MISS KHOLA JABEEN AND 2 OTHERS Versus GOVERNMENT OF N.W.F.P. THROUGH SECRETARY, HEALTH DEPARTMENT, PESHAWAR AND 5 OTHERS , Mian Mohammad Younas

ABDUL HAKEEM KHAN, J. ‑Miss Khola Jabeen and two others have moved this Constitutional petition praying for the quashment of the nomination made by the Government of N.‑W. F. P. (respondent No. 1) in respect of Farha Najibullah and three others, who appear as respondents 3 to 6, for admission in the 1st year M. B., B. S. Class (Session 1975‑76) in Fatima Jinnah Medical College for Women, Lahore. They also seek a direction that respondent No. 1 should nominate them in the place of respondents 3 to 6.

2. The main ground on which an order of this Court is sought is that while the petitioners are First Divisioners, respondent No. 1 has nominated respondents 3 to 6 who are Second Divisioners and as such the nomination was not only mala fide but highly capricious against all canons of justice, equity and good conscience. It has also been added that nomination made by respondent No. 1 was violative of Article 22 of the Constitution.

3. It may be mentioned that respondent No. 2 to the petition is Principal, Fatima Jinnah Medical College for Women, Lahore.

4. Since Sardar Fakhre Alam, the learned counsel for respondents 3 and 4 submitted that seats made available to the N.‑W. F. P. in the Prospectus of 1974‑75 were 9, he referred to paragraph 4 of the prospectus at page 15 the nomination of four respondents could not be struck down. The petitioners could still hope for nomination by the Government. This stance of the learned counsel is incorrect. The communication received from respondent No. 2 which is on pages 25 and 26 of the record puts the number of seats made available to the N.‑W. F. P. at four and in this she is supported by a decision of the Government of Punjab as contained in the attested copy on page 27. That only four seats were allocated to N.‑W. F. P. is a fact which is admitted by respondent No. 1 as well. A reference to paragraph 2(c) of the parawise comments supplied by him should be conclusive. In this context we should like to observe that though the allegations of the petitioners, namely, that nomination was indicated to be on merit basis have been denied in unequivocal terms, it is conceded that a list of candidates was, however, prepared. The photostat copy of the list is on pages 52 and 53 of the record and it will be seen that while the three petitioners are mentioned at Serial Nos. 3, 5 and 9, respondent No. 5 appears at Serial No 18, the rest of the respondents do not appear on this merit list. We were told at the Bar that the candidates other than respondent No. 5 had not even made formal applications. The very fact that at the Bar the learned counsel for respondent No. 5 submitted that his client comes in merit just after the three petitioners and that if relief is given to the petitioners, a direction in her respect may also be made, would show that respondents 3, 4 and 6 are not in a position to allege that in the order of merit they could beat the petitioners.

5. The learned Advocate‑General who appeared for respondents 1 and 2, Sardar Fakhre Alam, Advocate who appeared for respondents 3 and 4, Mian Muhammad Yunas, Advocate who appeared for respondent No. 5 and S. Masoom Shah, Advocate who appeared for respondent No. 6 have laid great emphasis on paragraph 9 of the Prospectus for 1974‑75 which is admittedly valid for admission to 1975‑76, excluding of course the number of seats allocated to the N: W. F. P., and say that the seats meant for N: W. F. P. were to be filled in by the Government by means of nomination and it was, therefore, a discretion which they have exercised and for that reason this Court cannot interfere in the exercise of its Constitutional jurisdiction. The learned counsel elaborated that Article 199(1)(a)(i) postulates a direction from this Court only where a thing not permitted by law was done or to do anything which was required by law to be done. They further submitted that the petitioners could also not invoke Articles 4 and 25 of the Constitution, for they were not in a position to show that law had been contravened which expression in their view was restricted to concrete law, that is to say, statute law, Rules and Regulations on the subject.

