' This order will dispose of the following seventy-four petitions by ninety-five girls as these arise in identical circumstances :- ' Writ Petitions Nos. 4799, 4897, 4848, 4849, 4899, 4901, 4935, 4936, 4937, 4939, 5027, 5023, 4995, 4996, 5000, 4983, 4994,5015, 4968, 4979, 4972, 5059, 5078, 5066, 5063, 5084, 5121, 5130, 5146, 5192, 5181, 5163, 5164, 4865, 5209, 5196, 5193,5195,5250, 5252, 5249, 5301; 5307, 5308, 5321, 5364, 5363, 5360, 5412, 5409, 5417,5426, 5427, 5431,5433, 5436, 5475,5482, 5505, 5526, 5535, 5538, 5542, 5549, 5553, 5560, 5555, 5567, 5572, 5595, 5603, 5616, 5621 and 5651 of 1986.
2. After study of twelve years later half of which with a view to becoming doctors and having obtained very high marks, in the first encounter with the public functionaries, the young ladies-the petitioners, have been thwarted in their ambitions and are told that they would not be admitted in Medical Colleges--the reason is that they are girls. They invoke the first, foremost, fundamental law of the land-the ,Constitution. They say that the Constitution forbids discrimination on the ground of sex. They pray that the authorities be directed not to act contrary to the Constitution but carry out its mandate both in letter and. Spirit.
' Relevant facts for the disposal of their petitions are that there are 1,085 seats for admission in seven Government Medical Colleges of Punjab. 227 are reserved for various categories. Out of the remaining (1,085-227), 858 open merit seats, 667 have been allocated to the boys and 181 for girls- out of which 66 have been reserved, leaving 115 seats for them. The grievance is that the open merit seats 858 should have been really kept open for merit and both boys and girls should have been allowed admission on merit i. e. Who had more marks should have been given preference over the _ones who had less. It is stated that a girl with 825 marks has been refused admission whereas the boy with nearly hundred marks less, 731 has been granted admission. It is 'submitted that this is clear injustice and plain discrimination on the ground of sex. If the girl with 826 marks were a boy she would get in but being girl she is denied admission. It is patent discrimination and contrary to the Constitutional mandate laid down in Article 25(2) of the Constitution of the Islamic Republic of Pakistan. It is to the following effect :- "There shall be no discrimination on the basis of the sex alone."
4. The case of the respondent-authorities is that the Constitution permits classification of people and, therefore, separate allocation of seats for boys and girls is valid. Moreover, there are six colleges for boys and one for girls, though in the boys' colleges few girls are admitted as a matter of concession but they have no right of admission therein.
' This is in nutshell the case of the contesting parties.
5. Arguments in extenso have been submitted by the learned counsel for the parties. The learned Advocate-General for the respondents also raised a preliminary objection that the boys who have been admitted have not been made parties to the petitions, therefore, these are not maintainable.
Reliance is placed on University of the Punjab v. Shahid Nazir (1) and Province of Punjab and another v. Miss Khaqem Mahmood'and others (2). The reply is that no relief is being claimed against the boys. Those who have been admitted may remain admitted. The petitioners too should be admitted. Secondly, if State functionaries contravene Constitutional prOvisions beneficiaries of its illegal acts who may be in large number or majority of citizenry need not all be made parties to the Constitutional petition or petitions. Not only doing so and serving them may delay or defeat the relief to the aggrieved persons but beneficiaries cannot complain that they had been deprived of their illegal gains without hearing them because they had no legal right to the gains. In any case, the learned counsel for the petitioners state that they do not challenge the admission of the boys but they say that the girls who have got equal marks with the last boy admitted may also be admitted as there should be no discrimination on the ground of sex per the Constitutional mandate. Reliance was placed on the following decisions where on account of non-impleadment of admitted students, Constitutional petitions were not held to be non-maintainable : ' Minar A. Peeriakaruppan v. State of Tamil Nadu and others (1971) 1 {{FOOT NOTE}}
(1) 1986 SCMR 805 (2) PLD 1985 Lab, 3QO {{FOOT NOTE}} SC C 38, Jacob Mathew and others v. The State of Kerala and others AIR 1964 Ker. 39 (V 51 C 9), Abodha Kumar Mohapatra and others v. State of Orissa and others AIR 1969 Orissa 80 V 56 C 33 at 84 and Surendrakumar and others v. State of Rajasthan and others AIR 1969 Raj. 182 (V 56 C 37) at 191.
6. The learned Advocate-General is quite right that in the cases relied upon by him, non- impleadment of the admitted students was held fatal. However, it may be noted that in the first case, the Session for which the applicant was a candidate had finished and for the second Session about which direction- for admission was made by the High Court, the applicant could not be admitted, having lesser marks than the last one admitted. In the second case, the author of the leading judgment after holding the defect of non-impleadment of thirty-seven students as fatal, nonetheless, observed that "This however does not mean that the College authorities stand debarred from considering the case of such of the applicants who stand to gain by para. 14 of this judgment. On grounds of justice and equity, they can reconsider their cases, consider rig that this debacle is their own creation. "Ehsan" is an essential embodiment of the executive process in Islam and has been applied to meet technical B difficulties. It is for the College authorities and the Government now has to decide whether they would like to undo the wrong." Secondly, the dispute in the two cases was based on private rights of the competing candidates. Not based on Fundamental Rights guaranteed by the Constitution. In a dispute based on private rights it is the parties inter se who are involved. They are essential parties to the litigation. In the case of Fundamental Rights, not only the parties are interested but it is in the interest of the society and State that Fundamental Rights are enforced and not violated. Take a case of declaration sought that a law is violative or ultra vires. The Constitution. Whole citizenry has not to be impleaded. In the cases relied upon by the learned Advocate-General the dispute was as to who is to get in or out of the competing students. Interpretation or enforcement of Constitutional provision was not in issue.
