h1

2001 SCMR 1161

MST. ATTIYYA BIBI KHAN AND OTHERS

V/S

FEDERATION OF PAKISTAN THROUGH SECRETARY OF EDUCATION

Per Rana Bhagwan Das, J.(a) Constitution of Pakistan (1973), Articles 254, 22, 25, 29, 37(c), 18, 2A and INT

Adverting to the question of equal protection of law and equal treatment before law I am reminded of the following illustrious principles laid down by this Court in I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041:—

“(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that person 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 validity 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 responsibilities of a classification can be laid down as what may be reasonable classfication in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(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 reasonable, it should be based:–

(a) on an intelligible differentia which 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.”

The principle was followed in Muhammad Shabbir Ahmed Nasir v. Secretary Finance Division, Islamabad 1997 SCMR 1026 and reiterated in Mushtaq Ahmad Mohal v. Hon’ble Lahore High Court 1997 SCMR 1043 which was a case of zonal allocation or quota system in matter of services in the light if Articles 18, 27, 25 and 2A of the Constitution. It is true that Mushtaq Ahmad Mohal’s case (supra) essentially pertains to zonal or regional quota for appointments to public service in terms of Article 27 of the Constitution, the principles laid down in the case would apply with greater force to the case of reservation of seats for particular categories for admission to professional colleges dispensing medical education. True that Constitutional provision prescribing the period for such classification has been amended by Majlis-e-Shoora, the proposition of law settled is binding in all matters governing the right to enter upon any lawful profession or occupation without any discrimination. Article 25 of the Constitution unambiguously guarantees that all citizens are equal before law and are entitled to equal protection and that they shall not be discriminated on the basis of sex alone. inter alia, Articles 2A, 18 and 25 of the Constitution are designed, intended and directed to bring about an egalitarian society based on Islamic concept of social justice. Needless to reiterate, there is no difference between individuals of mankind on the basis of race, colour and territory and that all human beings are equal in the eyes of Allah as He created all from a quintessence of clay. It would be pertinent to quote paragraph 36 of the judgment rendered by Federal Shariat Court in Nusrat Baig Mirza v. Government of Pakistan PLD 1992 FSC 412 which was, inter alia, quoted with approval in paragraph 25 of the classic judgment rendered by a Full Bench of this Court and authored by Ajmal Mian, J. (as his lordship then was), in Mushtaq Ahmad Mohal’s case (supra):–

“The Holy Qur’an and Sunnah should form the basis of all our directions for all our spiritual as well as worldly endeavours as they provide us a guidance not only towards the good in the Hereafter but also to attain a good life in this world. Quota system in disregard of merit makes the place of domicile as the criteria and this has, unfortunately, been so woven and institutionalised in our socio-political fabric that unless we return to the original message of the Holy Qur’an we will be farther away from the righteous and straight path.

No doubt, concept of reasonable classification has been held to be implicit in Article 25 of the Constitution which guarantees equality of citizens and equal protection of law as has been clearly explained in I.A. Sherwani’s case (supra) mentioned in paragraph 5 above. Nevertheless, it is equally well-settled that the classification must be reasonable and must have nexus with the objects sought to be achieved by such classification. What needs to be seen is whether the classification impugned before the High Court could be termed reasonable or not.

It is well-settled principle of Constitutional interpretation that the Constitution must be read as an organic whole and all its provisions must be harmoniously reconciled instead of picking out inconsistencies between different provisions. If authority is needed, one may refer to Full Court decision in Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473. Article 25 apart from stipulating equality and equal protection of law to all citizens expressly prohibits discrimination on the basis of sex and provides that the State may made special provision is for protection of women and children. Article 22 of the Constitution forbids discrimination on grounds of race, religion, caste or place of birth in educational institutions, receiving aid from public revenue but enables a public authority to make provisions for the advancement of any socially or educationally backward class of citizens. Article 37(c) inter alia requires that the State shall make technical and professional education generally available and higher education equally accessible to al on the basis of merit.

It may be pertinent to recall that in Shrin Munir v. Government of Punjab PLD 1990 SC 95 this Court repelled the contention that admission to Government aided institutions was exclusively covered by Article 22 of the Constitution and held that Article 25 was equally applicable. On the same principle there is no reason for ignoring the requirements of Article 37(c) of the Constitution. No doubt, aforesaid Article occurs in the Principles of Policy and is not directly enforceable nevertheless Article 29 of the Constitution requires each organ or authority of State to act in accordance with those Principles. In Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 418 this Court described these Principles of Policy as “conscience of the Constitution and the basis of all executive and legislative action”. In Employees of the Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548 it was held that the provisions relating to Fundamental Rights ought to be read together with the directive Principles of Policy. In Abdul Qadir Shaikh v. Registrar, N.E.D. University of Engineering and Technology 1992 CLC 2222 and Abdul Fareed v. N.E.D. University of Engineering an dTechnology 2001 CLC 347 a Division Bench of the Sindh High Court held that Article 37(c) ought to be read with Article 25 in matters concerning admission to Professional Colleges. Thus, reading Article 25 along with Articles 2A, 22 and 37(c) of the Constitution would show that only such classification could be deemed reasonable which fosters the objects of the Constitution i.e. to make higher education available on merits and at the same time to accommodate the interests of the socially or economically disadvantaged sections of the people for the purpose of fostering genuine rather than nominal equality. [pp. 1183, 1184, 1185, 1186] M, N, O, P, Q, R & S

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: