1990 PLP 1428 (MLD)

Muhammad Farooq, admittedly, is a State subject. He is resident of District Katli. He passed his B.Sc. examination having double Maths course with Physics, in the year 1989 and obtained 425 marks. On invitation of applications for admission in M.Sc. Mathematics and Physics, he applied in both the departments for his admission. Respondents No.2 and 3 declined to allow him admission as he was not found eligible. The petitioner explored all the avenues for seeking his admission, but on failure to achieve the object, he preferred the present petition.

2. It is alleged that the respondents refused admission to the petitioner in an unlawful manner by acting arbitrarily. Thus, the petitioner was deprived of higher education which, as a free citizen, was his basic need. It was alleged that refusal of the respondents to allow admission to the petitioner, was violative of the fundamental rights illustrated in Articles 4 (4), 12(3) and 15 of the Azad Jammu and Kashmir Interim Constitution Act. It was further stated that some of the students who were far below the petitioner on the merit list, were allowed admission. Thus, the whole action of the respondents was discriminatory, arbitrary as such violative of the fundamental rights. The respondents admitted that the petitioner was a State subject and that he applied for his admission in due course of time and he was declined admission for his being below the required standard. The petition was contested on merits. Some of the preliminary objections were raised seeking dismissal of the petition on the following grounds:-- (i) that the petitioner is not an aggrieved person; (ii) that the petitioner has been guilty of suppression of material facts, as on January 13, 1990, the petitioner had withdrawn his application for admission in M.Sc. Mathematics; (iii) that the seats reserved for study in Mathematics were 20 and in Physics

10. The serial number of the petitioner in the merit list being 56 among the candidates for admission to M.Sc. Mathematics and 25 among the candidates for admission to M.Sc. Physics, the petitioner was not entitled to admission. Moreover, the candidates who were admitted in both the subjects, were necessary party. The omission to implead them as party was fatal to the petition; (iv) that the two students, one male and one female, who were below in merit to the petitioner, were given admission on the recommendation of the Chancellor of the University. In case their admission was challenged, both of them and the Chancellor were necessary party; and (v) that no right of admission vests in the petitioner as the number of seats in each subject is limited. Admission in subjects depended on various circumstances including number of teaching staff, accommodation, laboratory equipment facilities. Thus, the writ was unwarranted. 3; Article 44(2)(a) of the Constitution postulates that the High Court may, when no other adequate remedy is provided by law, on the application of any aggrieved party, make an order-- (i) directing a person performing functions. in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which he is not permitted by law to-do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or (b) ... ... ... (c) giving such directions to the person or authority, including the Council I and the Government, exercising any power or performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement 'of any of the fundamental rights conferred by the Constitution. The first test for entertaining a petition under these provisions is that the Court must be satisfied that no other adequate remedy is available to the party and that the petitioner who invokes the jurisdiction of the Court, is an aggrieved party. In this case, there is no denying the fact that the petitioner, who is denied admission in the University, is in fact an aggrieved party by all standards conceived by law. It is not elaborated by the respondents as to how the petitioner is not an aggrieved person. The objection on this score is ill-conceived, as such not sustained.

4. The next preliminary objection pertains to suppression of a material fact relating to withdrawal of application by the petitioner for admission to M.Sc. Mathematics. The petitioner frankly accepted that on refusal of the respondents to allow him admission and by exhausting other avenues, he felt advised to pursue his admission in Physics only. It was in this course of action that he applied for withdrawal of his application. This factual aspect of the allegation is not well- founded as the application was withdrawn about 10 to 11 days before the presentation of the writ petition. The fact of the matter is that the petitioner was already refused admission by the respondents. Therefore, withdrawal of the application at a very late stage would not amount to suppression of a material fact, as suggested by the respondents. Be that as it may, withdrawal of the application does not affect the constitutional points raised in the petition.

5. The next preliminary objection, in fact, deals with the substance relating to merit. This point shall be considered at the proper stage.

