I. MAHMUD, J.-These thirteen constitutional petitions, seek to challenge the validity of certain provisions in the Prospectus relating to admissions to the 1st year M. B., B. S. Class in Dow Medical College, Karachi, and Liaquat Medical College, Jamshoro, Hyderabad for the academic session 1972-73 on the basis of which the petitioners claim that they have been denied admission, to one or the other of the two above-mentioned Medical Colleges. As common question of law has been raised, all the petitions will be disposed of by this judgment.
2. The petitioners in Petitions Nos. 619, 620 and 621 of 1972 are males and Parsi by religion. They are resident and domiciled in Karachi. Briefly, their case is that they have passed the Intermediate Science (Medical Group) Examination and on the basis of the total marks obtained in the three science subjects, viz., Physics, Chemistry and Biology, they have secured first division marks. They have applied for admission to the 1st year M. B., B. S. Class for the academic session 1972-73 in the Dow Medical College, Karachi, which is an educational institution receiving aid from public revenues. How--ever, as only one seat has been allocated to Parsi Boys and that has been filled up by a Parsi candidate securing higher marks than them, they have failed to gain admission. Their grievance is that the Prospectus published by the Government of Sind provides that candidates from the minority com--munities are not eligible for the General Merit Seats. By not allowing candidates from the minority communities to apply for General Merit Seats, they who would otherwise have been selected and admitted on general merit, have been illegally deprived of their right to apply and to be admitted, with the result that Muslim Boys with lower marks have gained admission, while they with higher marks, have been denied admission. This according to them, amounts to discrimination on the ground of their religion alone and con--travenes their fundamental right guaranteed under Article 19 (3) (b) of the Interim Constitution. Their further grievance is that after they had submitted their application forms, the Government of Sind amended the Rule in the Prospectus for working out merit for admission by providing that merit shall be calculated on the total marks obtained in all the 5 subjects including Urdu and English subjects and not on the three science subjects alone. This amendment, they say has prejudiced their chance of admission and is also illegal and void. Their prayer is for a declaration that the said provisions in the Prospectus are void and for a direction to issue to the respondents to consider their applications for admission for the General Merit Seats and to grant admission to them if they are otherwise entitled on merit.
3. The petitioners in 9 out of the remaining 10 petitions numbering in all 24 persons (some petitions have been filed in joint names), are Hindu male candidates resident and domiciled in one or other district in the Province of Sind. They have applied for admission to the 1st year M. B., B. S. Class for the academic session 1972-73 to the Liaquat Medical College, Hyderabad, an institution receiving aid from public revenues, having obtained high first division in the Intermediate Science (Medical Group) Examination. However, as only 10 seats have been reserved for minority boys, these have already been filled up by Hindu applicants who have obtained higher marks than them. Their grievance, like that of the Parsi petitioners, is that because of a rule in the Prospectus, they are not eligible to compete for the General Merit Seats. The result is that, while Muslim Boys with lower marks have gained admission, they who have secured higher marks, have been denied admission on the ground of their religion alone and that this is discrimination against them and contravenes their fundamental right under Article 19 (3) (b) of the Interim Constitution. A further grievance of such of the Hindu petitioners as are resident of rural districts in Sind, is that 40 seats have been reserved for Muslim Boys from rural districts in addition to 126 seats allocated for them in the General Merit Category. The provision in the Prospectus which makes them ineligible to apply for rural seats, is a discrimination against them on the ground of their religion only and is repugnant to Article 19 (3)(b) of the Interim Constitution and as such it is void. They share with the Parsi petitioners a further grievance regarding amendment of the Rule in the Pros--pectus in the matter of calculating merits, above-mentioned. They likewise pray for a declaration that the provisions in the Prospectus are void and imperative which make them ineligible for applying for the General Merit Seats as well as for the 40 seats reserved only for the Muslim Boys from rural districts. They also pray for a direction to issue to the respondents to consider their applications for admission for the General Merit Seats and rural seats, and if on merit the petitioners are entitled to admission to grant admission to them accordingly.
