FAKHRUDDIN G. EBRAHIM, J.-The petitioners passed their Inter-Science Medical Group Examination 1969-70, securing 618, 608 (First Division) 580 and 571 (Second Division) marks, respectively. On or about 12-10-1970 applications were invited by the Director, Health Services, Baluchistan, Quetta, for admission to the Medical Colleges, including Dow Medical College, Karachi, against the reserved seats of Baluchistan. The last date for submission of application forms was 25-10-1971, which was however, extended to 5-I 1-1971. The petitioners who were all possessed of requisite Quetta domicile, submitted their applications for being selected as candidates from Baluchistan for admission to 1st year M. B., B. S. Class to the Dow Medical College, Karachi, for the academic year 1971-72, before 25-10-1971. It is alleged that the petitioners did not receive any intimation that they had been selected, but on inquiries made, learnt from the list of candidates selected that they had been excluded.
2. Respondents Nos. 6 to 10 arc tribal students from Kalat Divison. They passed their Inter-Science Medical Group Examination, having secured 421, 414, 395, 405 and 400, all 3rd divisioners in the year 1969-70. They also submitted their applications for being selected as candidates from Baluchistan for admission to the 1st year M. B., B. S. Class to the Dow Medical College, Karachi, within the prescribed time. The respondents Nos. 7 to 9 were selected against the reserved seats for the Province of Baluchistan.
3. The petitioners claim that in terms of the Instructions contained in the Prospectus of the Medical College, Karachi, for the year 1971-72, they had a right to be selected for admission to the Dow Medical College, Karachi, and the decision of respondents Nos. 1 to 3 in selecting respondents Nos.
6 to 10 was without lawful authority and respondents Nos. I and 2 be directed to recommend the names of the petitioners to the respondent Nos. 3 for admission to 1st year M. B., B. S. Class in the Dow Medical College, Karachi, for the year 1971-72.
4. Mr. Zahoorul Haq, a learned counsel for the petitioners contended that under the Prospectus of the Dow Medical College, 37 seats are reserved for Quetta and Kalat Divisions, and that the procedure laid down in paragraph 11 of the Prospectus for the "Admission for under Development Areas" should have been followed in which event the petitioners would have been entitled to be admitted to the Dow Medical College, Karachi. Para--graph 11 reads as follows :- Paragraph 11.-Admission for under-Development Areas : The following procedure will be adopted in respect of admissions of candidates from Baluchistan Province :-
(i) Ten per cent. Of seats (viz. 3 seats) shall be filled strictly on merit, based on the result of the Intermediate (Science) Examinations from candidates who are permanent residents of Baluchistan Province-both local and domicile locals (Boys and Girls).
Selection against the merit quota shall be made by the Director of Education, Baluchistan, Quetta in consultation with the secretary to Government of Baluchistan, Education Department.
(ii) The remaining ninety per cent. Seats (viz. 34 seats) Quetta Division 17 and Kalat Division 17) shall be distributed equally amongst the candidates from Quetta and Kalat Divisions, in the following order of preference on merit, within the respective groups :-
(1) to persons belonging to one of the recognised tribes of Baluchistan.
(2) to persons whose parents were or have been perma--nently settled in this Province before 14th August 1947, and
(3) to persons domiciled in this Province since or after 14th August 1947.
Selection for the purpose shall be made by the Commis--sioners concerned assisted by the Directors of Health and Education, Quetta, or their nominated representatives, not below the rank of Assistant Director of Health, Divisional Inspector of Schools.
If the number of candidates from one Division falls short of the number of seats allocated to that Division, the balance of seats shall be surrendered to be filled by candidates from other Division by mutual consultation between the two Commis--sioners."
5. It may at once be stated that for the year in question the number of candidates from Quetta Division were more than 17, while the number of candidates from Kalat Division, fell short of the number of candidates allotted to that Division, and therefore in terms of she aforesaid paragraph 11, the surplus seats of Kalat Division were required to be filled by the candidates from Quetta Division, by mutual consultation, between the Commissioners of Quetta and Kalat Divisions. The petitioners contend that under the said paragraph 11, these surplus seats were in fact filled in by respondents Nos. 6 to 10, who were candidates from Kalat Division and this could not have been done in terms of the said paragraph. They further alleged that these surplus seats were not only to be filled in by the candidates from Quetta Division but the criteria for selection should have been merits or merits alone. It was further contended that in terms of paragraph 5 of the Prospectus third division candidates were not eligible for admission to First year M B., B. S. Class against the seats reserved for Quetta and Kalat Divisions and therefore the respondents Nos. 6 to 10 who had all passed their Inter-Science Examination in 3rd Division, had in any event no right to be admitted to the Dow Medical College.
