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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

28

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