1999 PLP 587 (MLD)

(B) For applicants with B.Sc. or B.A. Sc. As the Highest qualification: (i) B.Sc. or B.A.Sc. 50% (ii) H.S.S.C. or equivalent Examination. 30% (iii) S.S.C. or equivalent Examination. 20%

5. It is also profitable to reproduce section 14(3) of the Act, on which reliance has been placed by Syed Sajjad Hussain, Advocate to justify the impugned amendment:- (3) "The Vice-Chancellor may, in an emergency which in his opinion requires immediate action, taken 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. " 6 The detailed examination of the Act shows that subject of regulating the admission of student to the course of studies and examinations in the University and to advise the Syndicate on academic matters, is the power as well as duty of the Academic Council, (section 26(2) clauses (a) and (c)). Under section 30 Regulations have to be made for all or any of the matters including admission of student to the University" and "conditions under which students shall be admitted to the courses..." Under section 30(2) "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 reconsideration. A regulation prepared by the Academic Council shall not be valid, unless it receives the approval of the Syndicate". Once the Regulations have been framed on the subject of admission into the courses of studies. by the Academic Council these are remitted to the Syndicate, whose powers and duties have been laid down in section

24. Under section 24(2)(aa) the Syndicate has the power "to consider and deal in the manner prescribe' in subsection 2 of section 30, the Regulations made by the Academic Council, provided that the Syndicate may frame a Regulation at its own initiative and approve it after calling for the advice of the Academic Council" .

7. It is clear and this has not been disputed, that it if the things were to go in a normal manner, the amendment in the necessary Regulations should have originated in the Academic Council and if the same were approved, should have gone to the Syndicate, who could have dealt with the same. In the alternative, the Syndicate itself could have framed such a regulation after calling for the advice of the Academic Council. It is also admitted that no such procedure was followed. A s noted in the earlier part of the judgment and as is clear `from the documents placed on record by Syed Sajjad Hussain, Advocate, the impugned proposal/amendment originated with the Vice-Chancellor on 16-10-1997, who forwarded the same to the Syndicate and the Syndicate approved it on 25-10-1997 Syndicate before approval did not seek the advice of the Academic Council. As also noted, the Academic Council on 3-3-1998 dealt with the matter as follows:- ITEM NO.8 Amendment in the Rules and Regulations Governing the Procedure of Determining the Merit from the Session 1997-98. "The action taken by the Vice-Chancellor under section 14(3) of the University Act, 1974 in recommending to the Syndicate the amendments in the Rules and Regulations governing the procedure of determining the merit for admission from the Session 1997-98 was approved".

8. It is in the light of the above legal provisions that the question of validity of the impugned Regulations/amendment will have to determine. Let it be repeated that in normal course the impugned amendment should have originated in the Academic Council and Regulations framed by the Council would have been placed before the Syndicate. The other possibility was that Syndicate could have made the amended Regulations but after advice of the Academic Council. Going by normal course, the Vice-Chancellor does not come at all in the exercise. Although he may be member of one or the other body and therefore participate in its deliberation, but as a Vice-Chancellor he has no authority to frame regulations as regards the admission of students to the courses. Justification for the amended regulations is, however, strenuously canvassed by Syed Sajjad Hussain, Advocate by falling upon the language of section 14(3). It is urged that this provision authorises the Vice-Chancellor to act for the other body of the University and although this can only be done in the emergency but it is stated that Vice-Chancellor himself is the sole and exclusive Judge of the existence of emergency. It is stated that even the courts will be expected to honour the opinion of the Vice-Chancellor as regards existence or emergency. To fortify this argument Syed Sajjad Hussain, Advocate referred the case of Muhammad Arshad Supra (NLR 1991 Service 50).

9. This argument has no force. Neither the language of subsection 3 of section 14(3) not on the basis of any general principle such power exclusive is or need be conferred on the Vice-Chancellor. Emergency has to exist as a fact, which fact can always be examined by superior courts under its power of judicial review. The opinion of the Vice-Chancellor is relatable to the immediate action which he may like to take. The word opinion in section 14(3) is not relatable to the existence of emergency. The subjective satisfaction as to existence emergency is not immune from scrutiny by this Court. I am fortified in this conclusion by the above referred Division Bench Judgment namely University of the Punjab and 2 others v. Rehmatullah (PLD 1982 Lahore 729). In this judgment the question involved was whether emergency Regulations framed by Vice-Chancellor, Punjab University relating to admission in Law College were validly made or not? A learned Single Bench held the same to be invalid and issued the writ. On appeal by University of Punjab this Judgment was upheld. It may be noted that section 15(3) of the University of the Punjab Act, 1973 is pari materia to section 14(3) of the Act. The judgment in Arshad's case is by a Single Bench and with respect, will have to give way to the above D.B. Judgment. In any case, I am obliged to follow the latter.

