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SUPREME COURT OF AZAD JAMMU AND KASHMIR
[Appellate Jurisdiction]
PRESENT
Mohammad Azam Khan, C.J Ch. Muhammad Ibrahim Zia, J.
Civil appeal No. 1 of 2014 (Filed on 3.1.2014)
1. Haider Ali s/o Mubashar sarfraz r/o Plot No.
570/1, Sector B-5, Rubeena Mubashar
Hospital Mirpur.
2. Muhammad Bilal s/o Mubashar Sarfaraz, r/o
Plot No. 570/1, Sector B-5, Rubeena
Mubashar Hospital Mirpur.
….. APPELLANTS
VERSUS
1. Qurat-ul-Ain Latif d/o Muhammad Latif, r/o
House No. 404, Sector F/3, Part 1 Mirpur.
2. Muhammad Ali Raza s/o Muhammad Hanif
Chaudhry, r/o House No. 145, Sector F/3,
Part 11, Mirpur.
….RESPONDENTS
3. Azad Government of the State of Jammu and
Kashmir through its Chief Secretary, having
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his office at New Secretariat Complex, Lower
Chatter, Muzafarabad.
4. Health Department of Azad Government of
the State of Jammu and Kashmir through its
Secretary Health, Muzaffarabad.
5. Joint Admission Committee, Medical Colleges,
Government of Azad Jammu and Kashmir,
through Chairman Joint Admission
Committee, Principal, Medical College,
Muzaffarabad.
6. Chairman, Scrutiny Committee for admission
M.B.B.S, Medical College, Muzaffarabad.
7. Admission, Board of admission of Candidates
for M.B.B.S, Medical College, Muzaffarabad.
8. Principal, M.B.B.S in Session 2013-14,
through its Chairman, Secretary Health.
9. Principal, Poonch Medical College, Poonch
Rawalakot.
10. Principal, Fatima Jinnah Medical College,
Lahore.
… PROFROMA-RESPONDENTS
(On appeal from the judgment of the High Court
dated 28.12.2013 in writ petition No.1927 of 2013)
------------------ FOR THE APPELLANTS: Mr. Sadaqat Hussain Raja and
Umar Mehmood Qasoori, Advocates.
FOR THE RESPONDENTS: Mr. Abdul Rasheed Abbasi
and Sardar Shahid Hamid Khan, Advocates.
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Date of hearing: 10.1.2014.
JUDGMENT:
Ch. Muhammad Ibrahim Zia, J.—The
captioned appeal by leave of the Court is addressed
against the judgment of the High Court dated
28.12.2013 whereby while accepting the writ petition
filed by respondents No.1 and 2, the seats in medical
college occupied by the appellants herein, have been
declared vacant and it has been directed that the
nomination against these seats shall be made on the
basis of merit of candidates prepared for District
Mirpur.
2. The gist of facts necessary for disposal of this
appeal is that the Azad Jammu and Kashmir
Nomination Board invited the applications for admission
in M.B.B.S on the basis of District wise quota. The
contestant candidates applied for and appeared in the
entry test against the quota reserved for District
Mirpur. Respondents No.1 and 2 were placed at serial
Nos. 26 and 29 of the merit list, respectively. The
appellants were placed at serial Nos.10 and 16 ahead
to the respondents. The appellants were nominated for
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admission in M.B.B.S. Respondents No.1 and 2
challenged the nomination of appellants mainly on the
ground that they are class III, State Subjects of Azad
Jammu and Kashmir, hence, were not entitled to be
nominated against the seats reserved for the Ist Class
State Subjects. It has been further alleged that they
have obtained domicile certificates of District Mirpur by
practicing fraud. They further alleged that one Sana
Asghar, placed at serial No. 12 of the merit list is not
resident of District Mirpur rather she is residing in
Chattala Jhelum whereas Zoom Mumtaz placed at serial
No.5 of the merit list is resident of Hafizabad and same
like Haseeb Ehsan placed at serial No. 22, is resident
of District Bhimber, therefore, they are also not eligible
to be nominated against the seats reserved for District
Mirpur.
3. The writ petition was contested by
respondents No.10 to 14 therein, whereas the other
respondents were proceeded ex-parte. The High Court
after necessary proceedings while accepting the wit
petition filed by respondents No.1 and 2, declared the
seats occupied by the appellants as vacant. The High
Court also directed for nomination of the candidates
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against the seats reserved for District Mirpur on merit,
whereas the writ petition to the extent of other
respondents therein was dismissed. The appellants
have challenged the legality and correctness of the
judgment of High Court dated 28.12.2013, through the
instant appeal.
