1999 PLP 175 (MLD)

The students are directed to contact Chairman/Departments concerned alongwith the relevant documents. (Syed Zawar Hussain Naqvi) Asst: Registrar (Gen.) No. F.1-31/Admission/Gen. 97, Dated 28-6-1997 Copy of the above:- 1.Secretary to the President, Azad Government of the State of Jammu and Kashmir M' abad:

2. Secretary to the Vice-Chancellor AJ&K University MZD Chairman/Director Concerned Departments.

4. O.S.D. Meetings

5. Students concerned

6. Master file Asstt. Registrar (Gen.)"

10. It is quite amazing that the Vice-Chancellor created the scat in anticipation of-the approval of the academic Council and Syndicate. No doubt, that section 11(3) of the University Act, confers power upon the Vice Chancellor, but these powers could only be exercised in emergency cases. For comprehending it, I would like to reproduce the section, 11(3), which is as under: - Section 11(3), 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 to the authority or other body which in the ordinary course would have dealt with the matter."

11. Now the question arises that what was emergency in this case? The learned counsel for the University was confronted to explain, that what was the emergency, but he could not afford any reasonable explanation.

12. Under the aforesaid provision, the Vice-Chancellor can taken an action in emergency and sport it to the authority or the body who in ordinary course has to deal with we matter. Now the question arises, that what does the word emergency-means? Word emergency is not a term of art. Emergency is a state of affairs causing apprehension of unforeseen danger. The word emergency is defined in the Oxford Dictionary; (a) juncture, that arises or crops up, a sudden occasion, (b) the sudden or unexpected occurrence of state of things. Webster defines it as unforseen combination of circumstances which calls for immediate action. It is also called crisis. This view finds support from PLD 1979 BJ 17.

13. Now the question emerges, that what sought of combination of unforeseen circumstances calling for immediate action was involved in this case, which prompted the Vice-Chancellor to create one seat in anticipation of the approval of Academic Council and Syndicate. The perusal of the record shows, that there was no such emergency' and the Vice-Chancellor created the seat because it was directed by the Chancellor. Perhaps according to him the direction of the Chancellor was also an emergency.

14. Now another question perturbs my mind, that if this action of Vice-Chancellor is not approved froth the Academic Council and the Syndicate, then what will be the consequence of it. I feel, that the Syndicate and the academic council, while giving the approval will also consider, whether there was any justification for creating special seat. I hope, that they will not simply bow before the direction of the Chancellor. They will consider the pros and cons of the creation of-such special seat. It is observed, that the case of the non -petition No.4 was not of emergency nature where the Vice-Chancellor would have exercised the powers conferred upon him under section 1.1 (3).

15. Now the next question emerges, whether the Chancellor while allotting the seats to the non-petitioner No.4 considered any compassionate ground and he allotted the seats to the non-petitioners Nos.4 and 5 on the compassionate grounds? The learned counsel for the University, Syed Siddique Hussain Shah, was confronted to explain, that what were the compassionate grounds on which the admission was allowed to the non-petitioners Nos.4 and 5, but he could not afford any explanation.

16. It is pertinent to note, that in the instant case, the Chancellor even did not think for considering any compassionate ground, but he was bent upon to accommodate the non-petitioners Nos.4 and

5. First, he decided to accommodate the non-petitioner No.4, then directed the Vice-Chancellor to create the special seat against his quota and allot this seat to non-petitioner No.4. It was worst example of preposterous. Principally, after the creation: of the seats, the Chancellor would have allotted the seats on the basis of compassionate grounds prevailing among all the candidates, who have applied for the allotment of the special seats, but it is pertinent to note, that no applications were invited by Chancellor, because he was bent upon to accommodate the non-petitioner No.4.