6. An answer to next preliminary objection is that the petitioner does not want to disturb the admission of other students as he has not asked for substituting him for any one of them. His case in very simple terms is that he is also eligible and entitled to admission in M.Sc. Mathematic or Physics. The objection could be of weight provided the petitioner had challenged the order of admission of students, those who were placed higher on merit and others who were at bottom in merit to the petitioner. The petitioner, in fact, challenged the action of the respondents whereby they refused him admission. In this view of the proposition, the only necessary party in the case arc the respondents and not the students and the Chancellor. Reference, to admission of male and female students, lower in merit to the petitioner, was made to elaborate the arbitrary) scheme of admission in the classes of the University. Moreover, no action is defeated by reason of misjoinder or non-joinder of parties as the Court is enjoined, in every action, to deal with the matter in controversy, so far it concerns the rights and interests of the parties who are actually before it. As the controversy in question confines to admission of the petitioner, the only necessary parties in the case are the Heads of the Departments and the Vice-Chancellor. They are already before the Court, as, such it is not considered conducive to direct the petitioner to add all others as respondents in the petition. The case of University of the Punjab, 1986 S C M R 805, is distinguishable from the present case in view of different facts of that case. In that case, the petitioner applied for admission against eight reserved seats which were to be filled on merits. On his failure to get admission against one of the reserved seats, he challenged the admission of other students who despite having lesser marks, were admitted. It was in the light of the facts of that case that it was observed that the affected persons unless made party to the proceedings, the petition could not proceed. Likewise, in Muhammad Iqbal Rafi's case, 1986 S C M R 680, it was observed that unless those students who were to be affected on acceptance of the petition, were impleaded, the petitioners were not entitled to seek relief without impleading them. On this view of the matter, it was held that unless the students likely to be affected by the decision of the Court, were impleaded, their admission was not to be disturbed. In that case, leave was refused in view of different facts. An identical view was expressed in Government of Punjab (Health Department)'s case, P L D 1987 Lah.

336. It was held that the persons sought to -be affected by an order of the Court or even an administrative authority, must be given an opportunity of being heard. The principle of law laid down in that authority is well accepted and there is no cavil with the same. In Muhammad Ashraf's case, P L D 1985 SC (AJ&K) 102, again, the proposition settled by the Court pertained to impleading of necessary parties. It was held that all parties who derive any benefit of the orders are necessary parties. In absence of necessary parties, no order could be passed, as such no effective writ could be issued. In this case, the order of admission of other students is not directly assailed and the order challenged in the petition, in fact, confines to refusal of admission to the petitioner. In the circumstances, only such authorities who p refused admission to the petitioner or who are competent to allow admission to the petitioner, alone are the necessary party. As such authorities are already before the Court, the objections finds no support. It is, therefore, overruled.

7. The last preliminary objection, in fact, relates to merits of the case. This shall also be settled alongwith objection No. (iii) at the proper stage.

8. Fundamental Right No.] 2(3) contemplates that no State subject shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth. It is explained that the case of the petitioner is covered by these provisions coupled with the provisions described in Fundamental Right No.

