' AMIRUL MULK MENGAL, J.--The petitioner, who was a candidate for admission in Baluchistan Engineering College, Khuzdar, has challenged the order of rejection by 'Selection Committee and prayed as under:- "It is therefore, prayed that the order of 'the Selection Committee dated 26th April, 1988, wheretiy- the result has been announced (Annexure E) and the order/comments dated 10th May, 1988 (Annexure F) whereby the application form of the petitioner was rejected are without lawful authority, jurisdiction and of no legal consequence, therefore, writ of mandamus may be issued directing the respondent No,4 to admit the petitioner in the Baluchistan Engineering College in the interest of justice.
' Any other relief which this Hon'bie Court may deem fit and proper in the circumstances of the case may also be awarded."
' Besides the aforesaid prayer the petitioner through Civil Miscellaneous No,4.93 of 1988 sought the further relief as follows:- "That the provision of para 2.12 of: the policy announced by the Government on 2nd of February, 1988 or 9th of February, 1988 is contrary to the provisions of Constitution of Islamic Republic of Pakistan, as no discrimination can be allowed for admission against the petitioner on the ground that he has received education outside the province of Baluchistan because the Constitution has granted guarantee for free education anywhere in the country, therefore, these provisions are ultra vires to the Constitution and any decision made by the Selection Committee with reference to the provisions of para. 2.12 of the Policy is without lawful authority and jurisdiction, therefore, the same is liable to be set aside."
2. The petitioner, a permanent resident of Kahan Kohlu, Agency migrated from Kohlu to Jhatpat 'where his relatives were living and petitioner's father also shifted there and started doing labourer's work on .The agricultural larfds of others. It is further the case of the petitioner that he passed his Matriculation examination in the year 1984 from the Board of Intermediate and Secondary Education, Baluchistan.
3. After passing Matriculation Examination the petitioner went to Usta Muhammad for further education and got himself admitted in F.Sc. (Pre-Engineering) at Usta Muhammad, Government College. Thereafter on the pretext that his 'relatives undertook to bear educational expenditure if he goes to Sind, the petitioner shifted to Province of Sind and discontinued education at Usta Muhammad. Ultimately petitioner passed his F.Sc from Thul from the Board of Intermediate and Secondary Education Sukkur (Sind) securing 475 marks.
4. The petitioner thereafter came back to Baluchistan and applied for admission in the Baluchistan Engineering College, Khuzdar, against one of the reserved seats of Kohlu District. However, the petitioner was not selected for admission by the Selection Committee in view of para 2.12 of the Admission Policy.
5. The petitioner is aggrieved of his rejection and has filed this Constitutional Petition with the prayer as mentioned hereinabove.
6. Heard Mr. Iftikhar Muhammad for the petitioner, Mr. Muhammad Aslam Chishti for respondent.
No,5 and learned A.G. For official respondents.
7. Mr. Iftikhar Muhammad after seeking amendment in the prayer challenged the vires of clause 2.12 of the admission policy by contending as under: -
(i) Clause 2.12 of the admission policy is contrary to Article 22(4) read with Article 25 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the "Constitution").
(ii) The aforesaid clause is unreasonable, arbitrary and discriminatory.
(iii) Besides challenging the vires of clause 2.12.. Mr. Iftikhar Muhammad additionally submitted that petitioner had given satisfactory explanation for studying outside the province but the same were not duly and legally considered by the Selection Committee.
8. On the other hand Mr. Muhammad Aslam Chishti, and learned Advocate-General Baluchistan, vehemently opposed the contentions as raised by Mr. Iftikhar 'Muhammad. They urged that in fact Article 22(4) of the Constitution suggests measures to be taken by public authority for making provisions for the advancement of any socially or educationally backward class of citizens.
9. This legal question is involved in many petitions and in view of its importance we proceed to determine the same first.
10. At the outset, it may be pointed out, that the learned counsel has not challenged the competency of the Government to frame rules or chalk out a policy to regulate the admissions in the Baluchistan Engineering College, Khuzdar. However, an abortive attempt was made by contending that there is no law under which such policy is framed. It may be pointed out here, that the learned Counsel did not specifically raise the plea that it is not Government but some other forum which was competent to have framed such rules or policy. Obviously admissions in the Engineering College which is being financed, staffed and run by the Government has to be regulated by certain rules or policy and the Government clearly retains the right to guide and control the, affairs of such insitutions including the question of admission in such colleges. We are, therefore, of the clear view that Government has got the authority to formulate a policy regularising the process of admission. The Government of Baluchistan has framed such a policy for admission in the Engineering College. The main attack of the learned counsel, however, was that clause 2.12 of the policy is violative of Article 22(4) read with Article 25 of the Constitution.