6. The premises on which the petition is being defended is entirely erroneous and we can do no better than to reproduce from pages 401 and 402 of Fundamental Law of Pakistan by A. K. Brohi, which reads as follows:‑

"Meaning of the term 'law' as used in these Articles can be set forth in two ways: the following observations in Sailmond's Jurisprudence, 1947 Edn., at page 37, would show that 'law' may be used in the abstract or in the concrete :‑

The term law', says he, 'is used in two senses, which may be conveniently distinguished as the abstract and the concrete In its abstract application we speak of the law of the England, the law of libel, criminal law, and so forth. Similarly, we use the phrases law and order, law and justice, Courts of law. In its concrete application, on the other hand, we say that Parliament has enacted or repealed a law; we speak of the bye‑laws of a railway company or muncipality; we hear of the corn laws or the navigation laws. In the abstract sense we speak of law, or of the law; in the concrete sense we speak of a law, or of laws. The distinction demands attention for this reason, that the concrete term is not co‑extensive and coincident with the abstract in its application. Law or the law does not consist of the total number of laws in form The constituent elements of which the law is made up are not laws, but rules of law or legal Principles. That a will requires two witnesses is not rightly spoken of as a law of England; it is a rule of English law. A law means a statute, enactment, ordinance, decree or other exercise of legislative authority. It is one of the sources of law in the abstract sense. A law produces statute law or some other form of enacted law, just as a judicial precedent produces case‑law. There is much law recognished, applied and enforced in the Courts of justice which has not been enacted by any law.'

It is submitted that if the distinction between the two meanings of the term `law'; which have been reflected in the extract cited above, is to be imputed to the framers of our Constitution, the term `law' under Articles 15(1) and 5(2) must be regarded as something wider than what is connoted by statute law or enacted law."

The above observations of the learned author stand fully fortified by the following observations of Hamoodur Rehman, J. (as his Lordship then was) in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (P L D 1969 S C 14):

"In my opinion the learned Advocate‑General of East Pakistan is perhaps nearer the mark than the others. In my view the words 'in an unlawful manner' in sub‑clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the alienable right of every citizen to be treated in accordance with law and only in accordance with law. To my mind, therefore in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by `t the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb. It is in this sense that an action, which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority, would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner."

The above quotation is from a full Court judgment and is the law declared. The mere fact that there is no statutory law or Regulation on the subject will not take away the present case from the jurisdiction of this Court Article 4 of the Constitution propounds the rule of law and Article 25 declares that all citizens are equal before law and are entitled to equal protection of law. In a democratic set up where Fundamental Rights are it is indeed idle to argue that in public matters the Government can make invidious distinction or is free to have a capricious and whimsical exercise of the powers given to it.

7. It is true that in paragraph 9 of the prospectus the word "nomina tion" has been used, but this does not mean that the Government can act despotically and throw the rules of equity, justice and good sense to the winds. Even in respect of purely administrative acts there is a duty to act justly, fairly and reasonably, and if the concerned authority failed, such order would be invalid in law. Reference with advantage may be made to Hadi All v. The Government of West Pakistan and others (P L D 1956 Lah. 824). In this case the Punjab Government in the exercise of its Constitutional powers had removed Syed Hadi Ali for having flagrantly abused his powers as Trustee from the membership of the Board of Trustees of the Lahore Improvement Trust on the allegations that he had got his name put on a sub‑committee which was to deal with an offer of purchase of shop‑sites, though he himself was the President of a Federation which was one of the applicants for the site. It was held that notice by the Government before the impugned action was necessary if the matter had to be disposed of justly, fairly and reasonably. That non‑judicial determination can also be challenged by petition under Article 98 of the 1962 Constitution, which is in pari materia with Article 199 of the Constitution is a proposition which is fully supported by another Division Bench authority in Abdul Aziz v. Muhammad Ali and others (P L D 1967 Lah. 762). Even if a person is a non‑judicial functionary, he is amenable to the jurisdiction of this Court. An illustration in point will be found in The Presiding Officer v. Sadruddin Ansari and others (P L D 1967 S C 569) wherein the Presiding Officer had declared four ballot papers invalid for the reason that the cross marks on them were not put precisely on the dotted line on which the name of the candidate was written but were put somewhere in‑between dotted lines on which the names of the rival candidates were written. Hamoodur Rahman, J. (as his Lordship then was) who delivered the judgment for the Court on page 578 of the report observed: "It is well recognised that the duty to declare the result is a ministerial duty", and proceeded on to repel the contention urged on behalf of the Presiding Officer that the rules vested him with the discretion and such discretion could not be interfered with. His Lordship observed on page 579:

"It is true that a mandamus does not lie where a duty is purely discre tionary but from this it does not follow that a party upon whom the duty rests can exercise his discretion in any and every manner. The mere fact that there is an element of discretion in the duty to be discharged is not by itself sufficient to exclude relief by way of mandamus, for, even a discretion must be exercised reasonably and honestly and not arbitrarily or capriciously or in bad faith."

