P L D 1996 Karachi 1

Before G.H, Malik, Hussain Adil Khatri

and Ali Muhammad Baloch, JJ
 
ZOHRA and 5 others--Petitioners
 
versus
 
THE GOVERNMENT OF SINDH, HEALTH DEPARTMENT
through its Secretary, Sindh Secretariat, Karachi and another --- Respondents
 
Constitutional Petition No. D-936 of 1994, heard on 22nd December, 1994.
 
(a) Constitution of Pakistan (1973)--
 
 
---- Arts. 37, 29, 30 & 199--- Principles of Policy though described as Fundamentals to the
governance of the State yet they have not been made enforceable by any Court.  37 occurs in
Chapter 2 of the Constitution relating to the status and scope of those principles are delineated by
Articles 29 and 30 of the Constitution.
 
A due cast on the organs and authorities to act in accordance with the principles of policy; but at
the same time those principles have been 'made non-justiciable by Article 30 of the Constitution.
 
These principles, have been described as "fundamentals to the governance of the State"
but they are not enforceable by any Court. Therefore, the question of creation of any right, vested
or otherwise, by Article 37 of the Constitution does not arise.
 
(b)Constitution of Pakistan (1973)-                                
 
---- Arts.37 & 199 --- Once an action is taken or a law promulgated by an organ or authority of
the State in pursuance of Art.37, Constitution of Pakistan, it is that action or that law only which
must be examined to see whether any right has thereby been created in any person.
 
Constitutional Petition No.D-283 of 1994 distinguished.
 
(c) Constitution of Pakistan (1973)---
 
---- Arts. 37, 38 & 199 ---- Provisions of Arts.37 & 38 of the Constitution of Pakistan are not
directly enforceable but are enforceable indirectly as aid in interpretation of other provisions of
the Constitution and of legislation.
 
Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Employees of the
Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548 ref.
 
(d) Words and phrases ---
 
Vested right"-- connotation.
 
Jowitt's Dictionary of English Law, 2nd Edn., p.1851; Black's Law Dictionary (6th Edn.,
p.1564; Law Lexion Vol.4, p.2608 and Nabi Ahmed and another v. Home Secretary,
Government of West Pakistan Lahore and others PLD 1969 SC 599 ref.
 
(e) Sindh Medical Colleges Act (V of 1987)---
 
---- S. 3 --- Constitution of Pakistan (1973), Art.199---Constitution petition--Prospectus of
Medical Colleges of Sindh --- Admission to' Medical College--Eligibility---Vested right ---
Candidates eligible to apply for admission by virtue of the Rules of Admission contained in the
prospectus had vested right to apply and to have their applications considered according to the
relevant rules, for such right of theirs was not subject to any event or contingency.
 
             While a candidate who attains a minimum. standard prescribed by the prospectus is
eligible to apply for admission to a medical college, his application, for admission has to be
processed in accordance with the rules and he becomes entitled to admission only upon being
selected for admission in .accordance with the rules. A distinction, thus, has been made between
the right to apply and to be considered for admission to a medical college and the right to be
admitted to a medical college, and it is clear that a candidate who attains the requisite
qualifications and meets the conditions prescribed by the prospectus is entitled to apply for
admission and to have his application considered in accordance with rules.
 
The question, then, is whether such a right can be termed a "vested right". A vested right is an
immediate or a fixed right to present or future enjoyment and one that is not dependent on any
event that is uncertain; in other words, a right which is not subject to any contingency. In the
present case, the candidates were permanent residents of and domiciled in the specified District
and they, had secured more than 50% marks in Intermediate Science (Pre-Medical Group)
examination. They were, therefore, by virtue of the Rules of Admission contained in the
Prospectus, eligible and entitled to apply for admission to a medical college and to have their
applications considered according to the relevant rules. That right was not subject to any event or
contingency. It was therefore a vested right.
 
Naeem Mirza v. Government of Sindh 1987 CLC 1487 distinguished.
 
(f) Vested right ---
 
---- Exercise of --- Expression free from contingencies, does not mean that a right is exercisable
anywhere and at any moment--- Existence of a vested right cannot be denied merely because that
right was not exercised or was exercised at any particular time.
 
Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and
others PLD 1969 SC 599 ref.
 
(g) Educational institution.
 
----Admission---Vested right of the candidates could not be taken away by subsequently
.amending the Prospectus.
 
Central Excise & Land Customs and 3 others v. Azizuddin Industries 'Ltd., Chittagong
PLD 1970 SC 439; Salim Akbar v. Government of Sindh PLD 1984 Kar. 358; Al-Samrez
Enterprise v. The Federation of Pakistan 1986 SCMR 1917; Sh. Rahmatullah v. The Deputy
Settlement Commissioner PLD 1963 SC 633; Sheikh. Fazal Ahmed v. Raja Ziaullah Khan PLD
1964 SC 494; Administrative Law, 6th Edn., p.39; and Commissioner of Sales Tax (West),
Karachi v. Messrs Krods Sons Ud. PLD 1974 SC 180 ref.
 
(h) Words and phrases---
 
----"Arbitrary"--- Meaning illustrated.
 
"Arbitrary" means without adequate determining principle; not founded in nature of
things; non-rational; not done or acting according to reason or judgment; depending on the will
alone; wilful and unreasoning action; without consideration and *regard for facts and
circumstances presented:
 
Accordingly, any action taken or decision made without application of mind to, or
without consideration of, the relevant facts and circumstances would be arbitrary.
 
Black's Law Dictionary, 6th Edn. ref.
 
(i) Constitution of Pakistan (1973)--
 
---- Art. 199 --- Judicial review --- Reasonable or unreasonable decision or action ---
Determining factors.
 
The test, in determining whether an action or a decision complained of is reasonable or
unreasonable is, whether an ordinary, prudent and reasonable person would have taken such an
action or made such a decision.
 
The ordinary, prudent and reasonable person is, thus, expected to apply his mind to the
question before him which means that he must take into consideration relevant facts and
circumstances and arrive at a decision which is in consonance with logic, reason and accepted
moral standards.
 
Action or decision which is unreasonable or arbitrary or capricious would necessarily be
unjust.
 
Miss Nasreen Fatima Awan v. Principal, Bolan Medical College, Quetta PLD 1978
Quetta 17; Mr. Zuifiqar Ali Bhutto v. The State PLD 1978 SC 40; Council of Civil Service
Unions v. Minister for the Civil Service (1984) 3 AER 935; Muhammad Iqbal Khokhar and 3
others v. Government of the Punjab PLD 1991 SC 35; M/s. Cannon Products Ltd. v. Income Tax
Officer, Companies Circle, Karachi PLD 1985 Kar. 572 and Black's Law Dictionary (6th Edn.)
ref.
 
(j) Words and phrases ---
 
----- Just"___"Unjust"-Meaning illustrated.
 
The word 'just' denotes that which is right and proper, that which can be justified in law.....the
word 'just' would mean that which is legal and proper under the relevant Act or the rules or that
which imports the exercise of good judgment or discriminatory appraisal within the bounds of
reason and which negatives the presence of any arbitrary, unreasonable or capricious
determination, or anything which causes injury to any person.
 
