MUHAMMAD AFZAL LONE, J.--This judgment will dispose of Intra-Court Appeals Nos. 180 to 184, 186, 188 to 190, 194 to 196, 198 to 201, 203 to 209, 211, 215, 218, 219, 221, 222, 226 to 229, 233, 234, 236, 237, 239 to 244, 246 all of 1986 and Writ Petitions Nos.5722, 5723, 5725, 5735, 5740 to 5744, 5746, 5749, 5751, 5755, 5756, 5769, 5775, 5780, 5781, 5783 and 5788, all of 1986, as common questions of law and facts have been raised therein. The appeals are directed against the same single Bench judgment.
2. The facts are that the respondents in these appeals and the writ petitioners are female students, who after passing F.Sc. Examination (Pre-medical) group from the Board of Intermediate and Secondary Education, applied for admission to the first year M.B.B.S. Course, in Medical Colleges in Punjab Province in the academic year 1986-87. They were refused admission but some male students, who were possessed of lesser merit, than that of the respondents and the writ petitioners were granted admission. The respondents challenged this refusal through judicial review dubbing it as unconstitutional discrimination and violative of their Fundamental Rights. The writ petitions were heard together and accepted by the learned Single Judge on 21-12-1986. Refusal to grant admission to the girl students was, regarded as a discrimination on the ground of sex, in competing for the open merit seats, and thus, declared as violative of Article 25(2) of the Constitution. The Punjab Government preferred appeals against this decision, in all the writ petitions, but during the course of their hearing, the Government voluntarily increased the number of seats for girl students by 157. The merit for the girl students for the purposes of grant of admission, was thus, reduced. Resultantly, some of the girl students against whom Intra-Court Appeals were filed got the admission and the appeals against them became infructuous. In addition to this, some other girl students who had not challenged the admission policy succeeded in getting the admission. However, the respondents in these appeals could not be admitted.
Inspired by the judgment of the learned Single Judge, a number of girl students, have filed writ petitions, which as stated above, are being disposed of alongwith the Intra-Court Appeals.
3. It is evident from the record that the writ petitions filed by the respondents were directed only against the Punjab Government and the Chairman Admission Board for Medical Colleges. Similar- is the position of writ petitions placed before this Bench. The boy students who secured lesser marks but were granted admission, have not impleaded as party to any of the writ petitions. Before the learned Single Judge, on the authority of University of the Punjab v. Shahid Nazir 1986 SCMR 805 and Province of Punjab v. Khaqan Mahmood PLD 1985 Lah. 300, the learned Advocate-General raised a preliminary objection that the boy students were necessary parties, the write petitions, therefore, could not proceed in their absence.
4. This objection was opposed on behalf of the respondents, on the grounds that no relief was claimed again& the boys who might remain admitted; that the State functionaries committed contravention of the constitutional provisions; and that the beneficiaries of such illegal act, could not claim any right qualifying for legal protection. These contentions found favour with the learned Single Judge, and have also been adopted on behalf of the writ petitioners. The learned Single Judge did not rely on these rulings and maintained that in the first precedent, the applicant could not be admitted in the Session, about which a direction was given by the High Court, as his marks were lesser than the last on the admission list. As regards the second case, the learned Single Judge was of the view that the author of the leading judgment, after holding that the defect of non-impleading of the affected students, was, fatal to the writ petitions, himself made observations actuating the Government to undo the wrong. The other reasons which weighed with the learned Single Judge to ignore both the precedents, was, that these involved the enforcement of private rights and not the Fundamental Rights. In his opinion, the enforcement of Fundamental Rights, was placed at a different footing, and strict application of the procedural rules to such a case, was unwarranted. He held that the admission of the respondents, was, not likely to affect the boys already admitted, and further their individual implement was likely to cause delay.
5. While pressing his preliminary objection, the learned Advocate- General pointed out that it was not a case of merely granting admission to 95 girl students the then petitioners before the Single Bench, and that in their wake many more girls would invoke the writ jurisdiction. To reject this argument, the learned Single Judge applied the maxim--"delay defeats equity" and richly drawing upon the assumption that other girls would be deemed to have abandoned their claim's. He came to the conclusion:- "...Therefore, there are only 95 candidates who have to be adjusted in 7 Colleges, if their petitions succeed, 13/14 in each College, which will by no means disturb the arrangements or require creation of additional seats as these have been there since 1974. Only the Authorities have recently chosen not to fill them which they may not. Some inconvenience, if there is any, will have to be borne by the Authorities because of their own action contrary to the Constitution, if the petitions succeed."
' In support of the findings that the non-impleading of the boys was not fatal to the writ petitions, besides some rulings from the Indian jurisdiction, the learned Single Judge relied upon Islamic Republic of \Pakistan v. Abdul Wali Khan PLD 1975 SC 463, Syed Ahmad Saeed Kirmani v. Punjab Province and others 1982 CLC 590 and Naqi Muhammad Abbas v. Admission Board for 'Admissions' to 1st Year M.B.B.S. Class of Medical Colleges in Punjab through its Chairman and another 1983 CLC 1430.