In the case of enforcement of Constitutional document procedural rules are not to be so strictly applied as to nullify or render. Constitutional guarantees, Fundamental Rights illusory. An illustration may suffice. If a law were to be made that a minority's property is forfeited and vested in the majority, would it be legitimate to ask the minority to implead each one of the member of the majority? As stated by the learned counsel for the petitioners and made clear that even if the petitions succeed, the successful boys who have been admitted will not be affected. And further that the petitioners will not claim admission in the colleges where their marks were to take them but in any of the colleges where the authorities caiLadjust them. Besides the Indian cases quoted by learned counsel for 2etitioners in the case of Naqi Muhammad Abbas v. Admission Board for 'Admissions' (1) the petitioner was not considered for admission in the 1st Year M. B., B. S. Class on account of his entry qualification from abroad. He filed a Constitutional Petition and it was held by the learned Judge that he had the requisite qualification for consideration for admission. In para. 9 of the judgment it was observed that: "As regards the objection of the learned Assistant Advocate- General, that the petitioner has not impleaded the affected students as respondents in the writ petition and this petition merits dismissal. I do not feel persuaded to dismiss the Constitutional {{FOOT NOTE}}
(1) 1983 CLC 1430 {{FOOT NOTE}} petition on this technical plea ; particularly when petitioner's application for admission was not considered by the competent authority". His petition was allowed and it was directed that he shall be admitted against a vacant seat if available otherwise in the ensuing session. In the case of Islamic Republic of Pakistan v. Abdul Wali Khan (1) it was observed that "In a generic sense, every decision of this Court on a point of law is likely to affect everyone in this country. In whose case a similar point of law arises, but this does not give every person in this country a right to intervene in every proceeding before this Court, merely because it is likely to affect him in some future proceedings". It was held by a learned Division Bench in Syed Ahmed Saeed Kirmani v. Punjab Province and others (2) that, "It is not possible to implead everyone who has been conferred certain advantage by a particular law in a general way which benefit may be lost if the law be struck down for lack of validity. For, otherwise there will be no end of parties". Since the boys admitted are not likely to be affected and they are in large number more than 600 and their individual impleadment would have caused delay so as to defeat the very purpose of the petitions, their non-impleadment is not fatal. According to the figures supplied by the Officer attending the Additional Advocate-General, upto 825 mark the ratio of the boys and girls was nearly equal though boys had an edge. The girls who have got upto 731 marks, the marks obtained by the last boy, are about 625. Ali have not come forward. Only 95 have filed Constitutional petitions. Others have to know what Supreme Court of India in Minar A. Peeriakaruppan v. State of Tamil Nadu and others (3) said in somewhat similar circumstances : "Other non-selected candidates have evinced no interest in challenging the selection made. Under the circumstances it is reasonable to assume that they have abandoned their claim and it is too late for them to press their claim." There has always been the old Maxim-Delay defeats equity. Eternal vigilance and constant endeavour to pursue the aim, object, right or truth is essential for the successful result. Therefore, there are only 95 candidates who have to be adjusted in seven 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 be any, will have to be borne by the authorities because of their own action contrary to the Constitution, if the petitions succeed. Therefore, there is no justifiable or good ground to dismiss these petitions for the technical reason of non-impleading of the boys who have already been admitted. They have rather been left without A worry and expense and their admission is 'neither challenged nor is to be affected.
