MUNAWAR ALI Versus SECY. TO GOVT. OF PUNJAB

SARDAR MUHAMMAD IQBAL. C. J : This judgment will dispose of Writ Peti tions, bearing Nos. 2317, 2318, 2351 and 2352 of 1974 and Nos. 36 and 154 of 1975, which are based on similar facts and raise common questions . of law.

2. The Secretary to the Government of Punjab, Health Department,. invited applications for admission to the First Year M.B., B.S. Class of the Medical Colleges in the Punjab for the academic year 1974-75. He prescribed the application form and also issued instructions in the matter which were printed in the same booklet which contained the application form. Paragraphs 10 and 11 of these instructions, which laid down the criteria for . admission to the First Year M.B., B.S. Class read as follows :-

"10. CRITERIA FOR ADMISSION

Selection and admission will be made strictly on the basis of academic merit of F. Sc./B. Sc. on the following criteria :-

(i) F. Sc. (Pre-Medical Group) ........................................ ... ...... First Division.

(ii) B. Sc. (With F. Sc. (Pre-Medical Group) ... ...... First Division.

(iii) B. Sc. with F. Sc. (Pre-Medical Group) ... Second Division.

(iv) F. Sc. (Medical Group) ................................................. ... Second Division.

(v) F. Sc. (Medical Group) .................................................. ... .... Third Division.

(vi) B. Sc. with F. Sc. (Pre-Medical Group) ... .... Third Division.

A candidate will be considered in the First Division, if he/she has obtained 60 per cent. or more of the total marks and in the Second Division, if he/she has obtained 45 per cent. of the total marks, irrespective of the fact that the University or Board of Secondary Education concerned has placed him in competition shall be based on percentage of marks between the two categories .,of contestants.

11. RULES FOR WORKING OUT MERIT OF CANDIDATES

The following marks shall be added or deducted from the total marks of the candidates in order to prepare the final merit list :-

(a) Five marks will be added if the candidate has passed Matriculation Examination in First Division. The adjustment of marks of candidate will be made within the Division (i.e., 1st, 2nd or 3rd Division as the case may be). It will not enhance or lower the Division of a candidate in any case if his marks are increased or decreased due to adjustment.

(b) Those candidates who have passed senior cambridge in Grade `A' will be treated at par with Matric First Division i.e. 5 marks will be added to their actual marks obtained in the Intermediate examination.

(c) Five per cent. marks will be added marks in of F. Sc. Pre-Medical/ B. Sc. if a candidate has completed the National Service Scheme.

(d) Deduct five marks for each failure in F. Sc./B. Sc. Absence from an examination shall be considered as a failure unless it is, due to illness supported by a Medical Certificate duly accepted by the Board/University at the time of the examination.

(e) If a candidate has appeared second time, in F. Sc., or B. Sc. Exami nation in order to improve his Division, five marks will be deducted from the total of his improved marks. But if a candidate did not join the College after Matriculation and cleared the F. Sc. Examination in the normal period of two years from the date of his admission, it will be counted as first attempt.

(f) According to the adjusted marks whenever two candidates are bracketed, the one senior in age will be given preference over the other for purpose of admission."

3. The petitioners in all the cases before us had applied on the pres cribed forms and were thus candidates for admission in the Medical Colleges. The respondents had fixed 17th to 19th of December 1974, as the dates for interviews and Medical Examination of the candidates in the Office of the Principal, King Edward Medical College, Lahore. The petitioners filed these petitions alleging that they had passed F. Sc. Pre-Medical) Examination in the First Division and thus qualified for admission to a Medical College. but had not been issued interview calls, although some of the candidates who had passed their F. Sc. (Pre-Medical) Examination only in the Second Division had been called for interviews. The petitions came up for hearing before one of us (Muhammad Iqbal, C. J.) on the 19th of December 1974 when the learned Advocate-General, Punjab, was sent for and copies of the petitions given to him to obtain instructions. On the next date of hearing, viz., the 19th of December 1974, the learned Advocate-General conceded that some candidates who had passed their F. Sc. (Pre-Medical) Examination in the Second Division had, in fact, been sent interview calls, because they had received training in the National Cadet Corps. In this behalf, he placed reliance on section 29 of the National Guards Act (No. LXI) of 1973 to contend that the candidates who had received such training were to be given concession of 10 % more marks on the marks obtained by them in the F. Sc. (Pre-Medical) Examination and that when given this benefit, the total marks of such candidates became much higher than those of the petitioners .and for that reason, therefore, they had not been issued interview calls. On the ,other band, learned counsel for the petitioners argued that the National Guards Act was legislated by the National Assembly of Pakistan and thus being a Federal Act was ultra vires the Constitution because the Federal !Legislature bad no power to legislate in respect of any matter connected with education, which was a Provincial subject and was not include( either in the Federal Legislative List or in the Concurrent Legislative List; that the Act came into force on the 24th of December 1973 and the National Guards Rules, 1973, framed thereunder with effect from the 20th of March 1974, which prescribed the period of training in the National

