1988 SCMR 392

MIRATUL AIN Versus PROVINCE OF THE PUNJAB

Citation1988 SCMR 392

CourtSupreme Court of Pakistan

Case No.Civil Petitions Nos.487, 502, 512, 515, 516, 518, 519, 523, 524, 530, 544, 545, 549, 556, 596, 601, 608 and 769 .of 1987

Date1987-12-22

Judge(s)Nasim Hasan Shah and Ali Hussain Qazilbash

Authored byNasim Hasan Shah

ResultLeave granted

ORDER

1. NASIM HASAN SHAH, J.- -This order will dispose of the above-mentioned 18 petitions for leave to appeal as the questions of law arising in all of them are similar.

2. For the purposes of this order it will suffice to refer to the facts of Civil Petition No.487 of 1987 (Miratul Ain v. .Province of the Punjab and another).

3. The petitioner is a girl student who passed her F.Sc. Examination held in 1986 obtaining 733 marks and had applied for admission to a Medical College in the Punjab for the Session 1986-87. It appears that a total number of 858 seats were available for students desirous of studying medicine in the Medical Colleges in the Punjab for being filled on the basis of merit. As the girl students had done much better in the F.Sc. Examination than boys and would have taken most of the available seats open for admission on merit basis, the seats to be filled by open merits were allocated in the ratio of 677 seats for boys and 181 seats for girls.

4. After the receipt of the admission forms for seats to be filled on merit basis it transpired that the male students obtaining 731 marks would become eligible whereas the female students obtaining 821 marks and above could alone be admitted. Thus, the petitioner though having secured 733 marks was to be passed over by a boy student obtaining 731 marks. This discrimination in the matter of allocation of the seats between the boys and girls was challenged by a large number of girl students by filing writ petitions before the Lahore High Court wherein they contended that the refusal to admit them to a Medical College although they were possessed of better merit than the boys amounted to unconstitutional discrimination and was violative of the fundamental rights, particularly Article 25 (2) of the Constitution of the Islamic Republic of Pakistan which provides that-- "there shall be no discrimination on the basis of sex alone."

5. The writ petitions were consolidated together and were heard by a learned Single Judge of the High Court. The learned Single Judge decided to accept the petitions declaring that the action of the authorities amounted to a denial to the petitioners of. equality before law and equal protection of law as it was a discrimination on the ground of sex and was, therefore, contrary to the Constitution.

6. The Provincial Government challenged this determination by filing Inter Court Appeals and a learned Division Bench of the same High Court heard the said appeals. The learned Judges of the Division were pleased to reverse the judgment of the learned Single Judge holding that the Article 25(2) of the Constitution was not the appropriate provision of the Constitution governing the matter but that it was Article 22 thereof which was the relevant provision as it particularly dealt with the question of admission to the educational institutions. The provision relied upon by the learned Judges of the Division Bench was Article 22(3) (b) which lays down:-

7. "22 (3) Subject to law,

(a) .

(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth."

8. It was observed that as this provision did not make mention of sex; therefore, the petitioners had no legitimate basis to complain of the violation of any fundamental right guaranteed by the Constitution.

9. These petitions for leave to appeal are directed against the above judgment of the Division Bench of the Lahore High Court.

10. The question involved is one relating to the applicability and enforcement of a fundamental right and is of general public importance. There being a difference of opinion between the Judge of the High Court on the question makes it all the more necessary for an authoritative pronouncement being made thereon by this Court.

11. Leave granted.

12. Security Rs.500/- in each petition.

13. The appeals shall be made ready on the present record, with liberty to the parties to add further documents, if any" and fixed for hearing at a very early date.

14. The learned counsel for the petitioners prayed for interim relief on the ground that the 1986-87 Session is coming to a close and if interim relief is not allowed the appeals would become infructuous.

15. Issue notice to the Advocate-General, Punjab, in the stay matter for 9-1-1988.

16. M. B. A./M-299/S Leave granted.