15. Fundamental Right No. 15 provides that all State subjects are equal before law and are entitled to equal protection of law. At this stage, it is relevant to state that the petitioner is not denied admission on the ground of race, religion, caste or place of birth. In fact, he is denied admission as, according to the authorities, the marks obtained by the petitioner in B.Sc. examination were much less than the required standard fixed for the admission. In order to appreciate the proposition raised in the petition, first of all, we have to appraise the defence taken by the respondents to countenance the allegation of the petitioner. In the written statement, in Para 5, it was stated that the seats available in M.Sc. Mathematics were twenty and in Physics ten. The seats in the subject of Physics were subsequently increased to sixteen. In presence of limited number of seats, the petitioner was not found suitable for his admission in either of the above subjects. In support of the aforesaid position, reference was made to the minutes of the 2nd meeting of the Academic Council of the University of Azad Jammu and Kashmir held on January 8, 1985. Admission Regulations, appearing at page 54 of the Agenda, provide that candidates who have passed B.A./B.Sc with Mathematics `A' and `B' Courses or Mathematics General with Physics or equivalent Courses, will be eligible for admission after passing a pre-admission entrance Examination according to the criterion as determined by the Departmental Admission Committee. This Regulation is enforceable in case of admission for Master of Science Degree in Mathematics alone. The only condition laid down in the Regulation pre-conceives eligibility for admission after passing the pre-admission entrance examination and nothing else. Of course, the criterion is to be determined by the Departmental Admission Committee. The Regulation does not speak of the number of seats fixed by the Board of Studies in Mathematics and Physics. It only contemplates a condition precedent and that too relates to entrance examination. In this view of the scheme of Admission Regulations, it is not understandable as to how the respondents claim to have fixed a definite number of seats for admission in Mathematics and Physics classes. Attention of the Court was invited to Annexure `R/B'. This is a letter addressed by Dean of the University College, Muzaffarabad to the Chairman Department of Physics wherein it is explained that in the departments of English, Mathematics, Economics and Geology, there shall be 20 seats each, out of which one seat shall' be reserved for children of defence personnel and two seats for children of University employees. It was further explained that there shall be ten seats each in the departments of Physics, Chemistry, Botany and Zoology. This decision seems to have been taken on June 12, 1988. The Dean of the University alone has fixed the aforesaid number of seats. It is not explained by the respondents, as to how the Dean of the University College, Muzaffarabad, was competent to fix the number of the seats. He was not authorized to act as such by the syndicate or the Academic Council. The authority of the Dean in fixing the number of seats in the aforesaid departments finds no support from the decision/minutes of meeting of the Academic Council or any other relevant rules/regulations. Thus, the action of fixing of number of the seats in each department is without lawful authority. In case it is considered that the number of seats was fixed as an administrative decision, in that case too, the Board of Studies being the recognised authority alone was in a position to fix the number of the seats. The Board of Studies, as is apparent from the minutes of meeting of the Academic Council, is constituted by the Head of the University Teaching Department, two teachers from affiliated Colleges to be nominated by the Syndicate and two teachers preferably one Lecturer and one Assistant Professor, to be appointed by rotation in order of seniority from the concerned department. Thus, the fixation of number of seats, primarily, is an action without lawful authority. Therefore, it cannot be said that the fixation of number of seats by the Dean of the University College, was an absolute lawful rule not open to exception.

9. It is admitted by the respondents that the number of seats previously fixed in M.Sc. Physics, was increased from ten to sixteen. It is not brought on record as to what were the lawful factors which influenced the authority to enhance the number of seats. The respondents failed to place on record the decision of the Syndicate, the Academic -Council or the Board of Studies or the Departmental Admission Committee, if any, in this regard. This suggests that the authorities fixed and enhanced the seats in Physics Department in hypothetical manner to serve their own convenience. The course of action adopted by the respondents in fixing the number of seats and enhancing it, according to their own pleasure, choice and convenience, negates the claim of the respondents. In this view of the position, there hardly remains any argument available to the respondents to suggest that the admission of the students is made on the basis of a definite criterion, in consideration of limited number of seats.

10. It is quite relevant to mention here that it is admitted in Para 4 of the preliminary objections that one male and one female candidate, who had lesser marks than the petitioner, were given admission in M.Sc. Physics. The exception pleaded in the matter is that such admission was given under the order of the Chancellor. The explanation rendered by the respondents may be correct but the fact remains that it is admitted by the respondents that two students who had obtained lesser marks than the petitioner, were given admission. The authority of the Chancellor in recommending admission to students is un-recognized by the rules and regulations relied upon by the respondents. The Admission Regulations, referred to above conceive only of pre-admission entrance examination and no other exception. May be that directions of the Chancellor, for his being Head of the State, were complied with, despite the position that such direction was derogatory to the regulations.

11. The Admission Regulation referred to above, in fact, in enforceable in case of students or candidates who seek admission in M.Sc. Mathematics. So far as admission in M.Sc. Physics is concerned, no hard and fast regulation is provided in the minutes of the Academic Council. It may be argued that the standard or criteria laid down for admission in M.Sc. Mathematics may, by analogy, be applied to admission in Physics as well. Such an analogy is not acknowledgeable as the minutes of meeting of the Academic Council do not provide identical admission regulations for any of the subjects including Economics, Applied Geology, Business Administration, etc.