Action or decision which is unreasonable or arbitrary or capricious would necessarily be
unjust.
 
Muhammad Iqbal Khokhar and 3 others v. Government of the Punjab PID 1991 SC 35
ref.
 
(k) Constitution of Pakistan (1973)---
 
----Arts. 37, 38 & 199 --- Constitutional petition --- New District was created bona fide for
advance of its educational and other interests and seats were allocated to the people of said
District for admission in Medical Colleges of the Province in public interest --- Notification was
issued by Government which amended the prospectus of the Medical Colleges treating the whole
Province as one District for the purposes- of allocating seats in Medical Colleges --- Validity ---
No reason was declared for issuance of said notification, in fact, notification appeared to be
thoroughly to be devoid of logic or reason --- Notification, therefore, was arbitrary and
unreasonable because of lack of application of mind by the authorities.
 
(1) Constitution of Pakistan (1973)---
 
---- Art.' 25 --- Equality before law --- Concept --- Reasonable classification --  Essentials ---
Test --- Doctrine of equality before law--:.Purport and attributes -- "Intelligible differentia"---
Meaning --- Rational nexus, a necessary condition.
 
The basic or fundamental rule is that all persons, under like circumstances and
conditions, shall be treated alike both in privileges conferred and in liabilities imposed. Thus,
discrimination between persons or classes or persons similarly situated or circumstances is
prohibited or, in other words, class legislation is forbidden. It follows that the rule does not
prohibit different laws or different treatment for those differently circumstances and the State has
the power to distinguish or classify persons or things and to make laws or rules applicable only,
to the persons or things falling within the particular class. However, a classification which is
arbitrary or capricious and not founded on any rational basis or which has no rational nexus with
the object sought to be achieved by the law or the rules is no classification. It must, therefore, be
reasonable and rest upon a difference which is real as distinguished from one which is seeming,
specious or fanciful. Thus, classification would be reasonable and valid---
 
(i) if it is based on intelligible differentia which ' distinguishes persons or things that are grouped
together from those that have been left out; and
 
(ii) if it has rational nexus with the object sought to be achieved by it.
 
"Intelligible differentia" means "an attribute by which a species is distinguished from all
other species of the same genus, or, a distinguishing mark".
 
Zia Ullah Khan and others v. Government of Punjab and others PLE 1989 Lah. 554;
Shireen Munir and others v. Government of Punjab PLD 199( SC 295; IA. Sherwani and others
v. Government of Pakistan 1991 SCMR 1041 Pakistan Petroleum Workers' Union v. Ministry of
Interior 1991 CLC 13 Inamul Hassan v. Federation of Pakista~n 1992 SCMR 563; The
Employees o the Pakistan Law Commission v. Ministry 9f Works 1994 SCMR 1548 an Golden
Industries Ltd. v. Province of Sindh PLD 1983 Kar. 76 ref.
 
(m) Constitution of Pakistan (1973)---
 
---- Art. 199 --- Judicial review --- Court cannot sit in judgment over the actions of the
Government taken in pursuance of a policy --- Disability of the Court to sit in judgment in such a
situation arises only if from material disclosed, it does not appear that the action taken was
merely in colourable exercise of or in abuse of power or abuse of jurisdiction which is
synonymous with arbitrary action.
 
Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151; Lt.Col. Farzand Ali and
others v. Province of West Pakistan PLD 1970 SC 8; Gul Khan v. Government of Balochistan
PLD 1989 Ouetta 8 and Mona Batool and another v. Sindh Government 1992 MLD 777 ref
 
(n) Constitution of Pakistan (1973)---
 
---- Arts.25 & 199 --- Judicial review --- Policy which is ultra vires and which contravenes the
provisions of Art.25 of the Constitution of Pakistan would not be immune from judicial review.
 
Rasheed A. Akhund for Petitioners.
 
Qurban, Ali Chohan, A.G., Sindh for Respondents.
 
Dates of hearing: 30th November, 6th, 7th, 13th, 20th, 21st and 22nd  December, 1994.
 
JUDGMENT
 
G. H. MALIK, J.---The following are the reasons for the short order, dated the 22nd
December, 1994, directing the respondents to consider the applications of the petitioners for
admission to medical college in accordance with the relevant rules and regulations including the
provision for allocation and distribution of seats for Karachi on the basis of District quotas of
Karachi including Malir District.
 
The facts of the case, briefly stated, are as follows.---The six petitioners, all having
domicile of Karachi, passed Matriculation Examination from Government Girls Secondary
School, Bhiroo Village, Malin They were unable to obtain admission to a Science College in
Karachi because of their low marks in Matric and, therefore, had to go to Thatta from where they
passed their Intermediate Science (Pre-Medical) Examination in June, 1993.
 
In that examination, they obtained marks/grade as follows:---
 
Zohra                                            (Petitioner, No.1) - 650 out of 1100 marks
 
Hasina                                           (Petitioner No.2) - 618 out of 1100 marks
 
Anila                                                       (Petitioner No.3) - 569 out of 1100 marks
 
Saijla                                                      (Petitioner No.4) - 620 out of 1-100 marks
 
Ruquia                                            (Petitioner No.5) - 624 out of 1100 marks
 
Khaleda                                                 (Petitioner No.6) - 'C' Grade
 
In June, 1993, Malir was not a separate district; and, for the purposes of allocation of
seats to medical colleges, Karachi was treated as one district. The district of Malir was created on
the 25th November, 1993.
 
On the 20th December, 1993, the Government, by Notification No.S.O.(ME)1-1AP.
H-93-94, issued in exercise of powers under section 3 of the Sindh Medical Colleges Act, 1987,
prescribed a prospectus of medical colleges in Sindh for the academic session 1993-94. By that
prospectus, specified number of District merit seats were allocated to each of the district of Sindh
including 598 seats allocated to Karachi as follows:
 
                                          DMC                          SMC                          Total
 
Karachi (East)                       77                              52                            129
 
Karachi (Malir)                       39                              26                             65
 
Karachi (West)                       63                              44                           107
 
Karachi (South)                      78                              54                            132
 
Karachi (Central)                    98                              67                            165
 
 
 
Subsequently, on the 26th February, 1994, the Government issued Notification
No.S.O(ME) 1-1-AP-H/93-94 amending the prospectus. By the amendment, the allocation of
seats to the various districts of Karachi, as shown above, was substituted by allocation of 598
seats to Karachi, while the allocation of seats to the other districts of the Province remained
unaltered. Karachi was, thus, treated as one district for the purpose of allocating seats in medical
colleges.
 
On the 3rd March, 1994, the petitioners Nos.1, 3 and 4 applied for admission to Dow
Medical College for First Year M.B.,B.S. course for 1993-94 session. The petitioners Nos.2, 5
and 6 made similar applications on the 6th March, 1994. They were, however, not given
admission and have, therefore, challenged the Notification, dated the 26th February, 1994, on
various grounds.
 
