' BASHARAT AHMAD SHAIKH, J.---Female candidates seeking nomination to M.B.B.S. Course against seats reserved for Azad Jammu and Kashmir in different Medical Colleges of Pakistan filed a writ petition in the High Court seeking direction to the Nomination Board of Azad Jammu and Kashmir to nominate students for the aforementioned reserved seats on the basis of merit, irrespective of the sex to which a candidate belonged. They also prayed for a declaration that reservation of separate seats was without lawful authority and of no legal effect. The High Court accepted the writ petition and issued the direction/declaration prayed for by the female students. Five male students have challenged the judgment of the High Court with leave of the Court.
2. Judgment of the High Court is based on the following two conclusions:--
(i) Action of the Nomination Board in dividing the seats reserved for Azad Jammu and Kashmir among male and female students is violate of Fundamental Right No,15 which lays down that: "All State Subjects are equal before law and are entitled to equal protection of law".
(ii) The aforesaid action of the Nomination Board is without lawful authority as no such division of discrimination is laid down in the policy laid down by the Government.
3. We first take up the second ground. In different Medical Colleges of Pakistan sixty-six seats have been reserved for Azad Jammu and Kashmir nationals. These seats have been placed at the disposal of the Azad Government of Jammu and Kashmir which has set up a Board for selecting candidates for nomination against these seats which is called Azad Jammu and Kashmir Nomination Board. This has been done through a Government Order which was issued on 2nd April, 1986. It has been amended from time to time. Out of sixty-six seats two seats are reserved for Neelum and Leepa valleys while one seat is reserved for Doctor's son. The Government Order which created the Nomination Board lays down the functions to be performed by the Board as well as the principles which have to be followed by the Board. Thus, the aforesaid Government Order is the charter under which Nomination Board is performing its functions. Initially some doubts were expressed by superior Courts whether violation of any provision of the aforesaid Government Order could be remedied through writ jurisdiction as there was no law framed by the Legislature on the subject. However, these doubts were resolved in the initial stages and the aforesaid Government Order has been treated by the superior Courts of Azad Jammu and Kashmir to have the force of law if any of its provisions are violated the High Court as well as this Court have all along exercised writ jurisdiction to correct them. It follows that the Nomination Board is found to strictly follow the Government Order under reference and any action taken in violation of its contents will be without lawful authority and of no legal effect.
4. Scheme of the Government is that the available seats are distributed on the basis of regional quota between the districts' of Azad Jammu and Kashmir as well as the Jammu and Kashmir refugees settled in Pakistan, as is laid down in paragraph 1 of the Government Order. Paragraph 12 of the Government order lays down that seats available for a particular region shall be allocated on the basis of merit. The paragraph runs as follows:--- "12. Selection against seats reserved for each district will be made on the basis of merit from amongst students belonging to the same district. However, if a candidate is not available from a particular district then seats will be allotted on the basis of general merit. The criteria to determine the merit of seats against the reserved Medical seats shall be the same as is prescribed by the Medical College to which candidates are being nominated." (Translated).
5. It is clear from the above that, apart from allocation of seats on regional basis, the Government Order clearly lays down that candidates will be selected purely on the basis of merit. In the Government Order it is no where laid down that the seats which are made available for Kashmiri students will be divided between male and female students. It appears that. The Nomination Board itself started the practice of dividing seats between male and female students without approval of the Government. Thus, the position is that the Government Order requires the Nomination Board to select candidates from amongst the candidates of a particular region on the basis of merit alone, but the Nomination Board has itself divided the seats between male and female students. This is clearly unlawful. The Nomination Board has to abide by the charter under which it is working and it has no legal authority to transgress the limits imposed by that charter. The Nomination Board has not been able to furnish any explanation as to how the Board was competent to do so. Therefore, we agree with the High Court that this action of the Nomination Board is without lawful authority and is, thus, of no legal effect. This ground itself was sufficient for acceptance of the writ petition filed by the respondents. The appeal filed by the male students has, therefore, to fail on this ground.
6. On the first point relating to Fundamental Right No,15 the learned Judge in the High Court has written an elaborate judgment in which, apart from recording his own views on the subject of discrimination, he has discussed several judgments from the Supreme Court of Pakistan. The learned Judge also carried out a comparative study of the relevant Fundamental Rights incorporated in the Azad Jammu and Kashmir Interim Constitution Act and the Constitution of Pakistan, 1973 to reach the conclusion that, while nominating the students for Medical Colleges, allocation of separate seats for male and female students was not a reasonable classification within the meaning of Fundamental Right No,15, reproduced above. The learned Judge has also examined this question in light of injunctions of Islam by quoting a number of verses of the Holy Qur'an. The view taken by the learned Judge has been challenged in the appeal filed by the male students. On their behalf Mr. Abdul Rashid Abbasi addressed detailed arguments to show that distribution of seats between male and female students was not violate of Fundamental Right No,15. He also contended with great vehemence that due to the peculiar circumstances it is necessary to allocate separate seats for male and female students.. His arguments were opposed by Raja Muhammad Hanif Khan, the learned counsel for female students, who are respondents before us. However, the question relating to the violation or otherwise of Fundamental Right No,15 does not fall for determination in the present appeal because, as seen above, the other ground recorded by the learned Judge in the High Court for issuing the writ against the Nomination Board is well-founded that the Nomination Board was acting without lawful authority in dividing the reserved seats among male and female students. Therefore, we leave this question open to be decided in any case in which it may become necessary to decide it.
7. We may add that it is well-settled that if there is reasonable classification among citizens Fundamental Right No,15 is not violated, but we want to point out that classification is not the function of a Court of law. Classification of State Subjects, where necessary, is the function of the Legislature or executive and a Court of law, exercising writ jurisdiction, can only examine question whether a law or any custom or usage having the force of law fulfils the test of reasonable classification. Power of judicial review under writ jurisdiction does not allow a Court of law to arrogate to itself a function which has to be performed by the Legislature or the executive. In the present case the High Court has rightly found that the action of the Nomination Board in distributing reserved seats between male and female students is not warranted by law, therefore, there is no classification which has been done by the Azad Government of Jammu and Kashmir which was competent Authority to do so. Thus, the question of examining whether the division of seats on the basis of sex is a reasonable classification or not does not arse for determination.
8. In order to remove any doubts it is clarified that students to be nominated against Colleges exclusively meant for female students will be nominated from amongst the female students who are selected on the basis of merit by the Nomination Board. Similarly if any seats are exclusively reserved for male students nominations against those seats will be likewise made out of male students selected on merit. In the present session sixty-three seats are available for nomination on open merit. According to the list prepared by the Nomination Board thirty-eight female students are including in the top sixty-three positions while male students are twenty-five. It is clarified that female students to be nominated against the seats reserved for female students shall be selected out of the aforementioned thirty-eight female students. Similarly if any seat is reserved for male students nomination against them shall be made out of the twenty-five male students mentioned above.
9. The petition for leave to appeal was filed in this Court on 11th January, 2000 which was granted on 12th January, 2000. The appeal was taken up for hearing on 14th January, 2000 and, as the time for making dominations was running out, short order was announced on the same day. These are the reasons for the said short order.
' With the observations made above the appeal is dismissed. However, the parties are left to bear their own respective costs.