Cadet Corps as two hundred periods, at a scale of 100 periods a year; and that since the period of two years had not by then elapsed there was no question of anybody having successfully completed the training and tile concession of 10 % marks contemplated by section 29 of the Act was not available to any candidate Upon that, the learned Advocate-General sought an adjournment to address arguments after obtaining further instruc tions. The case was adjourned to the 23rd of December 1974, and the res pondents directed to prepare two lists; one by giving the contemplated concession of 10 % marks, and the other without the same, so that on the decision of the writ petitions, either way, the announcement of the names of the candidates who were to be admitted was not delayed. Since in the event of acceptance of the writ petitions, some candidates, who had claimed benefit of 10% marks on the basis of their training in the National Cadet Corps, were to be affected, it was thought necessary to provide them also an opportunity of being heard. It was, therefore, notified through a procla mation in the Daily Pakistan Times and the Daily Mashriq that if any one of them wanted to join as a party be could do so by or before the 13th of January 1975. Some of the candidates have on their applications, been impleaded as respondents in these petitions. The interpretation of the National Guards Act and the Rules made thereunder being involved in the cases and the questions raised in the petitions also being of public impor tance, the Division Bench was constituted to hear and dispose of the same. When the cases came up for hearing on the 21st of January 1975. Lt.-Col. Ghulam Hussain, G. S. O. I., in the National Cadet Corps appeared in Court and made a request for adjournment on the ground that the Federal Government wished to be represented in the case and for that purpose had, to instruct the Attorney-General or the Deputy Attorney-General for Pakistan to appear in the cases. The petitioners having challenged the validity of the National Guards Act, 1973, the request was allowed and the case adjourned to the 27th of January 1975.