In support of the petition, Mr. Akhund, the learned counsel for the petitioners, submitted
the following propositions in writing---
 
"(1)  The Notification dated the 25th November, 1993 (Annexures 'E',, page 123) forming the
new District Malir in compliance with the Constitutional. command as envisaged in Articles
37(a) and 38(a) and (d), both this notification as well as' the said two Articles have created
vested rights in the petitioners to be given admissions in Dow Medical College on the basis
of un-amended Notification, dated 20th December, 1993. The impugned notification
impinges upon and nullifies the vested rights of the petitioners and is, therefore, illegal and
void.
 
(2)The impugned notification is arbitrary, unjust and unreasonable and, therefore, is of no legal
force.
 
(3)The impugned notification contravenes Article 25 of the Constitution.
 
(4)The impugned notification is mala fide in law and fact inasmuch as it deprives the petitioners
of the opportunity of higher education by compelling them to compete with other candidates of
urban areas having better education]. facilities without any chance of success."
 
According to Mr. Akhund, clauses (a) and (c) of Article 37 of the Constitution and creation of
Malir District created a vested right in the petitioners to be admitted to a medical college on the
basis of the un-amended Notification, dated 20th December, 1993.
 
Clauses (a) and (c) of Article 37 provided that the State shall-
 
"(a)promote, with special care, the educational and economic interests of backward classes or
areas;
 
(c)make technical and professional education generally available and higher education equally
accessible to all on the basis of merit."
 
The provision occurs in Chapter 2 of the Constitution relating to "Principles of Policy" and the
status and scope of those principles are delineated by Articles 29 and 30 of the Constitution.
Article 29(l) provides-
 
"The principles set-out in this Chapter shall be known as the principles of policy, and it is the
responsibility of each organ and authority of the State, and of each person performing functions
on behalf of an organ or authority of the State, to act in accordance with those Principle in so far
as they relate to the functions of the organ or authority."
 
A duty is, thus, cast on the organs and authorities to act in accordance with the principles of
policy; but at the same time those principle s have been made non justiciable by Article 30 of the
Constitution which provides:
 
"(1)The responsibility of deciding whether any action of an organ or authority of the State, or of
a person performing functions on behalf of an organ or authority of the State, is in accordance
with the principles of policy is that of the organ or authority of the State, or of the person
concerned.
 
(2) The validity of an action or of a law shall not be called in question 6n the ground that it is not
in accordance with the principles of policy, and no action shall lie against the State, any organ or
authority of the State or any person on such ground."
 
These principles, have been described as "fundamentals to the governance of the State" but they
are not enforceable by any Court. Therefore, the question of creation of any right, vested or
otherwise, in the petitioner by Article 37 of the Constitution does not arise. Mr. Akhund's
submission, however, was that because the separate district of Malir was created in pursuance of
the provisions of Article 37, that Article in conjunction with the action taken in pursuance
thereof ought to be taken as having created some right in the petitioner. The submission is
misconceived because once an action is taken or a law promulgated by an organ or authority of
the State 'in pursuance of the provisions of Article 37, it is that action or that law only which ID
must be examined. to see whether any right has thereby been created in any person. There is
nothing in the Notification creating Malir District conferring any right on the petitioners; but Mr.
Akhund relied on the comments filed by the respondents in Constitutional Petition No.D-283 of
1994 in this Court wherein it is stated, inter alia:-
 
"The moving spirit behind the idea to carve out the new District out of .District East was to
provide an equal opportunity  to the populace of backward and neglected areas and equitable
share in the process of educational development  and economic prosperity by making adequate
arrangements for new schools, colleges, Court buildings, administrative buildings, water,
sewerage, drainage, gas, electricity, roads, transport and hospitals." (Emphasis added)
 
to contend, in effect, that the underlying object of the creation of Malir District created a vested
right in the petitioners to be admitted to a medical college on the basis of the unamended
prospectus. The comment refers to "moving spirit" behind the creation of Malir District, which
was to provide, among other things, "equitable share in the process of educational development"
by making adequate arrangements for new schools and colleges. What was, therefore,
contemplated was that after the creation of Malir District arrangements would be made for
establishing new schools and colleges. such arrangements would necessarily be made by some
act or law in consequence of the creation of the new district but until such act is performed or
law is made, no right, in any inhabitant of the new district was contemplated. Thus, even
assuming that comments filed in a Constitution petition could be the basis of a claim to a right,
no such right emerges from the comments cited above.
 
Mr. Akhund relied on the case of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC
416). There the petition was tiled before the Supreme Court under Article 184(3) of the
Constitution by the petitioner, who was the Chairperson of Pakistan People's Party, challenging
amendments made in the Political Parties Act, 1962, and the vires of the Freedom of Association
Order, 1978. The maintainability of the petition was questioned on the ground that vires of the
law could be questioned only in its application to a person in relation to an action taken against
him and not in the abstract when no cause of action has arisen meaning thereby that the
petitioner should be an .aggrieved person". Muhammad Halim, CJ. traced the history of Article
184(3) and held that its plain language showed that it was open ended and that the Article did not
say as to who shall have the right to move the Supreme Court or by what proceedings Supreme
Court may be moved or whether it was confined to enforcement of fundamental rights of an
individual or extended to enforcement of a right of a group or class of persons. Having so held,
his Lordship posed the question whether the notion of "aggrieved person" was implicit in Article
184(3) and answered it thus:---
 
"The inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of
law in the context of constitutionalism which makes a greater demand on judicial
functions. Therefore. while construing Article 184(3). the interpretative approach  should not be
ceremonious observance of the rules or usage of interpretation, but regard should be had to the
object -and the purpose for which this Article is enacted, that is, this interpretative approach must
receive inspiration from the triad of provisions which saturate and invigorate the entire
Constitution, namely, the Objectives , Resolutions (Article 2A), the Fundamental Rights and the
directive principles of State Policy.
 
He went onto observe, at page 490:---
 
"Articles 3,- 37 and 38 of the Constitution juxtapose to advance the cause of socio-economic
principles and should be given a place of priority to mark the onward progress of
democracy. These provisions become in an indirect sense enforceable by  law and thus bring
about a phenomena] change in the idea of co-relation of Fundamental Rights and directive
principles of State Policy. If an egalitarian society is to be formed under the rule of law, then
necessarily it has to be by legislative action in which case it would be harmonious and fruitful to
make an effort to implement the socio -economic principles -enunciated in the Principles of
Policy, within the framework of the Fundamental Rights, by enlarging the scope and meaning of
liberties, while juridically defining them and testing the law on its anvil and also, if necessary,
with the co-related provisions of the Objectives Resolution which is now a substantive part of the
Constitution," (Emphasis added)
 
The rule, thus enunciated, was reaffirmed in the recent case of The Employees of the Pakistan
Law Commission v. Ministry of Works (1994 SCMR 1548).
 