7. Learned Additional Advocate-General also pointed out a Single Bench decision in W. P. No, 932 of 1982, dated 2-10-1983 and submitted that it should be followed or the case may be referred to a larger Bench. Facts of the case were that a girl filed a writ petition saying that she had more marks than the last boy admitted and the rule which allowed that was unfair and discriminatory against women. It was prayed that it should be struck down on the ground of unreasonableness and discrimination against women. In opposition, the learned Advocate-General has submitted that Article 22 of the Constitution of 1973 which guards against discrimina- {{FOOT NOTE}}
(1) PLD 1975 SC 463 (2) 1982 CLC 590
(3) (1971) 1 SC 38 {{FOOT NOTE}} tion in admission to educational institutions has pointedly excluded sex which, according to the learned Advocate-General, was a deliberate omission keeping in view the social conditions prevailing in this country. He contended that the classification of men and women for separate allocation of seats to medical colleges is a reasonable classification as it is based on consideration of public policy. In reply, the learned counsel for the girl petitioner argued that even though Article 22 of the Constitution makes an omission with regard to consideration of sex in seeking admission to educational institutions, discrimination on ground of sex nevertheless will not be approved of as it is contrary to the principles of reasonableness and a rule can be struck down for want of reasonableness independently of the written word of law. The learned Judge observed that "The point is well taken and the fact that the term sex has been omitted from Article 22 does not by itself permit a deliberate discrimination against women in various walks of life and if it could be shown that the rule providing for this discrimination is not backed by any reasonable consideration such a rule could be struck down. This, however, takes us to the question whether the classification of men and women for allocation of seats to the medical seats is a reasonable classification or not". The learned Judge held that "classification, therefore, of men and women for allocation of separate seats in the medical colleges is reasonable and a reasonable classification does not amount to discrimination". Two points may be noted ; firstly, that the girl had applied for relief when she had no right not to be discriminated against. Secondly, in spite of omission of sex against discrimination, Article 22 was held applicable but the action was justified on the ground of reasonable classification. I agree on both the points.. The position in the present cases, however, is that there is now Fundamental Right in Article 25 of the Constitution which grants her the right not to be discriminated against. Therefore, if a decision declines relief on the ground that there is no right, it is not departed from when a right is created and relief sought. As regards the second point, I respectfully agree with the decision that notwithstanding omission of word sex in Article 22, classification has to be reasonable. The decision in question was challenged in ultra-Court Appeal No, 51 of 1983. The girl appellant was granted admission. Therefore, the appeal was withdrawn on 25-2-1984. The submission of the learned counsel for the petitioners is that the authorities themselves accepted that they were not right in their opposition before the learned Single Judge and, therefore, conceded the right of the appellant by granting her the admission. In any case, I agree with the enunciation of law with respect to Article 22. Article 25 of the Constitution was not referred to nor dealt with as it was not enforceable at the time because of abeyance of the Constitution. And it is this Article which is the basis of the claim of the petitioners in these petitions.
Therefore, the course suggested by the learned Additional Advocate-General either to blind-folded follow the judgment or refer the cases to a larger Bench, though easier and less burdensome, yet cannot be pursued. It has to be recognized that the case relied upon was decided on general principle of reasonableness of the rule of classification. Fundamental Rights were not then enforceable. Now with the revival of the Constitution and the Fundamental Rights being enforceable, this new legal phenomenon has to operate. If rights were not recognized when those were not in existence, they cannot be refused to be recognized or given effect to when they are created as Fundamental Rights in the Constitution. If it were otherwise Fundamental Rights would never be operative because earlier to the incorporation of the Fundamental Rights in the Constitution, those were not recognised as rights or given effect to. Therefore, it is quite clear that the present cases have to proceed as to whether the Fundamental Rights incorporated in the Constitution and made enforceable through Courts have any application to the controversy in issue. Question of non-following the precedent when Fundamental Rights are enforceable, therefore, does not arise. Consequently, the crux of the controversy has to be grappled with and day of judgment cannot be deferred for procedure or cease, especially in view of the fact that time is running out for the petitioners who seek Constitutional remedy.
8. Proceeding to the problem in hand, Mr. Abid Hasan Minto, Advocate, who led the arguments, submitted that a Constitution is an organic whole. It must be interpreted in a dynamic, progressive manner. Otherwise it will come to stand still and break down in due course.. He referred to treatise on interpretation of laws and Constitution. He quoted American experience. He submitted that the simple Equality Clause or Equal Protection of Law under the Fourteenth Amendment of the American Constitution, as interpreted by the American Courts, has advanced from separate treatment of Negroes to their equal participation in all spheres of life as far as the law can go for the time being and sex differentiation has disappeared in enjoyment of equal opportunities to participate in public life except where that is in their own interests. He submitted that while interpreting Equality Clause, classification is permissible. But that has to be reasonable and must have nexus to the object sought to be achieved which is justifiable in law. I need not burden this order with all the quotations as the learned counsel has submitted that as far as this Court is concerned the matter is simple and solveable with reference to the clear Constitutional provision.
Article 25, especially sub-Articles (2) and (3) which prohibit discrimination on the basis of sex, except for making provision for their protection. References he quoted were to American Jurisprudence Vol. 12, West Coast Hotel Company v. Ernest Parrish and Elsie Parrish, His Wife (1), Abdul Wadood v. Pakistan (2), .Humera Satwat Yusuf v. Govt. Of the Punjab (3), Government of Baluchistan v. Rifat Parveen (4), Ejaz Aslam etc. v. Peshawar University etc. (5), G. Venkataswami v.
Pogaku Rarnanna and another (6), The State of Madras v Srimathi Champakam Dorairjan (7), M. R.
Balaji v. State of Mysore (8), Basu's Commentary on Indian Constitution, 2nd Edn., pp. 330, 331 and Broome's Maxims, pp. 444, 445, 452, 453.
9. Syed Munir Hussain Shah. Advocate, referred to Muhammad Arshad and 2 others v. Selection Board, Khyber Medical College, Peshawar and 3 others (9), Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and others (10), General Manager, Southern Railway and another v. Rangachari (11), Dattatraya Motiram More v. State of Bombay (12) and Shamsher Singh Hukam Singh v. The Punjab State and others (13).