4. Mr. Shahzad Jehangir, who argued the case on behalf of the Deputy Attorney-General for Pakistan, took a preliminary objection to the maintainability of these petitions. He contended that under sub-clause (a) of clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, only an "aggrieved party" could make an application for issuance of a writ of mandamus. He placed reliance on Sajjad Haider v. -Government of West Pakistan P L D 1967 Lah. 938 wherein the terms "aggrieved party" and a "person aggrieved" were interpreted by observing that the same "do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made". It was also observed that "a 'person aggrieved' must he a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrong fully affected t is title to something", Mr. Shahzad Jehangir submitted that in the instant case the petitioners have not suffered any legal grievance ; that no decision has so far been pronounced which might have wrongfully deprived them of something or wrongfully refused them something, and that, there fore, the petitions were not maintainable in law. Sajjad Haider's case is, distinguishable froth the one in hand. In hat case, the petitioner had, by operation of a constitutional provision, retired from service on a particular day. He had no right whatsoever to continue in service thereafter. The competent authority had, however, the discretion to grant extension in service, but it refused to do so. In that context, it was held that since there was no right vesting in the petitioner to claim extension in service, be could not complain of any actionable wrong and was, therefore, not an aggrieved, person within the meaning of Article 98 of the then Constitution. Learned counsel then placed reliance on Muhammad Yunus v. Islamic Republic of Pakistan P L D 1972 Lah. 847. The facts of that case were that the Government of Pakistan declared the Oriental Insurance Building situate on Shahrah-e-Quaid-i-Azam, Lahore, as an enemy property, and the Custodian of Enemy Property invited tenders consequent upon a decision by the West Pakistan Enemy Property Management Board to sell this building. The petitioner offered a bid of rupees fifteen lacs whereas respondent No. 4, Messrs National and Grindlays Bank (Lloyds Branch), Lahore, gave the highest bid of rupees seventeen lacs. The highest bid of respondent No. 4 was accepted and the property sold to them. The petitioner attempted to maintain the petition by saying that he was a citizen of Pakistan; that he used to pay Income tax to the Government and as such was interested in the performance of duties by the public functionaries in accordance with law and was, therefore, an aggrieved person within the meaning of Article 98 of the 1962 Constitution. It was observed by the Court : "An advertisement inviting tenders for the sale ,of the property is not an offer but an invitation of an offer. The tender in law is only an offer for the purchase of the property and if the tender of a person, even if it is the highest, is not accepted, he cannot make a grievance of the fact. The offer for the sale of the property does not give right to the offerer for its purchase. A tender only when accepted constitutes a binding contract; and unless the contract comes into existence the mutual rights and obligations do not arise." It was in that limited context that it was said that "a `person aggrieved' must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had right to demand". But this was not all that was said in the case of Muhammad Yunus. In fact, the entire case-law on the subject had been reviewed, and it was held that "in order that a person is an `aggrieved person' within the meaning of Article 98 he may not have right in strict juristic sense but he must show that be had a 'personal interest in the performance of the legal duty' and that the non-performance of the duty is to result in the loss of some 'personal benefit or advantage or the curtailment of a privilege'." In so observing, reliance was placed on Fazal Din v. Lahore Improvement Trust P L D 1969 S C 223 wherein the view taken was "that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he bad a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise." The basis for admission to the First Year M. B., B.S. Class of the Medical Colleges is academic merit, to be determined with reference to the marks obtained by a candidate in his F.Sc. or B Sc. Examina tion. The petitioners in all these cases have passed F. Sc. Examination in the First Division. According to the rules of admission they have to he given preference even over the B Sc. First divisioners. The candidates who have passed F. Sc Examination in the Second Division will take their turn after the list of the candidates who have passed B. Sc. in the First Division is exhausted. The case of the learned counsel for the respondents is that if a candidate bad passed his F. Sc. Examination in the Second Division but had rendered training in the National Cadet Corps, be is to be given benefit of 10 % more marks, and if by adding such marks he gets 60 % of the total marks of F. Sc. he could compete with the candidates who had, passed their F. Sc. Examination in the First Division and would be considered for admission to a Medical College in preference to the one who had passed B. Sc. in the First Division. Further, he shall have pre ference in the matter of admission even as against a candidate who had, passed his F. Sc. in the First Division, but his marks are less than the marks of such candidate when so computed. Thus, if a candidate has obtained 630 marks (First Division) in the F. Sc. Examination, he will have to be ignored as against a candidate who got Second Division in F. Sc, Examination by obtaining 590 marks, because by adding 59 more marks (i. e., 10 % of the total marks obtained in the examination) his marks would come to 649. Therefore, the petitioners may not have a right in the strict juristic sense to be admitted in the Medical Colleges, but doubtless they have a "personal interest in the performance of the legal duty which if . . . . . performed in a manner not permitted by law would result in the loss of some personal benefit or advantage . . ." to them. In the circumstances it was competent for them to file Writ Petitions seeking an order against the respondents to restrain them from granting 10 % marks to the holders of the certificates testifying the fact that they had received training in National Cadet Corps. If the candidates who claim concession on the basis of such certificates are not entitled under law to such concessions, then, if the authorities concerned with the admission of the students to different Medical Colleges grant them this concession, they will be doing something which they are not permitted by law to do, and the petitions will undoubtedly be competent under clause (1)(a)(i) of Article 199 of the Constitution, which reads as follows :-

"199.-(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-

(a) on the application of any aggrieved party, make an order---

(i) directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a. Province or a local authority to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do."

The contention, in the circumstances, is untenable, and we would accordingly proceed to record our findings on other questions of law arising in these cages.

5. Learned counsel for the petitioners, and those appearing on behalf of the Federal Government, the Provincial (government and the candidates who claim the aforesaid concession are also agreed that the entitlement or otherwise of such candidates can only be determined with reference to section 29 of the National Guards Act, 1973. Therefore, in order to. appreciate their respective contentions so far as the scope of section 29 of the Act is concerned, it is necessary to examine the relevant provisions of the Act and the Rules.

The National Guards Act, 1973, came into force with effect from the 24th of December 1973, the date on which the Notification under subsection (3) of section 1 of the Act was issued. The National Guards Rules, 1973, which were made on the 18th of March 1974, were notified in the Gazette of Pakistan (Extraordinary) on the 20th of March 1974. National Guards, under section 3 of the Act, were to consists of the following four types of forces :----

(1) Mujahid Force ;

(2) Janbaz Force ;

(3) National Cadet Corps ; and

(4) Women Guards.

