FARMAN SHAH Versus VICE-CHANCELLOR, GOMAL UNIVERSITY, D. I. KHAN

QAZI MUHAMMAD FAROOQ, J:--‑ This judgment shall dispose of the Writ Petition in hand as well as eight other similar Writ Petitions viz. W.P.No.115/91, W.P.No.119/91, W.P.No. 130/91, W.P.No. 146/91, W.P.No.156/91, W.P.No. 172/91, W.P.No. 154/91 and W.P.No. 5/92, which arise in the following circumstances.

2. The Gomal University, D.I.Khan, hereinafter called the University, was set up in the year 1974. From its very inception a system emerged to grant admission to all the programmes of studies and disciplines on the basis of marks obtained in the last requisite examination. at least in 2nd Division. This system has the blessing of a Regulation which used to be incorporated in_ the Prospectus invariably. It is worded thus:

"(1) Eligibility for Admission .‑‑‑The candidates must have passed the last requisite examination at least in second division."

3. The Regulation highlighted above was alluded to in the Admission Notice for the Academic Session 1991‑92 also which was published in various newspapers in the last week of August, 1991. However, the applications for admission submitted by the candidates were processed in the light of a new Regulation devised by the Academic Council on 16‑6‑1991 as a result of which many candidates, including the petitioners, who had obtained marks on the higher side in the last requisite examination and were eligible for admission under the old Regulation failed to get, admission. The new Regulation reads as under:‑

"Admissions

Eligibility for Admission:

..

3. Admission to Higher Education Level not being a matter of right shall be selective on the basis of merit, subject to availability of academic and physical facilities except for reservation on account of belonging to a particular segment of population as may be determined by the Syndicate in each case. The candidates must have passed last requisite examination in at least second division in aggregate as well as second division in the relevant subject wherever applicable on the basis of which he/she is seeking admission.

..

25. In order to give a fair chance of competition, due consideration will be given to the past academic record of the candidate, while determining merit. For this purpose,, the following formula shall be followed:

(a) Post‑Graduate Programs:

(i) Percentage of marks obtained in matric X 1 =X

(ii) Percentage of marks obtained in F.A./F.Sc./D.Com x 2 = Y

(iii) Percentage of marks obtained in B.A./B.Sc/B.Com/SDPE/B.Ed/BBA X 3 = Z

Total=X+Y+Z

Merit = Total/6

(b) Other programs like, 1DPE, B.Pharm, B.Com and B.BA.

(i) Percentage of marks obtained in Metric X 1 = X

(ii) Percentage of marks obtained in FA./F.Sc./D.Com X 2 = Y

(after adjusting the marks of NCC/WG)

Total=X+Y '"

Merit = Total/3."

4. The petitioners have applied for admission to various programmes of studies for the Academic Session 1991‑92 but their applications were rejected by the respondents by invoking the provisions of the aforesaid new Regulation. Feeling aggrieved they have through these Constitutional Petitions challenged the legality and validity of the new Regulation as well as the refusal of the respondents to grant them admission despite better merit on the basis of the marks obtained in the last requisite examination on the grounds; firstly, that the new Regulation was ultra vires, unreasonable and discriminatory in nature, secondly, that it was not valid as it had not been approved by the Syndicate of the University within the contemplation of section 28(2) of the Gomal University Act, 1974 and thirdly, that vested right of admission on the basis of the old Regulation had accrued to the petitioners as they had obtained more marks in the last requisite examination than those who were granted admission and the new Regulation was not in the field at the time of the publication of the Admission Notice in the Newspapers and submission and scrutiny of their applications for admission. The petitioners have also prayed that the respondents may be directed to grant them admission on the basis of merit obtained in the last requisite examination and the Regulation prepared by the Academic Council on 16‑6‑1991 may be declared as without lawful authority and of no legal effect.

5. The respondents in their comments have refuted the contentions raised by the petitioners and submitted that the new Regulation does not suffer from any legal or other infirmity as it was prepared by the Academic Council of the University to guard against cheating and violence rampant in the educational institutions, was provisionally approved by the Vice‑Chancellor of the University on 22‑8‑1991 in exercise of the powers conferred on him by section 13 (3) of the Gomal University Act, 1974 and was finally approved by the Syndicate on 2‑1Q‑1991.