10. Khawaja Haris Ahmed, Advocate. Referred to Constitutional Interpretation, Cases -Essays- Materials Second Edition by Harold W. {{FOOT NOTE}}
(1) 300 U S 379
(3) PLD 1971 Lah. 641 (5) PLD 1975 Pesh. 186 (7) 1951 SCR 525
(9) PLD 1980 Pesh. 208 (2) PLD 1957 (W P) Kar. 740 (4) 1981 SC 1\4 R 1002 (6) AIR 1960 A P 168 (8) AIR 1963 SC 649 (10) AIR 1961 SC 564
(11) AIR 1962 SC 36 (12) AIR 1953 Born. 311
(13) AIR 1970 P & H 372 {{FOOT NOTE}} Chase and Chaig R. Ducat, especially to the Classification based on gender and changes brought about after decision by the Supreme Court of United States in Reed v. Reed from pages 608 onward, Constitutional Law, Cases & Comments, by Peter Woll, Minor A. Peeriakaruppan v. State of Tamil Nadu and others, Jacob Mathew and others v. The State of Kerala and others (1).
11. Ms. Hina Jillani, Advocate, referred to Califano v. Webster (2), 97 S. Ct. 1192, 51 L. Ed. 2d 360 (1977), Anil Mahajan v. State and others (3), Miss Nishi Maghu and others v. State of J & K and others (4), Surendrakumar and others v. State of Rajasthan and others (5), Dr. Pradeep Jain etc. Etc. v. Union of India and others (6) and Dr. Jagadish Saran and others v. Union of India (7), a United Nations Document., The Nairobi Forward-Looking Strategies for the Advancement of Women, stated to have been ratified by Pakistan Universal Declaration of Human Rights, Pakistan Year Book, 12th Ed. 1984-
85. She also raised a point, anticipating the argument of the Additional Advocate-General, that Article 22 (3) (b) applies to educational institutions which receive "aid from the public revenue" not to the Government Colleges, as the ones in the case, which are owned and run by the State. She also submitted that although international covenants may not be enforceable by Courts until enacted but interpretation of laws should be such that if possible violation of international covenants is avoided. She referred to Ahmad v. Inner London Education Authority (8). Further that similarly though Principles of Policy in the Constitution may not be enforceable by Courts but if there is possible interpretation which gives life to Principles of Policy that should be adopted. She referred to the Principle of Policy mentioned in Article 29.
' Mr. Bashir Ahmad, Advocate, submitted that the statistics show that the seven Colleges over the years have expanded and are better equipped and staff has acquired greater experience since 1974 when the seats for the students were around seventeen hundred and now the admission limit is eleven hundred. Therefore, admission of about ninety-five girls would make no difference. They can easily be absorbed in the student community. In 1974, 424 girls were admitted on open merit.
This year only 115. Therefore, addition of another 95 would still be less than 424 girls for which there was space in 1974 which has undeniably been expanded and more facilities made available.
' Khawaja Muhammad Habibullah, Advocate, referred to an Article on the Equal Protection of the Laws and to Anjali Roy v. State of West Bengal and others (9) ; The State of Andhra Pradesh and others v, U. S. V. Balram etc. (10) and Suneel Jatley and others v. State of Haryana and others (11).
' Sardar Ahmed Naeem, learned counsel for W. P. No, 5078/86, referred to a guide to Sex Discrimination Act, 1975 of England and to Gill and {{FOOT NOTE}}
(1) AIR 1964 Kerala 39 (3) A 1 R 1980 J K 34 (5) AIR 1969 Raj. 182 (7) (1980) 2 SC C 768 (9) AIR 1952 Cal. 822
(2) 430 U S 313
(4) (1980) 4 SC C 95
(6) AIR 1984 SC 1420 (8)(i978) 1 Ali E R 574 (10) (1972) 1 SC 660 (1984) 4 SC 296 {{FOOT NOTE}} another v. El Vino Co. Ltd. (1) and Mississippi University for Women v. Joe Hogan (2), Harvard Law Review Vol. 95, 1981-82.
' Sh. Abdul Majid, Advocate referred to General Steel Tools Company, Gujranwala v. Presiding Officer, Punjab Labour Court No, 2 Lahore and 2 others (3).
' Mr. S. M. Masood, Advocate referred to Ahmad v. Inner London Education Authority (4).
' Mr. Muhammad Ashraf, Advocate referred to Young v. Britol Aeroplane Co. Ltd. (5).
' Mr. I. Khokhar, Advocate referred to Miss Rifat Parveen v. Selection Committee (6), Jibendra Kishore Achharyya Chowdhury etc. v. Province of East Pakistan (7), Srimathi Champakam Dorairajan and another v. The State Of Madras (8) and Bishambhar Dayal Chandra Mohan and others v. State of Uttar Pradesh and others (9).
' Mian Hatwedud Din Kasuri, Advocate in W. P. No, 5023/86, referred to P. Sagar and others v. State of Andhra Pradesh (10). Other learned counsel too argued for the petitioners.
12. Mr. Khalil Ramdey, learned Additional Advocate-General submitted that in spite of Equality Clause in the Fourteenth Amendment of the U. S. Constitution differential treatment is permissible if that is necessitated by some legitimate object of State. Therefore, different treatment of girls in the matter of admission is justifiable as the object of the State is to have as many lady doctor as are required. More man doctors-because they are more required to man rural dispensaries and hospitals where lady doctors do not go. He referred to U. S. Decision in 1873 (83) U S 130, 1961 (368) U.