12. The rationale or criterion fixed for admission again, is quite arbitrary. The rational nexus desirable for admission at Master's level may be on the basis of marks obtained in that particular subject in B.A/B.Sc. examination. In present case, the respondents prepared the merit list on the basis of aggregate marks secured in all the subjects in B.Sc. examination. The petitioner secured 425 out of 900 marks. In Mathematics Course `A' he secured 90 marks and in Course `B'

66. Thus, he secured 156 marks out of 400 in Mathematics, Courses `A' and `B'. On securing such number of marks, he was placed at No-56. On the other hand, he secured 113 out of 200 marks in Physics. In the merit list, Muhammad Sohail Rafique, Mukhtar Ahmad, Altaf Hussain, Tariq Mahmood Ansari, Zulfiqar Ali Khan, Jamil Hussain, Shaikh Abdul Hafiz, Muhammad Habib Khan and Muhammad Ashgar, who secured 106, 101, 86, 105, 112, 108, 95, 86 and 104 out of 200 marks, were placed higher in merit to the petitioner, were admitted in M.Sc. Physics. It is correct that in aggregate, their marks were more than those of the petitioner but in the particular subject of Physics, in which admission was desired to be secured, the marks obtained by these students were much less. Therefore, on rational nexus, the petitioner enjoyed far better position than the students listed above, who were given admission by merit.

13. An orthodox mechanical system of examination is no definite criterion to test the aptitude and skill of students. The loopholes and lapses in current education system, violence in education institutions and malpractices in examinations, have further obscured the true measure of intelligence and aptitude in learning. All such factors which evidently influence the society, warrant a rational nexus for achievement of objectives of education in the State.

14. The reasons listed above go a long way to suggest that all actions of the respondents in fixing the number of seats and enlarging the same from time to time and fixing the criterion of merit for admission, are quite arbitrary, discriminatory and unwarranted by the scheme approved by the Academic Council.

15. On examining the case on merits, next we proceed to the constitutional aspect of the proposition. It is already mentioned elsewhere that the petitioner has invoked the special jurisdiction of this Court on the ground of violation of Fundamental Rights No. 12(3) and

15. Fundamental Right No. 12 provides safeguard in respect of religious educational institutions. Its clause (3) is of general character but that again deals with a case of safeguard of the right irrespective of race, religion, caste or place of birth. Strictly speaking, the provisions of this right are not squarely attracted in the present case. However, the rule of equality of State subjects before law and equal protection of law, is fairly enforceable in the case. The petitioner being a State subject, deserves equal and fair treatment in the matter of admission in higher class of M.Sc. Physics. The so-called criterion fixed by the Departmental Admission Committee, despite being irrational, arbitrary and discriminatory, was not applied equally to all the candidates. It is admitted by the respondents that two students who obtained lesser marks than the petitioner, were admitted in Physics. The exception pleaded by the respondents is that the said admission was given under the orders of the Chancellor. May be that the admission was given on the order of the Chancellor, but the scheme of law prepared by the authorities themselves, does not conceive of such a situation where the number of seats fixed by the authorities may be enlarged to accommodate the recommendation of the Chancellor. It is accepted by the learned counsel for the respondents that the Chancellor enjoyed no special quota for admission in M.Sc. Mathematics or Physics. In such an unrecognised and unacknowledgeable position, the rule of equality before law and equal protection of law has been violated.

16. This may give rise to further discussion as to what "law" is. This is so as the terms `equality before law' and `equal protection of law' refer to law. The Constitution itself gives a comprehensive definition of term "law" in Article

51. It is explained in Article 51 as: " `Laws' includes Ordinances, Orders, rules, bye-laws, regulations and other legal instruments having the force of law." The institution of the University is run by the Government in a lawful manner. Its establishment, structure, administration and regulation of different I departments of studies and classes are regulated by a definite law. Therefore, the scheme of admission in University classes is to be considered as a scheme of law. Any derogation or violation of such scheme is to be accepted as violation of law. When admission in a particular course or class is granted or refused, it has to be considered as grant or refusal of admission according to law. In other words, when an admission is granted in violation of the scheme, it is an illegal admission. Likewise, when an admission is refused in derogation to the scheme, it is an illegal refusal to admission. Thus, all actions, omissions and decisions which are derogatory to the acknowledged scheme of rules, regulations of the University Calendar or decision of the Academic Council or the Board of Studies or other Committee as recognised by law, are to be construed as actions without lawful authority. On this premises, it is expedient to hold that refusal of admission to a student in derogation to the acknowledged scheme of admissions, is an illegal action and violative of the aforesaid fundamental right.