4. Mr. Umar Mehmood Qasoori, Advocate, the
learned counsel for the appellants argued the case at
some length. After discussion of facts with reference to
the documents he submitted that the appellants
admittedly and undisputedly are state subjects.
Whereas according to the provisions of Azad Jammu
and Kashmir Interim Constitution Act, 1974
(hereinafter to be referred as Act, 1974) all the State
Subjects are equal without any classification or
discrimination. The notification relating to pre-
constitutional era in which classes of state subjects
have been created, is directly in conflict with the
Constitution, especially, the part dealing with the
fundamental rights, hence, is void and has no force or
usage. He referred to section 3 of Act, 1974 according
to which Islam is the State Religion, thus, all the laws
and policies are to be interpreted according to the spirit
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of Islam in which there is no discrimination or
distinction among the subjects. He also referred to the
provision of section 4 of Act, 1974 relating to the
Fundamental Rights and section 31 (5) of Act, 1974,
dealing with the legislative powers, particularly that
there shall be no law repugnant to the injunctions of
Qurran and Sunnah. Thus, the High Court fell in error
of law and the facts while handing down the impugned
judgment, hence, the same is not maintainable. He
further submitted that if for the sake of arguments,
according to the definition clause of Act, 1974,
notification regarding classes of state subjects is
deemed as law, even then according to celebrated
principle of law, definition clause has no governing
effect upon the other Constitutional provisions. The
referred notification has no legal authenticity. He
advanced another argument that if for the sake of
arguments, the notification prescribing classes of the
state subjects is deemed as valid law, then despite that
the appellants cannot be discriminated for the simple
reason that under the said notification there is no
restriction or mention of any preference of any class of
state subjects over the others relating to the admission
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in the Educational Institutions. In the said notification
only preference is mentioned for the purpose of
scholarships, grant of land etc. Thus, according to
celebrated principle of law of Interpretation of Statute,
the Court cannot add any word in the statute which is
not finding place in the Statute. In support of his
arguments, he has placed reliance upon the cases
reported as Syed Abbas Haider Gilani vs. Azad Kashmir
University through Vice Chancellor and 6 others [1996
MLD 1377], Muhammad Ayub vs. Abdul Khaliq [1990
MLD 1293], Talha Sarfaraz vs. Azad Government of the
State of Jammu and Kashmir through Chief Secretary
and 16 others [2012 CLC 1861], Justice (Rtd) Ch.
Rahim Dad Khan vs. Azad Government of the State of
Jammu and Kashmir through Chief Secretary and 3
others [1991 MLD 930] Government of the State of
Jammu and Kashmir through Chief Secretary
Muzaffarabad and 3 others [PLD 2000 AJK 1],
Nadeem Ahmed Advocate vs. Federation of Pakistan
[2013 SCMR 1062], Messrs Chitagong Juti
Manufacturing Co. Ltd vs. Province of East Pakistan and
another, [PLD 1966 Dacca 117], Amanullah Khan vs.
Chief Secretary, Government of N.W.F.P. and 2 others,
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[1995 SCMR 1856], Syed Muhammad Haider Zaidi and
others vs. Abdul Hafeez and others [1991 SCMR 1699],
Chaudhry Abdul Majeed and another vs. Azad Jammu
and Kashmir Government through Chief Secretary and
2 others [PLD 2001 AJK 24] and Walton Tobacco
Company (Pvt,) Ltd. and others vs. Azad Government
of the State of Jammu and Kashmir and others [1993
CLC 66]. He also raised serious objection regarding the
judgment of the High Court reported as Syed Abbas
Haider Gilani vs. Azad Kashmir University through Vice
Chancellor and 6 others [1996 MLD 1377] relating to
the state subject and submitted that the same is not
according to the true spirit of the Constitution. The
High Court fell in error of law while following the ratio
decedendi of the referred judgment in the present case.
5. Mr. Sadaqat Hussain Raja Advocate, the
learned counsel also adopted the arguments advanced
by Mr. Umar Mehmood Qasoori, Advocate.
6. Mr. Abdul Rashid Abbasi, Advocate, the
learned counsel representing the respondents seriously
opposed the appeal. He submitted that the arguments
advanced on behalf of the learned counsel for the
appellants are not according to the spirit of law. He
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submitted that the term “State Subject” is part of the
clause of Constitution which refers to the notification
prescribing interpretation of the classes of the State
Subjects. According to the Constitutional provisions
especially section 57, Constitutionality of any provision
of the Constitution cannot be called in question,
therefore, the whole arguments of the learned counsel
for the appellants are neither having any substance nor
acceptable. He submitted that according to spirit of the
Constitution, the classification is permissible. The only
condition is that classification should be rational,
reasonable and based upon intelligent reasoning. The
notification regarding the classes of state subject has
got Constitutional protection under section 51 of Act,
1974, therefore, unless the Constitution is amended,
the term “State Subject” according to the
Constitutional provisions, is part of the Constitution.