4. The petitioner in Petition No. 71/73 is Miss Laila Niamat. She is a Muslim Girl, and is resident and domiciled in Karachi. She has applied for admission to the 1st year M. B., B. S. Class of the Dow Medical College, Karachi for the academic session 1972-73. Her case is that she has obtained first division marks in the three science subjects, Physics, Chemistry and Biology in the Intermediate Science (Medical .Group) Examination and would have stood a chance of obtaining admission, but the respondent No. 2 amended the Prospectus after she had submitted her application form, making total marks obtained in all the subjects (including Urdu and English) as a basis for calculating merit, thus causing serious and material prejudice to her in that it has lowered her aggregate percentage from 63.1 % to 58.6 She has challenged the validity of the amendment of the Prospectus as being illegal and mala fide. Her further grievance is that her chance of admission is further prejudiced because of the allocation and reservation of seats on the basis of sex, religion and residence, as being violative of Articles 19 and 22 of the Interim Constitution.
5. The respondents have filed counter-affidavits denying the petitioners' cases. They have raised several legal contentions which will be dealt with presently. However, before I do so, I think that in order to appreciate them more fully, it would be convenient to reproduce the Scheme regarding the allocation of seats in each of the two medical colleges and the relevant Rules and instructions, as they appear in the Prospectus and also briefly summarise the working of the Scheme Nature of Seats No. Of Seats (as revised)
1. Tagged Area (General Merit Seats).
(i) MUSIM Boys185
(ii) Muslim Girls66
(iii) Minority- Girls2 Note.-(1) The minorities are given separate seats according to their ratio in population. They are not eligible for any seat in the General Merit.
(2) The Seats on General Merit are distributed amongst Boys and Girls. Keeping the ratio of 75 % for boys and 25 % for girls.
(the same ratio will hold good for minority seats).
II, Reserved Seats :--
(i) Rural seats for Karachi Division 6
(ii) Lyari and Khadda (Treated as Rural for the purpose of admission)10
(iii) Doctors' children 3
(iv) Foreign nationals40
(v) Children of Defence Forces Personnel 4 Government of Sind (including employees of attached and subordinate offices)1
(vii) ]Reserved seats for Baluchistan14
(viii) Government Discretionary quota8
(ix) Reserved seats for B. Sc. Candidates 1__ Total 343 Nature of Seats No. Of Seats
1. Tagged Area (General Merit Seats) :-
(i) Boys Muslim125
(ii) Girls Muslim41
(iii) Minority :- Boys ... ... ... 10 Girls 4 Note.-The seats on General Merit are distributed among boys and girls keeping the ratio of 75 %' for boys and 25 % for girls.
II. Reserved Seats (Muslims) :-
(i) Boys (Four from each district) Rural ... 40
(ii) Girls (Two from each district) Rural ... 20
(iii) Doctors' Children3
(iv) Children of Defence Forces Personnel ...3 Government of Sind (including employees of attached and subordinate offices1
(vi) Government Discretionary quota ...3 Total 251 Rule 3. Minority Seats.-The minorities are given separate seats according to their population. They cannot compete in any category other than the one specified for them.
6. The working of the Scheme may now be briefly mentioned. For the Academic Session 1972-73, a total number of 343 seats have been fixed for admission to Dow Medical College, Karachi, and 251 seats for admission to Liaquat Medical College, Hyderabad. Dealing with the Scheme for admission to the former medical college, for the sake of convenience, it will be seen. That out of 343 seats, 256 seats have been fixed for applicants from the Tagged Area while the remaining 87 seats have been reserved for rural and special areas and special interests. By "Tagged Area" is meant the area of the former Karachi Division which is tagged to this college and only candidates domiciled in this area may apply. The seats fixed in the Tagged Area have, been proportionately allocated among certain categories according to communities and sex. The categories are viz.. (i) Muslim Boys, (ii)
Muslim Girls and (iii) Minority, which again is further sub-divided into, Boys (Parsi,, Christian and Hindu) and Girls. It is stated in the counter-affidavit filed on. Behalf of the Government, that the allocation of seats in each of these categories is strictly in ratio of population. Also Note 1 and rule 3 above--quoted mention, in particular, that minorities are given separate seats accord--ing to their ratio in population. The distribution of the General Merit. Seats in Category I amongst boys and girls is in the ratio of 75 % for boys and 25 Y. For girls. The ratio holds good for minority seats as well.