10. From the material placed on record and during the course of hearing, it has not been shown that as to why the long standing admission criteria was desired to be changed by circumventing Academic Council and the formal procedure. The justification for departure from normal course is discernible from the following language used in working paper, a copy of which has been placed on record: "Since the meeting of the Academic Council was not in view and admission for the First Year Class were to be made shortly and these amendments were to be corporated in the prospectus for Entry 1998, the worthy Vice-Chancellor on behalf of the Academic Council in exercise of the powers vested in him under section 14(3) of the University Act, 1974 recommended the above amendments in the Rules and Regulations governing the procedure of determining the merit from the Session 1997-98. These amendments were subsequently approved by the Syndicate in its meeting held on 25-10-1997."

11. The above is hardly sufficient reason for deviating from the normal course. It has not been shown as to why the Academic Council could not meet. It has not been shown as to why the amendments could not wait for some time so as to be operative w.e.f. year 1999 onward. The assertion that the amendment was mala fide and was needed to make the admission of Mst. Mehmoona Shaheen possible need not be adjudicated as such, but it does raise some doubts on the bona fides of .the exercise. Admission criteria was existing for quit few years and every body including the students were familiar with it. In my view it could await the application of mind by the Academic Council, the body exclusively entrusted with the determination of these questions. In my judgment no such emergency existed, which warranted change of long standing admission criteria within days, by Vice-Chancellor who in any case is the Principal Executive as distinguished from a law maker. Law making on the subject of admission is the duty of Academic Council and the principal executive cannot and should not deprive the Council from performing its duty, particularly when there is hardly any emergency. In this connection, I would respectfully follow and refer to the following paragraphs, at page 741 from the above Division Bench Judgment: "In the instant case we need not go into the question whether the Syndicate could be called to session for according approval or not as even if it is assumed that it was not so available as is being pleaded yet no reason existed for not calling upon the Academic Council to perform its statutory function of preparing the regulations on the subject to admission as is provided by section 28(2)(c) read with section 32(2) of the Act. The impugned regulations were prepared as well as approved by the Vice-Chancellor himself, though the Academic Council was in existence yet the council was not allowed to perform the prescribed function and instead the regulations prepared by the Vice-Chancellor were put up before it later on for its approval and statedly the approval sought for was also accorded." "Prima facie it is reasonable to assume that the authority or the officer on whose behalf action is taken should not be made to accept the action taken as "fait accompli". In the instant case as the Academic Council was not allowed to function the use of emergence power invoking provisions of section 15(3) for the purposes of preparing the regulations, was rightly held to be unauthorised and this finding is sufficient to hold the impugned regulations as ultra vires."

12. In paragraph No.7 of this judgment I reproduce the approval of the Academic Council on the subject. It will be seen that the Academic Council has approved the action taken by the Vice-Chancellor under section 14(3) of the. University Act 1974, in recommending to the Syndicate the amendments in the Rules and Regulations governing the procedure of determining the merit for admission from the Session 1997-98 was approved". The above hardly furnishes any indication as to whether the Academic Council itself applied its mind to the amendment itself. Seemingly, what they approved was the Act of recommendation as distinguished from the merits of the amendment itself. Normally, a law making body is required extensively debate the subject, to examine the pros and cons of the new legislation and then take a decision. This exercise does not seem to have been undertaken. It is clear that the provisions of the Act have not been adhered to in the true perspect although they have been followed in later only.

13. I, therefore, conclude and hold that the exercise of powers by Vice- Chancellor under section 14(3) of the Act is bad in law and that the impugned amendments in the relevant regulations are not legal.

14. This takes me to the next question, which is equally important. Under the amended regulations admissions have already taken place. I was informed that as many as 600/700 students have been admitted, on the touchstone of new admission criteria. I have already held the change in law as bad. The students, who have been admitted are not before me nor it seems appropriate to direct them to be impleaded. In any case it is clear that they have no hand in the act of the Vice-Chancellor. The jurisdiction of the Court cannot and should not be exercised if it ,is likely to create greater disturbance than is sought to be redressed. I would therefore, direct that notwithstanding the declaration of illegality, the admissions made under the amended Regulation, will remain intact and will be deemed valid.

15. The petitioners have been able to show that the amendment has not been legally made. This exercise will be of no use to the petitioner if a mere declaration of invalidity of the impugned amendment is recorded. To a Court question, Mr. Sajjad Hussain stated that the petitioners qualify to be admitted under the old Regulation. In the circumstances and for the ends of justice, I will direct the respondent-University to admit those of the petitioners who have applied for admission and for this purpose if need be to create additional seats. This exercise shall be. completed within 15 days, from the date of this judgment, so that those of the petitioners who get admission can join the studies immediately.

16. It may be clarified that it will be open to the respondent-University to reframe the regulations in accordance with law and in the light of this judgment well in time before the admission for next year. Such an amendment should be duly and widely publicised so that the concerned persons are made to know the same well in time.

17. In view of the above order, there is no need to specifically implead Dr. Shaheen Akhtar, Ex-Vice-Chancellor and Mamoona Shaheen as respondents and in this connection C.M.No.2 of 1998 stands disposed of. Similarly no separate order on C.M. No-1114 of 1998 need be passed as it has already been directed that those of petitioners who applied in time, shall be granted admission. The writ petition as well as the miscellaneous applications stand disposed of in the above terms. Parties are left to bear their own costs. A.A./M-767/L Order accordingly.