He further submitted that admission in the Professional
Colleges or Educational Institutions in the Azad Jammu
and Kashmir is based upon quota system. Even, it is
not open for all the state subjects of first class who
seek admission on equal footing rather classification
has also been made on the basis of unit-wise quota.
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The appellants have not challenged the same, thus,
even on this score, their appeal is not maintainable. He
relied upon the cases reported as Brig (Rtd) F.B. Ali
and another vs. The State [PLD 1975 SC 506], I. A
Sharwani and others vs. Government of Pakistan
through Chief Secretary, Finance Division Islamabad
and others [1991 SCMR 1041] Government of
Balochistan through Additional Chief Secretary vs.
Azizullah Memon and 16 others [PLD 1993 SC 341],
Muhammad Shabbir Ahmed Nasir vs. Secretary,
Finance Division, Islamabad and another [1997 SCMR
1026], Dewan Textile Mills Ltd. Vs. Pakistan and others
[PLD 1976 Karachi 1368] and Muhammad Bachal
Memon vs. Government of Sind through Chief
Secretary Department of Food and 2 others, [PLD 1987
Karachi 296]. He further submitted that it is universal
phenomena that there is classification among citizens
by birth and the citizens by choice all over the world,
thus, the impugned judgment is quite in accordance
with law and this appeal has no substance and is liable
to be dismissed with costs.
7. We have given our earnest thought to the
arguments advanced at bar and also examined the
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relevant pleadings of the parties. In the light of
arguments, pleadings of the parties, there are two
basic legal propositions of vital importance involved in
this case. The first is; whether, the question of
preference among the classes of the state subjects in
the light of the provisions of Act, 1974 can be looked
into by the Courts?; and the second is; whether, the
preference of superior classes of state subjects over the
others is also applicable in the matters of admission in
the Educational Institutions?
8. First of all, we have to deal with the
important question of preference among the classes of
State Subjects. The most heated argument advanced
on behalf of the appellants is that according to the
provisions of Notification No. I-L/84 dated the 20th
April, 1927, the classes of State Subjects have been
created which amount to generate discrimination
among the State Subjects and is directly in conflict with
the provision of section 4, dealing with the fundamental
rights and section 3 of Act, 1974, declaring Islam as
State Religion of Azad Jammu and Kashmir. To resolve
this legal proposition, we will have to take into
consideration the Act, 1974 as one organ to ascertain
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its real spirit in this regard. No clause or part of the
Constitution can be interpreted in isolation having
disregard of the other relevant provisions or part of
the Constitution. Under the provisions of subsection 1
of section 2 of Act, 1974, the term “State Subject” has
been defined as following:-
“State Subject’ means a person for
the time being residing in the Azad
Jammu and Kashmir or Pakistan who is
a ‘State Subject’ as defined in the late
Government of the State of Jammu and
Kashmir Notification No. I-L/84, dated
the 20th April, 1927 as amended from
time to time;”
This Constitutional provision refers to the Notification
dated 27th April, 1927. It will be useful to reproduce
here the Notification dated 20th April, 1927 which reads
as under:-
THE STATE SUBJECT DEFINITION NOTIFICTION
DATED, THE 20TH APRIL, 1927.
No. I-L/84.-The following definition of
the term “State Subject” has been sanctioned
by His Highness the Maharaja Bahadur, (vide
Private Secretary’s letter No.2354, dated, the
31st January, 1927 to the Revenue Member of
Council) and is hereby promulgated for
general information:-
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The term “State Subject” means and
includes:-
CLASS I.- All persons born and residing
within the State before the commencement of
the reign of His Highness the late Maharaja
Gulab Singh Sahib Bahadur, and also persons
who settled therein before the
commencement of Samvat year 1942, and
have since been permanently residing therein.
CLASS II.- All persons other than those
belonging to Class I who settled within the
State before the close of Samwat Year 1968,
and have since permanently resided and
acquired immovable property therein.
CLASS III.- All persons, other than
those belonging to Classes I and II
permanently residing within the State, who
have acquired under a rayatnama any
immovable property therein or who may
hereafter acquire such property under an
ijazatnama and may execute a rayatnama
after ten years’ continuous residence therein.
CLASS IV.- Companies which have
been registered as such within the State and
which, being companies in which the
Government are financially interested or as to
the economic benefit to the State or to the
financial stability of which the Government
are satisfied, have by a special order of His
Highness been declared to be State Subject.