6. Before us, the learned Additional Advocate-General has vehemently assailed the reasoning- on which the preliminary objection was turned down by the learned Single Judge. He took a strong exception to the assumption that the boys already admitted would not be affected and urged that the seats are limited in number and in case the girls are adjusted against the existing seats, the boys shall have to be unseated and thus, would be directly affected by the implementation of the High Court's judgment. Consequently, in his submission, the boys were necessary party and their absence was fatal to the maintainability of the writ petitions. He further argued, that the admission secured by them, was, on the basis of the policy formulated by the Government which could not be dubbed as illegal gain, so as to deprive them of the right of hearing. As regards the learned Single Judge's reference to the number of seats existing from the year 1974 onward till the reduction thereof, he submitted that the validity of the Government's action in reducing the number of the seats, was, challenged in Punjab "Province v. Miss Khaqan Mahmood' but was upheld by the High Court. In these circumstances, the learned Additional Advocate-General continued, unless some additional seats were created, the girls could not be accommodated and in fact the decision of the learned Single Judge had the effect of requiring the Government to increase the number of seats but such a direction was not within the competence of the High Court. Reliance was placed on the case of University of the Punjab v. Shahid Nazir 1986 SCMR 805.
7. Before proceeding further it appears appropriate to discuss the rulings of our own Courts which were cited before the learned Single Judge and also those on which he relied, in disposing of the preliminary objection. Shahid Nazir's case relates to admission of a student in an educational institution. His writ petition was dismissed by the learned Single Judge but accepted in appeal. But as against his prayer in the petition, regarding admission into 1979-80 Session, the Intra-Court Appeal Bench, gave a direction for his admission to the first year class of 1980-81 Session. The matter was then lifted further in appeal before the Supreme Court, and the Court noticed that the High Court could not direct the Authorities to create additional seats in any of the two Sessions. The Supreme Court observed that the admission of the writ petitioner into any of the Sessions would have adversely affected the last successful student in either of the two Sessions, who was not party to the writ petition. A request was made to implead such a student as a party to the writ petition but it was declined and the petition dismissed on the sole ground of absence of essential party.
Following this decision, the Intra-Court Appeal Bench in the Province of Punjab v. Miss Khaqan Mahmood and others held, the writ petitioner's failure to implead the affected students as a party to the writ petition, as fatal to her case.
8. In Islamic Republic of Pakistan v. Abdul Wan Khan the United Democratic Front applied to be impleaded as a party in the N.A.P. Reference case, inter alia, on the ground that the decision in the reference was bound to affect the entire political life of the country. But the counsel for the Front himself conceded that the Front was not a necessary party, and sought it to be brought on the record, merely as a proper party, as Front would render valuable assistance to the Court. But the Supreme Court did not think that in the absence of Front, it would be handicapped in doing complete justice in the matter. It was upon the peculiar facts of the N.A.P. Reference case that the Supreme Court, made the observations that every person on whom some advantage was conferred in the general way, by a particular law struck down, could not be impleaded as a party.
These observations are qualified by the facts of the case in which these were made but have been followed in Syed Ahmad Saeed Kirmani's case. The decision in Naqi Muhammad Abbas's case, seems to have been rendered in oblivion of the Supreme Court's enunciation in 1986 SCMR 805.
8-A. During the course of the hearing of these cases, the learned counsel for the .Girls referred to three more precedents, for the proposition that institution of the writ petitions without arraying the boys students as party did not suffer from any defect. These are Surandar Kumar v. State AIR 1969 Raj. 182, Abotha v. State AIR 1969 Orissa 80 and Sobah Joseph v. State of Tamil Nadu 1970 SC C 38.
We have perused these judgments. In the case of Surandar Kumar, the students adversely affected by the decision of the High Court, were not unseated, presumably for the reason that the Advocate-General stated before the Court that the Government would do its best to accommodate the writ petitioners, if they were granted admission on reconsideration of their applications. The judgment of the Orissa High Court indicates, that in no small measure, the non- joinder of the selected students, was ignored as their selection was provisional. In the third case of the Supreme Court of India, the writ petitioners had moved the Court under Order I, Rule 8, C.P.C., but their application remained undisposed of. Further the Court found that 24 seats were lying vacant. In these circumstances the joinder of the selected students was considered too late and only 24 seats were ordered to be filled in.
9. It is well settled that a party in whose absence no effective judgment and decree can be passed is a necessary party. No suit or legal proceedings can proceed in the absence of a necessary party.
There can hardly be any controversy that the joinder and non-joinder of parties to the constitutional petitions is governed by C.P.C. Obviously, if the respondents were bound to join, the boys with lesser marks as parties, to the writ petitions, and they failed to do so, their petitions were liable to be dismissed. This gives rise to issue, whether the respondents and boy students competed for the same seats. The answer to this question depends on the number of seats.
According to the impugned judgment since 1974 the requisite number of seats alongwith the necessary arrangements were already there, but these were not filled up by the Authorities. This assumption, however, does not appear to be correct. We are, informed by the learned Additional Advocate-General that in the year 1974-75 there were in all 1695 seats, which with some upward variation, continued to be available during the next seven Sessions, until 1982-83 Session, when the total number of seats, was fixed at 1776. Thereafter the Government reduced the number of the seats with the result that during each of the next three Sessions i,e, 1983-84, 1984-85 and 1985-86 there were 1400 seats only. The following chart will show the allocation of seats between the boys and girls from 1982-83 onward.
