MUHAMMAD Au SAYEED, J.--By this petition Miss Nasim Bano, the petitioner herein, seeks a direction addressed to the Secretary, Government of Pakistan, Ministry of Home and Kashmir Affairs and States and Frontier Regions (respondent No,1) requiring him to forward to the Administrator, Liaquat Medical College, the petitioner's nomination to the seat reserved in the said college for a candidate belonging to the Manavadar State. The petitioner also prays for a direction addressed to the Secretary to the Government of Sind, Health Department, as well as to the Administrator, Liaquat Medical College, Jamshoro, Hyderabad, requiring them to admit the petitioner to the said College.
2. The petitioner, it would appear, was a subject of the State of Manavadar before her migration to Pakistan and has since passed the pre-medical Inter-Science Examination from the Board of Secondary Education at Karachi. By its prospectus issued for the year 1969-70 the Liaquat Medical College, Hyderabad, it is contended, has reserved one seat for the State of Junagarh and one for the State of Manavadar. Being a subject of the Manavadar State the petitioner applied to His Highness the Nawab of Manavadar for nominating her to the seat reserved for a subject of the said State. The petitioner succeeded in her application and His Highness the Nawab of Manavadar was pleased to forward her nomination both to the Central Government as well as to the Liaquat Medical College, Hyderabad. The Central Government, respondent No, 1, it is alleged, did not forward the name of the petitioner to the College but instead forwarded two names proposed by His Highness the Nawab of Junagarh. Since the nomination of the petitioner was not received from the Central Government, the authorities of the Liaquat Medical College, Hyderabad did not find it possible to admit the petitioner to the said College. After the representations of the petitioner in this connection failed to elicit any result the petitioner brought the present petition.
3. The main contention of the petitioner is that the privilege of His Highness the Nawab of Junagarh could not go beyond nominating a single candidate from Junagarh for the single seat reserved for that State. The Ruler of Junagarh, it is alleged, had wrongly arrogated to himself the right to nominate two candidates instead of one. This mistake, it was argued, ought to have been corrected by the Central Government when the respective nomination were received by it and the Central Government should have forwarded only one of the two candidates named by the Ruler of Junagarh along with one nominated by the Nawab of Manavadar. The Central Government however, on a mistaken approach, forwarded to the College the two names suggested by the Ruler of Junagarh and withheld the name of the petitioner. The petitioner had thus been deprived of her right to gain admission to the Liaquat Medical College in the seat reserved for Manavadar.
4. On the 30th of January 1970, after hearing the learned Additional Advocate-General as he then was, we directed, as an interim measure, that the petitioner will be permitted to attend the classes at her risk pending disposal of the main petition. Subsequently one Aba Umar applied for being joined as a respondent in the case on the ground that he was one of the two candidates nominated by His Highness the Nawab of Junagarh and that as a result of the petitioner being granted interim admission he was being denied admission by the College. This application was allowed after notice to the parties and Aba Umer was consequently joined as respondent No, 4 in the main petition.
5. We have since heard the learned counsel for all the parties.
6. The main opposition to the petition was led by Mr. Wajihuddin Ahmad, the learned counsel for Aba Umer, respondent No,
4. His first contention was that for the last 15 years the Nawab of Junagarh had been nominating two candidates, each year, to the Liaquat Medical College, and this practice had never in the past been questioned. The long and unbroken duration of this practice, it was argued, had operated to vest an inalienable right in the Nawab Saheb of Junagarh to nominate two candidates and this right could not be diminished or taken away without hearing him. We do not however feel persuaded to subscribe to this view. In the first place, the procedure which enables the Ruler of a State to nominate a candidate does not in any sense vest a right in him, personal or otherwise. The right to the reserved seat, really speaking, belongs to a class of people and becomes crystallised in the candidate who is eventually selected. The Ruler of the State is merely a channel through which the right flows. In nominating a candidate the Ruler does not exercise a right but performs merely a function. He determines the candidate who will receive the benefit of the arrangement although in making his decision he is not bound by any rules. Apart from the unfettered nature of his discretion, his function as such is no more a right than it is of a Divisional Committee to select candidates for seats reserved for the under-developed areas.
Secondly an inveterate practice will not displace the law as reflected in the rules. The allocation of seats set out at pages 9 and 10 of the prospectus of Liaqua t Medical College, Hyderabad, issued for the year 1969-70 apportions two seats for Junagarh and Manavadar States. Para. 12 of the said prospectus further states in unequivocal terms that out of the two seats reserved for Junagarh and Manavadar one seat will go to Junagarh and one to Manavadar. The procedure for filling these reserved seats has been laid down in para. 10 of the Instructions issued by the Government of West Pakistan, Health Department. This paragraph is in the following terms:-- "10. Junagarh and Manavadar.--Candidates seeking admission against seats reserved for Junagarh and Manavadar shall apply to the Ruler of the State concerned, who will forward their nominations to the President's Secretariat and only those candidates shall be admitted against the seats reserved for these two States whose nominations are received from that Secretariat. The President's Secretariat will direct the nominated candidates together with the applications and all necessary documents directly to the Principal/Administrator of the College concerned under advice to the Health Department, Government of West Pakistan."