NOTE I.- In matter of grants of State
Scholarships, State lands for agricultural and
house building purposes and recruitment to
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State Service, State Subject of Class I should
receive preference over other Classes and
those of Class II, over class III, subject,
however, to the order dated 31st January
1927, of His Highness the Maharaja Bahadur
regarding employment of hereditary State
Subjects in Government Service.
NOTE II.- The descendants of the
persons who have secured the Status of any
Class of the State Subjects will be entitled to
become the State Subjects of the same Class.
For example if A is declared a State Subject of
Class II his sons and grand-sons will ipso
facto acquire the status of the same Class II
and not of Class I.
NOTE III.- The wife or a widow of a
State Subject of any class shall acquire the
status of her husband as State Subject of the
same class as her husband, so long as she
resides in the State and does not leave the
State for permanent residence outside the
State.
NOTE IV.- For the purposes of the
interpretation of the term “State Subject”
either with reference to any law for the time
being in force or otherwise, the definition
given in this Notification as amended up to
date shall be read as if such amended
definition existed in this Notification as
originally issued.
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9. According to celebrated principle of law,
interpretation clause in a Statute or Act providing
definitions of the terms used in the statute is always
incorporated with the purpose for prescribing scope and
limits of such terms. Hence, the term “State Subject”
wherever is used in the Act, 1974, will be capable of
the meanings assigned to it in the interpretation clause
unless expressly provided otherwise.
10. The importance, object and status of a
definition clause in a statute has been considered by
the apex Court of Pakistan in the case reported as The
Punjab Co-Operative Bank Ltd. Vs. The Republic of
Pakistan and 128 others, [PLD 1964 SC 616] which
speaks that object of definition clause or section in a
statute is generally to declare that certain words or
expressions used in that statute shall mean. The
relevant portion of the judgment reads as follows:-
“ The object of incorporating a
definition clause or section in a statute
is generally to declare that certain
words or expressions used in that
statute shall mean. The definition thus
is, as a rule, of a declaratory character
and normally applies to all cases which
come within its ambit whatever might
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have been the position before. No
question of retrospective operation
arises in such a case, for, it cannot be
said that because the object so defined
did not fall within the ambit of the
definition before its enactment. It must
continue to remain unaffected by that
definition and its character unchanged.
If this be so, then we see no reason
why the same principle should not
apply also in the case where an object
previously covered by a definition is
excluded from its scope.”
Same view has been adopted in another case
reported as Kazi Abdul Majid vs. Province of Sindh
through Secretary Excise and Taxation, Government of
Sind Karachi and another, [PLD 1976 Karachi 600].
This Court has also in the President’s
Reference No. 3 of 1977, reported as [NLR 1980 SCJ
135], highlighted the importance of definition clause in
the following words:-
“To appreciate the point
involved in a subjective way it
would be proper to know the
importance of a definition clause in
a statute. It has repeatedly been
laid down by superior Courts in
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Pakistan that definition clause in a
statute has the effect of a
declaratory provision and governs
all cases coming within its ambit.
The object of incorporating a
definition clause or section in a
statute is generally to declare what
certain words or expressions used
in that statute shall mean. The
definition thus is a rule of a
declaratory character and normally
applies to all cases which come
within its ambit whatever might
have been the position before.
Moreover, definition in an
enactment is provided for the
purpose of shortening words to be
used in the enactment for the
purpose of avoiding repetition. It
is, therefore, lawful and legitimate
to say that the words ‘in the
service of Azad Jammu and
Kashmir’ used in Section 49 of the
Constitution have the same
meaning which are ascribed to
these words in the definition clause
of the Constitution and no other
meaning can be given to the
phraseology……”
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The Act, 1974 has adopted the definition assigned to
the term “State Subject” used in the Notification dated
20th April, 1927 which has become part of the
Constitution.
11. Now the question arises whether according to
the construction of the statute, the question of
contradiction among the provisions dealing with the
subject arises or there is any conflict with the
provisions of section 4 dealing with the fundamental
rights keeping in mind the definition of the expression
“State Subject”. According to scheme and spirit of the
statute, the term “State Subject” wherever is used in
Act, 1974, including section 4 of Act, 1974, it is used
in the meanings, sense and scope assigned to it in the
interpretation clause which provides classes of State
Subjects. Thus, equality of the State Subjects under
the provision of Right No. 15, will be considered in the
light of the definition assigned to it by the Act, 1974.
