1986 PLP 1056 (CLC)

However, the respondent No.1 has amended it by a resolution of the Syndicate and bifurcated it into two parts. The extract from the resolution of the Syndicate produced by the respondent No.l reads as follows: - ITEM N0.28: To consider and reserve seats for real sons and daughters or dependent brothers arid sisters of the employees of Sind Agriculture University, Tandojam on reciprocal basis in First Year Engineering Class at this University. RESOLUTION NO. 33.28: Resolved that: (a) (i) the allocation of seats: for the sons/daughters of Graduate Engineers of other Universities and sons/daughters or brothers /sisters of Graduate Engineers of this institution be made as under: Sons/daughters of other Graduate Engineers domiciled in Hyderabad and Sukkur Divisions. 10 seats Sons/daughters and real brothers/ sisters of Graduate Engineers of this Institution domiciled in Hyderabad Sukkur Divisions. 10 seats (ii) the above re-allocation shall be reviewed every year. (b). the Vice-Chancellor may allow any minor adjustments of the allocation of seats within the special categories of allocation as may be necessary. (c) three seats be reserved for real sons and daughters or dependent brothers and sisters of the employees of Sind Agricultural University, Tandojatn on reciprocal basis in First Year Engineering class at this University from the session 1984-85. (d) two seats be reserved for sons/daughters or dependent brothers/ sisters of the employees of Affiliated Collegses of Mehran University (serving or retired) from the session 1985-86 on reciprocal basis. There can be no dispute about the authority of the Syndicate of the respondent No.l to amend, change or alter the admission policy contained in the prospectus. Such modification is permitted under para 9.1 of the prospectus. The question requires consideration whether such authority has properly and legally been exercised in the present case. The short question is up to what date such authority could be exercised by the Syndicate. Authority vested under para. 9.1 cannot be extended to permit the Syndicate to amend or modify the admission policy after a vested right has been accrued to a candidate. Once a vested right is created in the candidate the policy as it stood on that date shall be enforceable and any amendment made affecting a vested right can be challanged. In the present case as stated by the respondents Nos.l and 2 in their counter-affidavit the applicat4on for admission to the First Year Engineering were accepted upto 22-11-1984. After scrutiny the applicants were called for interview from 23-12-1984 to 27-12-1984 and thereafter from 1-1-1985 to 16-2-1985 the applications were considered for admission by the Admission Committee and on 17-2-1985 the admissions were finalized and published. The Syndicate in its meeting held on 2-2-1985 has amended the rules of admission by its resolution reproduced above. A perusal of this resolution shows that the matter was considered under item No.28 which was only for consideration and reservation of seats for real sons and daughters and dependent brothers and sisters of the employees of Sind Agricultural University, Tandojam on reciprocal basis in First Year Engineering Class of the University. This item seems to have been dealt with by resolution No.33.28(c). However, clause (a) of Resolution No.33.28 has amended category 'D' of para. 9.1 of the prospectus. In fact an amendment to the policy declared in para. 9.11) of the prospectus was not put up for consideration of the Syndicate. No material has been produced to show how this resolution came up for consideration whereby 20 seats reserved for category 'D' were bifurcated into two sub-categories of 10 seats each. Be that as it may, the fact remains whether such an amendment could have been made on 2-2-1985 when the applications for admission had already been entertained and were being considered. The last date for entertaining the applications was on 22-11-1984 and after scrutinizing them the admission committee started interviewing the candidates from 23-12-1984. When the matter was being argued and was adjourned to 1-12-1985 for further arguments, Mr. Kamaluddin the learned counsel for the respondents Nos.l and 2 filed an additional counter-affidavit in which the dates of interview for students of each category have been mentioned. In respect of the applicants of the petitioner's category it is stated that the applications were considered from 11-2-1985 to 16-12-1985 and final list was published on 17-2-1985. No supporting documents to substantiate these averments have been filed. This additional counter affidavit has been filed without the permission of the Court and therefore, we are not inclined to accept it. The respondents Nos.l and 2 in their C counter-affidavit filed earlier had annexed a notice, dated 18-12-19841 giving schedule of interview. According to this schedule interviews were to be held at Jamshoro from 23-12-1984 to 25-12-1984 and at Nawabshah Campus from 26-12-1984 to 27-12-1984. The petitioner and candidates falling in category 'D' were to be interviewed on 23-12-1984 at 1 p.m. In view of this official document produced by the respondents Nos.l and 2 with their counter-affidavit and no other authentic material having been produced that this schedule was changed they cannot be allowed to press in service the additional counter-affidavit giving different dates of interview which are completely contrary to the earlier averments. Mr. Gulab M. Rang the learned counsel for the petitioner has contended that vested right was created in favour of the petitioner on the expiry of the date of submission of the application. According to Mr. Kamaluddin it could not be before 17-2-1985 when the list of successful candidates was published. In this regard reference has been made to Sajid Raza and 3 others v. The Commissioner, Quetta Division, Quetta and 9 others P L D 1973 Kar.