These categories are mutually exclusive and, in particular, rule 3 states that the minority candidates cannot compete in any category other than the one specified for them. However, in each category, selection is on the basis of merit inter se. The words "General Merit Seats" appearing against the, words "Tagged Area" mean only merit in each category. Note 1 read with Rule 3 however, makes it clear that the categories are mutually exclusive and applicants of the category cannot compete with those of the other categories. The Scheme is the same with regard to allocation of seats for admission to, the Liaquat Medical College. It is pertinent to note that in Category II--"Reserved Seats", the seats which have been reserved for boys and girls from. Rural districts, are all for Muslims resident in those districts.
7. Before I discuss the respective submissions of learned counsel appear--ing on behalf of the parties, it would be convenient to reproduce the relevant Articles of the Interim Constitution referred to in the arguments. They read as follows :- "19.-(3) 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.
(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,"
8. The main contention of Mr. Khalid Ishaq, learned counsel appearing on behalf of some of the petitioners (which has also been adopted by Mr. A. L. Channa and Mr. Niamat Molvi for the remaining petitioners), is that under the Scheme, seats have been allocated to religious communities and minorities in. Proportion to their ratios in population. Additionally, a certain number of seats have been reserved only for Muslim boys and girls from the rural districts of Sind for admission to Liaquat Medical College, Hyderabad. Such classification and reservation of seats on a communal and religious basis is, it is said ex facie discriminatory. In particular, as far as the Parsi and Hindu minority petitioners are concerned, Note 1 read with rule 3 of the Prospectus which render them not eligible for the General Merit Seats and the Hindu petitioners for the rural seats, amounts to denial of admission to them on the --ground only of their religion. That, therefore, such provisions in the. Prospectus are repugnant to Article 19 (3) (b) of the Interim Constitution and are void and inoperative. In support of the above contention learned counsel invited our attention to the two decisions of the Indian Supreme Court -reported in State of Madras v. Champakam and others (AIR 1951 SC226) and Venkataramana v. State of Madras (AIR 1951 SC 229). The former case was an appeal from the decision of, the Madras High Court reported in AIR 1951 Mad. 120. h Communal, Government Order fixed proportionate seats in the medical and engineering colleges in the State of Madras among certain castes and communities, such as non-Brahman (Hindus), backward Hindus, Brahmans, Harijans, Anglo-- Indians, Christians and Muslims. While the Madras High Court struck down that Communal G. O. On the ground that it violated Article 15 (1) of the Indian Constitution which stated that the State shall not discriminate: against any citizen on the ground only of religion or caste, the Supreme Court, while agreeing with the Madras High Court, observed that the funda--mental right guaranteed under Article 29 (2) was not controlled by any exception such as corresponding to Article 16 (4), which enabled the State to, make special provision for the reservation of appointments or posts in favour of any backward class of citizens.
Such omission was significant and, therefore, it held that the Communal G. O. Violated Article 29 (2). It may be observed that it ass directly as a result of that decision that the Indian Constitution was amended, shortly thereafter, in 1951 and Article 15 (4) was added and made applicable to Article 29 (2), thereby enabling the State to make special provision for the advancement of any socially and education--ally backward class of citizens in the matter of admission to educational institutions. The effect of the amendment has been interpreted to mean that Article 15 (4) is to be read as a proviso or an exception to the fundamental rights guaranteed under Articles 15 (1) and 29
(2) and, barring any' special provision which may be validly made for socially and educationally backs and class of citizens under Article 15 (4), the view continues to prevail in India that classification of seats on the basis of communities is a discrimination on the ground only of religion. It was so interpreted by the Indian Supreme Court in Balaji and others v. The State of Mysore and others (AIR 1963 SC 649). Relying on the latter decision of the Indian Supreme Court, the High Court of Kerala in State of Kerala and another v. Jacob Mathew and another (A 1 R 1964 Kar. 316) held that Muslims as also Latin Catholics and Anglo-Indians in the State of Kerala, were socially and educationally backward class of citizens and the reservations of seats for them on a percentage basis in the State medical colleges did not-- violate Article 29 (2) of the Indian Constitution.