S.
57. He emphatically submitted that principles and precedents from United States are not relevant or important because the matter is clinched by the Constitutional provision. He submitted that for admission in educational institutions, the provision is Article 22(3)(b) which lays down that subject to law :- "(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."
' He submitted that since sex is not mentioned, therefore, denial of admission to petitioners who are girls is permissible. He strenuously stressed that since , this is a special provision it shall prevail against the general provision of non-discrimination on the ground of sex in Article 25(2). The latter will be deemed not to exist or in other words, Article 22 will be deemed to be an exception or proviso to Article 25. It was also urged that prohibition against discrimination is not on the ground of sex alone. When asked on what other ground the girls were refused admission, he had no answer except that it was within the right of the authorities to classify. He relied on Ahmad Saced Kirmani, M. L. A. v. {{FOOT NOTE}}
(1) (1983) 1 Ali E R 398
(5) (1944) 2 Ali E R 293
(7) PLD 1957 SC (Pak.) 9
(9) 1983 P SC 1170 (2) 458 U S 718
(4) (1978) 1 Ali E R 574
(8) (1950) 11 M L J 404
(10) AIR 1968 Andh. Pra. 165 {{FOOT NOTE}} ' Fazal Elahi, Speaker, West Pakistan Assembly (1), The State v. Zia-ur-Rahman and others (2), Khan Ajun Khan v. The Government of West Pakistan (3), AIRI928Lah. 609 ;AIR 1966 SC 35 ;AIR 1966 SC135 ;AIR 1961 SC 564 and AIR 1962 SC 36.
10. Holy Qur'an's opening word and first command is 1)1 Read. (Sipara 30 Surat 96). Like all other Messengers, our Prophet Muhammad (Peace be upon him) had his distinct prayer : 4.7.9 God give me knowledge. The Prophet had said: Seek knowledge upto China. China was then the most civilized nation in the world. Therefore, both the commandments of Aliah and Sunnah of the Holy Prophet (p. b. u. h) require pursuit of knowledge. It is inherent in the nature of human beings. A child as soon as born learns to attract attention firstly by inarticulate language of cry, then by signs, then by language and so on Inquisitiveness inheres in human beings. Both holy writ as well as nature require learning and pursuit of knowledge. And both are addressed or pertain to all-Men and women alike. How can the portals of knowledge be then shut to women, especially when they have proved that they are better qualified and have more merits than men for whom those are left open ? Any reason advanced has to be true. The Devil urged the reason to refuse to bow before Adam saying he was better born of fire than Adam made of clay. The reason factually was correct. But he was punished nonetheless. Why ? Because he had disobeyed the command of Aliah. Therefore, any reason advanced has to be valid. Sophistory would not suffice. Let us see therefore what is the reason justifying shutting the doors of Governmental educational institutions on more meritorious students having nearly hundred marks than others. Is it not in violation of the Constitution ?
Relevant provision may be quoted. It is Article 25. It provides that :- "(1) Ali 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."
The provision is clear, categorical and unambiguous altogether. It lays down that all are equal, there shall be no discrimination on the basis of sex alone and that the State may make laws for the protection of women. Ali are equal, man and woman, neither man nor woman shall be discriminated against, laws may be made for protection of woman-not against them. How 'the petitioners, girls are being treated equally when C they are being denied were admission even though they have nearly hundred marks more than the boys? Are they not being discriminated against only because they are girls ? If they were boys with their marks they would have been given admission. They are not being given their due muchless is law made for their protection. There is clear violation of the Constitutional mandate. Let us see what justification is advanced for this disobedience to the command of the Constitution.
11. It is that Article 22(3)(b) permits it. The Article in its entirety is as follows :- "22. Safeguards as to educational institutions in respect of religion, etc.-(1) No person attending any educational institution shall be {{FOOT NOTE}}
(1) PLD 1956 (W. P.) Lah. 807 (2) PLD 1973 SC 49
(3) PLD 1958 (W. P.) Pesh. 191 {{FOOT NOTE}} required to receive religious instruction, or take part in any religious ceremony, or attend religious workshop, if such instruction, ceremony of 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 granting of exemption or 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."
Not only the Heading of the Article and Heading can be referred to for understanding the provision, though it cannot derogate from the express enactment, but three and half parts of the Article itself relates to religious matters in educational institutions. The one-sixth of the article deals with simple educational institutions, if this is not to relate to the earlier parts of the Article and is taken as independent separate entity. Even if this be so, the provision applies to educational institutions "receiving aid from public revenue". Ms. Hula Jillani is quite right that this provision does not quite clearly apply to private institution not receiving aid from public revenue, nor to Governmental institutions which are owned, run and managed by the Government. The Government institutions are by no means aided by Government. Government does not aid itself. Distinction is well recognized both in U. S. And India, as pointed out in University of Madras v. Shanta Bai and another (1). The Prospectus of the Colleges to which the petitioners seek admission itself says "Prospectus of the Government Medical Colleges in the Punjab". Therefore, the apron of the Article 22(3)(b) under which the learned Additional Advocate-General seeks to hide is not available to him.