17. When the non-petitioners Nos.4 and 5 fail to secure admission in open competition; then allowing of admission to them against the reserved quota is queer example of favouritism. Allowing of admission on special quota to unsuccessful candidates of open competition, can never be regarded a compassionate ground. The arbitrary exercise of the discretion is not a compassionate ground as it has already beefs held by the High Court of Azad B Jammu and Kashmir in-an unreported Judgment in case titled "Kamaran Balboon Beg. v. Vice-Chancellor," decided on 11-8-1992.

18. It is also pertinent to note that the Chancellor of the University is also the President of Azad Jammu and Kashmir lie is also Custodian of the Constitution. It is his basic and fundamental duty to ensure that the provisions oft the Constitution are observed fundamental rights enshrined in the, Constitution must be adhered to. According to the Fundamental Right No. 15 all the State Subjects are equal before the law and are entitled to equal protection of law. The aforesaid fundamental right confers an obligation upon the Chancellor, (who is also President and Custodian of the Constitution) to treat all the State subjects equally, and to take equal care of all the State Subjects. If at all there were some genuine reserved seats in his quota, even then according to the aforesaid fundamental right, it was enjoined upon him to invite the applications from all the State Subjects and consider all the applications. He should have l made a comparison between hardship cases and compassionate grounds available to each applicant and then allotted -the seat to most deserving person It is most unfortunate that in the instant case the Chancellor who is also the President of Azad Jammu and Kashmir for got it, that all the State Subjects are equal for him. They should be treated alike in the alike circumstances, otherwise it will be japeing and deriding of the aforesaid fundamental right rather it will be ruthless denial and violation of the aforesaid fundamental right. The provision of I equality before law forbids the State from denying the equal protection and equal treatment to all the State Subjects. The rule of equality before law was enunciated by Dicey as a part of his thesis on the rule of law, which in comparison with other contemporary constitution was a characteristic feature of the Constitution of United Kingdom. By incorporating it in the Constitution, it was meant that all the citizens are equal before the law. They should be treated alike in the alike circumstances.

19. It is admitted to the non-petitioners Nos.4 and 5 who were admitted, that they obtained less marks than the petitioner. The exception claimed by them was that the admission was given to them against the reserved quota of the Chancellor. As stated above that it was obligatory for the Chancellor to consider all the State Subjects against the reserved seats. It is also pertinent to note that C both the petitioner and the non-petitioners failed to obtain the admission in open merit. The case of the non-petitioners was not on better footing than the petitioner in any case, therefore, the rule of equality demands that if the admission was allowed to the non-petitioners Nos.4 and 5, then the petitioner was also entitled to the admission under the-aforesaid fundamental right. A clear discrimination has been made between the petitioner and the non-petitioners which is violation of the aforesaid fundamental right.

20. It is also pertinent to note that the University is an Institution which has to boost, teach and exalt the youth of the nation with the merit system, morality, ethics and principles. It has to enhance and encourage the merit; hard working, indefatigable, lucubration and if it would unhead towards the merit, then it will mulet the youth from their due right of obtaining the education. It will amount to providing the chance to idle undeserving candidates. It is also pertinent to note that by such conduct of the University, the spirit of hard working and lucubration will appease and coagulate among the poors, intelligent hard working students. Their lachrymose maledictions and screaming will push the nation in such a quagmire, which will be the engender of the ravage and debacle of nation. The Institution of the University will fail to play the due role of beacon and flamboyant of knowledge and principles.

21. As the contention of the learned counsel for the University is concerned, that doctrine of the laches is applicable to the instant case. It has no substance for the following reasons:- "The delay which in the particular circumstances of the case is considered sufficient for preventing the party from claiming the relief is technically called lashes."