Again at page 2 of the above instructions the States of Junagarh and Manavadar have been shown as having been allotted two seats. It is obvious from a perusal of the foregoing provisions made in the prospectus as well as in the Instructions that the candidates seeking admission against seats reserved for Junagarh and Manavadar will apply to the Rulers of the State concerned and it is for the Rulers of the concerned States to forward the nominations to the President's Secretariat for transmission to the College. In the face of such specific and clear cut provisions it seems futile to us to argue that the Nawab Saheb of Junagarh could yet nominate two candidates and that this privilege could be used to the exclusion of the rights of Manavadar.
7. The learned counsel for the 4th respondent then contended that prior to the year 1969.70 only Junagarh State had been allocated two seats and the change in the prospectus for the year 1969- 70 by which one seat each was given to Junagarh and to Manavadar was unauthorised, in that, it did not have the sanction of the Central Government for the Provincial Government. In so far as the factual aspect of this plea is concerned we find that it is not altogether correct. It is true that up to the year 1965-66 both the seats were reserved only for the State of Junagarh and the Ruler of that State was required to nominate candidates for the two seats. However, for the year 1966-67, 67-68 and 68-69 a change was brought about in the prospectus of the College and two seats were allocated jointly for Junagarh and Manavadar. It was only for the year 1969-70 that para. 12 of the prospectus issue for the said year, proceeded clearly to set apart one seat for Junagarh and one seat for Manavadar. We come now to the contention of the learned counsel for respondent No, 4 that the change in the allocation, as above, was unauthorised. More precisely this contention was that neither the Central Government nor the Provincial Government had permitted the college authorities to alter the allocation. So far as the argument in relation to the authorisation by the Provincial Government is concerned, we find that the prospectus issued by the Medical College proclaims on the title page that it is issued under the authority of Government of West Pakistan.
Learned counsel for the respondent No, 4 was not prepared to accept the authenticity of this assertion and requested that the Advocate-General may be directed to produce the orders of the Government in this respect. The learned counsel was not even satisfied with the statement of the learned Advocate-General that such authorisation did in fact exist but in order to clinch the issue the learned Advocate-General produced before us a copy of Letter No, SO (M. E. I) 37/5-63 dated 2nd October 1969 issued by the Government of West Pakistan, Health Department, by which the prospectus of the Liaquat Medical College for the year 1969-70 was forwarded to the Superintendent, Printing Press, Government of West Pakistan, Karachi for being printed as a document duly amended and approved by the Government. This letter, we need hardly state, sets at rest the controversy that the prospectus did not have the approval of the Provincial Government.
8. Mr. Wajihuddin the learned counsel for the respondent No, 4, however, contended that any change which affected the allocation of seats in respect of the Junagarh and Manavadar States had to have the prior approval of the Central Government. This argument was elaborated by stating that any matter which pertained to States and Frontier Regions came within the executive authority of the Centre under Article 135 of the Constitution .of 1962. It was argued that the subject of Junagarh and Manavadar States came within item No, 2 of the IIIrd Schedule to the said Constitution and, therefore, in terms of para. (a) of Article 135 as well as of para. (c) of the same Article, the subject came wholly within the purview of the Central Government. The inanity of this argument is not difficult to perceive. The .argument proceeds on a misconceived notion that the provision of seats in educational institutions for the benefit of foreign nationals or of subjects of other States is an executive function of the Central Government. No such intention is even remotely spelt out by reading item 2 of the IIIrd Schedule to the Constitution of 1962 alongwith Article 135 thereof. Item 2 (a) of the IIIrd Schedule, on which the learned counsel so heavily relied, speaks only of relations and dealings of all kinds with other countries. And it is in furtherance of this power that foreign States can be dealt with only by the Central Government. Provision of seats in educational institutions for subjects of other countries may no doubt become a corollary to the Central Government's dealings and relations with those countries. But in order to bring it within the executive authority of the Centre in terms of Article 135 (a) the subject should be within the Central Legislatures exclusive legislative competence. Thus if the subject is one which is primarily within the legislative competence of a Province but by reason of its being incidental or ancillary to any of the subjects listed in the IIIrd Schedule, also comes within the legislative competence of the Centre, no executive authority in relation thereto ipso facto passes on to the Centre. The controversy before us is wholly in relation to the subject of admission to an educational institution, and this subject as one relating to education, is within the legislative competence of the Province. it would, therefore, come within the executive authority of the Provincial Government under Article 136 of the Constitution of 1962. The second limb of learned counsel's argument was that if a matter related to a part of