Talal Haleem and 3 others V. Principal Bolan Medical College, Quetta and 4 others,

PLC (C.S) 2015 1455Balochistan High CourtConstitutional Law2015

Bench: Muhammad Hashim Kakar

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P L D 2015 Balochistan 97 Before Muhammad Noor Meskanzai, C J and Muhammad Hashim Khan Kakar, J TALAL HALEEM and 3 others ---Petitioners versus PRINCIPAL BOLAN MEDICAL COLLEGE, QUETTA and 4 others ---Respondents Constitutional Petition No.59 of 2015, decided on 17th March, 2015. (a) Constitution of Pakistan --- ----Art. 25---Equality of citizens ---Intelligible differentia, principle of ---Scope ---Protection of Art.25 of the Constitution can be denied in peculiar circumstances of the case on the basis of reasonable classification founded on intelligible differentia, which distinguishes person or things that are grouped together from those who have been left out --- Differentia must have rational nexus to the object sought to be achieved by such cl assification. I.A. Sharwani v. Government of Pakistan through Secretary, Finance Division, Islamabad 1991 SCMR 1041 rel. (b) Prospectus of Bolan Medical College for Session 2014- 2015--- ----Chap. 1, para 1(B) ---Constitution of Pakistan, Arts.25 & 199--- Constitutional petition --- Admission to medical colleges ---Gender discrimination ---Petitioners were aggrieved of reserving 50% seats for female candidates for admissions in medical colleges in Balochistan province --- Validity ---State was mandated under the Constitution to eliminate gender discrimination but authorities had attempted to perpetrate the act of gender discrimination in fixing percentage of seats for girls in medical colleges ---No plausible and justifiable reasons were offered on the part of authorities to arrive at the conclusion that female students did not enter field of medical after completing their studies and, therefore, to hold 50% reservation provided for girls needed to be implemented ---Women were working in all spheres of life including law enforcing agencies, education and civil administration ---Restraining admission of females in medical colleges on the ground that they did not enter into medical field, could not be appreciated, as the same work was already being performed by them ---Such action of authorities amounted to gender discrimination and could not be called as a reasonable restriction ---High Court declared policy of fixation of quota to be unconstitutional, against Art.25 of the Constitution and principles laid down by the Supreme Court ---High Court directed to exclude para. 1(B) of Chap. I of the Prospectus of Bolan Medical College for session 2014- 15---High Court further directed that old policy in respect of admissions in first year M.B.,B.S. Bolan Medical College should be continued while granting admissions to students in session 2014- 15---High Court also directed that for 2014- 15 session, admission to Bolan Medical College must be finalized on the basis of old policy as early as possible ---Petition was allowed accordin gly. Asma Javaid and others' case Writ Petition No.28142 of 2014 and Shrin Munir v. Government of Punjab PLD 1990 SC 295 ref. Shrin Munir v. Government of Punjab PLD 1990 SC 295 rel. Muhammad Qahir Shah and Nadir Ali Chalgari for Petitioners. Masoom Khan Kakar for Interveners/Applicants. Nazim ud Din, Advocate -General, and Shai Haq Baloch, Asstt. Advocate -General for Official Respondents. Date of hearing: 11th March, 2015. JUDGMENT MUHAMMAD HASHIM KHAN KAKAR, J ---The petitioners file d the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution") for issuance of the writ of mandamus, directing the respondents to exclude Para No.1 (B) of Chapter -1 from the Prospectus of the Bolan Me dical College ("BMC") for Academic Session 2014- 15, being arbitrary, unlawful, unjust, unreasonable and ultra vires to the Constitution and against the interest of male candidates/students, who have applied for admission for the current Session. Para No.1 (B) of Chapter -1 reads as under: -- "1. (A) That total number of M.B.,B.S. Seats during the Academic Session 2014- 2015 shall be 219. (B) The number of seats for Male and Female Medical Students should be 50% each. EXPLANATION: -- The total Number of the seats for Medical students in BMC will be equally distributed amongst the male and female students. In case the seats are in odd number, the odd seat will be given to the candidate who has the highest marks and in the next academic session the same o dd seat will be given to the opposite gender. In case the female available students are less than 50%, the remaining vacant quota of female will be given to male students." 2. The petitioners, while challenging the validity of the aforesaid para, prayed as under: -- "(a) Declaring that impugned Para No.1(b) of the Chapter -1 of the Prospectus of Bolan Medical College for Academic Session 2014 -15 is un- constitutional, illegal, unreasonable as well as discriminatory as of no legal effect. (b) Declaring that the impugned Para No.1 (b) of Chapter -1 of the Prospectus of Bolan Medical College for Academic Session 2014- 15 is ultra vires to the Constitution and against the interest of male' candidates/students who have applied for admission for current Session, as such, same is of no legal effect. (c) After declaring the impugned Para No.1(b) of Chapter -1 of the Prospectus of Bolan Medical College for Academic Session 2014- 15 being ultra vires to the Constitution, illegal, in - excess of authority and jurisdiction, the same be declared as null and void ab initio. (d) As a consequential relief, the same be excluded from the Prospectus of Bolan Medical College for Session 2014- 15. (e) Pending disposal of main petition, the respondents may be restrai ned from finalization of admission of lst year M.B.,B.S. and B.D.S. in Bolan Medical College, Quetta for Academic Session 2014- 15. (f) To pass any other appropriate order as is deem fit and proper in the circumstances of the case with cost of petition in the interest of law and justice." 