12. Secondly, the argument advanced on its basis that citizens shall not be denied admission "only on the ground of race, religion, caste or place of birth", and since sex is not mentioned, on that ground girls can be denied admission is specious. No doubt the provision prohibits denial of admission on four grounds of race, religion, caste or place of birth, but this does not mean that on any fifth ground the admission may be refused even if the fifth ground violates the Constitution or law. The fifth ground taken for denial of the admission to the petitioners is sex. But Article 25(2) says that there shall be no discrimination on the basis of sex alone. So how can a ground be taken to refuse admission contrary to the Constitution or even a law ?
13. It was then urged that Article 25(2) prohibits discrimination against sex alone : Here the discrimination is not on the basis of sex alone. But other considerations as well, like paucity of seats, less need of doctors etc. This is Sophistry par excellence. What is prohibited is sought to be achieved by advancing reasons not germane to the issue of non-discrimination. If this were permissible, would it not dilute or abridge the Fundamental Right and be violative of Article 8 of the Constitution which forms Part II of the Constitution immediately after Part I Introductory {{FOOT NOTE}}
(1) AIR 1954 Mad. 67 {{FOOT NOTE}} that is to say, having precedence over all instrumentalities of the State. Part Il is headed as Fundamental Rights and Principles of Policy and the first Chapter is-`Fundamental Rights'. Its first Article, Article 8 is to following effect :- "8 (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency,' be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void."
' If the contention of the learned Additional Advocate-General be correct and it is not correct as far as the paucity of seats is concerned because since 1974 seats were more than four hundred and now the admissions made are not even upto two hundred, or that lady doctors are not needed, again, not correct because half of the population comprises of women whose most fundamental need of child bearing and looking after them can better be catered by lady doctors but assuming that the learned Additional Advocate-General is right, would it open to the State to say that we close down all avenues of education to women as we do not need them to be educated because they are prone to be independent of men? Then would it not be discrimination against women contrary to Article 25(2) ? And would it not be contrary to Article 27 and even nullify the authority of the State to reserve seats for women ? Article 27 provides as follows :- "(1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex."
Therefore, it is quite clear that the learned Additional Advocate-General is not quite right in justifying the exclusion of girls from competing with boys in admission to medical colleges by interpreting the word 'alone' in Article 25(2). The interpretation would deflect from the prohibition against discrimination on the ground of sex, would at least 'abridge' the Fundamental Rights, and would lead to contravention of Article 27(1) and nullify the state power in Article 27(3), and thus would be void in view of all pervasive Article 8 quoted above.
14. Another argument of the learned Additional Advocate-General is that Article 22(3)(b) is 'special' and 'special' prevails over the 'general'. And that it shall be deemed that Article 25 does not exist or that Article 22(3)(b) is a proviso to Article 25(2). There is no qualm with the first limb of the argument. Special shall prevail over the general. But the Special has to be applied in its own terms.
It will be applicable to what is specially provided for. As seen above in para. 10, Article 22(3)(b) applies to educational institutions "receiving aid from public revenues" and not to others. It was held as "special" having effect over the 'general' in the Indian case of University of Madras v. Shanta Bai and another, because of the fact that the 'special' Article 29 applied to both kinds of institutions 'maintained by the State' as well as 'receiving aid out of State funds'. More about the case later. In our Constitution the position is different. In Article 22(3)(b) Governmental institutions are not included. Therefore, this special cannot be made to apply to others in a manner that it would have the effect to override or nullify the effect of other Constitutional provisions. The second limb of the argument that in view of Article 22(3)(b) it shall be deemed that Article 25 does not exist or that the former is a proviso of the later, is defective. Neither it can be deemed that Article 25 does not exist.
It does very much. Nor Article 22(3)(b) can be read as a proviso to Article 25. If it were so intended, the' Articles would have been enacted or placed like that as suggested. Statutes much less a Constitution can be redrafted or rephrased by a Court in a manner that it destroys or nullifies the effect of its Articles. Both . The Articles are there. Neither can be made to evaporate in the thin air nor deemed to be non-existent. They are there and have to be there. Both have to be read and construed. Obviously in a manner that both co-exist. Harmonious construction of statutes is one of the elementary rule of Constitution. No word much less a clear provision is to be ignored. Plain, clear construction giving effect to every word and provision in an harmonious and smooth manner to the Constitutional provision . Would be that an educational institution 'receiving aid from public revenue', and that too 'subject to law', may disallow admission on the ground of sex but Governmental educational institutions cannot do so because/ the Government cannot be expected to violate the Constitution which prohibits discrimination on the ground of sex. A feeble attempt was made that except for Fatima Jinnah Medical College, the other six medical colleges have always been and are boys' colleges though girls are admitted as a matter of concession. A letter dated 4th December, 1984, issued during the course of hearing, was produced. This is clearly contrary to the provision of the Prospectus itself wherein it is stated in para. (4) "there is co- education in all the colleges except in Fatima Jinnah Medical College where only girls are admitted". Fatima Jinnah Medical College for girls is protected by sub-Article (3) of Article 25 which lays down that State may make law for "special provision for the protection of women and children". Therefore, not only the Prospectus says that except in Fatima Jinnah Medical College, "there is co-education in all Colleges and so the girls as well as boys will have a right of study there and whoever would have better merit will have a right to get in than the one less meritorious, but also debarring of girls to get admission in the remaining colleges, even with more merit, will not only be discriminatory on the ground of sex and so violative of the Constitutional provisions, but also against reason and justice. How can one support that a proven keener student be kept out and dullard allowed to get in, unless the institution is meant for backward boys or institution is to be brought down?
