Per Syed Shabbar Raza Rizvi, J,–Constitution of Pakistan (1973) arts. 199, 8, 25, 37 & 29-
Prospectuses are provided to the intending students in advance. These prospectuses contain rules for admission in the above two categories i.e. admissions on merit and admissions on self-finance scheme basis, therefore, all students who apply for admissions under the above two categories or classes, they do it after knowing the rules in advance. Therefore, by their express conduct they bound themselves to abide by rules provided in the prospectus.
A law, rule or a custom having force of law, under Article 8 can be declared by this Court void, provided such law, rule or custom is inconsistent or is in contravention of fundamental rights guaranteed under the Constitution. In our Constitution, fundamental rights are provided in Chapter 1 of Part-II of the Constitution. The list of fundamental rights does not include expressly right to acquire medical education free of cost, etc. However, in Chapter 2 of Part I of the Constitution, a list of principles of policy is provided. Article 37 provides that the State shall; (a) promote, with special care, educational and provide free and compulsory secondary education within minimum possible period; and (c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit. But these principles of policy are not enforceable by the Courts, though, under Article 29 of the Constitution 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 principles insofar as they relate to the functions of the organ or authority. However, Article 29 also provides that as far as the observance of any particular principle of policy is concerned, it may be depended upon resources being available for the purpose.
Therefore, even according to the judgment of the Full Bench, the right to education is not expressly provided as one of the fundamental rights enumerated in the Constitution, but it can be drawn from the right to life while giving a broad or expanded interpretation. Similarly, in the same judgment, this Court also held that while sitting in the Constitutional jurisdiction this Court would not like to enter into policy making domain of the State or question the Legislature wisdom. We may point out that in the above Full Bench judgment the subject-matter before the Court was admission to the Medical Colleges.
The Supreme Court held, “the directive principles of State of the policy are to be regarded as fundamentals to the governance of the State, but they are not enforceable by any Court.” (Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416)
It has been held in number of cases by our Superior Courts that ‘equal treatment’ means equal treatment amongst persons who are equally placed or belong to the same class of people. Therefore, classification in terms of equal treatment is legally permissible. For further guidance we may refer to I.A. Sherewani v. Government of Pakistan 1991 SCMR 1041 and Dr. Tariq Nawaz v. Government of Pakistan 2000 SCMR 1956.
After considering the contentions of the learned counsel for the parties and the above case-law, we have reached to the conclusion that the impugned scheme may not be considered as an ideal scheme to meet the requirements and desire to provide medical education to all those who desire to join medical profession as doctors, nevertheless, something is better than nothing. We are having more doctors nowadays than what we used to have in the past which is beneficial to the society. Thus, for the above reasons, we dismiss these two Writ Petitions No. 5327 of 2004 and 19778 of 2004 with this single judgment. [pp. 432, 434 & 435]A,B,C,D,E , F & G
M.D. Tahir for Petitioner.
Fawad Malik, AA.G. for Respondents with Muhammad
Shabbir, S.O. Health Department and Abdul Rasheed
Rasheed Asstt. KEMc, Lahore.
Date of hearing : 12th April, 2005.