Category of seats1982- 831983- 841984- 851985- 861986-87 Boys: 1183 941 969 969 731 Girls 413 310 312 312386 (this includes 157 seats increases by the Govt.
Reserved Boys & Girls173 149 119 119 125 Total 1776 1400 1400 1400 1242 It appears that the question of reduction of the seats, remained under active consideration of the Government, for sometime in the part, but a firm decision in this respect was taken in March, 1984 or so and the seats were reduced by 376.
10. This reduction came under challenge on a variety of grounds, in a number of writ petitions, which ultimately fell for decision before a Division Bench in the case of Punjab Province and others v. Miss Khaqan Mahmood. Both the learned Judges constituting the Division Bench, wrote separate judgments but upheld the Government's decision to decrease the number of the seats and agreed that the reduction was in the interest of the medical profession, made to eliminate overcrowding in the Medical Colleges, remove difficulties arising out of lack of trained staff and inadequate facilities in the teaching hospitals, resulting in deterioration in the standard of medical education and growing unemployment in the profession.
11. It is, therefore, difficult to accept that if the admission of the boys is left undisturbed, the Government would not have to make fresh arrangements and create additional seats to be accommodate the girls to be granted admission, under the impugned judgment. Either the boys must vacate the seats to accommodate the girls or the number of seats should be increased to admit them. So far as the creation of additional seats is concerned, the Supreme Court settled this issue in the Chairman Selection Committee Bolan Medical College, Quetta etc. v. Miss Safia Hameed 1979 SCMR 529. In that case the High Court, Baluchistan, in accepting the writ petition gave a direction that the students already admitted would not be disturbed and if in the Bolan Medical College no seat, was, vacant to accommodate the writ petitioner, one special seat be created for her. The Supreme Court did not approve this direction and observed:- "In this respect we have no hesitation in agreeing with the learned counsel, that the High Court had no lawful authority under Article 199 of the Constitution, in thus, interfering with the internal management of the Bolan Medical College by the Authorities and issue any such direction to them."
This view has also been reiterated in Government of Baluchistan and others v. Rifat Parveen 1981 SCMR 1002 and followed in Shahid Nazir's case. The Government is the best Judge that how many seats should be provided in the Medical Colleges, to cater to the need for qualified doctors in the Province, and in this respect the High Court cannot interfere in exercise of its constitutional jurisdiction. We have no doubt that under the impugned judgment, the non-joinder of the affected boy-students had the effect of compelling the Government to create extra seats for the girls. Such an order is not within the competence of the High Court.
12. The rule of natural justice that no one should be condemned unheard is well entrenched in our legal system. It is axiomatic that a person sought to be affected by an order of the Court or even an administrative authority must be given an opportunity of being heard. It is to be remembered that the boys had no hand in the formulation of the official policy and issuance of the respects of the Government Medical Colleges, in the Punjab, permitting segregation of seats on the basis of sex, which placed the girls at a disadvantageous position. Therefore, the admission of the boys in the medical colleges who secured lesser marks than the respondents, without impleading them as parties to the writ petitions, could not have been characterised as an illegal, gain, violative of constitutional provisions, to justify denial to them of the right of hearing. -We, regret our inability to feel persuaded to agree with the learned Single Judge in this behalf.
13. Law is the origin of all legal rights. To acquire legal efficacy a right must owe its existence to some provision of law or a juristic act. Speaking broadly, certain consequences flow from the invasion of every legal right, whether it emanates from the Constitution or has its source in some provision of law. Of course, certain rights which are enshrined in the Constitution as Fundamental Rights, are paramount and cannot be abridged by any legislative device or executive measure, except to the extent provided by the Constitution. The High Court is bound to interfere with the usurpation of such rights. But even enforceability of Fundamental Rights by writ, cannot be claimed untrammelled by the limitations and the conditions governing the exercise of jurisdiction under Article 199 of the Constitution. May it be, the enforcement of the Fundamental Rights, conferred by Part II of Chapter I of the Constitution, or any other right protected by any law, this jurisdiction, can be exercised only on a motion by an aggrieved party and such motion must conform to the requirements of law. In this behalf, there is no difference in the Fundamental Rights and ordinary legal rights' enforceable through writ jurisdiction. As already observed, besides the provisions of law regulating the joinder of the parties, the boys adversely affected by the judgment of the High Court, had an innate right of hearing. In these circumstances, we are unable to treat the non- joinder of the boy students, as a vain technicality or an idle formality, ignorable by the Court merely because the respondents invoked the enforcement of Fundamental Rights.
14. It is not possible for us, to lend weight to the argument that the impleadment of the boys, would cause delay and frustrate the object for which the petitions were filed by the respondents. It is noticeable that all the boys on the admission list, were not a necessary party to every writ petition.
Each respondent had to implead only those boy-students as a party, who were granted admission, but obtained marks lesser than her and thus, would be affected by the acceptance of the writ petition. The particulars of such students could be procured from the Admission Board. If there was any difficulty, the requisite information could also be collected through the learned Advocate- General, with the assistance of the Court.
15. The view of the learned Single Judge that there were only 95 girls, seeking admission and that the Government had to make room for them only, we say with respect, was, too presumptuous.
There were girls with marks higher than that of the respondents and after the announcement of the judgment, due to increase in the seats, they actually succeeded in getting admission on the basis of merit. The principle that 'delay defeats equity' is there, but it has got to be applied to each case, in the light of the facts thereof. How could it be extended to the cases not before the Court and relinquishment of right attributed to the girls who sought redress of their grievances, through judicial review, later on? The right course therefore, was, to implead the affected boys as party each writ petition, and let each writ petitioner-respondent, have a free contest, on merits, with the opposite side. In view of the facts of the case and law on the subject, in our opinion, because of the failure of the respondents in Intra-Court Appeals as well of the writ petitioners before us, to implead the boys as party, their writ petitions are liable to be dismissed. It may be stated that the respondent in I.C.A . No. 200 of 1987, during hearing of these cases, moved a C.M. Application to implead the boys as party but in view of the judgment, which we, propose to deliver, there is no use to allow the application.
16. Reverting now to the merits of the case, we find that the fate of these appeals and writ petitions largely hinges on proper constructions of clause (b) of Sub-Articles (3) of Article 22 and Sub-Article
(2) of Article 25 of the Constitution. These Articles, in their entirety, are, reproduced below:- "22(1) No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.
(2) In respect of any religious institution, there shall be no discrimination against any community in the grant of exemption of concession in relation to taxation.
(3) Subject to law,
(a) no religious community or denomination shall be prevented from providing religious instruction for pupils of that Community or denomination in any educational institution maintained wholly by that community or denomination; and
(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."
"25.(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
' It is evident from the language of Article 22 (3)(b) that it regulates the admissions to educational institution and guarantees, to all citizens, a negative right prohibiting denial of admission to any educational institution, on the grounds of race, religion, caste, or place of birth, but places a rider that the institution should be such that it received aid from public revenue. Accordingly, before the learned Single Judge as well as before us, it has been emphasised on behalf of the Government, that admission to the educational institutions, is wholly governed by Article 22(3)(b) which does not make mention of sex and thus, the respondents in the Intra-Courts Appeals, and the present writ petitioners have no legitimate basis to complain of violation of Fundamental Rights, guaranteed. By the Constitution. In the same strain to highlight the legislative history of these two Articles, the learned Additional Advocate-General referred to the provisions parallel thereto in the previous Constitutions.
17. But disagreeing with the stand taken up by the Government, the learned Single Judge referred to the heading of Article 22 and maintained that major portion of the Article applies to the religious matters in educational institutions and even if it is extended to other educational institutions, the provision is attracted only to the institutions "receiving aid from public-revenue" and not to those which are owned managed and run by the Government, like medical colleges in the Punjab. The learned Single Judge, further maintained that Article 22(3)(b) contemplates denial of admission only on four grounds, i,e, race, religion, caste or place of residence to which another category namely, sex could not be added, more so for the reason that it violates Articles 25(2) forbidding discrimination on the ground of sex.
18. Indeed Article 22 is prefixed by the heading "safeguards as to educational institutions in respect of religion, etc". No doubt the headings of sections are part of the enactment, but the heading is not to be taken into consideration when the language of the section is free from obscurity. Further a section or an article may embody more than one matter. In such a situation as is the case of Article 22, when diverse matters, are, prefixed by a singular heading, the heading cannot afford a key to interpret the Article. The principle underlying Article 22(3)(b) is, that the State can expend money on educational institutions, as deemed fit by it, and an institution which receives funds from the State, cannot restrict admission to the citizens on the basis of race, religion, caste and place of birth, or any one of them. It is manifest that this article forbids grant and refusal of admission only on the four grounds mentioned therein. The word 'only' found in this article cannot be ignored and plays a significant role in the interpretation of the article. According to Oxford Dictionary, word 'only' means, solely, merely, exclusively, or by itself alone without anything else. Thus, to fall within the mischief of Article 22(3)(b) discrimination should be on the ground of race, religion, caste, or place of birth alone. Having regard to the language of the article there is no gain saying that in the matter of admission to the educational institutions, grounds other than those stated in this articles, cannot be taken into consideration and that there is a deprivation of a citizen's Fundamental Right, if admission is denied for the reason extraneous to this article or on the ground of race, religion, caste or place of birth, coupled with some other grounds.
19. Another argument advanced before the learned Single Judge, was that Article 25(2) prohibits discrimination on the basis of sex-alone, but the denial of admission under challenge, was made on other considerations as well, such as paucity of seats lesser need for Doctors etc. But the learned Single Judge held that these reasons were not germane to non-discrimination and further such an argument nullifies the indefeasibility of Article 8 which has paramountcy over all instrumentalities of the State. The contention regarding the paucity of seats was also rejected with the observation that since the year 1974, 400 seats were earmarked for the girls but now their admission was restricted to less than 200 seats. It was further added, that the females constitute about half of the population of the country and their needs can better be catered by the lady doctors. Thus, according to the learned Single Judge the construction put on Article 25 by the Officer, on the basis of the connotation of the word alone, not only abridged Article 25(2) but was also in conflict with Article 27 as 'in his opinion it would nullify the authority of the State to reserve seats for women. In reply, the submissions projecting the Government's view point made before the learned Single Judge have been repeated before us.
