1. HAMOODUR RAHMAN, C. J.-These two appeals, of which one has been filed by the Government of Pakistan, arise out of a judg--ment of a Division Bench of the High Court of Sind & Baluchistan in a petition under Article 98 of the Constitution of 1962 read with the Provisional Constitution Order of 1969, filed by the respondent Miss Naseem Kausar Arbab, to challenge the selection of the appellant in Civil Appeal No. K-32 by the Navy Authorities for admission to the First year M. B., B. S. Course in the Dow Medical College, Karachi, for the year 1971-72.
2. The said respondent claimed that the selection could only be made in the exercise of powers given by paragraph 12 of the Instructions contained in the prospectus of the Dow Medical College, Karachi, and according to those instructions, she claimed to have a preferential right to be selected having obtained 58.4 marks in the Intermediate Examination as against the said appellant's 48.6% to (as given in the High Court judgment).
3. This petition was opposed by both the Government of Pakistan and the Government of Sind as also by the candidate whose selection was challenged.
4. The High Court, after hearing elaborate arguments, came to the conclusion that the criteria laid down by the then Commander-in-Chief for regulating the admissions of candidates to Medical Colleges were clearly contrary to the instructions in the pro--spectus of the Dow Medical College and without any sanction of any law.
5. Leave was granted in these cases to consider whether the instructions laid down by the Commander-in-Chief were in pursuance to the note appended to paragraph 12 of the instructions mentioned above. This note reads as follows :- "The procedure regarding selection of Children of Defence Forces Personnel against these reserved seats will be published in respective service orders ; while issuing instructions for admission."
6. The question that required consideration in this appeal was as to whether this note could override the substantive provisions of the said paragraph which require that the seats reserved for the children of Defence Forces Personnel should be allotted "on the basis of merit strictly in the following order of preference :-
(i) Children of "Shaheeds".
(ii) Children of Crippled personnel.
(iii) Children of those Defence Personnel who have actually been involved in the recent Indo- Pakistan conflict.
(iv) Children of those Defence Personnel who belong to the Defence Forces."
7. According to these instructions, the respondent Miss Naseem Kausar Arbab claimed that she was not only more meritorious having secured more marks in the Intermediate Examination than the appellant Muhammad Shakil Aamir but that she had also a preferential right a s her father had actually been involved in the Indo-Pakistan conflict both in the 1965-War with India and in the Indian aggression on East Pakistan in 1971. After the invasion of East Pakistan, he managed somehow to get away with his life but had to leave all his savings and valuables behind He was awarded the Sitara-e-Harab and Tamgha-e-Jang for hi; services in the 1965-War.
8. As against this, the respondent's father, who is a Medical Officer, was awarded only a Tamgha-e- Jang for his part in the 1965-Indo-Pakistan War and Sitara-e-Khidmat in the year 1971. Although he is a very senior officer having joined the Service initially in the year 1943, he does not come in any of the preferential categories mentioned in paragraph 12 of the Instructions.
9. When these appeals first came up for hearing before us, we requested the learned counsel to examine the possibility of a solution being found to this dispute which would satisfy both the rival candidates for selection, as we found that the present Chief of Staff was inclined to take a more sympathetic view of the respondent Miss Naseem Kausar Arbab's case and had, in fact, requested the Provincial Governor to sanction an additional seat for her. As the Chief of Staff was out of the country at the time on naval exercises and visits to foreign countries in the Gulf area, the appeal was adjourned till the 6th of October 1972.
10. Today the learned counsel appearing for the Government of Pakistan has produced a letter sent by the Judge Advocate --General of Pakistan Navy to the Advocate-on-Record, Mr. Muzaffar Hassan, and in this letter it is stated as follows :- "The Chief of the Naval Staff. Has nominated Miss Naseem Kausar Arbab for the year 1972-73 for the Naval Seat on Dow Medical College.
2. The Government of Sind may be asked that the Naval Seat for 1972-73 may not be shown as available in the Pro--spectus of the College."
11. This is, in our view, a happy solution of the problem which should satisfy everyone concerned.
12. The appeals are accordingly disposed of on the basis of this formula. This will not affect the position of the appellant Muhammad Shakil Aamir in Civil Appeal No. K-32 of 1972. His admission in the year 1971-72 will be treated as a valid admission and he will continue to prosecute his studies in furtherance thereof. The respondent Miss Naseem Kausar Arbab will be admitted as a student in the First Year Class for the year 1972-73.
13. This formula does not also affect the right of the Government of Sind in any way as regards the allocation of seats in the Dow Medical College. The number of seats reserved for the Defence Service personnel will not be increased by the adoption of this formula, but all that is requested is that Miss Naseem Kausar Arbab will be treated as a Naval candidate for the year 1972-73 and for this year no other seat will be shown as avail--able in the prospectus of the College. This is a matter entirely within the jurisdiction of the Dow Medical College Authorities and the Naval Authorities. The Government of Sind does not' directly come into the picture at all.
14. The appeals are accordingly disposed of in terms of the proposals contained in the letter which have been quoted earlier and the parties are left to bear their own costs.