' This is a Constitutional Petition filed by Miss Adeeba Zakiya, petitioner, praying that the order of the Deputy Director of Personnel Service, Naval Headquarters, Islamabad, respondent No, 1, dated 15th May, 1983, be declared as mala fide, null and void and as having no legal effect on the rights of the petitioner and that she be given admission in the King Edward Medical College, Lahore, against the seat reserved for the children of Naval Personnel in the first year M. B., B. S. Class in the session starting 1983.
2. The brief facts of the case are that the Naval Headquarters issued Fleet Order Instructions F.
0.-C.-12/79, dated 29th May, 1979 calling upon the children of Naval Personnel desirous of seeking admission to the Medical Colleges in the Punjab to submit their applications on the forms prescribed to the Director of Personnel Services, Naval Headquarters, within a month of the announcement of the results by the Boards of Intermediate and Secondary Education. It is stated that the last date for the submission of forms was not observed strictly, as forms were received late as well. On the basis of the said Fleet Order, applications were made by the children of Naval Personnel in accordance with the instructions contained in the said Fleet Order. One of the applicants was Miss Adeeba Zakiya, the present petitioner. The applications received were processed and on the basis of categories contained in the Fleet Order referred to above, the petitioner was considered as having first preference for admission. Before her name could be submitted by the Naval Headquarters to the King Edward Medical College, Lahore, a letter, dated 18th April, 1983 from one Miss M. A. Rahi, wife of late Captain M. A. Rahi, was received by the Chief of Naval Staff, Headquarters, Islamabad, praying that the case of her son for admission to the medical college be given special consideration, as her late husband had died during active service. The chief of the Naval Staff marked the said application to the Acting Director Medical Service (Navy) with the following note "Process this case forthwith and as a first step send an interim reply to Mrs. Rahi.
' We must give a defence seat to applicant, (Sd.)
21st April, 1983."
' Accordingly, the case was sent to the Acting Director, Medical Service (Navy), who sent it to the Personnel Directorate. The Section Officer (W. R./11) in the Personnel Directorate submitted a note on 24th April, 1983 that the son of the late Captain M. A. Rahi could not be nominated against the Naval Quota seat in view of the Fleet Order Instructions FOC-12/79, dated 29th May, 1979 already in existence. The Assistant Chief of the Naval Staff (Personnel) by his note, dated 30th April, 1983 held that the aforesaid Fleet Order should be amended to create a new category between categories
(b) and (c). The said recommendation was then approved by the Deputy Chief of the Naval Staff (Personnel) on 30th April, 1983 and a new category (bi) was created. The recommendation was finally approved by the Chief of Naval Staff on 8th May, 1983, who also nominated Mr. Muhammad Atif Rahi, respondent No, 4, (son of the late Captain M. A. Rahi) to the seat himself, on the basis of the new category (bi) created in the Fleet Order, which gave the respondent No, 4 preference over the petitioner. On 15th May, 1983, the Deputy Director of Personnel Service, Naval Headquarters, respondent No, 1, formally intimated to the King Edward Medical College, Lahore, the name of respondent No, 4 to the seat reserved for the children of Naval Personnel. Being aggrieved by the said nomination, the petitioner wrote a letter to the Chief of the Naval Staff, Naval Headquarters, Islamabad, respondent No, 5, against the wrongful nomination of respondent No, 4, but receiving no reply, again sent a reminder on 8th June, 1983 and getting no redress, finally filed the present writ petition, which is now before me for disposal.