332. In this judgment similar question was considered and it was held that as amendment in the Admission Rules was made before the accrual of the petitioners right to have their application for admission considered the 'amended instructions did not affect any allegedly vested right of the petitioner.' This case was considered in Province of Punjab v. Miss Khaqan Mahmood P L D 1985 Lah. 300 and it was observed that 'In this case 4-12-1972 was considered as the pivotal date i.e. The date on which the petitioners could claim they had a right to have their application for admission considered.' The determination of such date is necessary as once a vested right is created any amendment in the admission Rules affecting such vested right cannot be allowed. The admission policy is announced by publication of the prospectus. On the basis of such prospectus the applications are invited upto a particular date. These applications are considered and scrutinized immediately on the expiry of the last date for their submission. The applicants are then interviewed and selected for admission. In this process for admission the moment date for submission of application expires the applicant becomes entitled to be considered for admission. This seems to be a reasonable and proper approach to the problem. After the expiry of the last date no one can apply for admission. The applicants are to be considered on the basis of conditions, categories and criteria laid down in the prospectus or rules of admission. If the concerned authorities are allowed to amend the rules or policy after the last date and at any time before the) admission process is completed, then it is likely to result in serious mal malpractice, manipulation and favouritism. Even if the authority` abuses, honestly and bona fide amends during this period it is likely to be viewed with suspicion and will injury the reputation and prestige just bodies like Syndicate. Amendment after the expiry of the date befor submission of application is fraught with serious consequences and to cause mistrust. The possibility cannot be ruled out that after likely, likely, scrutiny if it is found that in the normal course a candidate is not likely to be admitted, then to accommodate him the Rule is changed to the detriment of other applicants who on the basis of unamended Rules were likely to get the admission. Such uncertain situation creating atmosphere of suspicion and mistrust should be avoided by public bodies. By these observations we do not mean that the amendment in the present case was motivated by such reasons and in fact no such allegation has been made against the respondents Nos.l and

2. The respondents Nos.l and 2 in paragraph 8 of their counter affidavit, dated 6-8-1985 have stated as follows:- 'It is worth to note that applications for admission to F . Y . Engineering were accepted upto 22-11-1984, thereafter the same were scrutinized and the interviews of the students were taken from 23-12-1984 to 27-12-1984 and thereafter from 1-1-1985 to 16-2-1985 the applications were considered for admission by the Admission Committee in view of the changed policy and lastly on 17-2-1985 the admissions were finalized and the list was published.' It, therefore, seems clear that from 23-11-1984 upto 22-12-1984 the applications were being scrutinized and the Admission Committee started interview from 23-12-1984. The candidates thus acquired a vested right to be considered for the admission on the basis of admission policy/rule existing on the expiry of the last date for filing the application. Any amendment made till that date could not be termed as unfair, unjust and illegal. The learned counsel for the respondents Nos.l and 2 has referred to Province of Punjab v. Miss Khaqan Mahmood P L D 1985 Lah. 300 where it was observed:- 'Where the selection is dependent upon interview, or where the institution reserves the right at any stage to refuse admission to any candidate who appears, at the time of interview, to be unsuitable or unlikely to complete the course, the mere possession of high qualifications or superior position by itself does not guarantee him any admission. In the instant case, rules 16 and 18 of the Prospectus provide for such eventualities. It would, therefore, appear that the date when the Admission Board assembles to select candidates and conducts its proceedings, can fairly be taken as the final date by which amendments should be made or adopted. However, this may present a difficulty. In the preparation of `the list of candidates admitted, certain errors may creep in. Before such lists are displayed, the Admission Board would have the right of checking the lists and removing any anomalies or correcting any mistakes that may appear therein. Thus, for all legal purposes, the date when admission lists are finally displayed, is the date by or before which all amendments to the admission policy made by the Admission Board or communicated to it by the Provincial Government should be made. Once the admission lists are displayed, vested rights would accrue in favour of candidates whose names are included therein and any amendments in the admission policy thereafter, adversely disturbing their position, would be treated as restrospective and affecting their vested rights.' This observation was made as rules 16 and 18 of the Prospectus of Medical Colleges in Punjab (1983‑84) provided that the admission and selection was dependent on the interview or the institution reserves the right at any stage to refuse admission to any candidate who appears at the time of interview. We have examined the entire prospectus of the respondent No.l and not found any condition or Rule similar to the R61es mentioned in Miss Khaqan Mahmood's case. It is significant to note that the prospectus does not provide for an interview nor reserves the right with the respondent No.l to refuse admission to any candidate who is otherwise entitled to be admitted under the Rules mentioned in the prospectus. In view of this distinguishing feature the rule laid down in Miss Khaqan Mahmood's case is not applicable to the present case. We are in respectful agreement with the principle laid down in Sajid Raza's case P L D 1973 Kar.