On the view of the matter that his Lordship took the following observations were made and these appear to us to be conclusive:‑

"There was no possibility of any doubt or dispute as to the person in whose favour the marks had been made on the said ballot‑papers. In the circumstances, the action of the Presiding Officer in declaring those ballot‑papers invalid was, in my opinion, wholly arbitrary and not inspired by any sense of duty which he had to perform, i.e. do justice between the rival candidates. Such an arbitrary exercise of power may well be said to be a mere colourable exercise of power or even an abuse of power. Not only was, therefore, in my opinion, the petition under Article 98 of the Constitution maintainable but sufficient grounds also existed for the issuance of the direction that was made by the High Court."

8. We should like to notice the two authorities cited on behalf of the respondents in support of the proposition that the impugned action of respondent No. 1 was not violative of Fundamental Rights. The authorities are: Naseem Mahmood v. Principal, King Edward Medical College, Lahore and others (P L D 1965 Lah. 272) and Om Parkash Dhari and others v. The State of Punjab (A I R 1951 Pb. 93). In the Lahore case the Government of West Pakistan for the purpose of admitting students to various Medical Colleges in the Province, had issued instructions embodying a scheme for admission of applicants to first year M. B., B. S. 1964‑65 session. In these instructions different areas of West Pakistan were tagged to different Medical Colleges and in each College a number of seats were allocated for the Tagged Areas and certain number of seats were reserved for the areas, which were not tagged to the particular College. Two students who were otherwise qualified for admission failed to secure admission to King Edward Medical College because of the afore mentioned Scheme and they filed a writ petition to question the validity of the orders. These instructions were found not to be in violation of Fundamental Rights Nos. 12(3), 12(6) or 15 of the Constitution of 1962. It was held that there was not discrimination and the instructions were not arbitrary or unrelated to the object of the Scheme. Rather the observations of their Lordships on page 284 quoted below are pointer to the direction that where the discretion has been exercised arbitrarily, equality clause of the Constitution will be invokable;‑

"One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality dectrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the Legislature a scientific accuracy in the classification adopted."

In the case from Indian jurisdiction the six petitioners who were higher in merit than the persons nominated challenged the nomination as being in violation of the equality clause of the Constitution of India. A reference to paragraph 3 of the report will show that there were 40 vacancies, out of which 33 were reserved for Punjab and Delhi Provinces, 3 for nominees of Pepsu, one for Himachal Pradesh and 3 for Jammu & Kashmir. Out of the 33 reserved vacancies, 16 were to be selected on the basis of the marks obtained by them in the University examination and 17 were to be taken by nomination as follows:‑

(a) 6 seats reserved for ex‑Servicemen or their sons or daughters;

(b) 9 by nomination ;

(c) 2 reserved for, Harijans.

In paragraph 4 of the report the following quotation is noteworthy:--

"The nomination will be subject to the condition that the candidates selected possess the minimum qualifications required i.e. F. Sc., First Class or failing that 2nd Class in order of merit.

Of the candidates selected by nomination under paragraph 4(a) above i.e. six ex‑Servicemen three were agriculturists and three non‑agriculturists. Of the candidates selected by nomination under paragraph 4(b) above, three were non‑agriculturists and six were agriculturists and so far as Harijan candidates were concerned, two were selected, vide paragraphs 7 and 8 of the report. The learned counsel for the petitioners submitted that Funda mental Rights as contained in Articles 13, 14, 15 (i), 16(ii) and 29(ii) had been infringed and that nominating authorities had discriminated against his clients on the ground of caste. Kaput, J., referred to Article 14 of the Indian Constitution, that is the equality clause, and compared it with the position prevailing in America and was of the view that where there is reasonable classification the equality clause would not be attracted. He added that in America it has been held that the clause permits the exercise of a wider scope of discretion but at the same time it nullifies what the State may do only when it is without any reasonable basis. The observations of Kapur, J., will bear out of that there can be a reasonable classification but it will be seen that present is not a case where there has been at all any attempt whatsoever at classification, what to speak of its being reasonable.

9. Be that as it may, in the instant case a look at the Prospectus of 1974‑75 will show that the authorities concerned laid much emphasis on merits and that it was never the intention of those who made the prospectus to allow the nominating authorities to disregard merit in such a way that Second Divisioners should be preferred over the First Divisioners. If the Government of Azad Kashmir and for that matter other Provincial Governments were given powers to nominate candidates from their respective regions, this does not mean that these Governments could act arbitrarily and in utter disregard of the criteria for admission and rules for working out merit of candidates as contained in paragraphs 19 and 21 reproduced below:

"(19) In‑the selection of candidates for admission the principal will give preference to candidate in the following order of merit.