6. If the matter had rested merely on interpretation of paras. 11 and 5 of the Prospectus, I would have had no hesi--tation in holding in favour of petitioners. However, these Instructions were partly superseded by a letter dated 8-11-1971, addressed to respondent No. 3, by the Secretary of Health Services, Government of Sind, which letter may conveniently be reproduced hereunder :- "GOVERNMENT OF SIND HEALTH, LABOUR AND SOCIAL WELFARE DEPARTMENT No. SC (ME)-154-H/71-1411, Dated Karachi, the 8-11-1971 To The Administrator, Dow Medical College, Karachi.
The Administrator, Liaquat Medical College, Jamshoro.
Subject:-Admission of First year M. B., B. S. Class during the Session 1971-72.
The Governor of Sind is pleased to the relaxation of the policy only for Baluchistan candidates regarding Inter-Science 3rd Division not to be admitted against the general merits or against any reserved quota. It has been decided by the Government of Sind that the candidates having passed I. Sc. In 3rd Division belonging to Baluchistan Province will also be admitted to Medical Colleges of Sind during the current session only against the reserved quota for them.
(Sd.)
(Dr. Sh. Mohd. Akhtar)
M. B., B. S., D. P. H. W. P. H. S. (1), 'Section Officer (M E) V, 'for Secretary Health, Government of Sind."
7. I may add here that it is a common ground between the parties Oat the instructions contained in the said paragraph of the Prospectus are binding. The petitioners also do not challenge the legality of the aforesaid letter dated 8-11-1971 as it is obvious that the Governor of Sind had the powers to vary the Instructions and these variations must be given effect. It was however, contended that this letter, which i9 an executive order, can only be given prospective effect and cannot retrospectively affect the rights of the petitioners, allegedly vested in them In terms of the Instructions contained in the Prospectus. It was contended that the last date for inviting applications for admission was 5-11- 1971 on which dire, the petitioners allege, they acquired, in terms of the Prospectus, a right to be admitted to the Dow Medical College, which right cannot be taken away by subsequent modification of instructions, contained in the said letter dated 8-11-1971. That the executive instructions cannot, even if they purport to be, retrospective in operation, is a settled principle of law, and is not disputed by the learned counsel on either side.
8. It is therefore necessary to examine what was the right. If any, that was available to the petitioners under the Prospectus, and when did this right become vested.
9. The learned Advocate-General, Baluchistan, contended that under the aforesaid paragraph 11, the petitioners, at its best, had a right to be considered for admission to the Dow Medical College, in the surplus seats of Kalat Division. He further contended that these surplus seats were to be filled in by the Commissioners of Quetta and Kalat Divisions but not on the basis of merits. I am of the view that these seats, under the said para. 11, are not to be filled in, on the basis of merits. In the instructions care has been taken to specifically mention merits, wherever, such was to be the guiding consideration and its express exclusion in this particular para. Coupled with the fact the Commissioner of Kalat Division, is also to be consulted, would show that factors other than the merits, would be the basis of selection of these candidates. This view would also find -support from the general scheme of the Instructions.
10. It was further contended on behalf of the respondents Nos. 1 and 2 that even this right to be considered for admission, did not and could not arise until it was ascertained that surplus seats from Kalat Division were available to be filled in from candidates from Quetta Division. The selection of candidates for Quetta Division took place on 25-11-1971, and that of Kalat Division on 4-12-1971 and until these selections, it could not be said that surplus seats of Kalat Divisions were available.
11. It maybe noted that selection of candidates to fill in the surplus seats is not an automatic process. As pointed out by the Advocate-General, Baluchistan. Several factors are to be considered, including verification of domicile and other factors governing eligibility.