11. It will be useful to reproduce clause 2.12 of the said Policy:- "2.12. A candidate who has passed Matriculation/F.Sc (Pre-Engineering) from outside Baluchistan and fails to satisfy the Selection Committee about reasons being beyond his control for not studying in Baluchistan shall be ineligible.
' It will also be proper place here to quote the relevant articles of the Constitution.
"22. Safeguards as to educational institutions in respect of religion etc:- (2)
(3)
(a) .. . . ...........
(b)
(4) Nothing in this Article .Shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens."
25. Enquality of citizens:- (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 was argued that clause 2.12 is in fact violative of Article 22(4) of the Constitution and infringes the rights of the students for the reasons that it imposes a condition on a certain class of students who have got education in institutions outside the province of Baluchistan. In 'furtherance of such argument, it was contended that this clause denies a right of getting better education in standardised and well established educational institutions. It therefore, is a clause which clearly violates equality of citizens as embodied in Article 25 of the Constitution. Since it denies the opportunity to citizens of Pakistan from seeking admissions in Engineering Colleges of this Province, to students who have got their education in institutions outside the Province. It was also vehemently urged that aforesaid clause is discriminatory.
12. In order to appreciate the aforesaid contentions, it may be pointed out that sub-Article (4) of Article 22 of the Constitution empowers a public authority for making provisions for the advancement of socially or backward class of the citizens. As such this Article in fact protects the right of Provincial Government to frame policy as formulated by the Government of Baluchistan, in order for making advancement in education field. Government of Baluchistan, thought it expedient and proper to frame the aforesaid policy for admission in Engineering College, Khuzdar, and other Engineering Colleges of the country, with a view of advancement and protection of the education in backward class of citizens. Virtually this classification is regional classification, and as contended by learned Advocate-General Baluchistan, the purpose of this is to protect rights of the students of this province, who cannot afford to study outside and thus, cannot compete those students with higher and better educational facilities. However, Article 22 in fact is corresponding to Article 12 of the then Constitution of 1962. A similar question arose regarding admission in different colleges about Tagged Areas and identical constitutional points were raised which were dealt with by erstwhile High Court of West Pakistan in the case of Naseem Mehmood v. Principal King Edward Medical College, Lahore and others reported in PLD 1965 (W.P.) Lah. 272 and it was observed as under:- "2I.. In order to answer this quesetion it is necessary to take a comprehensive view of the various clauses of, Fundamental Right 12. The first clause of this Right lays down that no person attending any educational institution shall be required to receive religious instructions etc., if such instruction etc., relates to a religion other than his own. The second clause enjoins that no religious community or denomination shall be prevented from providing religious instructions for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination. The third clause, which has already been reproduced in an earlier part of this judgment, prohibits the denial of admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth. The fourth clause lays down that there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation in respect of any religious institution. The fifth clause prescribes that every religious community or denomination shall have the right to establish and maintain educational, institutions of its own choice, and the State shall not deny recognition to any such institution on the ground only that the management of such institution vests in that community or denomination."
"22. It will be seen that the provisions made in the first five clauses of Fundamental Right 12 are intended to ensure that there is no discrimination in favour of or against any citizen, in the matter of admission to and maintenance of educational institutions, on the ground only of religion, race, caste or place of birth. A further intention appears to be. To ensure freedom of religious instruction in certain types of institutions, and to safeguard the right of the individual to follow his/own religion and to be free from any pressure to observe the rites or ceremonies of a religion other than his own, while studying in any educational institution. In clause (6) a clarification is made that the provisions embodied in the receding five clauses shall not be construed as preventing any public authority from making provision for the advancement of any socially or educationally backward class of citizens. It seems to us that this clarification, which is worded in a negative form, cannot he interpreted as containing an exhaustive enumeration of the kinds of special provisions or reservations which are permitted by the Constitution in the matter of educational institutions. This clause does not control any other types of provisions or reservations which a public authority may make in the matter of admission to educational institutions. Those provisions or reservations certainly will be permissible as long as they do not come into conflict with any other provisions of the Constitution. To put it differently, clause (6) of Fundamental Right 12 is only a permissive or an enabling provision and does not in itself' contain any prohibition against the type of reservations with which we are dealing in the present case. We are, therefore, of the view that the scheme of Tagged Areas is not, in any manner, violative of the provisions of clause (6) of Fundamental Right 12."