20. The tenor of the impugned judgment shows that the learned Single Judge, heavily gained an impression that number of seats in the Medical Colleges, having been scaled down by the Government itself, the availability of the requisite seats, was not a problem. On this point, we have already come to a conclusion to the contrary. It has also been found that there is no legal sanction for giving a direction to the Government to increase the number of the seats, but the impugned judgment embodies such a mandate impliedly. Further, it is on the record that the validity of -the abolition of some seats, in the Medical Colleges was upheld by the High Court. With this background the learned Additional Advocate-General convassed that the policy regarding fixation of number of seats and their distribution between the boys and the girls, is based on the availability of resources and the assessm ent of the requirement of male and female doctors, to cater to the needs of the peoples, coupled with the location of the Government hospitals and dispensaries. It was forcefully contended that in this regard Government is the best judge of the situation and to take a policy decision. We may add, that during the hearing of the arguments, Mr. Bashir Ahmed, Advocate, placed before us some statistics, to show that the Province is still short of lady doctors. It is not possible to record a finding on this issue, without an elaborate inquiry, but such an inquiry is not within the scope of writ jurisdiction, much less an Intra-Court Appeal. Article 25(2) prohibits the arbitrary discrimination on the ground of sex alone. The word 'alone' means, solitary, and its user in Article 25(2) is of much significance. Undoubtedly, the discrimination made on the basis of sex coupled with other grounds is permissible. We, are unable to see as to how the grounds other than sex, enumerated by the learned Additional Advocate-General are alien to Article 25(2) and consideration of these factors, in allocating the seats on the basis of gender is barred by this article. In our view the question of admission to the Medical Colleges, upon the facts of the case, has no nexus with Article 27. We, are also unable to follow the aptness of reference to Article 8.
21. The case has been argued by the learned Additional Advocate-General also from another angle. He submitted that Article 25(2) is general in character and whereas, Article 22(3) (b) deals with a special situation namely, admissions to educational institution; where a special provision has been enacted on a particular subject, then to that subject, the general provision cannot be extended. Reliance was placed on Khan Gul and another v. Lakha Singh and another AIR 1928 Lah.
609, Rai Singh and others v. Allah Din and others PLD 1950 Lah. 111, Ahmad Saeed Kirmani, M.L.A. v.
Ch. Fazal Elahi Speaker etc. PLD 1956 (W.P.) Lah. 807, Khan Ajun Khan v. The Government of West Pakistan and 8 others PLD 1958 (W.P.) Pesh. 191 and Maxwell on Interpretation of Statutes 11th Edn.
Page 168 in which the maxim "generalia specialibus nonderogant" has been discussed and laid down that a special provision overrides the general provision.
22. Mr. Abid Hassan Minto, Advocate, the learned counsel for some of the respondents who led the arguments which were adopted by the learned counsel, for others, has urged that Article 25 is a special as well as a general provision. In so far as, it deals with discrimination on the basis of sex, it is a special provision. It is general, because discrimination generally in all spheres of life, is, covered by this Article. It was argued that Article 22(3)(b) has a limited application, but as regards men and women, it does not make any distinction. Instead of classifying this article as a special article, the learned counsel characterized it as a specific provision, which prohibits discrimination in particular educational institutions, on four grounds mentioned in it. According to Mr. Minto, it is limited to the matters enumerated therein and nothing more nothing less. Continuing his submission, the learned counsel contended that Article 22 is not an independent provision, as it is prefixed by the expression "subject to law" but on the other hand Article 25 is completely independent without any such limitation. He then invited our attention to Article 8 and 9 to 14 to show that the exception to the application of these articles and limitations thereof, have been expressly stated in each Fundamental Right but no such natation is inferable from Article 25. He asserted that Articles 22 and 25 deal with different situations and cover different areas, and one cannot be used against the other. It was vehemently urged that the rights contained in a Part II of Chapter I of the Constitution are to be read independently of each other and not in a fashion so as to put one right against the other; and that the general clause of the Fundamental Rights applies when no specifito provision catering for a situation, is, available. It was urged that the maxim "generalia specialibus nonderogant" is not of universal application and on the strength of this maxim, application of Fundamental Right No,25 which prohibits discrimination on the ground of gender in all spheres of life cannot be excluded in the matter of admission to educational institutions. He referred to Anjali Roy v. State of West Bengal and others AIR 1952 Cal. 822 and Humera Satwat Yusuf v. The Government of the Punjab PLD 1971 Lah.
641. Both these precedents are discussed in the later part of this judgment. The learned counsel also placed reliance on "Fundamental Rights and Constitutional Remedies" by V.G. Rama Chandran. Page 37 of this book alluded to by the, learned counsel provides that the maxim "expression, unis exclusio alteries" has necessarily to be applied with caution. Reference was also made to page 49 of "Constitution of India" (7th ed) by V.N. Shukla wherein the learned author has opined that if a discriminatory action does not fall within the purview of Article 15 it may yet be abnoxious to Article 14.