12. The golden principles of interpretation of
statute are that the Courts have to interpret the
statute to save it by harmonizing its provisions and
avoid destruction of any word or clause as for as
possible. If the term “State Subject” without the
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meanings assigned to it is taken irrespective of classes,
its logical conclusion will be destruction of the definition
clause, whereas, if this term is taken into consideration
in the light of its definition which includes classes of
state subjects, then the Constitutional provisions i.e
interpretation clause, section 4 and Right No.15 can co-
exist or can be saved. In our view, according to
principle of harmonized interpretation, the term “State
Subject” used in Section 4, Right No.15 of Act, 1974
has the same meanings as assigned to it in the
definition provided in the interpretation clause of Act,
1974 which admits the classes of the State Subjects.
13. We have to follow the settled principles of
interpretation of statute which are almost summarized
in the case reported as Muhammad Ayub vs. Abdul
Khaliq [1990 MLD 1293]. Relevant portion of the
judgment reads as under:-
“31. Before I part with the case, I
would like to narrate the general
principles of Interpretation stated by
the Supreme Court of Pakistan in a
Reference by the President under the
defunct Constitution of 1956 PLD 1957
SC 219. The Supreme Court stated the
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general principles of interpretation and
said:-
‘(1) The first object of the Court to
discover the intention of the
author and that such intention is
to be gathered from the words
used in the statute or document.
(2) The second rule is that the
intention of the legislature in
enacting a statute ought to be
derived from a consideration of
the whole enactment in order to
arrive at a consistent plan. It is
wrong to start with some a priori
idea of that intention and to try by
construction to wedge it into the
words of the statute.
3. The third rule is that a statute
may not be extended to meet a
case for which provision has
clearly and undoubtedly not been
made.
4. The forth rule is that whenever
there is a particular enactment
and a general enactment in the
same statute, and the latter,
taken in its most comprehensive
sense, would overrule the former,
the particular enactment must be
operative, and the general
enactment must be taken to
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affect only the other part of the
statute to which it may properly
apply.
5. The fundamental principle of
constitutional construction has
always been to give effect to the
intent of the framers of the
organic law and the people
adopting it.
6. Another elementary rule of
construction of constitutional
instruments is that effect should
be given to every part and every
word of the constitution. Hence as
a general rule, the Courts should
avoid a construction which
renders any provision meaningless
or inoperative and must lean in
favour of a construction which will
render every word operative
rather than one which may make
some words idle and nugatory.
7. The next rule in construing a
constitutional provision is that it is
the duty of the Courts to have
recourse to the whole instrument,
if necessary, to ascertain the true
intent and meaning of any
particular provision. The best
mode of ascertaining the meaning
affixed to any word or sentence
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by a deliberative body is by
comparing it with the words and
sentences with which it stands
connected, and a constitutional
provision or a phrase to a
constitutional provision must be
read in connection with the
context. Nosciture a sociis is the
rule of construction applied to all
written instruments. Therefore,
particular phrases of a
constitution must be construed
with regard to the remainder of
the instrument and to the express
intent of the constitutional
convention in adopting it.
8. If there be any apparent
repugnancy between different
provisions, the Court should
harmonize them if possible. The
rule of construction of
constitutional law requires that
two sections be so construed, if
possible, as not to create a
repugnancy, but that both be
allowed to stand, and that effect
be given to each.’
It would appear that one of the cardinal
principles of interpretations is that: the
law should be interpreted in such
manner that it should rather be saved
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than destroyed. The law including the
Constitution must be interpreted in a
broad and liberal manner giving effect
to all its parts and the presumption
should be that no conflict or
repugnancy was intended by the
framers. In interpreting the word of an
Act actual words used in fact throw
light about the intention of the law-
makers and the other parts of the
statute.”
In the light of the enunciated principle of law
and peculiar facts of this case, the question of
inconsistency of the Constitutional provisions does not
arise.
14. So for as the other aspect of the case i.e the
equality before law is concerned, equality is always
among equals and not of different classes. As the
Constitution itself admits the classes of the State
Subjects, therefore, whenever the question of equality
among State Subjects arises, it will be determined in
the light of definition of the term “State Subject” and
on the principle of equality among equals. In the case
reported as Government of Balochistan through
Additional Chief Secretary vs. Azizullah Memon and 16
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others [PLD 1993 SC 341], the concept and scope of
equality before law has been discussed in detail. It will
be useful to reproduce here the relevant portion of the
judgment which has been handed down after survey of
a large number of judgments on the subject, which
reads as follows:-
“5….. In I.A, Sherwani’s case 1991
SCMR 1041 after considering the
judgments in F.B.Ali’s case PLD 1975
SC 506, Abdul Wali Khan’s case PLD
1976 SC 57, Aziz Begum’s case PLD
1990 SC 899, Shirin Munir and others
v. Government of Punjab PLD 1990 SC
295 and several judgments of the
Supreme Court of India, the following
principles were deduced:-
(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,
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persons in different age groups,
persons having different
financial standings, and persons
accused of heinous crimes;
(iv) That no standard of universal
application to rest reason-
ableness 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 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:-
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(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.”
