citizen with a constitutional guarantee that he will not be called upon to do something or to refrain from doing anything without a valid provision of law to that effect must be understood in the above background. These remarks were further explained as follows:-- "This means that there is a constitutional protection in praesenti or, in other words, whenever an5 6 7 order is made, which invades upon the rights of a citizen or requires him to do something, there must be in existence, contemporaneous a law which would authorise such a course."
23. The facts of the present cases are altogether different. It is stated in the written statement, and this has not been controverted by the petitioners, that the Government has since the very beginning been prescribing the number of seats to be allocated to the girl students of the Punjab Region in the Medical Colleges of this Province. All that has been done this year is that the distribution earlier made in regard to the filling up of the 56 seats reserved for girl students, before the break up of the integrated Province of West Pakistan, has been altered and the categories from which admissions are to take place have been modified but the number of girls from the Punjab, who shall be admitted to the three Medical Colleges, remains the same, namely,
56. The petitioners have not been called upon to do something which they were not doing before or refrained from doing anything which they were hitherto fore entitled to do. In a recent case entitled Arif All Hazoor v. The Administrator, K. E. M. C., Lahore (C. P. S. L. A. 124/1970 decided by the Supreme Court of Pakistan on 29-5-1970) it has been held that there is no authority for the proposition "that the right to apply for admission to an educational institution carries with it a legal right to be admitted which can be enforced under Article 98 of the Constitution." The petitioners, therefore, did not have any public or private right to claim in admission to any Medical College in pursuance of the applications submitted in that behalf and the orders fixing the number of seats for the various categories of students to be admitted to the institutions concerned has not injured any legal right inhering in them. It appears to us that the aid of Article 2 of the Constitution can only be invoked by a citizen if any of his public or private right has been infringed and not other wise and we conceive that it is in this light that the proposition that before any executive action can be taken it must be backed by a contemporaneous law, is to be understood. If the wider interpretation canvassed by the petitioners was accepted to be correct, the massive relief operations taken through executive action for bringing succour and relief to the unfortunate victims of the tidal bore in Bhola, Hatiya, Patuakhali, Noakhali and other affected areas of East Pakistan, the actions taken to dig mass graves to bury the dead and the other innumberable acts that have been done to put life on an even keel in the devastated areas, being not all backed by any contemporaneous law, would have to be held as illegal. An interesting discussion of the power of the executive to take action in the absence of statutory authority is contained in a judgment of the Supreme Court of the United States in Cunningham v. Neagle, the relevant portion may be reproduced with advantage as follows:-- "The United States is the owner of millions of acres of valuable public land and has been the owner of much more which it has sold. Some of these lands owe a large part of their value to the forests which grow upon them. These forests are liable to depredations by people living in the neighbourhood, known as timber thieves, who make a living by cutting and selling such timber and who are trespassers. But until quite recently, even if there be one now there was no statute authorising any preventive measures for the protection of this valuable public property. Has the President no authority to place guards upon the public territory to protect its timber? No authority to seize the timber when cut and found upon the ground? Has he no power to take any measures to protect this vast domain? Fortunately we find this question answered by this Court in the case of Wellas v. Nickles 104 U S 444 (26: 825). That was a case in which a class of men appointed by local land officers, under instructions from the Secretary of the interior having found a large quantity of this timber cut down from the forests of the United States and lying where it was cut, seized it. The question of the title to this property coming in controversy between Wellas and Nickles, it became essential to inquire into the authority of these timber agents of the Government thus to seize the timber cut by trespassers on its lands. The Court said: "The effort we have made to ascertain and fix the authority of these timber agents by any positive provision of law has been unsuccessful". But8 9 the Court notwithstanding there was no special statute for it, held that the department of the interior, acting under the idea of protecting from depredation timber on the lands of the Government, had gradually come to assert the right to seize that is cut and taken away from them wherever it can be traced, and in aid of this the registers and receivers of the land office had, by instructions from the Secretary of interior been constituted agents of the United States for these purposes, with powers to appoint special agents under themselves. And the Court upheld the authority of the Secretary of the Interior to make these rules and regulations for the protection of the public lands."