6. Certain important and intriguing points for determination have arisen from the contentions of the parties but before addressing ourselves to the same we deem it necessary to point out that admission to the University is controlled by the Regulations which are prepared by the Academic Council under section 24(2) read with section 28(1) (c) and arc approved by the Syndicate under section 28(2) of the Gomal University Act, 1974, hereinafter referred to as the Act. For the sake of convenience section 28(2) of the Act is reproduced as under:‑

"The Regulations shall be prepared by the Academic Council and shall be submitted to the Syndicate which may approve them or withhold approval or refer them back to the Academic Council for re consideration. A Regulation prepared by the Academic Council shall not be valid, unless it receives the approval of the Syndicate."

It will also be helpful to reproduce hereunder section 13(3) of the Act on the strength of which the Vice‑Chancellor had approved the Regulation in question on 22nd August, 1991 in anticipation of the approval of the Syndicate:‑

"The Vice‑Chancellor may, in an emergency which in his opinion requires immediate action, take such action as he may consider necessary and shall, as soon thereafter as possible, report his action for approval to the officer, Authority or other body which in the ordinary course, would have dealt with the matter."

7. The first point for determination relates to the vires and nature of the Regulation in question. It was contended by the learned counsel for the petitioners that the Regulation was unreasonable and discriminatory in nature as it had closed the doors of the University on those students who belong to far‑flung and God‑forsaken areas of D.I.Khan and Bannu Divisions and cannot obtain good marks in Metric due to poor standard of education and living conditions prevailing in those areas but show improvement at College level and that such an unenviable Regulation had not been adopted by any other University in the country. It was further contended that the Regulation was not only in conflict with the Act, but had also caused anxiety and unrest in the student community. We find no substance in the contention that no other University in the Country has adopted such a Regulation because in the course of arguments and from the contents of one of the petitions it transpired that a somewhat similar Regulation is in vogue in the Quaid‑e‑Azam University, Islamabad. There is also no force in the contention that the Regulation is ultra vires as no provision of the Constitution or of the Act was brought to our g notice with which it is in conflict. The remaining contentions may not be wholly devoid of force but we cannot evaluate the Regulation and examine its rationale as it has been prepared by the Academic Council and ratified by the Syndicate within the framework and purview of the Act. It is for the Syndicate to re‑examine it in the larger interest of the University and academic peace. We have reason to expect that the Syndicate may re‑examine it because it appears that the Syndicate had no choice but to ratify it in view of the action already taken by the Vice‑Chancellor under section 13 (3). of the Act and completion of the process of admissions.

8. The Regulation assailed by the petitioners was provisionally approved by the Vice‑Chancellor on 22nd August, 1991, in anticipation of the approval of the Syndicate. He had taken this extraordinary step in exercise of the powers vested in him under section 13 (3) of the Act. The powers envisaged by section 13 (3) of the Act though unexceptionable are not unfettered as they can be exercised only in an emergency. In this backdrop the point that falls for determination is as to whether there was an emergency requiring immediate action under section 13 (3) of the Act.

9. It was contended by the learned counsel for the respondents that there was an emergency in the opinion of the Vice‑Chancellor which required immediate action as the Regulation approved by the Academic Council on 16‑6‑1991 had been included in the Prospectus for the year 1991 but its approval by the Syndicate could not materialise on account of adjournment of the meeting of the Syndicate held on 20‑8‑1991 due to disturbance at the campus and it was not possible to convene the next meeting of the Syndicate in near future. We find no force in the contention as it is more speculative than real. No doubt, it is for the Vice‑Chancellor to determine if there is an emergency but such a determination has to be made objectively on the basis of sound material and under circumstances that can stand the test of judicial review. In this context the relevant portion of the judgment reported as Rehmatullah v. University of the Punjab and 2 others (PLD 1982 Lahore 411) may be reproduced advantageously:

"It is thus quite clear from the above that though it is for the Vice Chancellor to decide if there is an emergency, yet he must have some reasonable evidence or material before him which is relevant to the purposes of the Law and is neither arbitrary, fanciful or capricious. Moreover, the mere satisfaction or opinion of the authority is not sufficient and no rule of law can oust the power of judicial review by use of any words. There must be such evidence or material before him which may also satisfy any other reasonable person and the Courts shall go into the same, in exercise of their power of judicial review, to verify that."