15.. It has been pointed out in the Aga Khan University, Medical College, admission is open to all persons of either sex. So also in Khyber Medical College, Merit Seats "are open to the candidates (Boys and Girls) from the settled district and provincially administered areas. Although minimum 41 seats are reserved for them but there is no upper limit fixed for the number of girls to be admitted on open merit. The boys complained and challenged the right of the girls to compete in open merit seats. But they lost. Open merit competition was upheld. Please see Muhammad Arshad and 2 others v. Selection Board Peshawar. It was submitted that if N.-W. F. P. Is so advanced and forward looking, there is no justification for Punjab which claims itself bigger and more advanced than any other Province in Pakistan, to lag behind and not cater for merit than the muscle. It was added that it is most incongruous that in Punjab for admission in the Punjab University and especially in Agriculture University, Faisalabad, it is open merit for boys and girls but not so in medical colleges.
It was submitted that girls are less likely to go or be useful in agriculture than for the healing profession. Not only half the population needs their service for certain but an educated mother with medical training will be a source of sustenance and prosperity of the home, neighbourhood and society. It was concluded that if in Administrative service and even in politics the girls can compete with men and hope to reach the highest office in State, why should they be not allowed to compete for entering into medical colleges? The argument is sound and has lot of sense.
16. In deference to the diligence of the learned counsel for the parties and for the benefit derived therefrom reference may be made to some of the cases quoted as far as relevant. As far as the decisions from the United States are concerned those deal how the Equality Clause was interpreted to bring at par as different people as black and white, men and women. In the latter category in spite of physiological and inherent differences, they were granted equal protection of law and added benefits or lesser burdens in view of the past loss of equal opportunities.
Classification permitted was when the object of the State was reasonable with a view not to deny equality but to bring about a State of affairs in which there is equality even with some extra benefit to women to make up for the past wrongs. Our Constitution in the three sub-Articles of Article 25 provides all that clearly and vividly. Sub-Article (1) lays down equality, sub-Article (2) prohibits discrimination, on the ground of sex and sub-Article (3) says that 'special provision' may be made for the protection of women." Therefore, there is no need of quotations from the United States cases. As far as the Indian jurisdiction is concerned, except two cases relevant for our purposes which will be discussed a little later, all deal with 'reservation' of seats for special categories of people, like backward classes, special classes, tribal people or Governmental nominations. These were challenged on the ground of discrimination. Some reservations were upheld, some annulled on the ground of reasonableness or otherwise. In none of these cases, the discrimination complained of was on the general ground of sex. In one case in which discrimination on the basis of sex was involved, is University of Madras v. Shantha Bai and another, wherein a girl student who wanted to be admitted in the Intermediate course of Mahatma Ghandi Memorial College affiliated to the University of Madras, was denied admission on the ground that the Syndicate of the University had given permission for affiliation on condition of admission of only 10 girl students. She succeeded before the Single Judge. On appeal of the University, three conditions were raised on its behalf, firstly that Article 15(1) ("The State shall not discriminate against any citizen on grounds of only of religion, race. Caste, sex, place of birth or any of them",) prohibits discrimination only by the State: the University of Madras is not a State and its directions are, therefore, unaffected by the operation of Article 15(1), (2). The right of a citizen to get admission into an educational institution is governed not by Article 15(1) but by Article 29 and that Article does not prohibit any discrimination based on the ground of sex. (3). The directions given by the University do not deny the right of women to be admitted into colleges, but only regulates the exercise of that right and that having regard to the nature of the right, the restrictions are reasonable and not discriminatory. The learned Division Bench observed at the end of para. 7 of the report that "Adopting therefrom 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)." In our case, it may be noted that the medical colleges are owned and maintained by the State, therefore prohibitory discrimination will be applicable to them. On the second point that the right to admission is governed not by Article 15(1) but by Article 29 which provided that "No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them", it was held that "We are of the opinion that Article 29(2) is a special Article and is the controlling provision when question relates to the admission to colleges".