Although in the above discussion no reference is made to any provision similar to the provisions of Article 2 of our Constitution, it does highlight some of the circumstances in which executive action is not only permissible but even called for notwithstanding the absence of any antecedent Statute covering the subject in respect of which the said action is taken. The observations made in the Dacca High Court judgments therefore must be read in the context of the facts and circumstances obtaining in those cases, namely, an activity that was being lawfully carried on was sought to be interfered with, without the backing of any contemporaneous law. This action was found to be unjustifiable on the ground that Article 2 of the Constitution forbade the taking of any action detrimental to the life, liberty, body, reputation or property of any person, except in accordance with law and in these cases there was no law authorising interference with the carrying on of the business that was being carried on by the petitioners. Their Lordships of the Dacca High Court were not dealing with a case in which neither any public nor any private right of the party approaching them, under Article 98 of the Constitution, was infringed. The judgments of the Dacca High Court relied upon by the petitioners are, therefore, of no avail to them.
In order to establish that the petitioners have a right to secure admission in the relevant Colleges, reference has been made to para. 12 of the Fundamental Rights set out in Chapter I of Part II of the Constitution, which provides for safeguards as to educational institutions in respect of religion, etc. It is submitted that this Fundamental Right is not included amongst the Fundamental Rights suspended under Article 3(3) of the Provisional Constitution Order, 1969 and is, therefore, still alive.
On the basis of the provisions of para. 12(3) it is argued that the petitioners have a right to be admitted to the Medical Colleges concerned. Under sub-para. (3) of para. 12 of the Fundamental Rights, it is laid down as follows: "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."
Mr. M. Anwar, Advocate, has contended that both the King Edward Medical College, Lahore, and Nishtar Medical College, Multan, are co-educational institutions and no one who is qualified to be admitted on the basis of merit can be deprived of the right of admission to any of these educational institutions. The word "citizen" in Right 12(3), it is submitted, is a word of a very wide connotation and includes both sexes male and female and, therefore, girl students, who are included in the term "citizen", cannot be denied admission, if he or she is other wise qualified. In this connection, it is urged that an invidious distinction has been drawn between girl students and boy students in the matter of admission to the co-educational Medical Colleges of the Province in so far as it is laid down that not more than four girls shall be admitted into either the King Edward Medical College, Lahore or Nishtar Medical College Multan, with the result that boys who have secured less marks will be admitted while girls with far higher marks will be refused admission. The discrimination being made against the girls in the matter of admission to Medical Colleges has been illustrated by compiling four charts. As the correctness of the facts mentioned therein was not challenged by the learned Advocate-General, they may be deemed to be correct. The figures contained in these charts are not without interest and they may be reproduced as follows: I Admission of Girls v. Boys (from Punjab)
(a)In 1955, about 140 boys were admitted on merit and about 47-50 girls, girls being about 30% of boys. In 1960, about 75 girls were admitted (58 in F. J.).
(b)From 1964, girls seats were as follows: F. T. M. C.K. E. M. C.N. M. C. Total Merit 19 1811 48 Rural 53 8 Doctors 3-5 1-2 1 --2 5-9 Defence 2-3 1 1 5-6 Total 24-27 25-2616 66-71 Boys seats in K. E. and Nishtar Medical Colleges were about 200 (Tagged, Rural, non-tagged and Doctor's Children's seats).
(c) Present position is 56 girls' seats against 260 boys, including reserved seats and 49 girls against 248 boys for on merit seats. II Admission of Girls and Boys Boys Girls Ratio Girls to Boys 1953 140 50 37% 1958 135 65 48% 1960 140 75 (56 F. J., 10 K.E., + Nishtar)53% 1964 200 (Punjab)70 35% 1970 260 (Merit 248)56 (Merit 49) 22% III Disproportion in opportunity Intermediate Result 1970. AppearedNo. perPassed No. per1st No. per seat seat Class seat Boys 3813 15.4 2100 8.4 558 2.3 Girls 1240 25.3 787 16.1 231 4.7 Ratio of Opportunity Girls to Boys 61% 52% 48% IV Intermediate Examination Ratio of Girls to Boys (Passes).
Total appearedPassedGirls Boys%Girls BoysRatio of Girls to boys admitted 1955 2055 642 108 534 20 37% 1956 2087 479 94 385 25 48 1961 2209 649 124 525 2453(1960)
1966 3646 1379 339 1040 33 35 1967 3837 1786 460 1326 35 35 1970 787 2100 37 20 On the basis of the above facts, it was contended that an unequal and unwarranted distinction is being made on the basis of sex.
24. It is also contended that in the Fatima Jinnah Medical College for Women amongst 90 seats to be filled up. 48 are reserved for Punjabi girls while 42 seats have been earmarked for girls from outside areas. This, it is contended, amounts to discrimination against the Punjabi girls on the ground of their place of birth being the Punjab and, therefore, the reservation made on this basis tantamounts to an infringement of Right 12(3) of the Fundamental Rights.