Under section 29 of the Act, the concession of 10% marks is allowed only to the members of the third type of force, namely, the National Cadet Corps (hereinafter called the N. C. C). Chapter V of the Act deals with the constitution of the National Cadet Corps (section 25); constitution and disbandment of units (section 26); eligibility of the personnel to join N. C. C. (section 27); their training (section 28) and the concessions allowed to them (section 29). For facility of reference, sections 25 to 28 of the Act are reproduced below ;----

"(25) Constitution of National Cadet Cops.-There shall be raised and maintained, in accordance with the provisions of this Act, a force to be designated the National Cadet Corps.

(26) Constitution and disbandment of units.-The Federal Government, or any officer or authority empowered by it, in this behalf, may, constitute for any college one or more units to be selected from college students and members of the college staff and may disband or reconstitute any unit so constituted.

(27) Eligibility.-All male college students and members of the college staff who meet such standards of physical health as may be prescribed may offer themselves for training.

(28) Training.-Necessary training, including yearly camps, for a period to be determined by the prescribed officer in this regard shall be imparted to all students and members of the college staff selected for training."

It is manifest from the above provisions of the Act that the power to constitute for any college one or more units to be selected from college students and members of the college staff vests in the Federal Government, or any officer, or authority empowered by it. Under section 39 of the Act the Federal Government is empowered to make rules for carrying out the purposes of the Act, and by such rules it could inter alia provide for the period and the manner in which persons could be enrolled; prescribe the authorities by whom a unit might be constituted, and also provide for the training. Again, under section 40 of the Act the Chief of the Army Staff could make regulations providing for all details connected with the organisation and personnel of the force and for their training etc. Thus, the training could be possible only if the Federal Government or an officer, or authority empowered by it, had constituted one or more units for any college, consisting of the college students and members of the college staff who must meet such standard of physical health as might be prescribed; obviously by rules. What was the duration of the training was to be determined by the "prescribed officer" i.e., the officer designated by rules. Therefore, unless the rules had been made, it was not possible either to enrol the trainees or to commence with the training itself. As stated already, the National Guards Rules, 1973, which were made on the 18th of March 1974 were notified on the 20 th of March 1974. Rule 10 laid down the procedure for joining the N. C. C. `The standard of physical health was provided in Schedule d appended to the Rules. Rule 17 prescribed the "Director-General" as the "officer" for the purposes of section 26 of the Act. And, "Director-General" as defined in subsection (5) of section 4 of the Act meant "Director-General, National Guards, appointed by the Federal Government". The duty of determining the "period" for which "training including yearly camps" was, by section 28 of the Act placed on the "prescribed officer".

It was conceded on behalf of the Federal Government that no officer had been prescribed for the purposes of section 28 of the Act. Therefore, we have to see whether there is any other provision in the Act or the Rules laying down the "period" for which "training, including yearly camps" was to be imparted to the students and members of the collage staff selected for N. C. C. Indubitably, there is no such provision in the Act itself. Rule 22 of the Rules is, however apt to the situation. It lays down the "duration of training" to be undergone by the different types of forces. So` far as N. C. C. is concerned, sub-rule (3) of this rule provides that the members of the N. C. C. "be imparted such training as may be prescribed by . regulations, at a scale of 100 periods a year. total being 200 periods, which shall also include the training in yearly camps . . . . . " With this provision in the Rules, the term "prescribed officer" appears to be a false conception because what was required of the "prescribed officer" to do had in fact, .been done by the statutory rules. To sum up, therefore, the constitution of the National Cadet Corps was possible only after the 20th of March 1974 when the Rules came into force and since the Federal Government had admittedly not constituted any unit before that date, the same could be constituted by the Director-General. National Guards, who was again so empowered, for the first time, by rule 17 of the Rules; the eligibility on the ground of physical health could also be determined after that because the standard of health was, as stated above, provided only by rule 19; the duration of training was too provided by rule 22; and the details of training had to be determined by regulations made by the Chief of the Army Staff under section 40 of the Act.

6. The foremost question which now arises for determination is as to when the concession of 10% marks under section 29 of the Act can be claimed by a person. Since the Act gives concessions to the persons who have received training in the N. C. C., we are first to ascertain whether the .concessions claimed are within the scope of the terms of the Act itself. Section 29 which is the only relevant provision in this behalf lays down as follows:--

"29. Concessions.-On successful completion of training, a person shall be entitled to the following concessions, namely : ----

(a) he shall, if otherwise eligible, be given preference for selection for grant of commission in the Armed Forces of Pakistan ;

(b) he shall, if otherwise eligible, be given preference for appointment to any post under a Government, a Government-controlled organiza tion or a local authority ; and

(c) he shall, in an examination held for the purpose of admission to any institution of advanced studies, be awarded ten per cent. of the marks he obtains in the examination."