3. On behalf of the petitioner it is submitted that the Fleet Order Instructions FOC-12/79 were made under the final approval of the Chief of Naval Staff and the said instructions had the force of statutory rules, as they were made and issued with the approval of the Chief of Naval Staff, who was fully competent to issue rules and instructions governing Naval Personnel and their children. It is further submitted that under the said Fleet Order Instructions, when the applications were processed in April, 1983, the petitioner was treated as having the first preference of admission, on the basis of categories stated in the said Fleet Order. It is further submitted that the said Fleet Order could not have been amended by the Chief of the Naval Staff after the applications had been received and processed, as it effected the vested right of the petitioner to be granted the seat. It is further contended that the amendment made to the Fleet Order Instructions between April/May, 1983 was mala fide as it was discriminatory and specially made to upgrade the preferential right of respondent No, 4 over the petitioner.
4. On behalf of the respondents it is submitted that the categorization was altered in the Fleet Order Instructions above referred to on the basis of policy-and not to discriminate against the right of the petitioner-as it was felt that children belonging to Naval Personnel who had died during active service should have priority on compassionate grounds and that their case be placed between categories (b) and (c) of the Fleet Order Instructions. It is further submitted that the Fleet Order Instructions having been amended before the final selection was made, the said selection should not be disturbed. It is further submitted that selection of candidates is purely an executive function and that the Fleet Order Instructions in question was merely an Instructional letter for executive guidance and gave no vested right to the petitioner to move a writ petition.
5. I have given my anxious consideration to this case. The Fleet Order Instructions, dated 29th May, 1979 lay down the following order of priorities for nomination :- "(a) Children of Shaheeds of Indo-Pak Wars of 1965 or 1971.
(b) Children of disabled personnel as a result of Indo-Pak Wars of 1965 or 1971.
(c) Children of those Naval Personnel who have been awarded gallantry decorations in the Indo- Pak Wars of 1965 or 1971.
(d) Children of Naval Personnel who took part in Indo-Pak Wars of 1965 or 1971 and were awarded "Sitara-i-Harb."
(g)...................................
(f).......................................
(e)......................................
' Fleet Order Instructions, dated 29th May, 1979, as it originally stood before the amendment, was made under the instructions and approval of the Chief of Naval Staff, Naval Headquarters, Islamabad, respondent No,
5. It ' cannot also be doubted that the said respondent is the competent person under whose authority all administrative and statutory instructions and rules are issued and made. The Fleet Order Instructions in question govern the entitlement of children who seek nomination to the special seats reserved in the medical colleges. The instructions are expressed with precision and are A applicable with generality to all cases covered by it. They, therefore, can be stated to have the force of statutory rules. If any authority is required for this proposition, Muhammad Naseem Ahmad v. Miss Azra Feroz Bakht (1), The Province of West Pakistan v. Din Muhammad (2), Khan Faizuilah Khan v. Government of Pakistan (3) may be cited. Law need not necessarily be statutory law. All which in its generic sense can be treated as law, is also law. See Government of West Pakistan v. Begum Agha Shorish Kashmiri (4).
(1) PLD 1969 SC 37 (2) PLD 1964 SC 21
(3) PLD 1974 SC 291 (4) PLD 1969 SC 14 ' It is submitted on behalf of the respondents that applications were called from the children of Naval Personnel which were to be submitted within a month from the date the Boards results were out and that the nominations would be made according to the Fleet Order Instructions, dated 29th May, 1979. All the applications from the children of Naval Personnel were received haphazardly upto April, 1983. Nominations to the Khyber and the Dow Medical Colleges were finalized earlier, according to the Fleet Order Instructions then prevailing. The applications for the King Edward Medical College, Lahore, was processed in April, 1983, according to same Fleet Order Instructions, when the petitioner was found entitled to first preference for nomination. In May, 1983, a new category (bi) was created, reading as follows :- "(bi) Children of serving personnel who die suddenly or accidentally, having not less than 15 years qualifying service."
' It is stated by the learned counsel for the petitioner that the subsequent amendment to the Fleet Order Instructions, in order to introduce the new category (hi) between categories (b) and (c), was undertaken to specially upgrade the priority of respondent No, 4 over that of the petitioner. It is stated that this is obvious from the file, because the whole case relating to the amendment was initiated on the letter of Mrs. M. A. Rahi, wife of late Captain M. A. Rahi, and the whole exercise was undertaken to specially grant to her son preference over the rights of the petitioner. However, on behalf of respondent No, 5 it is submitted that the action taken was purely on a policy basis and a new category was created to recognize the right of a more deserving case to receive preference.