23. Syed Munir Hussain, Advocate in his submissions invited our attention to Articles 16 and 15(1) of Indian Constitution, and contended that if in a field of life a ground of discrimination, is not provided for in Article 16, then Article 15(1) which is the basic article prohibiting discrimination is attracted. He cited Gazala Dasaratha Rama Rao v. The State of Andhra Pradesh and others AIR 1961 SC 564, General Manager Southern Railway and others v. Rangachari AIR 1962 SC 36 and Kathi Raming Rawat v. State of Saurashtra AIR 1952 SC 123. In the first case the validity of section 6 of the Madras Hereditary Village Officers Act 1895, was tested on the touch stone of Articles 14 and
16. In the 2nd precedent the reservation of seats in Railway Department for the employment of persons of backward classes, was found not violative of Article 16(4) of the Indian Constitution. The 3rd judgment also relates to the reservation of seats but in favour of women and Article 15(3) was held to be proviso to Article 15(1). These precedents are not of much help in adjudication of the issues raised in this case, for, their resolution largely rests on the construction of the relevant provisions of our own constitution. It may also be added that both the sides cited a body of case law from the American jurisdiction whose main theme is the 19th amendment of the American Constitution. These precedents do not offer guidance for the interpretation of Article 22(3)(b) and Article 25.
24. The correctness, of the rule that when there are two provisions, one general and other special, dealing with the same subject, special provision prevails over the general, has not been disputed in the impugned judgment. The learned Single Judge was, however, of the view that Articles 22 is attracted only to the institution "receiving aid from public revenue" and not to those which are owned and managed by the Government, like medical colleges in the Punjab Province which as per prospectus are wholly Government Institutions, particularly when it would nullify other provisions of the Constitution.
25. It is discernable from the impugned judgment that in this behalf the learned Single Judge, was, persuaded by the arguments of Miss Hina Jillani Advocate that Article 22(3)(b) neither applies to the private institutions not receiving aid from public revenue nor to the institutions which are owned, managed and run by the Government. Reliance for this reasoning, was, placed on a judgment from the Indian jurisdiction in the case of University of Madras v. Shanta Bai and another AIR 1954 Mad. 67, in which admission to colleges has been held to be regulated by Article 29(2) of the Indian Constitution. This article in some shades is parimateria with Article 22(3)(b) of our Constitution and forbids denial of admission to "any educational institution managed by the State or receiving aid out of State funds on the grounds only of religion, race, caste, or any one of them".
Article 15(1) of the Constitution of India, embraces the Fundamental Right that the "State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any one of them". In paragraph 7 of the judgment it is laid down.
"...Article 29(2) also recognizes that educational institutions might be either State maintained or State-aided. Adopting therefore, the principles laid down in the American authorities, it must be held that educational institutions will be within the purview of Article 15(1) only if they are State- maintained and not otherwise; and that the regulations of the University of Madras, which is State- aided and not State-maintained are not within the prohibition enacted in Article 15(1)."
' It is borne out from Article 29(2) that the Indian. Constitution uses two expressions, namely, "State- maintained: and "State-aided" in respect of educational institutions. But unlike Constitution of India, Article 22(3)(b) of our Constitution mentions only one expression i,e, "receiving aid from public revenue". Thus, the Fundamental Right of admission to only those educational institutions, is available which receive aid from public revenue. The language of Article 22(3)(b) does not envisage two categories of institutions i,e, one maintained by the State and the other receiving aid from the State.
26. We, now proceed to examine the scope of the expression "educational institutions receiving aid from, public'revenue". The words "educational institutions" employed in Article 22(3)(b) are plain, free from ambiguity and in our opinion have been used to convey their ordinary sense and according to their common meaning in the English language, without recognizing the distinction between "State owned" and "State aided Institutions", with which Article 29(2) of the Indian Constitution, is, abound. It is a well-settled canon of construction of Statutes and of Constitutional instruments too, that unless the words in an enactment are applied to a particular science or art, they are to be interpreted as understood in common language and their popular sense.- Thus, if the words are of common parlance, they are to be given their natural and popular meaning.
Likewise, the expression "receiving aid from public revenue", figuring in Article 22(3)(b) is not alive to the distinction between the educational institutions wholly owned by the State and the private institutions receiving funds from the State, acknowledged in Article 29(2) and also avowed in some of the decisions from American and English jurisdictions. In our opinion, the words "receiving aid" have been used in a comprehensive sense and cover all those institutions which are maintained and run out of the finances doled out from the public revenue, irrespective of the ownership thereof.
27. The term "public revenue" is not defined in the Constitution but it generally means the revenue of the State derived from taxes, duties and other sources, on which its expenditure is charged. The learned Additional Advocate-General, during his arguments, was at pains to point out the difference between the "revenue belonging to the Government" and "public revenue" but the distinction drawn by him is too ethereal to be noticed for adjudication of the controversy before us
28. It is to be bone in mind that the Constitution of the Islamic Republic of Pakistan, is an organic instrument, which embodies the aspirations of the people to enable them to order their lives in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah. It provides a mechanism to achieve that ideal and for orderly governance of the country in that direction. Of all the legal instruments, it rightly merits to be construed, in accordance with the spirit of the Constitution, inferable from the language used therein and not in a narrow sense. It is unsafe to take provisions from another Constitution even if those deal with a subject more or less cognate, to construe Article 22(3)(b), unless there is a sameness of words, similarity of the setting in which they occur and an identity of the nature of the Constitutions.