332. The Syndicate could amend the rule but such amendment should not interfere with or violate the vested right which may have accrued to a candidate. In the facts and circumstances of the case the rules of admission could have been amended by the Syndicate upto the last date fixed for submitting application for admission. It is pertinent to refer to Muhammad Iqbal Khan Niazi v. Vice‑Chancellor University of Punjab P L D 1979 S C 1 where it was held that 'the prospectus must be construed even more strictly than the rules of Trade Union, and, therefore, any provision in the prospectus which is unfair or unreasonable must be struck down as invalid.' In our view amendment in any rule which violates the vested right of any candidate can be termed as unjust and unfair. There is no dispute that if the Rules for admission as laid down in the prospectus would have been followed the petitioner would have been admitted. This has been admitted by the learned counsel for the respondents Nos.l and

2. The petitioner was refused admission as category‑D, under rule 9.1 has been amended. The petitioner has obtained 14th position. But due to amendment he has not been admitted and candidates obtaining much lower marks than the petitioner have been granted admission. Mr. Kamaluddin has contended that the petitioner has not joined all the candidates who will be affected if this petition is allowed and, therefore, the petition is not maintainable. In this regard reference has been made to P L D 1985 Lah. 300 and 1982 P S C

456. As observed earlier the petitioner had made all such candidates who were likely to be affected by the result of the petition but as some of them could not be served the petitioner being in a hurry deleted the names of respondents Nos.3, 4, 6 and

9. Mr. Gulab M. Rang the learned counsel for the petitioner has contended that he does not press for the relief that the selection of respondents Nos. 3 to 12 may be declared void and restricts the declaration in terms of prayers (a), (b) and (c) impugning the action of respondents Nos.l and

2. According to the learned counsel in case the petitioner gets admission then if at all only the respondent No.12 will be affected who is a party. In the facts and circumstances of the present case the candidates if at all who are likely to be affected by the result of this petition have been joined as a party, the other respondents whose names have been deleted could only be proper party and not necessary party. In view of this situation the petition cannot be struck down on the technical ground. The learned counsel for the respondents Nos.l and 2 contended that after lapse of about one year the petitioner cannot be granted admission. The present petition was filed without delay and as it was necessitated due to the unlawful and unauthorised act of the respondent No‑1, it cannot take shelter on this technical ground. In Munir Ahmad v. Government of Baluchistan P L D 1981 S C 335 in similar situation appellant was declared entitled to admission. The learned counsel then contended that if the petition is allowed it will cause displacement of some respondents as new seat cannot be created. This submission amounts to stating that petitioner may be substituted for respondent No.12. Such a prayer made to the Court in Munir Ahmed v. Government of Baluchistan P L D 1981 S C 335 was refused. In view of the observation of the Supreme Court this submission has no force. We, therefore, declare the resolution of the Syndicate of respondent No.l, dated 2‑2‑1985 amending category 'D' of para. 9.1 of the Bachelor of Engineering Degree Prospectus' 1984‑85 for Mehran University of. Engineering and Technology and refusal to grant admission I to the petitioner in the First Year Engineering for the year 1984‑85 as without lawful authority and without any effect, with the further declaration that the petitioner is entitled to be admitted to the First Year Bachelor of Engineering Class in Mehran University of Engineering and Technology for 1984‑85 session. The petition is allowed. A . A . Petition allowed.