3. The brief facts of the case, as narrated in the constitutional petition, are that respondent No.3 i.e. Pakistan Medical and Dental Council ("PM&DC") through respondent No.1 i.e. Principal, BMC, issued a Prospectus, formulating its policy and lying down rules for admission to the 1st year MBBS and BDS courses in BMC, Quetta. In response to the publication made by the Principal, BMC, the petitioners submitted their applications for admission in the Academic Session 2014- 15 from their respective districts. They appeared in the pre -entry test held on 28th December 2014 through process of National Testing System ("NTS") and, after qualifying the same, tentative merit lists were prepared by the respondents, which figured their names by securing 59.69, 59.12, 59.08 and 58.20 marks, respectively. The petitioners, being aggrieved, assailed the recent amendment brought in the Prospectus of BMC in the method of admission in the first year being arbitrary and unreasonable. 4. Respondents Nos.1 and 4 have filed their para -wise comments, which do not deny the facts, as stated above, however, stated that the rule in question was made to ensure equality in view of the following conditions: "(a) Health facilities in rural areas are not adequate as, in service lady doctors do not want to go to the rural areas and when they are transferred to rural area even their native districts do not report on duty and remain absent. (b) A certain number of Medical College graduates do not practi ce and become housewives, others go abroad after marriage and the ones who get government jobs do not want to be posted outside Quetta. The lady doctors who do go to rural area, face problems in doing evening and night duty due to the tribal traditions, resultantly common men suffer. (c) The College incurs almost Rs.30 to 40 lacks on one student in the 5 academic years and the lady graduates waste their education by not practicing. The main intention of making this rule was to provide more seats for male gender as almost 95% and above male graduates practice medicine after graduation. It was also done with the contention that better health facilities could be provided in rural areas. The idea of giving 50% seats to each sex was to provide more doctors not only in the cities but in the rural areas too. This rule was incorporated with good intentions." 5. We have heard M/s Muhammad Qahir Shah and Nadir Ali Chalgari, learned counsel for the petitioners, Mr. Masoom Khan Kakar, learned counsel for the interveners/applicants, Mr. Nazim -ud-Din, learned Advocate General and also perused the available record as well as the documents produced at the time of arguments. It seems that the impugned clause has been inserted in the Prospectus of BMC, Quetta in pursuance of the notification, issued on 18th September 2014 by the PM&DC, wherein the number of seats for male and female medical and dental students was fixed at the ratio of 50% each for admission in the academic year commencing 2014- 15. The said notification was challenged before the Hon'ble High Court, Lahore by one Asma Javaid etc. by way of Writ Petition No.28142 of 2014 and, accordingly, the same was declared unconstitutional and in violation of Article 25 of the Constitution as well as the dicta laid down in the case of "Shrin Munir v. Government of Punjab", (PLD 1990 SC 295). 6. It is also evident from the judgment of Asma Javaid's case (supra) that the notification dated 18th Sept ember 2014, issued by PM&DC, was based on the study, conducted by one Dr. Shaista Faisal, Deputy Registrar (Tech) during her MPH studies 2011- 12 and the Hon'ble Judge of the Lahore High Court observed as under: -- "The respondent No. 3 while making its decision on 4- 2-2014 relied upon a study made in the year 2011- 12 without considering all the recommendations, without first requiring a solution to save the merit and without ascertaining whether the quota will ensure that femal e doctors will continue in the profession or continue to specialize in the profession." It was further observed that "What transpires from the decision is that respondent PM&DC compromised on the merit for entry into the medical and dental profession thus impacting the overall merit of this profession. The policy of the respondent PM&DC accepts male candidates with a lesser merit with no guarantee that the other 50% will continue in the profession. It also prevents not ensure that the best of the candidate enter into the medical profession to produce the best of doctors and dentists, but instead allows a candidate who previously could not possibly have entered into a medical and dental college, now to study medicine and become a doctor or dentist. It has been seen over the years that entry into medical and dental colleges is very competitive and as per the study produced before this Court, 62% of the candidates who succeed into medical and dental colleges are females. This was the figure given in the year 2011 -12 whereas in terms of the arguments made before this Court, the figure has increased to 68%. Hence to the mind of this Court it is alarming that merit has been wasted and compromised, which ultimately means that the equality of doctors in the medical and dental profession ha s also been compromised. This affects the public at large. Furthermore it goes against the very spirit and propose of the mandate of the regulator PM&DC whose job is to ensure optimum results from medical and dental colleges as well as the medical professi on. In the very least they should have conducted a study to ascertain the problems and their reasons and then worked on solutions and improvements." In view of the dicta laid down and the observations made by the Hon'ble Lahore High Court, there was no occasion either with the PM&DC or with the Principal, BMC, to insert the impugned para in the Prospectus, particularly when the same was declared unconstitutional, violative of Article 25 of the Constitution and the dicta laid down in the case of "Shrin Munir v. Government of Punjab", (PLD 1990 SC 295). 