It is clear from the above passage from Miss Benazir Bhutto's case that the provisions of
Articles 37 and 38 are not directly enforceable but are enforceable indirectly as aids in
interpretation of other provisions of the Constitution and of legislation. The rule however, is of
no avail to the petitioners, because it does not appear that the notification creating the new
district of Malir could be construed, even with the aid of Articles 3, 37 and 38 of the
Constitution, as creating a right in the petitioners to be admitted to a medical college; and Mr.
Akhund did not even attempt to show that it could be so construed. The argument, clearly, is not
supported either by reason or by authority.
 
That, however, is not to say that the petitioners did not acquire any right under the
unamended notification; and the question for consideration is whether the petitioners acquired a
vested right under the unamended notification and if so whether the impugned notification had
the effect of taking away that vested right and is, therefore, void.
 
According to Jowitt's Dictionary of English Law (Second Edition, page 1851), "Right", in
its most general sense, is either the liberty (protected by law) of acting or abstaining from acting
in a certain manner or the power (enforced by law) of compelling a specific person to do or
abstain from doing a particular thing"; and the word "vested", as a general rule, means "vested in
interest" as opposed to contingent (p.1857). In Black's Law Dictionary (Sixth Edition, p.1564)
the expression "vested right" is defined as "Immediate or fixed right to present or future
enjoyment and one that does not depend on an event that is uncertain. A right complete and
consummated, and of such character that it cannot be divested without the consent of the person
to whom it belongs, and fixed or established, and no longer open to controversy." Again, as
stated in Law Lexion, (Vol.4, p.2608), a right is said to be vested when the right to enjoyment,
present or prospective has become the property of some particular person or persons as a present
interest, independent of contingency".
 
In the case of Nabi Ahmed and another v. Home Secretary, Government of West
Pakistan, Lahore and others (PLD 1969 SC 599) Qadeeruddin Ahmed, 1. considered the
dictionary meaning of the word "vested" and observed----
 
"A close examination of these meanings and explanations reveals that vested right is free from
contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is
hardly any right which can be so exercised. ' There must always be occasions at which and
circumstances under which they -may be exercised. Those occasions and circumstances do not
constitute contingencies, but are the peculiar characteristics of those rights. For instance, the
right to cross-examine (not to re-cross-examine) a witness is a vested right, although the
occasion for exercising it arises only if the witness says or has said something unfavourable and
often after his examination-in chief is over. The occasion to cross-examine may not arise or may
not be exercised but the right is not to be denied."
 
Now, therefore, it has to be seen whether the provisions of the relevant statutes and the
rules had the effect of conferring any vested right on the petitioners. Sindh Medical Colleges
Act, 1987, has been enacted, according to its preamble, "to regulate admission in Medical
Colleges in Sindh". The Act itself does not contain any provision to regulate the, admission in
Medical Colleges but, by section 3 thereof, provides that subject to the Medical Councils
Ordinance, 1962, Government, may, by rules, "regulate admissions in the medical college in
Sindh" and that those rules may provide for, inter alia, "allocation of seats" and conditions for
admission. In pursuance of section 3 of the Act, the Government of Sindh issued a notification
on the 20th November, 1993, prescribing the prospectus of the Medical Colleges in Sindh, Part
11 of the Prospectus sets out the number of seats allocated to various districts on the basis of
merit, Part III of the Prospectus contains "Rules of Admission". Rule 1 provides that "the
minimum qualification for a candidate to become eligible for admission to medical college in
Sindh in Intermediate Science (Pre-Medical Group) in Second Division of Karachi, Hyderabad
or Sukkur Board Of Secondary and Intermediate Education or any equivalent examination". It
further provides that candidates obtaining less than 50% marks are not eligible. By Rule 2 it is
provided, inter alia, that those who are permanent residents of and domiciled in any district of
Sindh and those who have passed Intermediate Science (Pre-Medical Group) and secured at least
50% marks shall be eligible to apply for admission to a medical college. Rule 3 provides that all
seats in various districts are open for competition within such district; and by Rule 4 it is
provided that "competition in each district shall take place between candidates of that district".
Having thus prescribed the criteria of eligibility to apply for admission and the rules of
competition, the Prospectus goes on to prescribe, by rule 7, that the documents specified therein
shall accompany the application for admission and, according to Rule 8, the application forms
and required documents, completed in all respects, have to be submitted to Principals of the
Medical Colleges specified in that rule. Rule 10 is concerned with the order of preference for
selection of the candidates. the Government is required, by Rule 14, to appoint a Selection Board
for each Selection Centre mentioned in the prospectus. Rule 15 provides that a provisional merit
list shall be displayed at the Selection Centre within 20 days after the date for receiving
applications and that objections from the candidates shall be entertained within one week after
such display. Rules 17 and 18 lay down the criteria for working out the merits of the candidates,
and, by Rule 19, it is provided that the Chairman of the Selection Board shall announce the
selection by displaying the 1st of candidates, selected by the Selection Board, on the Notice
Board of the respective Colleges. According to Rule 20 the Selection Board has discretion to
refuse admission to any candidate who indulges in violence, uses abusive language, becomes
insolent or misbehaves with the Selection Board. By Rule 22, it is provided that all admissions
are provisional subject to verification of documents submitted by the candidate and also the
correct observance of the rules. Finally, Rule 29 provides that the provisions made in the
prospectus are liable to be modified relaxed or amended by the Government from time to time
and such variations shall be binding on all concerned.
 
It will be observed that the rules cited above provide, firstly, for eligibility of a candidate
for admission to a medical college and, secondly, for the basis on which the candidates are to
compete against each other and the methods by which candidates are to be selected. It, thus,
appears clear that while a candidate who attains a minimum standard prescribed by the
prospectus is eligible to apply for admission to a medical college, his application for admission
has to be processed in accordance with the rules and he becomes entitled to admission only upon
being selected for admission in accordance with the rules. A distinction, thus, has been made
between the right to apply and to be considered for admission to a medical college and the right
to be admitted to a medical college, and it is clear that a candidate who attains the requisite
qualifications and meets the conditions prescribed by the prospectus is entitled to apply for
admission and to have his application considered in accordance with rules.
 
The question, then, is whether such a right can be termed a "vested right". As stated
hereinabove, a vested right is an immediate or a fixed right to present or future enjoyment and
one that is not dependent on any event that is uncertain; in other words, a right which is not
subject to any contingency. In the present case, the petitioners are permanent residents of and
domiciled in Malir District and they, or at least five of them, have secured more than 50% marks
in Intermediate Science (Pre-Medical Group) examination. They were, therefore, by virtue of the
Rules of Admission contained in the Prospectus, eligible and entitled to apply for admission to a
medical college and to have their applications considered according to the relevant rules. That
right was not subject to any event or contingency. It was, therefore, a vested right.
 
The learned Advocate-General contended that the petitioners did not have any vested
right because they applied for admission after the impugned notification was published; and
relied on the case of Naeem Mirza v. Government of Sindh 1987 CLC 1487 wherein it was
observed that no one has a vested right to admission in a medical college and that changes in the
prospectus or rules of admission can be made before a vested, right is created. The argument
verges on the absurd as it completely misses the point which is whether a vested right was
created before the impugned notification was published. The mere fact that the applications for
admission were not made until after the publication of the impugned notification has no bearing
on the question whether a vested right to make those applications had accrued before such
publication. As observed in the case of Nabi Ahmed and another, "free from contingencies" does
not mean that a right is exercisable anywhere and at any moment and the existence of a vested
right cannot be denied merely because that right was not exercised or was exercised at any
particular time.
 