17. Here a question may be raised to the effect that reasonable classification or reasonable restrictions in a particular scheme of things are permissible under the Constitution. First of all, reasonable classification or reasonable restrictions in any scheme of the things, is to be framed in the shape of legislation. For, unless; such classification is made by legislation, it shall not be accepted that a particular action or omission fell within the purview of reasonable classification or reasonable restriction. In this case, as no reasonable classification or reasonable restriction was introduced by legislation, the impugned order resulting in refusal of admission, would not be construed to fall within the exception of reasonable classification or reasonable restriction. The provisions relating to the aforesaid right, as provided in the Constitution of Azad Jammu and Kashmir, are also provided in the Constitution of Pakistan as Right No. 25(1). In the Indian Constitution, this right is described as Right No.

14. The language used in the Indian Constitution is comparatively different but the substance and spirit of the right is the same. In Umesh Chandra Singh's case, A I R 1968 Patna 3, the provisions of the Ordinance of Patna University were assailed on the ground of discrimination. The petitioner, who had applied for admission in Medical College, was declined admission despite his having higher marks. He challenged the vires of the Ordinance whereby certain seats were reserved for the children of the University employees on the ground of their extreme pecuniary difficulties and for rendering meritorious services to the University. The Full Bench considered the proposition in a very comprehensive manner. Mr. Justice Narasimham, the learned Chief Justice .who spoke for the Court, answered various propositions raised before the Court. Upholding the principle of equality before law and equal protection of law, the provision of reservation of seats for children of the University employees, being discriminatory, was struck down and the petitioner was granted relief in. the manner of admission in the Medical College- In that case, an identical proposition was raised wherein it was urged that all the students who were admitted in the class, including the University, were necessary party. The learned Chief justice disagreed with the proposition. Another allied proposition raised before the Full Bench was that there were some other students who had secured higher marks than the petitioner and that there might be a possibility that they also press their claim for admission in the event of success of the petitioner. In that case, the number of seats would not be increased. An identical proposition has been raised in the present case by the respondents showing thereby that there were other students who had secured higher marks than the petitioner and in case the petitioner is given admission, they would come forward and claim admission as a matter of right. In that case, large number of seats would have to be increased. First of all, it is not the concern of the Court to ensure that the other students, by this time, are waiting for admission in M.Sc. Physics or not. This is purely a hypothetical proposition. For, unless they come to the Court, and it is un-denied that they have not come' so far, they may not get legal relief. Well when they invoke for the relief, only in that condition, such a proposition would arise. In the reported case referred above, the learned Chief Justice, when faced with such a proposition, dismissed the objection in the following manner:-- "It will not, therefore, be proper to reject this petition merely because there are some candidates who have secured higher marks than him and there is a possibility that they may press their claim for admission in the event of the petitioner's success in this litigation. I cannot also ignore the fact that at the end of the academic session the probability that these candidates might have joined other educational institutions and may not agree to seek admission in the Medical College cannot be wholly excluded, as urged by learned Counsel for the petitioner, Mr. Baidyanath Prasad made it absolutely clear that he was willing to take the risk that is involved if even after his success in this petition and the due consideration of his application alongwith that of other deserving candidates preference is given to candidates who have obtained higher marks:" The aforesaid observation is classically distinguishable in the sense that in that case, the petition was addressed against reserved seats. In present case, we are not dealing with a case of reserved seats; rather, here. the position is otherwise. The claim of the petitioner, in fact, is against free seat. By and large, the petitioner seeks admission in M.Sc. Physics. He does not want disturbance of the students already admitted despite the fact that they secured lesser marks than him. Therefore, no such difficulty is faced here as in the aforesaid case. In Syed Abdul Wadood's case, P L D 1957 Karachi 740, Mr. Justice Lari, who spoke for the Court, observed that directions in the matter of admission must not contravene the provisions of Articles 5 of the Constitution (of 1956) which lays down that all citizens are equal before law and are entitled to equal protection of law. In that case, the proposition in fact pertained to reserved seats in Dow Medical College. The Ministry of Health had issued two circulars whereby 65 seats out of 130 were reserved for various units and classes. The circulars having been found violative of Article 5 of the Constitution (Article 25 of the present Constitution of Pakistan), were struck down. In Shrin Munir's case, P L D 1990 S C 295, the proposition of reservation of seats for male students on the basis of reasonable classification, received attention of the Court. In that case, girl students who obtained higher marks than the male students, sought admission in one of the Medical Colleges where out of 1,085 seats, 858 seats were open seats, of which 677 were allocated, to boys and 181 to girls. Girls were supposed to compete within their own quota. The marks obtained by girls students falling at the bottom being much higher than the boy students, the scheme of reservation of seats was challenged by invoking Fundamental Right No. 25 read with Right No. 22 of the Constitution of Islamic Republic of Pakistan. The learned Single Judge of the High Court struck down the scheme of allocation of seats on the principle of equality before law and equal protection of law. In Inter-Court appeal, the Division Bench, however, reversed the finding. In the Supreme Court, the finding of the learned Single Judge prevailed. Mr. Justice Shafiur Rahman, the learned Judge who spoke for the Court, observed that by virtue of Fundamental Right No. 25, admission to Medical Colleges must be made available on merits irrespective of reservation and allocation of seats for each sex. In this case, though the question of admission on the basis of sex is not directly involved, but at the same time, the proposition emerges on the basis of right of equality before law and equal protection of law.

