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Writ Petition No. 4572 of 1978, decided on 13th October, 1979.

(a) National Guards Act (LXI of 1973)-

-- Read with Constitution of Pakistan (1973), Arts. 232(5) & 142Vires of statutes-National Guards Act, 1973 an. enactment relating to subject under Item No. 38 read with Item No. 47 of Concurrent List, Constitution of Pakistan (1973),-Held, made under Art. 142 and not under Emergency powers referable to Art 232, hence a valid piece of legislation and supersedes any conflicting provision in any Provincial legislation.---[Vires of statutes]

Munawar Ali v. Secretary to the Government of Punjab P L D 1975 Lah. 544 ref.

(b) National Guards Act (LXI of 1973)-

S. 29(c) read with Constitution of (1973), Art. 18-Freedom of profession-Held: Nothing discriminatory in crediting 20 marks to students having undergone training of National Cadet Corps Discrimination, if any, could be in not providing N. C. C. training facility in petitioner's College.

Maqbool Sadiq for Petitioner. Muhammad Arif, A.-G. for Respondents. Date of hearing: 8th October, 1979.

The petitioner having secured 623 marks in his Pre-Medical Examination held in 1977, after some attempts, applied for admission in Medical College. His name did not find a place in the list of successful candidates, made public on 26th May, 1978. He has, therefore, filed the present writ petition, challenging the refusal of the respondent to grant him admission.

2. It is contended by the learned counsel that as the last student admitted to the Medical College obtained 638 marks (including 20 marks for National Cadet Corps Training), the petitioner should have been preferred to him as he obtained 623 marks (without N. C. C. training).

3. It is argued that as there was no N. C. C. training arrangement in the College, in which he studied, the petitioner stood deprived of those marks because of no fault of his and consequently the refusal to grant him admission amounts to discrimination. The learned counsel also challenged the vires of the National Guards Act, 1973, on the ground that as this Act had been promulgated by the Federal Legislature during Emergency, it stood repealed and became ineffectual on 14th March, 1978, i. e. six months after the expiry of the Emergency. Reliance was placed on Article 232(5), read with Article 142 of the Constitution, and a Division Bench judgment of this Court in Munawar Ali v. Secretary to the Government of Punjab (1).

' 4. The learned Advocate-General who contested this petition, relied on Items 38, 43 and 47 of the Concurrent Legislative List, Fourth Schedule of the Constitution. Item 38 concerns " . . . .planning, policy, . . . . and standards of education". Item 43 is for legal, medical and other professions. Item 47 is about matters incidental or ancillary to any matter enumerated in the Concurrent Legislative List.

5. The argument raised was that a provision to allow 20 marks to such students who underwent N. C. C. training amounted to laying down a standard of education in that field for admission to medical colleges. It can also be said that it was a part of planning or policy to encourage College boys and girls to get military education in addition to other fields of study, in order to inculcate in them discipline and provide better physical fitness. The .National Guards Act of 1973, was therefore, an enactment made not under Emergency powers referable to Article 232 but lay under) Article 142 as a subject under the Concurrent Legislative List.

6. The learned counsel sought support from a Division Bench judgment of this Court, referred to in para. 2 above, to say 'that the enactment under discussion was an Emergency legislation. He, however, agreed that item 38 given above was not brought - to their Lordships notice and so the same was never considered. However, as discussed above, Item 38 read with Item 47 would clearly apply to the situation, rendering the above act a valid piece of legislation and superseding any conflicting provision in any Provincial Legislation, in view of Article 143 of the Constitution.

7. Even otherwise, the petitioner has no justification to advance this plea. The discrimination, if any, would have been in not providing the N. C. C. training facility in the petitioner's college but not in crediting 2 marks to those students who underwent the training. Further the petition could also join a college where that facility was available and get entitled to the additional marks. In the alternative, he could raise a grievance for providing that facility in his college also. The grant of additional marks to those who did undergo that training is unexceptionable.

In view of the above, there is no merit in this petition. It is, therefore, dismissed with no order as to costs.

K. M. A; Petition dismissed.

(1) P L D 1975 Lab. 544

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