The plain meaning of this provision is that the concessions allowed by it can be claimed as of right by a person on successful completion of training.

As to when the training completes is not explained by the Act. However,' rule 22(3) prescribed the total period of training at 200 periods, at a scale' of 100 periods a year. Obviously, successful completion of training mean completion of 200 periods. But, the candidates for admission to the Medical Colleges claim concession of 10 % marks on the basis of the certificates granted to them under proviso to sub-rule (3) of rule 22 of the Rules. Two certificates are contemplated by sub-rule (3) of rule 22. The one in form 'D' can be issued under sub-rule (3) on the successful completion of the training, which means completion of 200 periods, and the other one under proviso to sub-rule (3) on completion of only fifty per cent. of the total training. The proviso reads as follows :-----

"Provided that if a member of the Corps who is undergoing the training is to apply for the grant of commission in the Armed Forces of Pakistan, or to apply for appointment to any post under a Government, a Government-controlled organization or a local authority, or to seek admission to any institution of advance studies, he may be granted such certificate if he has successfully completed at least fifty per cent. of the total training periods prescribed for such certificate."

Proviso to sub-rule (3) of rule 22 has thus digressed a little, inasmuch as it authorizes the grant of a certificate on successful completion of only fifty per cent. of the total training periods, if a member of the Corps who is undergoing the training is to seek admission to any institution of advance studies, whereas under sub-rule (3) of rule 22 the certificate can be granted on successful completion of the entire training. A certificate may granted under proviso to sub-rule (3) of rule 22 of the Rules and we should have no objection to the same, but the point here is as to what can be further utility and whether any benefit can be claimed on the basis of such a certificate. Section 29 clearly lays down that "on successful completion of training, a person shall . . . . . in an examination held for the purpose of admission to any institution of advance studies, be awarded ten p per cent. of the marks he obtains in the examination". The words "on successful completion of training" leave no room for doubt that the concession is available only after a person has successfully completed the training. The training, as observed already completes after a person has attended 20 periods, at a scale of 101 periods a year. The training does not complete if a person has attended only 100 periods. Thus, when it is imperative to award ten per cent. marks to a person if he has successfully completed the training, it is clearly prohibited not to grant any such concession unless the training has, in fact, been completed successfully. Again, in the' advertisement itself it was stated that the concession of ten per cent. marks was available "to the candidates who have obtained the certificate after completing national cadet corps training" It does not talk of the certificate, issued under proviso to sub-rule (3) of rule 22, rather lays down very specifically that only those candidates could benefit who had obtained they certificates "after completing national cadet corps training", meaning thereby that they should have attended all the 200 periods of training. In the circumstances, we are of the view that no benefit can be claimed under section 29 of the Act by any person who is the holder of a certificate issued to him under proviso to sub-rule (3) of rule 22, on completion of only fifty, per cent. of the total training periods prescribed for such certificate.

Mr. Shahzad Jehangir vehemently contended that the intention of the low-givers had been to give concessions contemplated by section 29 to a person who completes only fifty per cent. of the total periods of training. We are to take cognizance of the intention of the law-givers as has been translated into words of the enactment. If the Legislature had intended to extend the concessions to those under-trainees who had completed only fifty per cent. of the periods, there could be no bar for them to make a clear provision to that effect, and, in that event, the words used in section 29 would not have been the same as used now. Moreover, the term " . . . . if a member of the Corps who is undergoing the training . . . . . " as used in the proviso to sub-rule (3) of rule 22 is also significant.