9. The same line of reasoning was adopted by the Indian Supreme Court in the other cited case in which a similar Communal G. O. Was struck down which reserved posts on the basis of communities and castes. The Court held that in so far as posts were reserved for Harijans and backward Hindus, the Communal G. O. Was saved by Article 16 (4) of the Indian, Constitution which enabled the State to make provision for the reservation of appointments or posts in favour of any backward class of citizens. But in so far as the other communities were concerned, viz., Muslims, Christians, non-Brahmin (Hindus) and Brahmins, the reservation of posts for these com--munities and castes on a communal and caste basis was repugnant to Article 16 (2) which provided that no citizen shall, on the ground only of religion, race, and caste etc., be ineligible for or discriminated against in respect o1` any employment or post under the State.
10. These cases no doubt support the contention of Mr. Khalid Ishaq that the allocation of seats for various communities according to their ratio .An population, as is contemplated under the Scheme, is a discrimination between applicant and applicant on the ground only of his religion and would appear to be hit by Article 19 (3) (b), the only exception being that reservation of seats for socially or educationally backward class of citizens is permitted under Article 19 (4). However, Mr. Abdul Sattar Pirzada learned counsel for the respondents, supports the categorization of seats among the various communities on the ground that the right conferred by Article 19 (2) (b) is "subject to law" and that the selection of appellants on the above basis can validly be regulated by law. His submission, therefore, is that the allocation of seats to the communal categories in proportion to their popula--tion is a valid method for regulating the right of admission to the medical ,colleges and that, therefore, there has been no denial of admission to the Parsi and Hindu petitioners in these cases on the ground of religion alone. He distinguishes the Indian Supreme Court Cases, above discussed, rightly in my opinion, in the ground that none of the Articles of the Indian Constitution concerned, are qualified by the phrase "subject to law" as to Article 19 (3) of our Interim Constitution.
11. It is well known that the number of applications for admission for ,exceed the limited number of seats available for admission. It therefore became inevitable for Government to devise a scheme to restrict admission by adopting some fair and proper method. Accordingly, it devised a Scheme - by allocating seats to categories of applicants belonging to different com--munities according to their ratio in population. The Government believes that the method adopted by it is fair and proper and does substantial justice .To all communities and enables them to obtain fair and adequate representa--tion in the matter of obtaining medical education in the two medical colleges. .Incidentally, Mr. Pirzada illustrated the fairness of this categorization of seats among the communities by the practical example of two Christian girls who had secured 59.8 % marks respectively. They stood at the top of the .Category (iii) Minority, Girls. On the other hand the last Muslim Girl in .Category (ii) Muslim Girls, secured 67 Y. And there were yet 48 other Muslim Girls after her, whose percentages were higher than the percentages obtained by ,the two Christian Girls. Yet none of these 48 Girls. Although they have obtained ,higher percentages in General Merit are being admitted but the two Christian girls from the minority community have obtained admission as they have gained the highest percentage marks in their category.
12. It is clear that the right guaranteed or protected by Article 19 (3)(b) is made "subjected to Law" as is stated in the opening phrase of paragraph 3 of Article 19. Historically speaking, the phrase "Subject to Law" finds lace fort ,the first time in Article 19 (3) of the Interim Constitution in so far s consti--tutional protection is given for safeguarding against denial of admission to :certain educational institutions on the ground only of race. Religion, caste or place of birth. While dealing with the phrase "Subject to Law" appearing in Article 18 of the 1956 Constitution of Pakistan in another context, their Lordships of the Supreme Court observed in Jibendra Kishore v. Province of East Pakistan (PLD 1967 SC 9) that the phrase means that although a right guaranteed by -the Constitution cannot be taken away by law entirely, yet the exercise of that right may be regulated by law. In this connection. a reference may be made to the case of Ch. Abdul Ghani v. Islamic Republic of Pakistan (PLD 1958 Lah. 584) in which the last-mentioned Supreme Court case was referred to. In that case the petitioner invoked the fundamental right under Article 18 of the 1956 Constitution which stated that "subject to lawevery citizen has the right topractice any religion". He applied to be allowed to go for Hajj and for a reasonable amount of money as foreign exchange.