We are convinced that there was no emergency whatsoever as the old Regulation which had controlled the admissions ever since the establishment of the University to the entire satisfaction of the student community was in the field when the admission programme for the Academic year 1991‑92 was launched. The first circumstance that had weighed with the Vice‑Chancellor to form his opinion was that the Regulation prepared by the Academic Council had been incorporated in the Prospectus for the year 1991. This circumstance points more to maladministration than emergency because there was no justification for including in the Prospectus for the year 1991 a Regulation prepared by the Academic Council which had. not been 'ratified by the Syndicate. Needless to mention that a Regulation prepared by the Academic Council is not valid unless it receives the approval of the Syndicate and under section 28(2) of the Act the Syndicate is empowered to withhold approval or refer it back to the Academic Council for re‑consideration. The second circumstance pointed out by the learned counsel for the respondents is equally intriguing. The Syndicate had admittedly disposed of item No. 1 on the Agenda in its meeting held on 20‑8‑1991 and there is no material on re cord to confirm the assertion that the meeting was interrupted. Be that as it may, in view of the significance of the new Regulation and its inclusion in the Prospectus for the year 1991 one has to pause to think as to why it was not placed as item No. 1 on the Agenda for the meeting of the Syndicate held on 20‑8‑1991, which was presided over by the Vice‑Chancellor himself. If it had been so placed on the Agenda and the attention of the Syndicate had been drawn to its importance and the urgency involved the Syndicate would have definitely taken it up for consideration. The contention that it was not possible to convene the next meeting of the Syndicate in near future is no better than the other contentions raised in this context. The last date for submission of the applications being 5thl September, 1991 the University Administration had fiftee clear days to convene the meeting of the Syndicate. The task was no doubt a bit demanding but it was not difficult. It would thus follow that the action taken by the Vice‑Chancellor under section 13 (3) of the Act is not defendable on reason and as sush is of no legal effect.

11. In so far as the validity of the new Regulation is concerned it will be enough to say that it was prepared by the Academic Council and approved by the Syndicate on 2‑10‑1991 and as such its validity is unquestionable.

12. Adverting to the remaining points for determination we find merit and force in the contention raised by the learned counsel for the petitioners that vested right of admission in accordance with the old Regulation had accrued to the petitioners as the new Regulation was not in the field at the time of submission and scrutiny of their applications for admission and in any event having been approved by the Syndicate on 2‑10‑1991 it could not operate retrospectively. The new Regulation was not mentioned at all in the Admission Notice and was indubitably included in the Prospectus for the year 1991 without obtaining the approval of the Syndicate. It was also not in the field as. a valid Regulation at the crucial time namely the last date for submission o applications for admission. The action taken by the Vice‑Chancellor under section 13 (3) of the Act being of no legal effect is to be treated as non existent and kept out of consideration altogether. The Syndicate had approved the Regulation on 2‑10‑1991, therefore, it shall operate prospectively and not retrospectively so as to deprive the petitioners of their vested right. In this view we are supported by the observations made in PLD 1979 SC 32 and 1 1989 CLC 1303. The respondents are thus legally bound to grant regular; admission to the petitioners without ousting the students who were admitted under the new Regulation as they are not responsible for the plight of the petitioners.

For the foregoing reasons, we accept these writ .petitions, set aside the orders of the respondents whereby the petitioners were refused admission in the University and direct that the petitioners, who were provisionally admitted at their own cost and risk on the orders of this Court, be allowed to complete their courses as they shall be deemed to have been regularly admitted.

Parties to bear their own costs.

AA./1388/P Petitions accepted.