' It is clear from the aforesaid discussion that Article 22(4) does not control any other type of provisions which a public authority may C make in the policy of admission. Such provisions are, therefore, permissible under the Constitution. As the Government has framed this policy with a view for advancement of education of backward areas and to protect rights of students of this Province, hence it is not violative nor it infringes any of the provisions of Article 22(4) of the Constitution.
13. We now advert to the second limb of the argument advanced by Mr. Iftikhar Muhammad, Advocate i.e, clause 2.12 being violative of equality clause as embodied in Article 25 of the Constitution. He again referred to the aforesaid judgment in which this question has also been dealt with in detail.
14. Article 25 of the Constitution deals with "equality of citizens and "equal protection of law".
Equality of citizens does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities, that a citizen's rights as a human being are not affected by reason of his descent, religion, social or official status, economic condition or place of birth or residence; and further that all citizens are equally subject to the general law of the land. This clause permits classification and as a matter of fact classifications are- always proceeded on inequality because it cannot be assumed that citizens of a state are alike by nature or circumstances to one and another.
15. 'Equal protection of law' means that no person or class of persons shall be denied the same protection of laws which are enjoyed by other person or persons or class or classes in same circumstances. This constitutional guarantee in fact requires that all persons shall be treated alike under like and similar conditions. It connotes that equal protection of law means in similar circumstances, the same law will apply to the same class of peoples.
16. Judging the contentions of the learned counsel for the petitioner in the aforesaid parlance it can be easily stated that clause 2.12 of the admission policy is applicable to all students who seek admission in Engineering Colleges either in Baluchistan or from the quota of this Province in other colleges. This, therefore, cannot be said to be a clause being violative of equality clause as envisaged in Article 25 of the Constitution, for the simple reason that it applies to all students of this province, who get their education outside the province but fail to satisfy the selection committee that reasons of their doing so was beyond their control. Its application is common to all such students. In fact this clause does not restrict the students not to study in educational institutions outside the province, but it of course imposes such a restriction if such students- seek admission in Engineering College of this province or quota of reserved seats for this Province and fail to satisfy Selection Committee that doing so was beyond their control.
17. The learned counsel for the petitioner next urged that clause 2.12 of the Policy is discriminatory and arbitrary. Discriminatory in the sense that the students who can afford to study outside the province in better and well-known educational institutions, are arbitrarily deprived of their right to get admission in this province, although they are locals/domiciles of this province. The learned Advocate-General on the other hand submitted that this argument is speculative and hypothetical because in the instant case the student did not get education in a better and well-known institution. Besides this it was urged by the learned Advocate-General that in fact this rule has been framed after the Government received reports that students abandon their studies and go usually to educational institutions where they get opportunity of copying etc.
18. It may be observed that if the policy is framed in a manner to achieve the object of advancement of education, of backward class, the same of course may not be interfered with as Article 22(4) of the Constitution protects such a right of the authority. But at the same time it may be further observed that if students of backward regions for which such rules are framed, get a better chance of studying in well-recognized institutions of the country, then refusing admissions to them merely because they did not study in the province appears to be an anomaly in that getting better education in such institutions would be a step towards advancement. On this touchstone, the provision of this clause satisfying the Selection Committee for reasons beyond control appears to be 'harsh', and the Government may consider suitable amendment in the said clause, in order to bring it in harmony with the spirit of Article 22(4) of the Constitution.
19. However, each case is scrutinized by the Selection Committee on its own merits because facts in every case may differ from each other. In the instant case, the petitioner studied at Thul (Sind) because of the fact that his relatives used to live there who bore his educational expenditure. It was not the case of the petitioner that he went there in order to get better education because the institution in which he studied was well known for the purpose of getting better education. We find, therefore, no force in this contention which is ruled out as such.
20. Now we embark upon the merits of the case. The petitioner's plea being that his parents were very poor and could not provide him with sufficient financial aid to get education hence he migrated from Kohlu to Jhatpat where his relatives used to live. His maternal-uncles agreed to provide his education expenses only if the petitioner could go to Sind. Under these circumstances the petitioner got his education at Thul (Sind).
21. In the counter-affidavit, however, the private respondent has reproduced the explanation given by the petitioner before the Selection Committee for not studying in the Province:- {{URDU TEXT}} ' Thus the reason given by the petitioner was slightly different from what he gave here before us.
The reason for studying outside Baluchistan was apparently not beyond the control of the petitioner and it was so held by the Selection Committee after considering this plea and did not find it beyond control of the petitioner for studying outside Baluchistan. We are afraid that we cannot substitute ourselves for assessing the reasons and drawing a different conclusion in Constitutional jurisdiction, in view of the contradictory stand taken by the petitioner.
' The result of the aforesaid discussion is that we find no force in this petition which is hereby dismissed with no order as to costs.