Because .Of the large number of applications, a system of drawing lots was introduced by the Government by which candidates for Hajj were selected. The petitioner was unsuccessful in the lots drawn. He claimed that by denying him a pass--port to perform Hajj and a reasonable amount of foreign exchange, his fundamental right to practice his religion had been denied to him. It was held by the late M. R. Kayani C. J., that the system of drawing lots was a practical way of dealing with the problem among a large number of applica--tions for Hajj and was a valid secular step for regulating by law and exercise .Of the fundamental right to practice one's religion and the performance of the religious duty of going for Hajj. The Government was not denying the right to practice one's religion but regulating that right, as he aptly put it, by cutting its cost according to cloth. Applying this principle, it can be said that in view of the limited number of seats available for admission, as well as the necessity to provide for adequate representation to all the communities, the allocation of seats to various communities according to their ratio in population, is a valid method for regulating admission to the two medical colleges. The categorization of seats is not purely on communal or religious basis but on the above factors as well and, in my opinion, i3 not hit by Article 19 (3) (b).
13. There is no doubt that the instructions contained in the Prospectus have been issued by the Sind Government in the Ministry of Health in order to regulate admissions to the colleges maintained and administered by that Department and are `law' as that term has been interpreted in the widest sense in Asma Jilani v. Government of Punjab (PLD 1972 SC 139). It has been so construed in the .Case of Naseem Mahmood v. Principal, King Edward Medical College, Lahore (PLD 1965 Lah. 272) and in other judgments of this Court as well.
14. As a corollary to the allocation of seats to the Communal categories, the Scheme provides that each category is mutually exclusive and, in particular, Note 1 read with rule 3 of the Prospectus a states that the minority applicants are not eligible for any seat in the General Merit and they cannot .Compete in any category other than the one specified for them. The cate--gorization of seats among the communities being a valid method for regulating admissions, it cannot be said that because an applicant falling in one category cannot compete with an applicant falling in another category, admis--sion has been denied to him. He is denied admission because he is not qualified to be admitted from his own category on merit, as he has not obtained higher marks than others in his category. Therefore, if the petitioners have been refused admission it is not only on the ground of their religion. Mr. Pirzada emphasised the word `only" in Article 19 (3) (b) and submitted that it means solely, "exclusively", and therefore, it is a word of qualification. However, if admission is denied on other factors as well, such as paucity of seats and the necessity of making provision for fair and adequate representation of all communities for obtaining medical education in the two colleges then it cannot be an infringement of this provision. What Article 19 (3) (b) prohibits ,is discrimination or denial of admission on the ground only of religion, etc. No applicant should be regarded with disfavour and no invidious distinction should be made on the ground only of his religion, other things being equal. But if it is combined with other grounds as well, it is not bit by this Article: Support for this view may also be found in Sa Anjali Roy v. State of West' Bengal and others (AIR 1952 Cal. 825). This submission is further supported by an un--reported decision of the erstwhile High Court of West Pakistan ill Constitutional Petition No. 498/68 (Vishan v. Administrator, Liaquat Medical College and others) which was summarily dismissed by a Division Bench comprising the former Chief Justice Qadeeruddin Ahmed and Ghulam Safdar Shah, J. (as be then was) on precisely the same point. In that case, the petitioner challenged Instruction No. 5 of the Prospectus relating to admission for the academic session 1968-69 which stated that "minority candidates will be admitted only against minority seats". It was held that the instruction was not ultra vires of Article 12 (3) of the 1962 Constitution. For the reasons given above and, particularly, in the context of the judgment of the Division Bench of the Karachi Seat of the erstwhile High Court of West Pakistan, I am not inclined to take a different view of the matter. Accordingly, I am in respectful agreement with it. In my view, the allocation of seats to the various communities in proportion to their population as embodied in the Scheme and Note 1 read with rule 3 are not repugnant to Article 19 (3) (b) of the Interim Constitution.