Since 'sex' was omitted from the Article 29(2) it was held exclusion from admission on the ground of sex is permissible. This has been the argument of the Additional Advocate-General in these cases as well, relying on the provision of Article 22(3) (b). But what has to be noted is that in the Indian Constitution, Article 29 (2) included the. Educational institutions "maintained by the State" as well as "receiving aid out of State funds", whereas our Article 22(3)(c) only deals with educational institutions "receiving aid from public revenues" and not those 'maintained by the State'. And the distinction between the two, the Court had already made as quoted above. The third contention that the Syndicate had limited the number for admission girl students while affiliating the Mahatama Gandhi Memorial College was upheld on the ground that for providing facilities for students, it is open to a University to put condition regarding number of girls, as for providing for laboratories etc. For Science Colleges. The conclusion stated in para. (2) of the report was "that the University of Madras is not a State as defined in Article 12 of the Constitution and that its regulations are not subject to the prohibition enacted in Article 15(1); that admission to colleges is regulated by Article 29(2) and that the regulations of the University requiring that calves should provide certain facilities for women before they could be admitted are not discriminatory on the ground of sex". It may be noted that the medical colleges where admission is sought in these petitions, are State- owned Colleges to which, unlike Article 29 (2) of the Indian Constitution, Article 22(3)(b) has no application and there is no question of providing facilities for girl students as those were already there when as many girls were previously admitted and these facilities and premises of the Colleges have further been increased and extended rather than decreased in any manner. The second case relevant is Anjali Roy v. State of West Bengal and others (1) wherein a girl wanted admission in 3rd year of Honours Economics of the Hooghly Mohsin College and had been denied.
Facts show that she herself was {{FOOT NOTE}}
(1) A 1 R 1952 Cal. 822 {{FOOT NOTE}} at fault when she did not deposit the fee when her name was put up on the notice board alongwith other successful girl candidates. She had the right to get admission in girls college and was allowed to attend Hooghly College for Honour Course. And that she had got admission in another College. The legal discussion was as in Madras case with reference to the specific Article and their terms in the Indian Constitution about which something has already been said.
17. Two cases from our own Courts may now to be taken up which support clearly the cases of the petitioners. The first is Humera Satwat Yusuf v. The Government of the Punjab through the Secretary of the Health Department, Lahore (1) by a very learned Division Bench, I say so with great respect, whose members reached the pinnacle of the judicial hierarchy, late Mr. Justice Muhammad Akram and Mr. Justice Nasim Hasan Shah. The latter wrote the leading judgment and observed as follows :- " 'Thus, even if the contention of Mr. M. Anwar that the word 'citizen' includes both males and females is accepted as correct, there is no breach of clause (3) of Right 12, (which was `No citizen shall be denied admission to any educational institution receiving aid from public revenues out the ground only of race, religion, caste or place of birth')' even if discrimination on the basis of sex is practised in the matter of admission to the educational institutions in question. The fact is that the right which could possibly be invoked against the perpetration of discrimination on the ground of sex could only be Right 15, contained in. The Fundamental Rights Chapter of the Constitution, which lays down, 'Ali citizens are equal before law who are entitled to equal protection of law', but unfortunately this right stands suspended by Article 3(3) of the Provisional Constitution Order, 1969.
Fortunately now this right stands resurrected in the form of Article 25 (1) and further augmented by sub-Article (2) which prohibits discrimination on the ground of sex and sub-Article (3) provides more protection of women. So, how can they be denied their Constitutional Rights ? Another case from Peshawar High Court may be quoted. It is Muhammad Arshad and 2 others v. Selection Board, Khyber Medical College, Peshawar etc. PLD 1980 Pesh.
208. It is a case decided by a learned Division Bench comprising of Mr. Justice Karimullah Durrani and Mian Burhanuddin Khan-the latter too reached and still adorns the highest Court in the land, Supreme Court of Pakistan. In this case certain seats were reserved for girls and they were also allowed to compete with boys in the open merit seats. This time the boys complained of the discrimination on the ground of sex. The Advocate-General of N.-W.F.P. Supported the girls and referred to Articles 22, 37, sub-Article (3) of Article 25 of the Constitution. The learned Judges held that 'By no stretch of imagination it can be said in the instant case that the amendments in question are violative of fundamental rights even if such rights were justifiable at the moment. The authority referred to above would also be not applicable for the additional reason that instead of according to sexes equal treatment in law, the present Constitution under its Article 25 rather accords protection to women and children .
' The learned Division Bench upheld the right of the girls to compete with {{FOOT NOTE}}
(1) PLD 1971 Lab. 641 {{FOOT NOTE}} boys for the open merit seats. This is what the petitioner-girls are seeking in these cases.
18. In view of what has been stated above, it is declared that the action of the authorities denying the petitioners equality before law, equal protection of law and discrimination on the ground of sex in competing for the open merit seats in the six medical colleges, is contrary to Constitution. As stated by their learned counsel they neither insist for their right places in the colleges according to their merit nor intend to unseat their brethren who have been admitted, it is directed that their applications be taken up and those who have got up to 731 marks, the last boy admitted, their names be put on the notice board within a week of this order and the girls so notified if they, within the next week thereafter, pay all their dues, they shall be admitted. This is to avoid delay as the classes have already started and the petitioners have been made to lose precious time. The admission may be, as agreed to by the learned counsel for the petitioners, in any or more of the colleges wherever it is convenient for the authorities. There would be no need or question of creation of seats for them as those many were already there for the last twelve years. Facilities and premises have come to be more and expanded. Teachers have gained more experience and more appointed. Non-admission of the petitioners was authorities' own decision which cannot now stand because of their own act of violation, of course without intent, of the Constitution. This will be for this year. Henceforth action shall be taken in accordance with the Constitution. Since law point was involved and there was no intention to act wrongly on the part of the authorities, the parties are left to bear their own costs.