In the case of Naeem Mirza, the petitioner, acting on the given to him by University of
Karachi and the prospectus for the year 1983-84 passed 12th Grade examination from Karachi
American School in May, 1985, and, having obtained equivalence certificate from the
University, applied for admission to medical college in January, 1986. At that time the
prospectus for the year 1985-86 was in force and it appears that the conditions for admission in
that prospectus were different from the conditions which, according to the petitioner, were
-prescribed in 1983-84 i.e. before he passed 12th Grade examination. It does not appear from the
report whether the prospectus for the year 1985-86 was published before or after the petitioner
passed his 12th Grade examination and obtained equivalence certificate; but it was contended,
inter alia, that if any change in the prospectus was to be made it should have been made at least
two years earlier to enable the candidates to acquire requisite qualifications. No claim to any
vested right was made. It was, in these circumstances, observed that no one has vested right in
admission to a medical college and that the prospectus may be varied before any vested right is
created. That case is, thus, of no assistance to the respondent.
 
The learned Advocate-General also relied on the case of Miss Farhat Jaleel v. Province of
Sindh and others PLD 1990 Kar. 342. In that case the contention that the first Est displayed by
the respondents had created a vested right in favour of petitioner was rejected with the
observation that--
 
"the said list was tentative only, subject to several exercises provided in rules 15 and 19, such as
scrutiny of original documents, appearance before Selection Board and even after selection, the
admission to be remained as provisional for some time."
 
The observation is undoubtedly correct but lends no support to the case of the respondents.
 
In support of his submission that the vested right of the petitioners could not be taken
away by amending the Prospectus, Mr. Akhund relied on the following cases:---
 
(i)Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong PLD
1970 SC 439.
 
(ii)Salim Akbar v. Government of Sindh PLD 1984 Kar. 358.
   
(iii)        Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917.
The submission finds ample support from those cases and from several other authorities,
 
In the case of Sh. Rahmatullah v. The Deputy Settlement Commissioner PLD 1963 SC
633 the petitioner claimed vested interest in the disputed property by virtue of his possession
thereof and the provisions of the Displaced Persons (Compensation and Rehabilitation) Act,
1958. By Notification,- dated 8th August, 1959, under section 3 of the Act, the Government had
acquired the property which, by virtue of section 4 of the Act, formed part of the pool for
payment of compensation to claimants. Subsequently, the notification was modified by another
Notification, dated the 12th September, 1959 so that the property was excluded from the vesting
notification issued under section 3 of the Act. The petitioner's case was that the subsequent
notification could not be given retrospective effect so as to take away his vested right. A.R.
Cornelius, C.J., while holding that, in the circumstances of the case, the petitioner had no vested
right, observed (at page 644):--
 
"It is, of course, settled law that power given by a Statute to act by notification with
prospective effect as in section 3, cannot be effectively exercised with retrospective effect,
whatever the language that may be employed, and consequently Central Government's
Notification of the 12th September, 1959, must be supposed to have effect from that date and no
earlier date, notwithstanding the use of words calculated to give it effect from 8th August, 1959.
It is true that if in the interval between the two dates vested rights had accrued in consequence of
the first notification, those could not be annulled by mere notification of a later date."
Sh. Rahmatullah's case was followed in the case of Sheikh Fazal Ahmed v. Raja Ziaullah
Khan PLD 1964 SC 494. In that case, the rules framed under the Registration of Claims
(Displaced Persons) Act had provided that the Claims Commissioner may review his order
within ninety days of the date of such order. The impugned order of the Claims Commissioner
was passed beyond the period of limitation so provided. It was, however urged by the
respondents that by subsequent amendment of the rules the Claims Commissioner was
empowered to review his own orders "after the said period of ninety days". The amendment had
been made with retrospective effect. Kaikaus, J., speaking for the Court, said---
 
"An obvious, objection to this amendment is that it is a notification by the Government in
exercise of the power of subordinate legislation and such power does not include a power to give
retrospective effect.
 
The power of subordinate legislation which is exercised by the executive is a very limited
power."
 
He then referred to the scope of the power of the Legislature to delegate its power and went on to
observe:--
 
"Subordinate legislative power is to be permitted only to the extent to which it is necessary for
the proper exercise of its functions by the legislature and a power to legislate with retrospective
effect has never been accepted as included in a power of subordinate legislation."
 
We are not in the present case concerned with the extent or scope of the power of the
Legislature to delegate its power but only with the act of the executive authority in purported
exercise of the power given to it by the Legislature. With regard to the latter, the above passages,
if one may so with respect, underscore what has been characterized as "the central principle of
administrative law" viz. "that a public authority may not act outside its powers (ultra vires) ---
See Administrative Law (Sixth Edition, p.39) by H.W.R. Wade.
 
In the case of Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd.
PLD 1970 SC 439 exemption from payment of excise duty, leviable on goods produced and
manufactured in the specified area was granted by a notification dated the 30th June, 1961, and
that exemption was withdrawn by a subsequent Notification, dated the 28th February, 1964. It
was held that the latter notification being destructive of the vested right of the respondent was
without lawful authority and of no legal effect. Yaqub Ali, J., speaking for the Court, observed--
 
"It is a settled rule that an executive authority cannot in excercise of the rule-making power or
the power to amend, vary or rescind an earlier order, take away the rights vested in the citizen by
law."
 
The above principle was reaffirmed in the case of Commissioner of Sales Tax (West),
Karachi v. Messrs Krods Sons Ltd. PLD 1974 SC 180 wherein it was observed:--
 
"It is well-settled proposition that a notification by the Provincial Government cannot operate
retrospectively to impair an existing right or to nullify the effect of a final judgment of a
competent Court even if the notification be expressly so designed."
 
In Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917, the Federal
Government had, by Notification under the Customs Act exempted certain items of machinery
from "so much of customs duties leviable thereon as ~s in excess of 20% ad valorem". By
another notification, under the Sales Tax Act, exemption from sales tax was granted. On the faith
of these notifications, the appellant entered into contract with a foreign seller, opened a letter of
credit and obtained an import licence. Subsequently, the Government issued a notification
amending the notification regarding customs duties by raising the ceiling for customs duty from
20% to 25%. By yet another notification, exemption from sales tax was withdrawn. It was held
that the appellant had acquired a vested right and that subsequent withdrawal of exemption could
not be given retrospective operation, by an executive act, to destroy that right.
 
In Salim Akbar v. Government of Sindh PLD 1984 Kar. 358, the Government had, in
exercise of power under section 3(2) of the Sindh Rented Premises Ordinance, 1979, issued a
notification exempting certain premises from the application or the Ordinance. Naimuddin, J.,
relying on the cases cited above said:--
 
"...there is no indication in the 1979 Ordinance that the powers under section 3 could be
exercised retrospectively at any time and there is also no indication in the notification that it was
intended to exempt the properties with retrospective effect so as to affect the pending
proceedings. It could not have been done for it is well-settled that a notification issued under the
purported exercise of the delegated powers under a law cannot be made to operate
retrospectively so as to impair an existing or a vested right or impose a new liability or
obligation."
 