29. In construing Article 22(3)(b), we are unable to treat the Medical Colleges as a limb of the Government so as to lend aid to the argument that Government cannot give aid to itself, which influenced the judgment under debate. The language of Article 22(3)(b) does not admit of any doubt. It is dangerous to put philosophical and juristic meaning on the words of a Constitutional provision, instead of giving the meaning, which its Words ordinarily bear. As already observed the words "educational institutions receiving aid from public revenue", have been used in a broad sense, covering all types of institutions receiving funds from the Government. If in this behalf the reasoning of the learned counsel for the respondents, which seems to have been considered favourably, in the impugned judgment, is accepted, then the institutions, entirely managed, run and owned by the Govt. Would be excluded from the purview of Article 22(3)(b) and Fundamental Right with regard there to denied to the citizens, but such right', however, will be available in respect of private educational institutions receiving financial assistance from the Government how so meager it may be. We, say and say so, with respect that such an interpretation would lead to startling consequences, which were never intended by the framers of the Constitution. We, therefore, hold that Article 22(3)(b) is attracted to all types of institutions for the running and managing whereof funds are contributed by the tax payers.
30. We are now confronted with the question as to whether Article 22(3)(b) and Article 25(2) can independently co-exist, in their respective areas or the latter overrides Article 22(3)(b) so as to import into it, the limitation or sex. In construing the Constitution, or any other statutory instrument, we are to take not only its particular part by itself, but look to the whole if it, giving effect to all the parts and make efforts to reconcile inconsistency therein if any. There is, thus, no question of unsuing one Fundamental Right to defeat another, as contended on behalf of the respondents. As a rule the two provisions must be read together in a manner, which harmonises them and gives effect to both the provisions. A comparison of the language of Article 22(3)(b) with that of Article 25(2) reveals that the latter protects all the citizens against discrimination on the ground of sex but Article 22(3)(b) gives protection against a particular specie .Of wrong namely, denial of admission into certain type of educational institutions on the grounds of race, religion, caste and place of birth. The grounds of discrimination contemplated by the two articles are not the same and it, therefore, can well be contended that to this extent, their scope is different from one another.
Further Article 25(2) is, quite wide and general but on the other hand, Article 22(3)(b) confers a special right on the citizens regarding admission into the educational institutions. It is, therefore, legitimate to treat Article 22(3)(b) as a special provision and Article 25(2) as a general provision.
Mr. Abid Hassan Minto, Advocate, however, instead of characterising clause 22(3)(b) as a, "special provision" which expression is a part of legal vocabulary, wants us to label it as a. "specific provision", but in the realm of the rules of construction of statutory instruments, that hardly makes any difference. The comparison of these two provisions brings two questions in the fore front; firstly, what is the effect of the omission of the word sex from Article 22(3)(b) and secondly, can the word "sex" be imported into it from Article 25(2)? Dealing with the second question first, our answer is in the negative. The language of Article 22(3)(b) is quite clear. As already observed, the word "sex" has been deliberately omitted from it. There is no cogent reason to read therein the word, which the framers of the Constitution did not chose to incorporate. We may quote here with advantage the unanimous' opinion of the learned Judges in the House of Lords in Warburton v. Lave-land 5 E.R.
499 at 510.
"No rule of construction can require that when the words of one part of a statute convey a clear meaning....It shall be necessary to introduce another part of a Statute which speaks with less perspicuity and of which the words may be capable of such construction as by possibility to diminish the efficacy of the first part."
Burton J. While interpreting sections 89, 92 and 93 of the Australian Constitution in' State of Tasmania v. The Commonwealth of Australia (1904) 1 C L R 329 at' page 357 relied on these observations and maintained:, "Applying those expressions to these sections I should say. They amount to this; Seeing that section 89 has an absolutely clear meaning, the rules of construction do not require us to introduce another part of the Statute which speaks with less perspicuity, and to apply that part to the construction of section 89. That would have the effect of diminishing the clearness of section 89 and appears to me to be an absolute inversion of the rule which is applicable in such a case".
In this view of the matter, Article 22(3)(b) has to be interpreted without the limitation inherent in Article 25(2).
31. It is not unsoften that for resolution of apparent conflict between the two provisions of the same Statute, the rule of harmonious construction, invites the application of the maxim "generalia specialibus non-derogant". This rule lays down that when the Legislature has given its attention to a particular subject and made provision for it, then it is to be presumed that the general provision covering the same subject is not intended to interfere with the application of special provision. True enough, as contended by Mr. Minto, this rule is not of general application. But we are not unaware that while applying the rule, caution should be exercised and due attention paid to the language of the two provisions sought to be reconciled.
32. We, may now examine the case law on this subject. It is correct that in Anjali Rai v. State of West Bengal, Bose J., took the view that Article 15(1) of the Indian Constitution which prohibits discrimination on the ground of sex, being of wider application than Article 29(2) the admission to educational institutions can be tested on the touchstone of Article 15(1). But this decision went before the Division Bench AIR 1952 Cal. 825 and it came to the conclusion:- "Of paramount importance in cl.(1) are the words 'discrimination' and 'only'. What the Article forbids is discrimination and discrimination based solely on all or any of the grounds mentioned in the Article. All differentiation is not discrimination the discrimination which is forbidden is only such discrimination as is based solely on the ground that a person belongs to a particular race or caste or professes a particular religion or was born at a particular place or is of a particular sex and on no other ground. A discrimination based on one or more of these grounds and also on other grounds is not hit by the Article", (para. 16).