7. Reverting to the pivotal question, as to whether the impugned clause in the Prospectus complies with the Constitution and in this regard all possibly relevant provisions of the Constitution are being re ferred to? Articles 22, 25, 34 and 37 of the Constitution, respectively, stipulate that: "22(3) subject to law. (b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, rel igion, cast or place of birth. (4) Nothing in this Article shall prevent any public authority from making provision for the Advancement of any socially or educationally backward class of citizens." "25. Equality of Citizens.--(1) All citizens are equ al before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children." "34. Full participation of women in national life. ---Steps shall be taken to ensure full participation of women in all spheres of national life." "37. Promotion of Social Justice and eradication of Social evils.--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." 8. It is true, as contended by the learned Advocate General, that every institution has a right to make the rules, regulations and policy of its own, so as to run its institution, but, at the same time, it is equally true that such authority and power is always subject to certain limita tions, hence, while making such rules, regulations and policy, it should not come out as a sword of discrimination, because Article 25 of the Constitution provides a guarantee of equal protection of law and equal treatment before law. It also prohibits the State from discriminating any citizen on the ground of sex. Article 4 of the Constitution mandates that to enjoy the protection of law and to be treated in accordance with law is an inalienable right of every citizen. Article 25 -A of the Constitution casts an obligation on the State to provide free and compulsory education to all children of the age of five to sixteen years. Article 37(c) of the Constitution requires the State to make technical and professional education generally available and higher education equally accessible to all on the basis of merit. Article 29(1) of the Constitution requires that each person performing functions on behalf of an organ or authority of the State, to act in accordance with those principles in so far as they relate to the functions of the organ or authority. While exercising jurisdiction, power and authority, an institution is always under obligation to keep these principles at its correct place with correct understanding and meaning. Likewise, Article 27 of the Constit ution, which contains the safeguard against discrimination in service by sub- clause (1) thereof, guarantees right of opportunity in matter of public employment. 9. We are conscious of the fact that the protection of Article 25 of the Constitution can be denied in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia, which distinguishes persons or things that are grouped together from those, who have been left out. The differentia, however, must have rational nexus to the object sought to be achieved by such classification. In the well celebrated judgment, passed by the Hon'ble Supreme Court in the case of "I.A. Sharwani v. Government of Pakistan through Secretary, Finance Division Islamabad" (1991 SCMR 1041), it was held that under Article 25 of the Constitution, reasonable classification could be made. However, the Hon'ble Supreme Court enunciated the following principles with regard to equal protection of law and reasonableness of classification: (i) "that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumst ances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reason able, it should be based-- (a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification; Principles as to classification are as under: (a) A law may be constitutional even though it relates to a single individual if, on account of some special circum stances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitu tional principles. The person, therefore, who pleads that Article 25, has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis an d such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are re sorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact; (c) It must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds; (d) the Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest; (e) in order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts wh ich can be conceived existing at the time of legislation; (f) while good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brough t to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation; (g) a classification need not be scientifically perfect or logically complete; (h) the validity of a rule has to be judged by assessing its overall effect and not by pickin g up exceptional cases. What the court has to see is whether the classification made is a just one taking all aspects into consideration." 