25. The criticism made against fixing the number of seats of girls residing in the province of the Punjab is, therefore, two-fold. Firstly, on account of the alleged discrimination being practised on the ground of sex and, secondly, on the ground of the alleged discrimination being made against them on the ground of their place of birth. The terms of clause (3) of Right 12, reproduced above, shows that this Article does not prohibit the refusal of admission to educational institutions on the ground of sex and any restrictions placed on the admission of girl students is not hit by the provisions of clause (3) of Right 12. According to the said clause any citizen who is denied admission to any educational institution receiving aid from public revenues only on the ground of race, religion, caste or place of birth can complain of a breach of his fundamental right under the present clause, but cannot complain of a breach of fundamental right if he or she is denied admission in any such educational institution on the ground of "sex." Thus educational institutions intended exclusively for men can be maintained by the State without violation of the Constitution.
We may note here that at the resumed hearing of these petitions, after the adjournment, the learned Advocate-General informed us that the Governor of the Punjab had passed an order clarifying that the King Edward Medical College, Lahore and the Nishtar Medical College, Multan were male colleges, subject to the reservation that some girls could be admitted if need be as a matter of concession. Thus, even if the contention of Mr. M. Anwar that the word "citizen" includes both males and females is accepted as correct, there is no breach of clause (3) of Right 12 even if discrimination on the basis of sex is practised in the) matter of admission to the educational institutions in question. The fact is that the right which could possibly be invoked against the perpetration of discrimination on the ground of sex could only be Right 15, contained in the Fundamental Rights Chapter of the Constitution, which lays down, "All citizens are equal before law who are entitled to equal protection of law", but unfortunately this rights stands suspended by Article 3(3) of the Provisional Constitution Order, 1969.
26.We may now turn to the second part of the criticism based on the alleged discrimination on the ground of place of birth. It is manifest from the term of clause (3) of Right 12 of the Fundamental Rights that discrimination on the ground of place of birth is forbidden under it. The object of this provision is to declare that no citizen will be discriminated against by any State-aided educational institution on the ground of his birth in any particular part of Pakistan. We have, therefore, to see whether any applicant is being denied admission to the Colleges in question on the ground of her place of birth. A perusal of the prospectus of Fatima Jinnah Medical College shows that 48 seats are reserved for residents of the Punjab and the remaining 42 earmarked for girls resident outside it. However, admission is not on the basis of place of birth of the candidates but i s on the basis of their permanent residence. This is made clear by reference to para. 11 of the prospectus, which deals with submission of applications for admission. Clause (e) of Para. 11 provides that amongst the documents to be attached with the application for admission, a certificate of permanent residence is to be submitted by each applicant. It does not require the submission of a certificate about the place of birth. It is well established that permanent residence is not same thing as the place of birth. A person may be born at one place and become a permanent resident of another place. When Fundamental Right 12(3) prohibits discrimination based on the place of birth, it cannot be read as prohibiting discrimination based on residence.
27.In a recent judgment delivered by this Court, in the case of Mir Nasim Mahmood v. Principal, King Edward Medical College, Lahore this question has been elaborately discussed. In that case the Government of West Pakistan for the purpose of admitting students to various Medical Colleges in the Province issued instructions embodying a scheme for admission of applications to the first year M. B., B. S. Class for the session 1964-65. According to the instructions different areas in West Pakistan were tagged to different Medical Colleges and in each college a number of seats were allocated for the tagged areas and certain seats were reserved for the area which were not tagged to particular college. The students who were otherwise qualified for admission, failed to secure admission, and as such then filed writ petitions in the High Court. The grievance of the petitioners before the High Court was that due to the Scheme of tagged areas and the reservation of seats for various categories of students introduced by the Institutions the petitioners were deprived of admission to any of the Medical Colleges in the Province although in the order of merit as judged by the marks obtained by them in the F. Sc. (Pre-Medical) Examination they stood much higher than those of the candidates who had been admitted. It was argued, inter alia, that the Scheme of tagged areas was in conflict with the Fundamental Right 12(3) because it created distinction among the various classes of students on the basis of their place of birth. It was held that the Scheme of tagged areas as embodied in the instructions was not based on any of the consideration laid down in clause (3) of Fundamental Right 12 because the instructions did not specify that only those persons could apply to the colleges in question who were born in the tagged areas. According to the said instructions, the qualification in respect of eligibility for the different tagged areas was permanent residence in those places. It was held, relying upon a judgment of the Indian Supreme Court, that residence and place of birth are two distinct concepts and the prohibition against discrimination based on the place of birth cannot be equated as a prohibition against discrimination based on residence. We respectfully agree. The objection on this ground, therefore, also fails.