12. I am of the opinion that though the petitioners had certainly the right to apply for admission, they had no right to be considered, much less, selected, until the surplus seats of Kala Division became available and these did not become available before 4th December 1972, when applications of the candidate from Kalat Division were considered by the persons authorised to make selection. However, before the arrival of the said date, prior to which the petitioners had applied for admission the instructions contained in the Prospectus were amended by the Governor of Sind, by the aforesaid letter dated 8-11-1971 and the selection of respondents Nos. 6 to 10, being, admittedly in terms of these amended instructions, is not open to question.
13. I therefore hold that before the petitioners right to have their applications for admission considered, the instructions in terry of the aforesaid letter dated 8-11-1971 were amended and these amended instructions did not affect any allegedly vested right of the petitioners.
14. I am not inclined to Interfere in this matter for a further reason that the petitioners had in the year in question taken admission to the Local Medical College at Quetta and the students qualifying from this College would be given M. B., B. S. Degrees equivalent to other colleges in Pakistan. On the other hand respondents Nos. 6 to 10 have during this entire year studied at the Dow Medical College and the petition if allowed will seriously embarrass not only the said respondents but also the authorities in the Dow Medical College, Karachi.
15. I am therefore not inclined to grant discretionary relief in favour of the petitioners.
16. I therefore dismiss with petition but leave the parties to bear their own costs.
TUFAIL ALI A. RAHMAN, C. J.-17. I entirely agree with my learned brother that this petition be dismissed with no order as to costs and with the reasoning which bad led him to that conclusion.
18. I should, however, like to add a few words about the validity of the instructions in question. When we heard this case we asked counsel on both sides how the Instructions were binding in law and could be made the basis of a petition under Article 201 of the present Constitution or Article 98 of the Constitution of 1962 under which the petition was filed. While counsel on both sides agreed that the instructions were binding they could not support this except by reference to a very large number of cases in which it has been assumed that they were binding. One of these cases was Petition No. 102/70 the judgment in which was sought to be challenged in the Supreme Court. The Supreme Court, however, refused to grant leave to appeal and, therefore, it was sought to be concluded by counsel that the Supreme Court also has agreed that the Instructions were legally binding. I do not think that this can properly be said, since no such point was urged either in the High Court or before the Supreme Court. I do not think that this advances the position at all.
19. Among the cases that were cited there was only one reported case and that was the case of Naseem Mahmood v. The Principal, King Edward Medical College, Lahore and others (PLD 1965 Lah.
272). Now in this case there was an Ordinance which provided for the formation of Governing Bodies. Obviously, in a case of that kind, rules made in pursuance of the Ordinance would have the same authority as any other rules made under a Statute and would, therefore, have statutory force behind them. To that extent, therefore, the case is not really comparable.
20. It so happens, however, that the requirements contained in the Ordinance in question, namely, that Colleges should be managed by Governing Bodies created under the legislation had not been complied with and the position was that the College in question was still being administered by the Principal or Administrator, that is to say, the position was precisely the same as in the case before us where the Dow Medical College is being managed by an Administrator. Like the Dow Medical College the colleges in question in that case were all Government institutions and were manned and financed by the Provincial Government. In other words the institution was a Government Institution. In these circumstances Anwarul Haq, J., as he then was, observed :- "Now, the question is whether in the absence of Governing Bodies, the Principals/Administrators of the Government Medical Colleges are to be regarded as completely independent and autonomous officials, not amenable to the control or any superior authority. We think that the answer to this question must clearly be in the negative. The institutions being Government institutions and their Head being Government employees, not much argument is needed to see that the Provincial Government clearly retains a right to control and guide the affairs, including the question of admissions, of these Colleges. The Heads of these institutions cannot claim to be independent of Government control. We consider, therefore, that the Provincial Government has authority to lay down a policy in the matter of admissions to the various Government Medical Colleges under its control so long as the Governing Bodies contemplated by Central Ordinance 13 of 1961 do not start functioning."
21. With these observations I find myself in entire and in respectful agreement. If an institution is owned and controlled by the Government then obviously the executive authority of the Government is available for laying down any policy or framing rules. The Prospectus before us of course contains a lot of matter which can hardly be regarded either as laying down policy or framing rules, as for instance, it gives a list of the persons who have been employed as Professors in the College. The relevant part of the Instructions, however, with which we are concerned in this case are clearly laid down in precise language of sufficient generality to amount to rules. For this reason I have come to the conclusion that the instructions in question were, in law, binding.
K.B.A.