Out of respect for the action of the Chief of the Naval Staff, I would-for a moment- accept this position. This should not mean that I have given any finding that the impugned amendment is not tainted with malice or is not discriminatory. Accepting the said position, for a matter of argument, even then it would appear that the amendment could not have been applied to children whose forms had been processed, as the amendment cannot be retrospectively applied, if its effect is to destroy the vested right of a candidate. Since the amendment did have the effect of destroying the vested right of the petitioner, it could not have been applied to her case. At best, the amendment could only have been applied to the new batch of students whose applications were to be called in the next term. The case can be looked at from another angle. Even if the nomination of a ward be treated as a privilege, the Navy itself had for its own precision and bounds, laid down instructions for its guidance. There instructions created categories, which in turn created vested rights. Under normal rules, the final nomination had to be made by the Deputy Chief of Naval Staff Personnel, but the Chief of Naval Staff imposed his will in the) matter. The duty of the donee of the power to act on the dictates of another body or person, is not warranted. (See Judicial Reviewp of Administrative Action by S. A. De Smith, 3rd Ed., 1973, page 273). The duty of the donee of the power to exercise any cavalier discretion is also ousted by law ; for he is compelled to observe to limits of the jurisdiction and not to disturb them to thwart particular case, unless some grave national emergency or crisis is there, which prompts such an action. Even an exercise of discretionary power can be struck down, which may appear outwardly valid, if it can be shown to have been directed ad hominem, that is to say, where a rule or bye-law or order has been especially made to thwart an individual application. (See Judicial Review of Administrative Action by S. A. De. Smith, 3rd Ed., 1973, page 273).
The position in Islamic Shariah is no different. For all these reasons, the petitioner is entitled to succeed and the impugned orders of respondents Nos. 1 and 5, dated 30th April, 1983 and 8th May, 1933 respectively and the letter of respondent No, 1 addressed to the King Edward Medical College, Lahore, dated 15th May, 1983 appear to have been passed without lawful authority.
5. On behalf of Muhammad Atif Rahi, respondent No, 4, it is submitted that it will be most unfair if he is deseated, as he was in no way responsible for the action of the respondents. I agree with this contention. In a similar case, where the entitlement of a lady student was rejected and other students were admitted to a medical college and later it was found that the said lady was entitled to the seat, the High Court of Baluchistan, whilst ordering the admission of the lady student to the medical college, also directed that the other students who had already been admitted, should not be disturbed and if no seat was vacant to accommodate the lady student in the medical college, one special seat may be created for accommodating her. On appeal, the Supreme Court did not interfere with the latter arrangement, considering that the same was based on humane considerations. See Chairman, Selection Committee, Bolan Medical College, Quetta v. Miss Safiya Hamid (1), I would, therefore, follow this rule.
6. For the foregoing reasons, this petition is accepted and the recommendations of respondent No, 1, dated 30th April, 1983 and 15th May, 1983 and that of respondent No, 5, dated 8th May, 1983 are hereby declared as having been made without lawful authority and as having no legal effect on the rights of the petitioner. I hereby direct respondents Nos. 2 and 3 to treat the petitioner as the lawful nominee to the seat reserved for the children of Naval Personnel to the first year M. B., B. S. Class in the King Edward Medical College, Lahore for the academy session 1983 and to admit her to the said class and in case no seat is vacant in the said class, to accommodate the petitioner by creating one special seat for the said purpose.I further direct respondents Nos. 2 and 3 not to disturb respondent No, 4, who should be allowed to continue his studies. There shall be no order as to costs.
(1) PLD 1980 SC 28