' Article 29(2) deals specifically with denial of admission into educational institutions maintained by the State and it may not be without significance that it does not mention sex as one of the grounds on which such admission may not be denied. The framers of the Constitution may have thought that because of the physical and mental differences between men and women and considerations incidental thereto, exclusion of men from certain institutions serving women only and vice versa would not be hostile or unreasonable discrimination "(Para. 22).
' Again in University of Madras v. Shanta Bai AIR 1954 Mad. 67 on which both the sides have placed reliance, omission to specify sex as a ground of discrimination in Article 29(2) was considered as a deliberate departure from the language of Article 15(1) and the principle "generalia specialibus nonderogant" held applicable. This decision was followed in Joseph Thomas v. State of Kirala AIR 1958 Kirala 33. The latter decision was referred to ~and not distended from in R. Jacob v. The State of Kirala and others AIR 1964 Kirala 39 P.116. The rule that special provision prevails over the general provisions was also enunciated, as stated earlier, in the authorities cited by the learned Additional Advocate-General.
33. The case Humaira Satwat Yusuf v. Government of Punjab PLD 1971 Lah. 641 also relates to the admission into a Medical College wherein plea of discrimination founded on Fundamental Right No. 12 of 1962 Constitution which is pari-materia with Article 22(3)(b), was, not accepted and the exclusion on the ground of sex considered outside the purview of that right. However, the learned Judge in a passing reference, expressed the opinion that Right No. 15 might be attracted which then stood suspended. This right is equivalent to Article 25(2) ibid. We are not in any manner of doubt that this observation is not a part of "ratio decidendi" and is merely an obiter dicta. In view of this discussion and pronouncements of law on the subject, we hold that sex has not been adopted as a ground of discrimination in Article 22(3)(b) and cannot be introduced into it on the 'plank of Article 25(2). This leads us to the irresistable conclusion that the fixation of seats for the S girl students and denial of admission to them in the medical colleges on the ground of sex, which is coupled with other considerations falls within the scope of Article 22(3)(b) and is not violative of Article 25(2).
34. Before going ahead we may comment upon the excessive reliance of the learned counsel for the respondents on some judgments from the Indian jurisdiction. It is to be noticed that the scheme of Indian Constitution, regarding the Fundamental Rights under discussion, appears to be somewhat different from that of our Constitution. In the Constitution of India, Article 1,4 (equality before law) Article 15 (discrimination on the ground of sex etc.) and Article 16 (equality of opportunity regarding public employment) have been grouped together under the heading "Right of Equality" which gives reflects that these articles, belong to the same genus. Moreover, as exception to Article 29(2) has been created in favour of socially and educationally backward classes. This was done by virtue of the Constitutional Ist Amendment Act, 1951 and sub-Article (4) was inserted in Article 16, which is in the nature of a proviso. The educational right has been thus, essentially linked up with the right to equality. Such a position does not obtain in our Constitution. It is, in the context of the scheme of the Constitution of India, that in some of the judgments of Indian Courts, these articles have been held to be supplementary to each other. But, these decisions, are not congruent upon the scheme of our Constitution.
35. Towards the close of his submission, the learned Additional Advocate-General somewhat obliquely referred to the rule of reasonable classification to justify denial of admission to the girls and endeavoured to seek support from Jibandra 'Kishore Achharyya Chowdhury and 58 others v.
The Province of East Pakistan PLD 1957 SC (Pak.)
9. In that case the validity of a notification issued under the East Bengal State Acquisition Act, 1950 was challenged on the ground that it offended the equality clause enshrined in Article 5 of 1956 Constitution. In the course of the judgment .The Supreme Court highlighted the rule of reasonable classification.
36. Article 25(1) is a general equality clause, which negates arbitrary power and extends Fundamental Right of equality before law and equal protection of law to all citizens. Sub-Article (2) prohibits discrimination on the basis of sex alone, to which sub-Article (3) creates an exception in favour of women and children, in as much as any special provision for their protection, is not an affront to gender-based discrimination. The doctrine of reasonable classification is founded on the assumption that the State has to perform multifarious activities and deal with a vast number of problems. It, therefore, should have the power to make a reasonable classification of persons and things, to whom different treatment may be accorded, provided there is legitimate basis for such difference. The State can make laws to attain special object, and the administrative authorities may make classification, in pursuance of such laws. But the classification should not, be arbitrary and capricious must rest on reasonableness and have a fair nexus and a just relation with the need for which classification is made.
37. As stated above Article 25(1) confers a general right of equality. Article 22(3)(b) is, also an instance of general right of equality, but subject to its limitations and is confined to its own area namely educational institutions. Thus, Article 22(3)(b) is a special provision qua Article 25(1) as well.
Needless to mention that rule of reasonable classification, is, a germane to general equality clause i,e, Article 25(1). In the earlier part of this judgment it has already been maintained that being a special provision, Article 22(3)(b) overrides the general U provision of Article 25(2). In this view of the matter, the learned Additional Advocate-General's reliance on the doctrine of reasonable classification seems to be ill-grounded and an in-road into the application of rule of "generalia specialibus nonderogant" which he himself forcefully invoked. We, therefore, see no merit in the extension of the rule of reasonable classification, to the issue of admission to educational institutions, which are wholly governed by Article 22(3)(b).
38. For all these reasons the Intra-Court Appeals are accepted and all the writ petition are dismissed, leaving the parties to bear their own costs.