15. On this point, we affirm the view taken in the
case reported as Syed Abbas Haider Gilani vs. Azad
Kashmir University through Vice Chancellor and 6
others [1996 MLD 1377], while rejecting the objection
raised by the learned counsel for the appellants in this
regard. As it has been observed hereinabove, that
classes of State Subjects are admissible under the
provisions of Act, 1974 which have got overriding effect
and no other Court including this Court can call in
question the validity of Act, 1974. The prohibition is
expressly provided under section 57 of Act, 1974
which reads as follows:-
“57. Act to over-ride other laws,
etc.-(1) The provision of this Act shall
over-ride and have effect
notwithstanding the provisions of any
law for the time being in force.
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(2) No Court including the Supreme
Court of Azad Jammu and Kashmir and
the High Court, shall call into question
or permit to be called into question, the
validity of this Act or an Act to amend
it..”
16. The next argument of learned counsel for the
appellants is that according to Act 1974, Islam is the
State Religion and the provisions of Act, 1974
permitting the classes of State Subjects are against
the principles of Islam as envisaged in the provision of
section 31 of Act, 1974, but this aspect of the
Constitutional provision cannot be deeply examined in
the light of provision of section 51 of Act, 1974 which
gives protection to the enforced laws. When the
provision of subsection 5 of section 31 of Act, 1974 is
considered in juxtaposition with the provision of this
section, conclusion is the same that the provision of
Act, 1974 are immuned from such examination. Even,
under the provisions of Azad Jammu and Kashmir
Shariat Court Act, 1993, the Act, 1974 is excluded
from definition of law for exercising the Court’s
jurisdiction to determine whether any provision of law
is repugnant to Qurran and Sunnah or not. Thus, as we
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are under oath to administer justice in the light of the
law enforced in the Azad Jammu and Kashmir, the
definition of State Subject which provides classes
among the State Subjects so long it remains intact, the
validity of this Constitutional provision cannot be
examined by this Court. In this state of affairs, it
hardly requires any detailed reasons or to take into
consideration the arguments advanced relating to this
legal proposition and other aspects including whether
such classification amounts to discrimination or not.
Therefore, in the light of the provisions of Act, 1974
referred to hereinabove, arguments of learned counsel
for the appellant are not tenable.
17. The other legal proposition which has been
forcefully argued by the learned counsel for the
appellants and also in support of which plethora of
judgments has been referred, is that in Note 1 of the
Notification dated 20th April, 1927, preference of
classes of State Subjects in relation to admission in the
Educational Institutions is not applicable. The learned
counsel for the appellants focused his argument on the
point of interpretation of Note-1 of the Notification I-
L/84, which speaks as following:-
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"NOTE I.- In matter of grants of State
Scholarships, State lands for agricultural and
house building purposes and recruitment to
State Service, State Subject of Class I should
receive preference over other Classes and
those of Class II, over class III, subject,
however, to the order dated 31st January
1927, of His Highness the Maharaja Bahadur
regarding employment of hereditary State
Subjects in Government Service.”
It is argued that as in this note, which deals
with preference of classes of State Subjects, the
admission in the Educational Institutions is not
included. The preference is provided for grant of State
Scholarships, State lands for agriculture and house
building purposes and recruitment to State Service.
Thus, the word which is not in the statute, cannot be
added, supplied or inserted by the Courts. He referred
to and relied upon number of judgments on this point.
18. In our opinion, for proper perception of legal
spirit, the term “Scholarship” is of great importance
which has not been defined in the concerned statute.
Therefore, according to celebrated principle of law, for
determining its meanings and scope, ordinary
dictionary meanings have to be adopted.
30
In the Oxford English Dictionary, A new
dictionary on Historical Principles, Volume IX by S-
Soldo, at page 211, the word “Scholarship” has been
defined as under:-
“Scholarship Forms See Scholar.
1. The attainments of a scholar;
learning, erudition; esp.
proficiency in the Greek and Latin
languages and their literature.
Also, the collective attainments of
scholars; the sphere of polite
learning.
b. Applied, by unlearned speakers,
etc, to educational attainments of
a more modest character.
C. Literacy education ‘ (J) Obs rare.
2. The status or emoluments of a
scholar at a school, college, or
university.”
In the Chambers 20th Century Dictionary, New Edition
1983 by E M Kirkpatrick, page 1158, the word “Scholar
and Scholarship” has been assigned the following
meanings:-
“Scholar Skol’er, n. a pupil: a disciple:
a student: (in times of less widespread
education) one who could read and
write, or an educated person: one
31
whose learning (formerly esp, in Latin
and Greek) is extensive and exact, or
whose approach to learning is
scrupulous and critical: generally a
holder of a scholarship. Adj. Schol’ar-
like like or befitting a scholar. n.
scholarliness adj schol’arly of, natural
to a scholar: having the learning of a
scholar. Adv. (Shak) as becomes a
scholar. n. schol’arship scholarly
learning a foundation or grant for the
maintenance of a pupil or student: the
status and emoluments of such a pupil
or accomplished in four moves.”
In the Webster’s New Explorer Encyclopedic Dictionary,
Mehriam Webster, the term “Scholar” and Scholarship”
has been defined at page 1538 as under:-
“scholar ska-ler nouin Middle Engilsh
scoler, from Old English Schlere & Old
French excoler, from Medieval Latin
scholaris, from Late Latin, of a school,
from Latin schllar school before 12th
Century.
1: one who attends a school or
studies under a teacher Pupil
2 a : one who has done advanced
study in a special field b: a learned
person
3: a holder of a scholarship
32
Schol.ar.ly adjective (1638) of
characteristic of, or suitable to learned
persons: LEARNED, ACADEMIC
School.ar.ship noun (circa 1536)
1: a grant-in-aid to a student (as by
college or foundation)
2: the character, qualities, activity,
or attainments of a scholar: learning
3: a fund of knowledge and learning
(drawing on the scholarship of the
ancients)”
In the Chambers 21st Century Dictionary, Revised
Edition by Mairi Robinson and George Davidson, the
word scholar and scholarship has been defined at page
1256, which reads as follows:-
“scholar noun 1 a learned person,
especially an academic, 2 a person who
studies: a pupil or student. 3 a person
receiving a scholarship. 4 during times
of less widespread education: a person
who could read and write, or a learned
person. 5 a person with extensive
learning and knowledge, particularly in
Greek and Latin or with a scrupulous
and critical approach to learning.
Scholarliness noun scholarly adj. Anglo
Saxon scolere, from French escoler,
from Latin scholaris.
33
Scholarship noun 1 the achievements
or learning of a scholar 2 a sum of
money awarded, usually to an
outstanding student, for the purposes
of further study. 3 the status and
emoluments of such a pupil or
student.”
In the New International Webster’s Comprehensive
Dictionary of the English Language, 2004 Edition, the
word “scholar and scholarship” have been defined at
page 1126 as under:-
“Schol.ar (Skol’ar) n. 1 A person
eminent for learning. 2 the holder of a
scholarship. 3 One who learns under a
teacher; a pupil. Rhodes scholar A
male student selected from a college
or university of the United States or of
any British dominion or colony to
receive one of the scholarships
established by Cecil Rhodes for
attendance at Oxford University,
England….Synonymous: disciple,
learner, pupil, savant, student,
Historically, the primary sense of a
scholar is one who is being schooled:
thence the word passes to designate
one who is apt in school work, and
finally one who is thoroughly schooled,
master of what the schools can teach,
34
an erudite or accomplished person
when used without qualification, the
word is generally understood in this
sense: as, He is manifestly a scholar,
Pupil signifies one under the close
personal supervision or instruction of a
teacher or tutor.
Schol.arch …………………………………………..
Schol.ar.ly…………………………………………..
Schol.ar.ship n. 1 Learning erudition. 2
Maintenance or a stipend for a student
awarded by an educational institution
also, the position of such a student.”
In the English Universal of the English Language, PKP
TOPPAN, by Henry Cecil Wild, page 1062, the word
“Scholarship” has been defined as under:
“Scholarship, n. scholarship; 1.
Learning, rudition; specif. a(in wider
sense) specialized, systematized
khowledge, esp. in humane studies,
characterized by a high standard of
accuracy, by minuteness and
thoroughness; b. (in special and
narrower sense) classical learning; in
particular, minute and thorough
knowledge of the classical languages,
and a keen sense of the refinements
and niceties of their style and idiom.
2. Humane studies in general,
35
systematic investigation of historical,
linguistic, literary, and textual
problems; often specifically
distinguished from research in the
natural sciences. Science and
scholarship. 3. a A foundation for the
furtherance of education, consisting of
the grant of a recognized status, and
an annual payment of money, to a boy
at a school, or to an undergraduate at
a college or university, made by the
governing bodies of these institutions,
for his maintenance while pursuing his
studies; b yearly grant of money for
the same purpose made by a county
council or other public body, tenable at
a school or university; election to a
scholarship is usually made on the
results of a competitive examination.”
In the Chambers Dictionary 10th Edition, Thumb Index,
by Harry Publishers Ltd, Edinbrugh, Printed and bound
in Germany by Bercker, the definition of words”
“scholar” and “scholarship” is provided at page 1367 as
under:-
“scholar n. someone whose learning
(formerly esp in Latin and Greek) is
extensive and exact, or whose
approach to learning is scrupulous and
36
critical; a pupil’ a disciple; a student;
(in times of less widespread education)
someone who could read and write, or
an educated person; generally, a
holder of a scholarship…
Schol’arship n. scholarly learning; a
foundation or grant for the
maintenance of a pupil or student; the
status and emoluments of such a pupil
or student.”
In another Rabia 21st Century Practical Dictionary,
English to English and Urdu, by M. Zaman and Naveed
Akhter, at page 788, the words “scholar” and
“scholarship are defined as under:-
“Scholar (skolar) n. 1. One who learns 2.
a pupil 3. a man of letters.
Scholarly (skolarlee) adj. characteristic of
a scholar.
Scholarship (scholarship) n. 1. Learning.
2. Literature. 3 maintenance for the
scholar.
”
It appears that from the survey of different
dictionaries the term “Scholarship” has been assigned
the first meanings i.e the attainments of scholar,
learning qualities, attainments of scholars, sphere of
37
polite learning, scholarly learning, attainments of
learning of scholar, specialized systematized
knowledge in humane studies characterized by high
standard of accuracy, attainment of literacy education
etc. and in most of the dictionaries, grant for
maintenance of pupil or stipend as second meanings.
Thus, it is obviously clear that the term “scholarship” is
capable of both the meanings, grant of knowledge,
literacy, education and monitory stipend or
maintenance. The expression ‘grant of scholarship’
used in Note.1 of the notification referred to
hereinabove thus, is capable of both meanings i.e grant
of monitory stipend as well as grant of education,
learning, specialized systematized knowledge in
humane studies, characterized by high standard of
accuracy. The grant of admission in public sector
institutions established for professional higher
education is also included in the process of grant of
knowledge, literacy and attainment of scholarship, as
well as it also includes the meanings to grant the
maintenance allowance, monitory stipend to pupil for
attaining knowledge, learning and scholarship.
38
19. It appears that the learned counsel for the
appellants has kept in mind the meanings of this term
only restricted to monitory stipend or grant but we are
unable to agree with his opinion in the light of
hereinabove reproduced dictionary meanings. In our
considered view, the term “Scholarship” is not only
restricted to obtain the monitory stipends or benefits
rather this term itself includes meanings of learning,
attaining knowledge and the admission in an
educational institutions is one of the process of
learning. Thus, the argument of learned counsel for the
respondents on this point finds support from the
meanings assigned to this term. Therefore, it can be
safely held that the term “scholarship” used in Note.1
of Notification No. I-L/84, referred to hereinabove is
used in broader sense of the process of learning which
includes admission in the Educational Institutions.
Therefore, the question of addition and insertion of any
word in the statute does not arise. All the case law
referred to by counsel for the appellants relating to the
term “casus omissus” has no relevance in this case.
The counsel for the appellants in this behalf has
referred to the cases reported as Nadeem Ahmed
39
Advocate vs. Federation of Pakistan [2013 SCMR
1062], Amanullah Khan vs. Chief Secretary,
Government of N.W.F.P and 2 others [1995 SCMR
1856] and Messrs Chittagong Jute Manufacturing Co.,
Ltd. Vs. Province of East Pakistan and another [PLD
1966 Dacca 117].
20. Another judgment of the High Court, referred
to and relied upon by counsel for the appellants,
reported as Talha Sarfaraz vs. Azad Government of the
State of Jammu and Kashmir through Chief Secretary
and 16 others [2012 CLC 1861], has been set-aside in
appeal by this Court. The case law reported as Syed
Muhammad Haider Zaidi and others vs. Abdul Hafeez
and others [1991 SCMR 1699] has no nexus with the
case in hand. Same is the position of other referred
citations, hence, need not to separately discussed.
21 In the light of the above conclusion drawn
on vital legal proposition involved in the case, we do
not feel any necessity to deliberate on the other
ancillary or subsidiary arguments addressed from both
sides.
In view of above detailed reasons, the
appellants have failed to make out any legal ground
40
for bringing their case out of purview of the provisions
of law dealing with the classes of State Subjects.
Therefore, in our considered view, the High Court has
rightly interpreted the law on the subject, hence,
finding no force in this appeal, the same is hereby
dismissed with no order as to costs.
Muzaffarabad, .1.2014 J U D G E CHIEF JUSTICE