(1)

F. Sc. 1st Division

Medical group.

(2)

B. Se. 1st Division

With medical group in F. Sc.

(3)

B. Sc. 2nd Division

With Medical group in F. Sc.

(4)

F. Sc. 2nd Division

Medical group.

(21) The following marks shall be added or deducted from the total marks of the candidate in order to prepare the final merit list :

(a) Add 5 marks in F. Sc./B. Sc. marks if the candidate has passed Matriculation Examination in the First Division. The adjustment of marks of candidates will be made within the Division I.e. First, Second or Third Division as the case may be.

It will not enhance or lower the division of a candidate in any case if her marks are increased or decreased due to adjustment.

(b) 5 marks will be added if a candidate passed her senior Cambridge in "A" grade. She will be treated at par with Martriculation First Division for working out her merit for admission purposes.

(c) Deduct five marks for each failure in F. Sc./B. Se.

(d) If a candidate has appeared a second time in F. Sc. or B. Sc. Examination in order to improve her division 5 marks will be deducted from the total of her improved marks. But if the candidate did not join the college after Matriculation and cleared the F. Sc. Examination in the normal period of the two years from the date of her admission it will be counted as first attempt.

(e) 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.

That emphasis was on merit and that even in the case of minority community also the authorities did not like to admit Second Divisioners will be clear from the following extract from paragraph 4 of the Prospectus:

"Out of 120 seats, two seats will be allotted to candidates belonging to minority community. Only 1st Division candidates for this seat will be considered"

Again even for late admissions on account of casual vacancies, paragraph 6 provides that it is the right of next candidate on merit list to get admission. That merit and nothing but merit subject of course to the regional reservations was the criterion has been re‑emphasized by paragraph 28 when it says:‑

"Any vacancy caused by non‑availability of a candidate for any category will be filled up in order of merit from amongst the candidates in general merit list."

10. In this state of the Prospectus it is indeed injustice to the institution that people with lower merit from this province should be nominated and perhaps it is also not in the interest of the nominees.

11. On the view of the matter that we take we are clear in our mind that capital is being made out of the word "nomination" quite unnecessarily, to advance the case of persons who cannot get admission on merit. It seems to us that it was the duty of the Provincial Government to have treated the residents of the settled districts equally and to have nominated such persons who had superior merit. The prospectus only makes a convenient arrangement when it asks the Provincial Government to nominate its candidates, for direct selection by the Principal might have created unnecessary complications.

12. That the decision of the Provincial Government also should have been on the basis of merit gets added support from the letter of Mr. Abdul Qayum at page 56 and a copy of the note of the Secretary to Chief Minister dated 21‑10‑75, which is being placed on page 57 of the record. The learned Advocate‑General has confirmed that the original of the note of the Secretary to the Chief Minister referred to above is available with him. The only distinction that the learned Advocate General sought to make is that Secretary to the Chief Minister conveyed the directions of the Chief Minister as respects admissions to such Medical Colleges of the Punjab where admissions were on reciprocal basis. To distinguish the case of admission to Fatima Jinnah Medical College on this ground is clearly fallacious. If merit cannot be overlooked in case of reciprocal admissions a fortiori it cannot be by passed where there is a reservation of seats on regional basis. It is true that letter of Mr. Abdul Qayum had invited the N: W. F. P. Government that in case they were not to agree with the decision of the Central Government, they could make necessary deviations and inform them but the fact remains that though we asked the learned counsel who pointed out this paragraph to us as to whether any deviations were suggested, he kept silent, over it. It is indeed inconceivable that a wholesome decision of the Central Government which emphasizes that selection should be on merit basis even to Fatima Jinnah Medical College could have been the subject of any diviation on the part of any Provincial Government, much less the‑N.‑W. F. P: Government.

13. For the reasons we accept the petition and quash the orders of respondent No. 1 nominating respondents 3, 4, 5 and 6 to Fatima Jinnah Medical College for Women, Lahore and direct that the Government of N.‑W. F. P. should proceed to nominate four candidates immediately on the basis of merit in accordance with the criterion contained in paragraphs 19 and 21 of the Prospectus quoted above. Costs shall be paid by respondent No. 1.

S.A.H.

Petition accepted.