IFTIKHAR MUHAMMAD CHAUDHRY, J.---By means of above petitions-leave to appeal against judgment dated 9th September, 2002 passed by High Court of Balochistan has been sought whereby Constitutional Petitions Nos.262, 44, 220, 225 and 256 of 2002 filed by respondents have been allowed. Concluding para from the impugned judgment is reproduced hereinbelow: "Thus for the foregoing discussion, we declare para.7 of the Prospectus discriminatory, hence ultravices to the conclusion and unworkable, thus of no legal effect. And as a result, admissions granted to all students on basis of para.7 are declared null and void and case is remanded to the Selection Committee for making fresh selection on merits, keeping in view the observations made hereinabove. Parties are left to bear their own costs."
2. Brief facts giving rise to instant petitions are that in pursuance of Prospectus of Bolan Medical College, Quetta for the year 2000-2001 petitioners and private respondents being bona fide local/domicile students applied for admission in the first year M.B.,B.S. Professional against the seats allocated as per the provisions of paragraph 7 of the Prospectus, it may be noted that as per the scheme of this paragraph the Government of Balochistan has allocated seats in the College on the basis of open competition, however, with a distinction that 70% seats were reserved for those students who got their education (Matriculation and F.Sc.) from outside their' native Districts and 30% were allocated for those candidates who got their education (Matriculation and F.Sc.) from their native districts. The respondents did receive education outside their native districts but could not compete on merits against 70% seats, whereas the petitioners got admission on 30% reserved seats as they had passed F.Sc Examination from their native districts. The petitioners were admitted in the Bolan Medical College and they have started receiving education but in the meanwhile the respondents challenged their admissions principally on the ground that of 30% seats out of the total seats for the students who have qualified their Matriculation and F.Sc.
Examinations from their native Districts is discriminatory, unreasonable and irrational. The petitioners contested the petitions on various grounds. A learned Division Bench of Balochistan High Court issued Writs against them as well as official respondents by means of impugned judgment. As such instant petitions have been filed.
3. Mr. K.N. Kohli, learned counsel contended that the impugned judgment has been passed contrary to the law laid down by this Court in the case of Mst.Attiyya Bibi Khan v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161) and Shireen Raza and others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others (2002 SCMR 1218).
4. Raja M. Afsar, learned counsel appearing for petitioner in Civil Petition No,61-Q/2002 followed the line of arguments advanced by Mr.K.N. Kohli, Advocate-on-Record.
5. Mr. H.Shakil Ahmad, Advocate Supreme Court learned counsel for the respondents in reply to the arguments of the petitioners' counsel stated that no discrimination is possible between the students who passed requisite examinations from native and non-native Districts for admission in M.B.,B.S. First Professional because some of the students who applied for admission against 70% reserved seats because they got education in the Government institutions outside their districts on merit against reserved seats like Cadet Colleges etc. Therefore, they cannot be outclassed for such reasons. Therefore, allocation of 30% seats for the students who passed examinations from their native districts is discriminatory and learned High Court has rightly struck down Paragraph 7(A)(B) of the Prospectus.
6: It is to be noted that learned High Court has read Article 25 together with Articles 22(4), 37 and 38 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the "Constitution") to form opinion that classification between candidates who passed examinations of Matriculation and F.Sc. From their non-native and native districts is unreasonable whereas according to majority opinion in Mst.Attiyya Bibi Khan (ibid) was that reading of Article 25 alongwith Articles 2-A, 22 and 37-C of the Constitution would show that only such classification could be deemed reasonable which fosters the objects of the Constitution i,e, to make higher education available on merits and at the same time to accommodate the interests of the socially or economically disadvantaged section of the people for the purpose of fostering genuine rather than nominal equality. In this sequel reference to the case of Gul Khan v. Government of Balochistan through Secretary, Education and 4 others (PLD 1989 Quetta 8) would not be out of context because in this report a learned Division Bench of Balochistan High Court examined provisions of Article 22(4) of the Constitution with reference to admission policy regulating admission to an educational institution and held that this Article empowers a public authority for making provisions for advancement of socially backward class of citizens. It was further held in this case with reference to Article 25 of the Constitution 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. It was further held, that equal protection of law envisages 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. It would be beneficial to reproduce hereinbelow the principles of equal protection of law referred to hereinabove as it has been recapitulated by this Court in the case of I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041:--
(i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test responsibilities of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based---
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
7. The above principles have been reiterated in number of judgments prominently in the cases of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445. It may be noted that Principle No,(vii) quoted hereinabove provides two bases for reasonable classification i,e, an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out and that the differentia must have rational nexus to the object sought to be achieved by such classification. This Court in the case of Mst. Attiyya Bibi Khan
(ibid) has held as follows:-- "11. However, with respect to disabled persons and candidates from the backward and underdeveloped districts and FATA, position is altogether different. It must be remembered that the contempt of a reasonable classification is premised on the principle that the object is not to secure nominal or formal equality but genuine equality amount different classes or groups of citizens. As observed by the Supreme Court of India in Dr. Pradep Jain v. Union of India AIR 1984 SC 1420, where actual inequality exists, the State must resort to compensatory State action and, therefore, scheme of admission in Medical Colleges who make a certain percentage of reservation for those having suffered some initial disadvantage owing to their social and economic conditions. In the same spirit articles 22 and 25 of the Constitution permit special provision to be made for women and children or socially or educationally backward and undeveloped classes. Therefore, reservation of seats for such category may be justified. It must, however, be pointed out that the benefit of such reservations should only be confined to those who have acquired their school and intermediate education from such less developed areas and not to anyone who manages to obtain a domicile certificate from that area. I am fortified in my view by an order rendered by a Bench of this Court in C.P.L.As. Nos.474-P and 494-P of 2000, decided on 2nd January, 2001, similarly, reservation of seats for disabled persons is eminently reasonable inasmuch as because of their disabilities these candidates could not compete with their more fortunate compatriots and, therefore, it is the obligation of the State to take some compensatory action for them to fulfill its obligation to create genuine equality amongst all classes of citizens. There is yet another class of students which deserves serious consideration i,e, reservation of seats for foreign students domiciled and studying in foreign countries on the basis of reciprocity. Likewise, a provision can legitimately made for children of Afghan Refugees who otherwise might not be eligible for admission on open merit basis. Students belonging to Azad Kashmir and Northern Areas also might fall within the purview of socially, economically and educationally less developed areas and they deserve some kind of indulgence till such time those territories come up to the level of developed areas."