Mr. Shahzad Jehangir also contended that since under subsection (3) of section 39 the Rules, when framed, are deemed as if enacted in the Act itself, the proviso to sub-rule (3) of rule 22 should be read as a proviso to section 29 of the Act. The rules could be framed in respect of the matters detailed in subsection (2) of section 39, but the same could not be inconsistent with any provision of the Act. Since the Legislature had pronounced in very clear and unequivocal terms in section 29 of the Act that the concessions contemplated therein could be claimed only on "completion of successful training" no provision in the Rules could go beyond that and lay down that such concessions could be claimed even if a person had completed half of the training. In case of inconsistency between the Act and the Rules, which are to be deemed to be part of the Act, the Act must prevail. In The Institute of Patent Agents v. Lockwood 1894 A C 374 Herschell, L. C., observed: "No doubt there might be some conflict between a rule and a provision of the. Act. Well there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best as you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other. That would be so with regard to the enactment, and with regard to rules which are treated to be as if within the enactment. In that case, probably the enactment itself would be treated as the governing consideration and the rule as subordinate to it." (The underlining *is by us). These observations were noted with approval by Viscount Dunedin in the case of Minister of Health v. The King 1931 A C 494. Relying on these Reports, a Division Bench of the High Court, in Ghulam Rasul Shah v. Chief Land Commissioner P L D 1967 Kar. 618 while dealing with the contention that an order issued by the Land Commission under clause (5) of paragraph 4 of Martial Law Regulation No. 64 had, by operation of law, to be deemed to form part of the Regulation itself, and being later in date should prevail over the earlier provisions of the Regulation, took a similar view by observing: "The words 'such order shall be deemed to form part of this Regulation and have effect accordingly' in paragraph 4(5) of the Martial Law Regulation No. 64 do not have the effect of rendering such an order as the main enactment, so as to make it prevail on the provisions of the Regulation itself. If there is inconsistency between the Regulation, which is the main enactment, and the rules thereunder which rules are to be deemed to be part of the main enactment itself, then the two provisions of the enactment and the rules should be reconciled as best as they can. But if the conflict is incapable of resolution, the rule which should apply is, that the principal enactment should be treated as the main provision and the orders or rules made under the enactment, as subordinate provisions. Thus, if there is any conflict between paragraph 7 of Martial Law Regulation No. 64, and the order made by the Commission under paragraph 4(5) of the Regulation, it is the order which should give way to the Regulation, so that this order cannot have the effect of modifying or altering the provisions of the Regulation itself." In this view of the matter, the words "all rules made under this Act shall be published in the official Gazette and on such publication shall have effect as if enacted in this Act" as employed in subsection (3) of section 39 of the Act do not have the effect of rendering the proviso to sub-rule (3) of rule 22 as the main enactment so as to make it prevail over section 29 of the Act.

7. It is also contended on behalf of the petitioners that the candidates could not be issued certificates even under proviso to sub-rule (3) of rule 22 because they had not received training within the meaning of the National Guards Act and the rules made thereunder. Section 40 of the Act lays down that the "Chief of the Army Staff may make regulations, not inconsistent with this Act and the rules, providing generally for all details connected with the organization and personnel of the Force and for duties, training, clothing, courses of instruction, equipment, pay and allowances, medical treatment, pensionary benefits, honours and awards, leave conveyance and age limits for persons offering themselves for enrolment or training under this Act." Counsel for the respondents have not been able to bring on record any regulations which should have been framed by the Chief of the Army Staff as required by section 40 of the Act. However, Lt.-Col. Ghulam Hussain, G. S. O. I, in the National Cadet Corps, who remained present in Court throughout the proceedings in these cases, placed before us on the last date of hearing certain papers bearing initials of the Chief of the General Staff wherein it was mentioned that in pursuance of National Guards Act No. LXI of 1973, military training under National Cadet Corps scheme was introduced in October 1973; that according to the Act N. C. C. training had to be extended to all the colleges in the country yet because of obvious limitations imposed due to non availability of training staff and finances the same had to be completed in phases, and that accordingly phase II of the scheme was being introduced with effect from the start of the academic year, i.e., September 1974. Our attention was also drawn to letter No. 4142/6/NG/NCC, dated the 16th of August 1973 signed by Ch. Abdul Mujib on behalf of the officiating Director-General, National Guards, addressed to different authorities, wherein it was stated: "National Cadet Corps training/recruit ment directives are forwarded herewith". We have also seen the "Training Directives" which are again signed by Ch. Abdul Mujib. On the face of this document, we cannot construe it as the regulations made by the Chief of the Army Staff, as required by section 40 of the Act, because if a statute entrusts to the care of a particular authority the power of making any kind of regulations, it is for that authority alone to decide what regulations are necessary. In the file placed before us by Lt.-Col. Ghulam Hussain, there is nothing to show that even these "Training Directives" had received approval of the Chief of the Army Staff. Moreover, the Army officers themselves call this document merely as "Training Directives" and not as "regulations". We have, therefore to proceed on the assumption that no regulations, as required by section 40 of the Act were ever made by the Chief of the Army Staff.

Mr. Shehzad Jehangir argued that the power conferred by section 40 of the Act on the Chief of the Army Staff was discretionary inasmuch as at was for the Chief of the Army Staff to decide whether or not he should make the regulations. According to him, the word "may" as used , ink section 40 is not mandatory in nature. From the nature of the English language the word "may" can never mean "must"; it is only potential, but when it is employed there is another question to be decided, viz, whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power. If not, the exercise a discretionary. But when the power is coupled with a duty of the person` to whom it is given to exercise it, then it is imperative. Sub-rule (3) of rule 22 in the first instance specifies that the members of the N. C. C. are to be imparted "such training as may be prescribed by regulations" and at the second place entitles the trainees to a certificate set out in form "D" on the successful completion of such training". The words "such training" are significant enough and pre-suppose the determination, by regulations, of the details of, and the manner in which the training is to be imparted. Even if it be assumed that the power conferred by section 40 was discretionary, its exercise became imperative when by the rules further course of the scheme was left dependent on the regulations to be framed by the Chief of the Army Staff. We have no doubt that if the Legislature gives power to an authority to do something, it imposes a duty at the, same time, by necessary implication, to do everything which is indispensable for the purpose of carrying out the purpose in view, on the principle that ubi aliquid conceditur, conceditur etiam td sine quo res ipsa non esse potest (where anything is conceded, there is conceded also anything without which the thing itself cannot exist). The object of the Act was to form National Guards. It prescribed the way in which it was to be done. The training, should have, therefore, been imparted as laid down in the Act and the Rules, the latter also having the same force as the Act itself, save to the extent of inconsistency. The failure to make regulations, in these circumstances, was fatal, and no training could be imparted without first making such regulations.

Mr. Shehzad Jehangir also contended that since the Proclamation of Emergency was in vogue, it should be deemed to be a valid and sufficient excuse for not making the regulations. It is not the case of the respondents that the performance of the formalities prescribed by the Act and the rules had been rendered impossible by any circumstance over which the person empowered to frame the regulations had no control. The contention is devoid of force.

8. We are also conscious of another aspect. The duration of training was, for the first time, prescribed on the 20th of March 1974 when the National Guards Rules, 1973, were notified in the official Gazette. The training, as envisaged by the Rules could, therefore, start from a date after the 20th of March 1974, or, at best, with effect from that date, but, in no circumstance, from a date prior to that. Lt.-Col. Ghulam Hussain made a categorical statement in Court that all the 117 certificates granted to the' under-trainees bad been issued under proviso to sub-rule (3) of rule 22 because none of the candidates had had training for more than one year ; that all the certificates so issued pertained to the training of 100 periods which included the periods of training even prior to the enforcement of the National Guards Act in December 1973 ; and that none of the candidates had completed 100 periods of training after the enforcement of the Rules in March 1974. Thus, the training which preceded the date of enforcement of the National Guards Act under which N. C. C. was, for the first time, constituted, is not the tame as conceived by the Act. Furthermore, section 27 read with rule 10 which deal with the eligibility of persons to join N. C. C. laid down very specifically that a male college student and a member of the College Staff could offer himself for training in N. C. C. only if he could meet the standard of physical health. The standard of physical health was, for the first time, fixed vide Schedule I to the Rules. Therefore, there was no question of any person joining N. C. C. before the enforcement of the Rules, I.e., 20th of March 1974. The certificates, on these premises also, lose all importance, the same being not in accordance with law. And, in this view of the matter, the concessions contemplated by section 29 of the Act cannot be availed of by any person, on the basis of such certificates issued under proviso to sub-rule (3) of rule 22 of the Rules.

9. Assuming for a moment that the certificates issued under proviso to sub-rule (3) of rule 22 are valid, and concessions contemplated by section 29 of the Act can be claimed on the basis of the same, then too, in the circumstances of the present case, the persons who are candidates for the admission to the First Year M. B., B. S. Class of Medical Colleges cannot benefit by the same for another reason also. Under section 29, a person, on successful completion of training, is to be "awarded ten per cent. of the marks he obtains in the examination" "held for the purpose of admission to any institution of advanced studies". The language of this provision does not admit of any ambiguity whatsoever and the concession could be claimed if an Examination was held for the purpose of admission to the Medical Colleges. Admittedly, no such examination has so far been held, nor one is in contemplation of the authorities concerned. Mr. Shehzad Jehangir attempted to argue that the word "examination" in clause (c) of section 29 is referable to the examinations of F. Sc. and B. Sc., as the case may be, and not to the examination to be held by the Committee selecting the students for admission to the Medical Colleges. Reliance, in this behalf, was also placed on the following part of the advertisement by the Health Department of the Punjab Government whereby applications for admission to Medical Colleges were invited :-

"10 % marks of the secured marks in F. Sc./B. Sc. will be awarded to the candidates who have obtained the certificate after completing national cadet corps training. These candidates must produce the original certificate issued to them at the time of interview."