22. The High Court would normally in exercise of writ jurisdiction decline its aid to stale claims, where the claimant by sleeping over his right for a great length of time had acquiesced. As to what length of time would constitute laches? It depends upon the facts and circumstances of each case. This doctrine will not, however, be applied arbitrarily. The delay per se would not be a ground for refusal of its aid. It will only be applied, where in the estimation of the Court other party due to such delay have been placed in such situation that now by exercising of the right, the other party will lose something which it has gained due to the delay caused by the party, seeking the remedy or aid from the Court. It would not be reasonable to place him in such a position by giving the remedy to the party. This view finds support from PLD 1985 SC (AJ&K)-93.

23. Now the question emerges, whether by the lapse of time the other party has been placed in such a situation. In the instant case, the petitioner does not want to disturb the non-petitioners Nos.4 and

5. His case is that he may also be admitted, therefore, the principle of laches will not apply to the instant case.

24. As the other contention of the learned counsel for the petitioner is concerned, that a candidate with attendance of less than 75 % of the total number of lecturers delivered shall not be entitled to appear in the examination. Now if the admission is allowed to the petitioner, then he could not qualify the aforesaid condition. No doubt that the prospectus of the University contains, that a candidate" with .an -attendance of less than 75 % of the total number of the lecturers delivered to his class in each written paper shall not be allowed to take the previous/final examination".

25. Now the question emerges that what was the purpose of the aforesaid provision and the restriction and why it was enacted? The legislative purpose is reason for which the particular enactment is passed by the Legislature. While ascertaining the purpose of the legislation, the Court has to consider the circumstances, in which the law was enacted. While interpreting the Statute, the Court should keep in mind, the reasons for which the law was enacted and the Statute should be construed with the-reference to its intended purpose. The Court should prefer to carry out, the purpose: rather than defeating it. This Principle finds support from Statutory Construction Interpretation of Law Crawford-247 which reads as under:- "The Legislative Purpose.

Naturally, the legislative purpose is the reason why the particular enactment was passed by the legislature. Perhaps the reason was to remedy some existing evil, or to correct some defect in existing law, or to create a new right or a new remedy. Consequently in seeking to ascertain the- legislative purpose, the Court will resort, among other things to, the circumstances existing at the time of the law's enactment, to the necessity for the law and the evil intended to be cured by it, to the intended remedy, to the law prior to the new enactment; and to the consequences of the construction urged. But these various indications of the legislative purpose do not directly reveal the legislative intent or meaning but simply why specific legislation was enacted. Nevertheless, as is apparent, the ascertainment of the legislative purpose or purposes, if there be several, is, or may be a step in the process of ascertaining the legislative intent or meaning, since the reason: for the enactment of a .law must necessarily shed considerable light on 'the law of the Statute,' that is, on the legislative intent, for if the legislators sought to effect a certain purpose, naturally such purpose should reveal or tend to reveal the meaning of the language used by the lawmakers. And even, where the meaning of the Statute seems clear, the ascertained purpose may corroborate or confirm a particular asserted construction or the one apparent on the--statute's face. Consequently, when construing a statute the reason for its enactment should be kept in mind, and the statute should be construed with reference to its intended scope and purpose. The Court should seek to carry out this purpose rather than to defeat it."

26. The aforesaid rule was enacted because mostly, the students do not use to care for the lectures. Mostly they use to remain absent from the classes. This is a contrivance .for enforcing--and maintaining the regularity and punctuality. The basic spirit of the aforesaid rule was to maintain punctuality and regularity among the students. A. student can be regular and punctual, after the admission is allowed to him. It is, therefore, observed, that this provision will only apply from the date of the admission, if the admission was not allowed to the petitioner well in time and it was his right then he could not be restrained from appearing in the examination' on the basis of aforesaid rile. The aforesaid rule will be applicable to him from the date of his admission. It will be obligatory for him to attend the 75% of the lectures from the date when he is admitted to the University. He has to attend the 75 % of the total delivered lectures from the date of his admission.

27. The epitome of the above discussion is that this writ petition is accepted and the non-petitioners are directed to provide the admission to the petitioner in M.A. English forthwith in this session. H.B.T./148/AJ&K Petition accepted.