Pakistan not forming part of a Province then such matter, by para. (c) of Article 135, will be within the executive authority of the Centre. On the surface the argument looks attractive but a closer scrutiny lays bare its weakness. Para. (c) provides that the executive authority of the Republic extends to all matters in relation to a part of Pakistan not forming part of a Province on a plain construction of the sub-Article the power reserved therein would appear to have reference to all matters having territorial application to a part of Pakistan not forming part of a Province such as, for instance, the Tribal Areas of Pakistan. It cannot obviously be used in territories comprising a Province particularly when such user may bring it into conflict with the executive authority of the Provincial. Government. Article 136 (1) of the Constitution of 1962 clearly defines the extent of the executive authority of a Province. Clause (2) of Article 136 lays down the only limits to such authority by providing that it will not extend to the execution of a law made by the Central Legislature to which para. (6) of Article 135 will apply, that is, in relation to laws made by the Central Legislature in pursuance of clause (2), clause (3) or clause (4) of Article 131. None of these clauses has any relevance to the subject in dispute. Even so the limits on the executive authority of the Provincial Government as provided in Article 136 (2) begin to operate only when the Central Legislature has enacted a law on the subject. This is not even the case of respondent No,
4. It seems to us that the exercise of the executive authority by the Centre and the Province has been so devised in the Constitution of 1962 as to remove all possibility of conflict between the Central and the Provincial Governments. We see no reason to demolish this salutary principle.
9. It was then contended by the learned counsel for respondent No, 4 that the forwarding of the names of candidates to the reserved seats in respect of Junagarh and Manavadar was in the exclusive discretion of the Central Government in terms of para. 10 of the Instructions and this discretion being wholly a matter of Central Government's subjective satisfaction, was not open to judicial review. This argument, we must say, would certainly have had force if the Central Government was shown to have acted within the compass of its own authority. But in the instant case it has apparently ignored the right of a candidate from Manavadar to obtain a seat and has assigned two seats to Junagarh in clear contravention of valid rules on the subject. It is not a case in which the authority of the Central Government was untramelled by rules. As the Central Government is shown to have acted in excess of its authority and in contravention of the rules the argument of the learned counsel on this point loses its force. Learned counsel for respondent No, 4 attempted to argue that the petitioner was guilty of unconscionable conduct' and had suppressed material facts. She had therefore forfeited her right to obtain relief in these proceedings. It was contended that the petitioner had not disclosed to the Court that for the last 15 years both the seats in Liaquat Medical College had been the exclusive preserve of the Junagarh subjects, that the petitioner had herself applied without success to the Ruler of Junagarh for nomination, that there had been a departure in the 1969-70 prospectus as against the previous years, that the petitioner's nomination was forwarded by the Ruler of Manavadar direct to the College in contravention of para. 10 of the Instructions with only a copy to the Central Government and that the petitioner had failed to implead the two Junagarh candidates in this petition. We do not see how the foregoing objections, in the form presented, could disentitle the petitioner to relief in these proceedings. Particular stress was laid by the learned counsel on the failure of the petitioner to implead the Junagarha candidates. Even this objection, we feel, has no substance for the simple reason that the petitioner is not a contender to the seat reserved for Junagarh. She does not claim a better right to selection as between herself and the Junagarh candidates. Her whole case is that, independent of the seat reserved for Junagarh, Manavadar was allocated a seat and the petitioner being the only nominee in respect thereto, she had a right to be considered for it but the Central Government through an erroneous appreciation of the legal position had failed to consider her nomination. The petitioner, it may be said, is not in controversy with the actual candidates nominated by the Ruler of Junagarh. Her failure therefore to join the Junagarh candidates in this petition does not render its constitution defective.
10.It was, lastly contended that after the dissolution of the Province of West Pakistan, the petition had not been amended to replace the Government of West Pakistan with the Government of Sind.
This objection is purely technical in nature, Even so we feel that it could only have been taken by the Sind Government. The learned Advocate-General of Sind who continued to appear in this case and supported the petition did not subscribe to this objection.
11.For the reasons mentioned above we would allow this petition and hold that the petitioner was entitled to be considered by the Central Government as a candidate lawfully nominated by the Ruler of Manavadar for admission to the single seat reserved in the Liaquat Medical College, Jamshoro, Hyderabad, for Manavadar, for the year 1969-70. A direction will accordingly issue to the Central Government in pursuance hereof.
12.Only the respondent No, 4 strenuously opposed the petition but since he is a student we would leave the parties to bear their own costs.