The National Guards Act, 1973, by the provisions contained in its section 29 confers exceptional privileges on the personnel who receive training in National Cadet Corps. These concessions correlatively trench on general rights of the citizens of the country. And, rights, whether public or private, cannot be hampered by mere implication from the language used in an enactment and, therefore, the National Guards Act which on the one hand., gives different kinds of concessions to a particular class of persons, on the other affects to the same extent, the rights, advantages and privileges having accrued to a great number of citizens in the ordinary course of things, has to be construed strictly ; nothing can beholden to come under its operation that is not expressly within its letter and spirit. Thus, if we place limitation on the clear and unequivocal words used in section 29 of the Act, viz., "examina tion held for the purpose of admission to any institution of advanced studies" the same do not, in our view mean the F. Sc. or the B. Sc. examinations, but the one which may be held for the purpose of admission to any institution of advanced studies. The fact that a different construction is placed by the l Department on this provision cannot, is any way, bind our judgment Which, we think, is in accordance with the letter of the law. For this reason also, the candidates who are holders of the certificates issued under proviso to sub-rule (3) of rule 22 cannot claim concession under section 29 of the Act for the simple reason that no examination has been held for admission to the Medical Colleges of the Punjab.

10. Learned counsel for the petitioners attempted to assail the vires of the Act, and contended that education was a concern of the respective Provincial Governments, that it did not fall in any of the items of the Federal Legislative List and the Concurrent Legislative List; that, therefore, the Federal Legislature was not competent to legislate in respect of education, or any matter connected therewith ; that the National Guards Act, 1973, being indubitably a federal legislation was ultra vires the Constitution of the Islamic Republic of Pakistan, 1973, to the extent it trenched on the domain of the Provincial Legislature ; that on these premises the provisions of section 29(c) had no application, and that, therefore, it was not competent for the respon dents to give ten per cent. marks to the persons who were holders of the certificates which testified their having received training in the National Cadet Corps. While raising this contention, the counsel for the petitioners appeared to be oblivious of the provisions of Article 232 of the Constitution. Under Clause (1) of Article 232, the President is empowered to issue a Proclamation of Emergency if he is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control. The constitutional provision in sub- clause (a) of clause (2) of Article 232 furnishes complete answer to the contention. It lays down as follows :---

"(2) Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force,-

(a) Parliament shall have power to make laws for a Province, or any part thereof, with respect to any matter enumerated in Part II of the Federal Legislative List or the Concurrent Legislative List or with respect to any matter not enumerated in either of those Lists, as if it were a matter specified in Part I of the Federal Legislative List.

The President of Pakistan had issued the Proclamation of Emergency which still subsists. Therefore, it was well within the competence of the Federal Legislature to legislate in respect of any matter not enumerated in either of the Federal Legislative List and the Concurrent Legislative List, let alone in respect of a matter connected with education. The contention is destitute ^F any legal foundation.

11. In the view of the matter we take, we would hold that since no examination is provided for admission to Medical Colleges, clause (c) of section 29 of the National Guards Act, 1973, does not apply, and even if it had been applicable none of the candidates would have been entitled to its benefit because admittedly they had not had the complete training of two years. They were also not entitled to any certificate under proviso to sub-rule (3) of rule 22 because admittedly none of them had completed fifty per cent of the total training periods after the enforcement of the National Guards Rules, 1973, on the 20th of March 1974.

12, The Writ Petitions are accordingly accented and the respondents are restrained from giving effect to the certificates which lave boon issued under proviso to sub-rule (3) of rule 22 of the National Guards Rules, 1973, and a direction is issued to them to admit the candidates without giving benefit of 10% marks to any candidate, as envisaged by clause (c) of section 29 of the National Guards Act, 1973. There shall, in the circumstances, by no order as to costs.

13. Before concluding we would like to express our appreciation of the assistance rendered by all the counsel in the decision of this case, and especially of Mr. Shehzad Jehangir's vigorous, all-round and comprehensive advocay of exceptional merit in a case of such great complexity.

S. A. H, Petitions accepted.