28.We may mention in passing that the Fatima Jinnah Medical College for Women is not controlled exclusively by the Provincial Government but the Central Government has a share in the management of the said institution as well, as already pointed out in Para. 7 above. We were informed that a part of the funds utilised for running this institution were provided by the Central Government. Consequently, the Chairman of the ad hoc Governing Body which administers its affairs is the Director-General of Health and ex officio Joint Secretary to Governor of Pakistan (Health Division) and one of its members is the Director of Health Services, East Pakistan Dacca. It is for this reason that the Central Government has laid down the categories for filling half of the 90 seats reserved for admission to this College (details of which have already been reproduced in Para. 8 above) and the remaining half, namely, 45 are to be filled in by the Punjab Government, in the manner also reproduced in Para. 8 above. Three seats out of the seats reserved for being filled up by the Central Government have been allocated to the Punjab. In this manner, the number of10 seats to be filled in the Fatima Jinnah Medical College from the Province of the Punjab comes to 48 and from the other areas 42. The Central Government was not impleaded as a party by any of the writ petitioners and no criticism has been made before us, as to the manner relating to the filling up of the 45 seats allocated to the Central Government.
29.Learned counsel for the petitioners, however, did argue that as a result of the regulations limiting admission of girl students up to the maximum number of 56, in all the Medical Colleges of the Punjab, brilliant girl students will be refused admission while mediocre male students, who have got 50 or 60 less marks, than the girl students in the very same examination will gain admission.
Such a result, it was argued, could not be countenanced under the principles of natural justice. We have, however, found above that under the Constitution, especially after the suspension of Fundamental Right 15, the discrimination that is being practised on the ground of "sex" in the matter of admission to the Medical Colleges, cannot be declared to be illegal. We are, however, not unmindful of the strength of righteous indignation which the girl students can understandably entertain at being ignored, although better qualified, merely because they were girls. This anamolous position, however, can only be set right by the Executive Government. One way of correcting it could be to increase the number of seats for admission in the Fatima Jinnah Medical College for Women now that the doors of the King Edward Medical College, Lahore, and the Nishtar Medical College, Multan, are being closed to the girls. We have no doubt that the Government will give its earnest consideration to this aspect of the question.
30.A ground was taken in the three writ petitions filed by Mr. Talib Haider Rizvi, Advocate, that the exclusion of seven seats, out of 56 seats allowed to the girls residing in the Punjab, for the purpose of filling up these seats through nomination was not justified and further that the categories devised for this purpose, namely, nomination of three children of members of the armed personnel and nomination of three students, considered to be poor, who have obtained first divisions and one student from Bahawalpur was an arbitrary and fanciful exercise of power, especially when a category such as "children of doctors" which category appeared to be a more appropriate category than the other two cate, gories from which nomination is to be made, has been excluded.
This point however, was not pressed before us during the course of arguments. The order passed reserving seven seats to be filled up by nomination is an executive order and the same can be interfered with if it can be shown that it is arbitrary, fanciful and based on extraneous considerations vide S. S. Miranda Ltd. v. Chief Commissioner, Karachi . However, as no argument has been addressed on this point, we would refrain from expressing our opinion on this question in the present cases.
31.The result is that these writ petitions must fail and are accordingly dismissed. Since, however, one of the most important questions raised in the petition, namely, the validity of the instructions of the Government in the matter of regulating admissions, in the face of the provisions of the Medical Colleges (Governing Bodies) Ordinance, 1961, was disposed of by legislation by promulgation of the Medical Colleges (Governing Bodies) (Punjab Repeal) Ordinance, 1970, which law was enacted in the midst of the hearings of the writ petitions and further the decision declaring the King Edward Medical College, Lahore and the Nishtar Medical College, Multan, to be male Colleges was also taken during the pendency of the writ petitions and these decisions, principally the former, has affected the result of these writ petitions, we order that the costs of these proceedings shall be borne by the respondent-Government. PLD 1956 FC 200 (1824) 2 B & C 635 PLD 1965 Dacca 156 PLD 1967 Dacca 60711 1 2 3 4 PLD 1968 SC 101 PLD 1969 Lah. 860 PLD 1969 Lah. 1087 PLD 1965 Dacca 156 135 U S 1 PLD 1965 Lah. 272 PLD 1959 SC 134