15. A further contention bas been pressed on behalf of the Hindu petitioners who are residents of certain rural districts in Sind and who have applied for admission to the Liaquat Medical College, Hyderabad. This, contention has also been pressed on behalf of Miss Laila Niamat who has attacked the reservation of seats for Lyari and Khadda and other rural areas in Karachi as well. The contention i3 that a certain number of seats have been reserved for Muslim Boys and Girls from rural Districts in Category II. The contention is that the reservation of seats according to districts or geographical areas is not permitted under Article 19 (4). A Rural Area has been defined in the Prospectus as "a place population whereof is less than fifteen thousand". Muslims resident and domiciled in such rural districts of Sind or a substantial number thereof have been treated by the Government as a backward class of citizens requiring special provision for their social or educational advancement. It is not an uncommon phenomenon that back--ward classes of citizens live in certain poorer and educationally backward areas. Thus, residents of Lyari And Khadda, in Karachi have been treated as rural for purposes of admission. Persons resident in such rural areas may be defined, identified or symbolised as a backward class of citizens. It will be noted that Article 19 (4) does not contain an exhaustive enumeration or limitation of the kinds of special provisions or reservations which tray be made under that Article relating to admission to educational institutions receiving aid from public revenues. A reference may be made to the case of Naseem Mahmood v. Principal, King Edward Medical College, Lahore (PLD 1965 Lah. 272). In that case Anwarul Haq, J. (as he then was) held that reservation of seats on the basis of residence in Tagged Areas did not, in any manner, violate the Fundamental Right 12 (6) of the Pakistan Constitution, 1962 which corresponds to Article 19 (4) of the Interim Constitution. In my opinion, there is, there. Fore, no force in this submission.
16. The petitioners have taken objection to the validity of .The amend--ment of the rule in the Prospectus which provides that merit for admission shall' henceforth be calculated on the total marks obtained in all the five subjects. It is contended that the amendment was made on the last date for sub--mitting applications for admission and after the application forms had already been submitted. Apart from the inherent right to amend on general principles, it is expressly stated in the Prospectus (vide Introduction page (ii), para. (2), that the provisions incorporated herein are subject to additions or alterations .As may be considered necessary from time to time. The petitioners have not shown any case of prejudice by the last-minute . Amendment. In fact. The applicants were required to state on the prescribed printed application farmsthe total marks obtained by them in all the subjects as well as the marks obtained in the three Science subjects and their cases have been considered on the basis of the amended rule. However, the rule has already been acted upon and a reversal of it at this stage would cause serious complications and utter confusion. I see no merit in this contention which is hereby rejected.
17. Finally, a contention was put forward on behalf of Miss Laila Niamat that reservation of seats on the basi3 of sex is a discrimination which is void under Article 22 (2) of the Interim Constitution. This submission is misconceived, since Article 22 has been suspended by Presidential Order dated 30- 4-1972. Other contentions on her behalf have been discussed above and it is not necessary to repeat them. A further ground was taken in arguments on her behalf that the permanent Constitution of Pakistan has come into fore on 10th April, 1973, and that the fundamental right corresponding to Article 22 of the Interim Constitution has net been suspended under it and, therefore, the denial of admission to her on the ground of sex, violates here fundamental right under the Permanent Constitution. Apart from the fact that this point was overruled by the Chief Justice in Begum Tahir Sultana's Application (Miscellaneous Application 46/66), this ground has not been taken in her petition and it was raised for the first time at the bar. It is for the treason that we have not allowed the point to be raised at this stage.
18. In the result, for the foregoing reasons. I would dismiss the petitions but, in the circumstances, would leave the parties to bear their own costs.