8. The above judgment came up for consideration in Review Petitions filed by Shireen Raza and others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others 2002 SCMR 1218 wherein with reference to the students of backward areas including Azad Kashmir and Northern Areas it was held as under:-- "2. Petitioners seek to review the declaration of this Court to the extent of students domiciled in Azad Kashmir and Northern Areas on the ground that they were not parties to the writ petitions before the Lahore High Court, out of which the appeals arose and also for the reason that neither there is any Medical College established in such areas nor well-quipped schools and colleges for imparting premedical education. Another ground pointed out by learned Attorney-General, which must be taken note for partial review of the judgment appears to be the glaring fact that students settled in Azad Kashmir do not hold and possess the domicile of any place in. Pakistan. There can be no cavil with the proposition that the students of Northern Areas and Azad Kashmir were neither arrayed as parties to the proceedings before the Lahore High Court nor had any of them appealed against the impugned judgment of the Lahore High Court before this Court. On this sole ground, which in our view is by itself sufficient, we are inclined to accept the prayer and allow partial review of the judgment dated 22-3-2001 with the observation that condition of receiving pre-medical education in such areas attached to reserved seats in the earlier judgment shall not apply to students of Azad Kashmir and Northern Areas."
9. It is to be observed that prior to present paragraph 7 incorporated inthe Prospectus of Bolan Medical College for the year 2000-2001 candidates used to get admission on the basis of reserved quota district-wise except few seats which were earmarked for provincial merit basis but on the pronouncement of judgment in Mst. Attiyya Bibi Khan (ibid) and also taking into consideration admission of review petition referred to hereinabove the Government of Balochistan allocated seats for admission in Bolan Medical College by creating two different classes under the different circumstances namely 70% seats were earmarked for those candidates who got their education from outside their native districts and 30% seats were allocated to those candidates who got their education (Matriculation and F.Sc.) from their native districts. There is a rational behind the distribution of seats viz. 30% and 70% namely majority of the students do manage their education including Matriculation and F.Sc. From outside their native districts like Quetta etc. Where more congenial educational atmosphere is available on account of which they receive education in altogether different circumstances comparing to the students who for lack of sufficient financial means receive their education including Matriculation and }.Sc. Within their native districts under less congenial educational atmosphere and facilities like far-flung areas of Dera Bugti etc. It is an admitted fact that the students for whom 30% seats have been allocated fall in that class/category who are left with no option but to receive education in their native districts on account of financial compulsion or some other social reasons, therefore, the allocation of the seats at the rate of 70% and 30% was made keeping in view the intelligible differentia because it was all the more necessary to accommodate those students who had received education in less congenial educational atmosphere and for such reason they cannot compete with the students who had received education of Matriculation and F. Sc. In a better and renowned educational institutions situated in urban areas like Quetta etc. It may be noted that majority of students for whom 30% seats have been allocated belong to rural areas, therefore, there were sufficient basis or reasons to create two classes for admission in Bolan Medical College one for those students who have passed their Matriculation and F.Sc. Examination from outside their native districts for the reasons mentioned hereinabove and the other for those who have received such education within their native districts. Thus we are of the opinion that the classification on intelligible differentia was struck in accordance with the pronouncement made by this Court in the cases of Mst. Attiyya Bibi Khan (ibid) and Shire.En Raza and others (ibid). Therefore the learned Division Bench of Balochistan High Court had wrongly declared paragraph 7 of the Prospectus as ultra vires the provisions of Articles 22(4), 25, 37 and 38 of the Constitution.
10. Mr. H. Shakil Ahmad, learned counsel for respondents stated that it is the Provincial Government, which can frame a policy for admission in the educational institutions. According to him as far as the Governor of the Province is concerned he does not enjoy such authority under the Constitution, as such allocation of the seats at the ratio of 70% and 30% being contrary to Article 37(a) of the Constitution was not sustainable.
11. It may be noted that after Military take-over on 12th October, 1999 the Chief Executive vide Order V of 1999 dated 30th October, 1999 has specified that the powers and functions of the Governor under the Constitution of Islamic Republic of Pakistan shall be the same as of a Chief Minister under the Constitution including the financial powers of Chief Minister and such other powers and functions as may be conferred upon him by the Chief Executive. Therefore, in view of this provision we are of the opinion that the Governor of Balochistan was within his competence to promulgate policy for admission in Bolan Medical College and argument so raised by Mr. H. Shakil Ahmad in this behalf has no force, as such the same is repelled.
12. No other point was argued by the learned counsel for the parties. Thus for the foregoing reasons instant petitions are converted into appeals and allowed. The impugned judgment dated 9th September, 2002 is set aside leaving the parties to bear their own costs.
13. The petitions were disposed of vide short order dated 17th October, 2002 and above are the reasons for the same.