18. The learned Counsel for the respondents argued that the High Court is not competent to issue directions to the respondents to increase the number of seats for giving admission to the petitioner. In support of this contention, reliance was placed on Chairman Selection Committee, Bolan Medical College, Quetta's case, 1979 S C M R

529. It was also a case of admission in Bolan Medical College. In that case, the learned Judge of Balochistan High Court, an accepting the constitutional petition, issued a direction to the authorities to increase the number of seats for admission of the petitioner. Mr. Justice Muhammad Akram, the learned Judge of the Supreme Court who recorded the verdict of the Court, disagreed with the manner of direction but at the same time, refused to interfere in the order of the High Court. It was also a case of admission in a Medical College where the petitioner was denied admission on account of domicile certificate. The number of seats having been fixed, students having lesser marks were given admission instead of the petitioner. In such circumstances, the Court' came to the conclusion that the respondents who secured admission instead of the petitioner, were not at fault, as actually the admission was denied to the petitioner on account of wrong decision of the Selection Committee. In present case, such a situation does not arise, as in fact the number of seats is not fixed. The respondents have, in their defence, conceded that the number of seats fixed originally, was later on increased to accommodate students including those who were admitted on the recommendation of the Chancellor. The respondents have only to provide admission to the petitioner irrespective of the fact that one seat shall have to be added in routine. In Banshidhar's case, A I R 1963 Rajasthan 172, a student was denied admission in LL.B. class. He invoked the jurisdiction of the High Court. The petitioner claimed that he was a graduate from the Gujrat University as a private candidate. He was denied admission on account of having graduated as a private candidate. The learned Judge arrived at the conclusion that such a condition was violative of law, as such the authorities were directed to grant admission to the petitioner. An objection was raised on behalf of the ,University authorities that admission in LL.B. classes being discretionary, the High Court could not intervene in the same. The learned Judge overruled the objection and held:-- "that the matter of admission was not discretionary. Being the head of a public institution it was the duty of the Principal to act according to law in the matter of admission and he could not ignore the rules and refuse admission at his sweet will. The petition was maintainable."

19. The aforesaid reasons lead to the conclusion that the action of the respondents in denying admission to the petitioner is purely arbitrary, discriminatory and violative of right of equality before law and equal protection of law. The petition is, therefore, accepted. The respondents are directed to provide admission to the petitioner in M.Sc. Physics within three dues from this order. M.B.A./407/H.C.A Petition accepted.