Now, section 3 of the Sindh Medical College Act, 1987, empowers the Government of
Sindh, by rules, to "regulate admissions in medical colleges in Sindh"; and provides that such
rules may provide for, inter alia, allocation of seats. On the 20th December, 1993, the
Government, in exercise of this power prescribed a prospectus allocating seats to each district,
including Malir, oi Karachi Division; and the petitioners, in virtue of having fulfilled the
requirements of the Prospectus acquired vested right to apply for admission to a medical college
and to have their applications considered in accordance with that Prospectus. The Government
by the impugned Notification, dated the 26th February, 1994, purported to take away or destroy
that right. This it was not authorised to do by anything in the language of section 3 of the Act.
The impugned notification was, therefore, ultra vires and, consequently, void.
 
The next submission of Mr. Akhund was -that the impugned notification was arbitrary,
unjust and unreasonable and, therefore, illegal and void. He relied on the following cases:
    
     (i)Miss Nasreen Fatima Awan v. Principal, Bolan Medical College, Quetta PLD 1978 Quetta
17.
 
(ii)Mr. Zulfiqar Ali Bhutto v. The State PLD 1978 SC 40.
 
(iii)Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 AER 935.
 
 (iv) Muhammad lqbal Khokhar and 3 others v. Government of the Punjab PLD 1991 SC 35.
 
(v) M/s. Cannon Products Ltd. v. Income Tax Officer, Companies Circle, Karachi PLD 1985
Kar. 572.
 
"Arbitrary' according to Black's Law Dictionary (Sixth' Edition), means 'without adequate
determining principle; not founded in -nature of things; non-rational; not done or acting
according to reason or judgment depending on the will alone'; It is further stated in the same
dictionary to meant 'willful and unreasoning action; without consideration and regard for facts
and circumstances presented'."
 
Accordingly, any action taken or decision made without application of mind to, or
without consideration of, the relevant facts and circumstances would be arbitrary; and it was so
held in the case Miss Nasreen Fatima wherein Abdul Hayee Kureshi, Acting, C.J. (as he then
was) said:--
 
"One of the dominant tests of a decision being arbitrary is whether it proceeds on any substantial
reason or exhibits lack of application of mind. Such manner of exercise of jurisdiction has very
often been equated or called by a synonym of abuse of jurisdiction,."
 
The next two cases cited by Mr. Akhund lay down the rule for determining whether an
act complained of is unreasonable.
 
In the case of Mr. Zulfiqar Ali Bhutto v. The State, it was contended that it was not
necessary for the President of Pakistan or Chief Martial Law Administrator to issue various Post
Proclamation Orders to make special provisions for holding of forthcoming elections or to vary
the terms of appointment of the Chief Election Commissioner, Anwarul Haq, C.J. (speaking for
the Court), while pointing out the limitations of judicial review, repelled the contention in the
following words:---
 
"As to what is reasonable and what is not, the observations made by Hamooduir Rahman, J. (as
he then was) in the case of Abul A'la Maudoodi v. The Government of West Pakistan provide a
useful guide, namely:--
 
'But what is the test that the Courts are to apply in determining what is or is not reasonable.
Obviously this cannot depend upon the notions of reasonableness of individual Judges, for, one
Judge may well-regard that as reasonable which another regards as unreasonable. Nor is the
opinion of the Legislature conclusive on this question. The reasonableness must, of course, be
judged by the Standards of ordinary prudent and reasonable citizen... Reasonable is itself a
relative term. What is unreasonable in one given set of circumstances may well be reasonable in
another set of circumstances."
 
The test, in determining whether an action or a decision complained of is reasonable or
unreasonable is, therefore, whether an ordinary, prudent and reasonable, person would have
taken such an action or made such a decision.
 
The rule relating to unreasonableness was considered in the case of Associated Provincial
Picture houses Ltd. v. Wednesbury Corporation (1947) 2 A.E.R. 680) and was subsequently
affirmed in the case of Council of Civil Service Unions. It was there held that an administrative
action is subject to control by judicial review on the grounds of illegality, irrationality and
procedural impropriety. As to "irrationality" Lord Diplock explained:
 
"By 'irrationality' I mean what can now be succinctly referred to as 'Wednesbury
unreasonableness  It applies to a decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his mind to the question to be
decided could have arrived at it. Whether a decision falls within this category is a question that
Judges by their training and experience should be well-equipped to answer, or else there would
be something badly wrong with our judicial system."
The ordinary, prudent and reasonable person is, thus, tend to expect apply his mind to the
question before him which means that he must take into consideration relevant facts and
circumstances arid arrive at a decision which is in consonance with logic, reason and accepted
moral standards.
The meaning of the word "just" was considered by Rustom S.Sidhwa, J. in the case of
Muhammad Iqbal Khokhar where he observed:
……….. the word 'just' denotes, that which is right and proper, that which can be justified
in law .... the word 'just' would mean that which is legal and proper under the said Act or the
rules or that which imports the  exercise of good judgment or discriminatory appraisal within the
bounds of reason and which negatives the presence of any arbitrary, unreasonable or capricious
determination, or anything which causes injury to any person."
While the first part of the above observation appears to equate 'just' with conformity to
law, in the. second part, it has been equated with presence of reason or absence of
unreasonableness or arbitrariness. It would follow that which is unreasonable or arbitrary or
capricious would necessarily be unjust.
 
We have, now, to see whether the impugned notification was, in the light of the above
principles, arbitrary, unreasonable and unjust viz. whether it was such that no ordinary, prudent
and reasonable person would have promulgated it or, in other words, it contravened what is
termed. as 'Wednesbury unreasonableness' rule. For this purpose, the only material on record is
that which is contained in the Further Affidavit filed by the Government.
Initially, the stand of the Government was that it was the "competent authority to lay
down rules for regulating the admissions including allocation of seats and further relax any
clause and make amendments in the Prospectus of Medical Colleges in Sindh vide power vested
under section 3 of Sindh Medical Colleges Act, 1987". The amendment of the prospectus by way
of the impugned notification was, thus, sought to be supported by nothing more than the power
to amend; and no other justification was considered necessary. However, in the course of
hearing, the Government apparently realised that the position adopted by it in the
counter-affidavit was not tenable. It, therefore, filed a further affidavit. Prargraph 3 of the further
affidavit, which is relevant in this context, is reproduced below:
 
"The respondent No.1 had introduced the policy whereby Karachi was bifurcated in 5 districts
for the purpose of admission in the medical colleges by notification dated 20-12-1993. On
introduction of this policy the people of Karachi in general and elected representatives/students
of Karachi in particular protested against this policy of district-wise allocation of seats for
admission in Karachi. In this respect news items/editorials appeared in different newspapers
wherein district-wise distribution of seats in Karachi was criticised. Besides this, an adjourned
motion was also moved by the elected representatives of Karachi in the Provincial Assembly of
Sindh. The house discussed the policy and ultimately the Chief Minister of Sindh ordered review
of the admission policy by an amending notification issued on 26-2-1994 whereby the earlier
policy for admissions in Karachi treating it as one District was restored."
 