10. Considering Para No.1 (B) Chapter -1 of the Prospectus on the touchstone of the aforementioned principles of law , neither the same can be termed as a reasonable classification founded on an intelligible differentia, nor has it rational nexus to the object sought to be achieved by such classification. On the principle of reasonable and intelligible classification, it is possible to have educational institutions exclusively catering the needs of the male population and also educational institutions catering exclusively the female population in our society. However, when an educational institution is open for co- educati on, then a further restriction of numbers on the ground of sex is permissible only as a protective measure of women and children, but in no case so as to protect comparatively less meritorious boys to the prejudice and exclusion of women. In other words, t he number of girl students can be fixed as the minimum, but not as the maximum particularly so where on merit they are likely to get more than the fixed number of seats. The Constitution assumes that the women and children in our society need protection and not the males and as long as the Constitution mentions that assumption and basis, we cannot reverse it by affording protection to male and adults at the cost of women and children, that would be opposed to the very fundamental mandate of the Constitution. 11. Undoubtedly, the battle for gender justice has been a long -drawn struggle. Gender based discrimination reveals ugly face of the society, which is prohibited under the Constitution. The insertion of clause (3) of Article 25 of the Constitution in re lation to women is recognition of fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio -economic activities of the nation on a footing of equality. It is in order to eliminate the socio -economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that sub- clause (3) is placed in Article 25 of the Constitution. Its object is to strengthen and imp rove the status of women. Similarly, a duty has been cast upon the State under Article 34 of the Constitution that steps shall be taken to ensure full participation of women in all spheres of national life. Making special provisions for women is an integra l part of Article 25(3) of the Constitution. 12. Under the Constitution, the State is mandated to eliminate gender discrimination, but, in the case in hand, the respondents have attempted to perpetrate the act of gender discrimination by fixing the maximum number of seats for girls in medical college. No plausible and justifiable reasons whatsoever have been offered on the part of the respondents to arrive at the conclusion that the female students do not enter the field of medical after completing their studies and, therefore, to hold that the 50% reservation provided for girls needed to be implemented. The women are working in all spheres of life including law enforcing agencies, education and civil administration. Restraining their admission in the medical colleges on the ground that they do not enter into medical field, cannot be appreciated, as the same work is already being performed by them. This action of the respondents definitely amounts to gender discrimination and cannot be called as a reasonabl e restriction. 13. Learned Advocate General also contended that denying admission to the girl students on merit, sex alone has not played a part, but there are other factors/considerations also, which had played a part i.e. lack of health facilities in the rural areas; reluctance of lady doctors to serve in the rural areas; absence from duty in the rural areas; non -reporting of the absence of the lady doctors from duties in the rural areas; discontinuation of medicine practice by female medical graduates after their marriages; outside Pakistan movement of the female medical graduates after completion of the MBBS/BDS; resistance of lady doctors against their posting outside Quetta; difficulties faced by the lady doctors due to the tribal traditions during the evening and night shifts in the rural areas; wastage of money incurred on the (female) medical students during their five years in the medical institutions for the female doctors generally quit medical practice after the graduation in a greater percenta ge vis a vis the male doctors, and last but not the least, the bona fides of the authorities behind the subject decision of fixing a percentage of 50% for each gender students versus the open merits. 14.`The aforementioned grounds, offered for justifying the classification of girls and boys and limiting them to their own located groups and competition within that groups, seem to be neither reasonable nor proper. It may be observed that the aforementioned factors have neither been studied in depth, nor has the conclusion drawn by the respondents supportive of any research carried out for this very purpose. It is only a general nebulous assertion made during course of the arguments that the girls do not enter the profession of medicine in the proportion in w hich men enter after completing their education. There is no scientific study carried out. It is dangerous to proceed on factual conclusions drawn from arguments and not supported by the scientific study or appropriate data produced and allowed to be conte sted in Court. Needless to observe that even a layman comprehends that none of the above points, conveyed by the respondents in support of the impugned paragraph, serve the purpose of sacrificing the principles of women rights, protection and meritocracy. 