It appears from the documents annexed to the Further Affidavit that in consequence of
the publication of the news regarding the impugned notification, the matter of "the distribution of
Karachi Medical College admissions seats" was discussed in the Provincial Assembly and the
newspaper 'Dawn' commented editorially on the notification.
 
In connection with the adjournment motion, a summary was submitted to the
Government by its Secretary, Health, stating:--
 
"....in view of public interest the seats of Karachi Division are distributed all the five districts of
Karachi according to the census of 1981 with the approval of the Chief Minister vide a summary
(Annexures 'B') and the same is incorporated in the prospectus of session 1993-94 which has
already been announced."
 
The editorial in Dawn was (in part) as follows:-
 
"What causes dismay is that the principle of merit has been brazenly overruled in a
system which centralizes admission rules and procedure and lays down complicated quotas. This
was initially designed to provide weightage to the rural areas which were handicapped by their
backwardness and underdevelopment. But gradually all kinds of quotas like the Chief Minister's
quota, armed forces persons children quota and many others crept in. So much so that a demand
for quota in medical colleges for the Hafiz-i-Qur'an has also been voiced. This year the quota
anomaly has been carried to absurd limits. The quota for Karachi students has been split-up
district-wise--Primarily to ensure an adequate share for the newly-created Malir District, which
includes a sizeable number of rural settlements. In the process, Karachi proper share in the
available admission facilities had been considerably reduced. Consequently, many students with
good grades will be competing with one another and many of them will be left out in the cold,
while medical students will get in with relative ease against reserved seats."
The editorial goes on to criticise the quota system generally as suppressive of academic
worth and to suggest that "it is time the- medical colleges instituted entrance tests and admitted
students entirely on merit".
 
In this connection, it may be noted that the stand of the Government, in its comments in
reply to Constitution Petition No.D-283 of 1994, challenging the creation of Malir District, was
that the new district had been created in observance of the principles of policy contained in
Article 37 (a) (d) (c) and (i) read with Article 29(2) of the Constitution; and that the petition had
been filed with mala fide intention to "deprive people of backward agricultural and rural areas of
Karachi of educational and economic benefits".
 
The standpoint of the Government, thus, was that the area constituting the new district of
Malir was backward educationally and otherwise and that the new district was created in order to
promote the educational and other interests of that area; and further that in the unamended
Notification seats were reserved for Malir District because it was in "public interest" to do so;
and it is not the case of the Government that Malir has ceased to ~e a backward area, or that it
was no longer necessary to take steps to advance its educational interests or, indeed, that it was
not in public interest to provide for seats for the new district in medical colleges. What, then,
caused the change brought about by the impugned notification? According to the further
affidavit, it was the discussion of the matter in the Provincial Assembly and the critical editorial
in Dawn.
 
As for the debate in the Assembly, there is nothing on the record to show what was said
by the members and what was the Government's reply; and there is certainly nothing to show
that criticism, if any, of the impugned notification was accepted by the Government as valid. At
any rate, it is difficult to conceive that the Government, having, as a matter of considered public
policy, created the district of Malir and having, in due consideration of 'public interest', allocated
seats for that district in medical colleges, suddenly realised that it had been wrong all along and
reversed the policy with regard to admissions while continuing to maintain that Malir was a
backward area whose educational and other interests needed to be protected and advanced.
 
With regard to the comment in -Dawn, it is clear that 'the criticism therein was directed
principally to quota system itself on the ground that it is suppressive of merit and academic
worth. That criticism may generally be valid because the object of establishing and running
medical colleges is to provide efficient and competent doctors and health service to the citizens
which object cannot be achieved if students with poor academic achievement are admitted to
medical colleges on the basis of various-quotas and not merit alone. The fact, however, remains
that the Government continues to allocate seats on the basis of quota for each district of the
province ostensibly to provide weightage to those students who, for various reasons, are unable
to attain the requisite standard to be able to compete with more able students from other districts;
and no reason has been advanced to justify the treatment of Malir differently. Therefore, on the
basis that the district of Malir was created bona fide for advancement of its educational and other
interests and on the assumption that quota system is necessary, no reason has been disclosed for
issuance of the impugned notification; in fact, it appears to be thoroughly devoid of logic or
reason.
 
. In the circumstances, it is clear that the impugned notification was arbitrary and
unreasonable because of lack of application of mind by the authorities who promulgated it to the
question and because it appears to have been a knee-jerk reaction rather than considered response
to the events following its promulgation. It is also, in the words of Lord Diplock, "so outrageous
in its defiance of logic" that no sensible or ordinary, prudent and reasonable person could have
promulgated it.
 
The third submission of Mr. Akhund was that the impugned notification contravenes Article
25(l) of the Constitution. On this question, he has submitted a rather lengthy written argument
the gist of which is as follows:--
 
(i)That, admittedly, the area of Malir of which the petitioners are residents, is a backward area
and the district was created in pursuance of Articles 37 and 38 of the Constitution to promote,
inter alia, the  educational and economic interest of its residents.
 
(ii)   That the effect of the impugned notification is to compel the backward students of Malir to
compete with more advanced students of other districts of Karachi.
(iii) That Karachi Division consists legally of five districts but by the impugned notification, has
'been converted into one district for the purpose of admission to medical colleges.
(iv) That the impugned notification has no nexus with object of Rules 3 and 4 of the Prospectus
and has, in fact, the effect of destroying that object.
 
He relied on the following cases:
 
(i) Zia Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lahore 554).
 
(ii) Shireen Munir and others v. Government of Punjab (PLD 1990 SC 295).
 
(iii) IA. Sherwani and others v. Government of Pakistan (1991 SCMR 1041).
 
(iv) Pakistan Petroleum Workers' Union v. Ministry of Interior (1991 CLC 13).
 
(v) Inamul Hassan v. Federation of Pakistan (1992 SCMR 563).
 
(vi) The Employees of the Pakistan Law Commission v. Ministry of Works  (1994 SCMR-1548).
 
The learned Advocate-General, on the other hand, submitted, to quote his own words,
"equality before the law means equal qualification and equal merit" and cited the case of Golden
Industries Ltd. v. Province OF Sindh (PLD 1983 Karachi 76). He submitted further that the
impugned notification was issued in view of the adjournment motion which was moved in the
assembly and of the criticism in the editorial in 'Dawn'. This argument has been dealt with above
and need not be considered any further. A further submission made by him was that the reason
for treating Karachi differently  was that the best colleges were available in Karachi so that any
student from any district of Karachi had easy access to those colleges-- meaning thereby,
presumably, that the students of all districts of Karachi could go to any of the colleges in Karachi
and, thus, obtain the necessary qualifications for admission to a medical college.
The principle underlying the equality doctrine contained in Article 25 of the Constitution
has been expounded, elucidated, affirmed and re-affirmed in the cases cited by' Mr. Akhund and
in several other cases in this country and elsewhere; and is now beyond dispute. Indeed the only
dispute between the parties here was whether that principle was attracted to the facts of the
present case. Any discussion of the authorities in which the principle has been considered would,
therefore, be a mere exercise; in pedantry; and it is sufficient to briefly state the principle and
then to see whether it was violated by the impugned notification.
The basic or fundamental rule is that a persons, under like circumstances and conditions,
shall be treated alike both in privileges conferred and in liabilities imposed. Thus, discrimination
between persons or classes of persons similarly situated or circumstances is prohibited or, in
other words, class legislation is forbidden. It follows that the rule does not prohibit different laws
or different treatment for those differently circumstances and the State has the power to
distinguish or classify persons or things and to make laws or rules applicable only to the persons
or things falling within the particular class. However, a classification which is arbitrary or
capricious and not founded on any rational basis or which has no rational nexus with the object
sought to be achieved by the law or the rule is no classification. It must, therefore, be reasonable
and rest upon a difference which is real as distinguished from one which is seeming, specious or
fanciful. Thus, classification would be reasonable and valid--
 
(i)    if it is based on intelligible differentia which distinguish persons or things that are grouped
together from those that have been left out; and
 
(ii) if it has rational nexus with the object sought to be achieved by it.
 
"Intelligible differentia", as stated in Inamur Rahman's case (at page 588 of the report),
means "an attribute by which a species is distinguished from all other species of the same genus,
or, a distinguishing mark". The petitioners are species of the same genus, namely, the students
residing, or domiciled, in the Province of Sindh; and there is nothing on the record to indicate
that they were in any manner circumstances differently from the other students who were
allocated seats district-wise from the respective districts in which they were domiciled. Indeed,
the learned Advocate-General did not even attempt to show that there was any difference
between the petitioners and those other students. The classification was, thus, not based on any
differentia let alone intelligible differentia. Besides, as indicated above, it was arbitrary and
unreasonable. It was, therefore, no classification within the meaning of the equality doctrine and
was, therefore, illegal and void.
The purported classification failed also to conform to the second requirement of the rule,
namely, that it should have rational nexus with the object sought to be achieved by the
legislation. The entire scheme of the Prospectus, as fortified by Rules 2 and 3 thereof, is to
provide for competition among students on the basis of quotas for the districts and to confine the
competition among students of each district. The impugned notification flies in the face of such a
scheme and is thus inconsistent with its object.
The case of Golden Industries Ltd. relied upon by the learned Advocate-General is of no
avail to the Government because all that was decided in that case, in the present context, was that
the amendment in the valuation list providing a basis for assessment for property tax only in
respect of industrial properties situated within Karachi Rating area was not, in the circumstances
of the case, violative of Article 25.
 
Finally, Mr. Akhund submitted that the impugned notification was mala fide because it
was issued to deprive the petitioners of the benefit of higher education by compelling them to
compete on equal footing with students of entire Karachi which is a predominantly Urban area
where better facilities are available. He relied on the case of The Federation of Pakistan v. Saeed
Ahmed Khan (PLD 1974 SC 151) wherein it was observed, at page 170:--
 
"'Mala fide' literally means 'in bad faith'. Action taken in bad faith is usually action taken
maliciously in fact, that is to say, in which the person taking the action does so out of personal
motives either to hurt the person against whom the action is taken or to benefit oneself. Action
taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by
law under which the action is taken or action taken in fraud of the law are also mala fide. It is
necessary, therefore, for a person alleging that an action has been taken mala fide to show that
the person responsible for taking the action has been motivated by anyone of the considerations
mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to
establish the case of mala fides, nor can case of mala fides be established on the basis of
universal malice against a particular class or section of the people."
            None of the above requirements is satisfied in the present case. The argument was,
therefore, without merit.                                                                  
 
There remains for consideration the submission which was made rather half- heartedly
and almost as a last fling by the learned Advocate-General. He contended that allocation of seats
in medical colleges was a matter of public policy and that this Court would not interfere in such
matters; and relied, for support, on the cases of Lt.-Col. Farzand Ali and others v. Province of
West Pakistan (PLD 1970 SC 8), Gul Khan v. Government of Balochistan (PLD 1989 Quetta 8)
and Mona Batool and another v. Sindh Government (1992 MLD 777).
 
In the case of Lt.-Col. Farzand Ali and others, it was observed, "Compulsory  retirement
which carries with it no stigma and no vindictiveness against the person concerned is different
from removal from service or dismissal. There may be a variety of reasons which may impel a
Government to compulsorily retire an officer on his having completed the period of service
qualifying him for pension and Government alone is the best Judge of these reasons. It is not
possible for the Courts to sit in judgment over the action of Government, if from materials
disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse
of power. It must of necessity be left to the Government itself to decide as to whether retirement
of the officer concerned was in public interest or not. The Government, it is said, has an absolute
discretion to retire any of its officers at this stage."
It is true that it is not possible for the Courts to sit in judgment over the actions of the
Government taken in pursuance of a policy, but the disability of the Court to do so arises only if
from materials disclosed it does not appear that the action taken Was merely in colourable
exercise of, or in abuse of, power or abuse of jurisdiction which, as held  in Nasrin Fatima's case,
is synonymous with arbitrary action. Besides, it was not the case of the Government that the
impugned notification was issued in pursuance of any policy. On the contrary, its case was that
the Notification was issued in consequence of notice of adjournment motion in the Provincial
Assembly and comments in the press. The case of Farzand Ali is, therefore  of no assistance to it.
 
In the case of Gul Khan the Rule 2,12 of the policy for admission to the Engineering
College provided that a candidate who had passed Matriculation/F.Sc. (Pre-Engineering) from
outside Balochistan and failed to satisfy the Selection Committee that the reasons for not
studying in Balochistan were beyond his control was not eligible for admission. That rule was
challenged on the ground that it was violative of Articles 22(4) and 25 of take Constitution.
Article 22 contains provisions for "safeguards as to educational institutions in respect of religion,
etc." and provides, by sub-Article (4), that nothing therein shall prevent any public authority
from making provision for the advancement of any socially or educationally backward class of
citizens. It was held that the Government had framed the policy for advancement of education of
backward areas and to protect the right of students of Balochistan; and that the policy was not
violative of Article 22(4)  of the Constitution. The case quite clear 'is not relevant in the present
context for it was nobody's case that the impugned notification was violative of Article 22(4).
The case of Mona Batool equally has no relevance to the present ease because there it
was held only that prospectus issued by the Government of Sindh in exercise of powers under
section 3 of the Sindh Medical Colleges Act, 1987, was valid and not ultra vires.
Apart from the fact the argument was' not supported by the cases relied upon by the
learned Advocate-General, surely, it could not possibly have been argued that a "policy" which is
ultra vires and which contravenes the provisions of Article 25 of the Constitution would be
immune from challenge.
 
M.BA./Z-245/K                                                                                                   Order accordingly.