15. It was argued by Mr. Masoom Khan Kakar, learned counsel appearing on behalf of interveners that, clause (b) of sub- Article (3) of Article 22 of the Constitution mandates that citizen shall not be denied only on the ground of race, religion, cast or p lace of birth and since sex is not mentioned, as such, girl student can be denied admission in educational institution. No doubt, the provision prohibits denial of admission on four grounds of race, religion, cast or place of birth, but this does not mean that on any fifth ground the admission may be refused even if the fifth ground violates the Constitution or law. The fifth ground taken for denial of the admission to the petitioners is sex, but Article 25(2) of the Constitution says that there shall be no discrimination on the basis of sex alone. So how can a ground be taken to refuse admission contrary to the Constitution or even a law. 16. Even otherwise, the impugned paragraph in the Prospectus is also offended to the rights of eunuchs, as it reserves all the seats in BMC for male and female students. Eunuchs are more vulnerable among humans. They are entitled to be respected by all the segments of society as other citizens deserve. It is their fundamental right to be respected and dignified as citizen s of this country in view of the fact that their rights are fully protected under the Constitution including the right to get education. 17. Failure in attaining women emancipation may not be the peculiar feature of our society only, yet it looks until n ow an aspiring dream in our society, for, it is an undeniable fact that women in our society have not been treated at par with men. They have been continuously deprived of their due social and economic status. Being custodian of the Constitution, this Cour t feels obliged to protect each right enunciated therein (as highlighted hereinabove), which very much encompasses the rights of women along with others. But this case both prima facie as well as ex facie simultaneously seems to be a case of merit and weak administration along with women rights. Allocation of 50% seats to both the genders utmost shows one thing that during the earlier arrangements, that is, prior to the insertion of the subject paragraph in the Prospectus, the female students would due to open merits policy secure more seats vis a vis male students. There is no need of emphasizing the fact that meritocracy is the corner -stone of every prosperous civilized and just society. 18. This Court does not feel like entering into a controversy of women rights versus the merit, but even the superficial and cursory perusal of the arguments placed before us by the respondents portray that the object behind the insertion of the said paragraph are the problems, which have emanated from the lack of strong administration required for the achievement and maintenance of the due level of discipline for functioning of any institution, rather than gender and merit. The exact notion and logics forwarded by the respondents have already been elucidated at length her einabove and reproducing them would amount tautology. 19. We, as a society, are going through a transitory phase, particularly speaking in the backdrop of the social conditions of Balochistan. It has been generally observed, as in this particular case, t hat instead of long lasting remedies, we often resort to short terms solutions for addressing our problems, which leads to nothing, but adhockery and is a sheer myopic approach. Unfortunately, we see the same myopic approach adopted in the subject case by institutionalizing the gender based quota at the cost of discrimination and meritocracy. We would have appreciated, had concrete steps like introduction of disciplinary action against the doctors resisting postings in the rural areas, obtaining bonds at the time of admission in professional colleges to serve at native place for a specified period and against the ones habitual of remaining absent from duties, would have been taken. It would have been more conducive if efforts for the provision of facilities to the female medical graduates have been ensured in the rural areas. The proper panacea for the treatment of these maladies would have been the introduction of long lasting and methodical mechanism of administration rather than the short term death of meritocracy. 20. In a society like ours, where there is dearth of the male graduates. what to say of the females, depriving that society further of the opportunities of female education and that too of the medical education, is by no means a judicious decis ion. This yardstick of 50% gender based seat allocation would deprive many inspiring female future doctors of the province. It goes without saying that in the real setup of Balochistan, people after a long time have realized the significance on female education, yet they mainly give preference to two fields, i.e. health and education and allow females to join these professions. If we look at the affairs of our Government's administration of various departments, we see that all these issues are being witness ed in education department as well, the gravity may even be more in education department. Allowing this quota system would provide licence to the education department and we may hear and see one fine morning education department coming up with a likewise s olution. This is detrimental for the female education and meritocracy in an under educated society like Baluchistan. 20. In view of what has been stated above, this petition is disposed of in the following terms: (i) the policy of fixation of quota is declared to be unconstitutional, against Article 25 of the Constitution and the dicta laid down in the case of "Shrin Munir v. Government of Punjab", (PLD 1990 SC 295); (ii) para 1(B) of Chapter -1 of the Prospectus be excluded from the Prospectus of Bolan Medical College for Session 2014- 15; (iii) the old policy in respect of admissions in 1st year MBBS Bolan Medical College should be continued, while granting admission to the students in Session 2014- 15, and (iv) accordingly, for 2014- 15 Session, admission to Bolan Medical College must be finalized on the basis of old policy as early as possible. MH/48/Bal. Order accordingly.
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