1997 PLP 2397 (MLD)

5 marks b. 2nd Division, 3 marks c. 3rd Division. 2 marks

3. Marks obtained in the written test held by the college. 25

4. Marks obtained in the Interview/viva voce. 10 2 % of the total number of seats may be given to eligible candidates who are outstanding sportsman, college/University Colour Holders or who have been members of Provincial/National Teams. One seat per discipline may be reserved for disabled/handicapped applicants. (They will also be eligible for admission on merit)." Note.‑‑This formula, however, fails to mention that as per Government Policy, 20 marks are to be awarded for N.C. C/W.G. training and 20 marks for Hafaz‑e‑ Quran. (Kindly' see page 7 of the Admission Regulations, 1996 prescribed by University of the Punjab.) The appellant was awarded 136 marks on account of her result in the University Examination in the concerned subject. She obtained 11 marks on the basis of divisions in various examinations. She obtained 10 marks in the written test but she obtained zero mark in the interview. In all she obtained 157/200 marks as per the formula prescribed under the admission policy. The Prospectus of the College for the years 1996‑98 also contains the rules for admission in the college according to which admission is granted on the basis of merit based on the marks obtained (in the University Examination) written test and the viva voca.

3. It is submitted by the learned counsel for the appellant that the appellant had obtained a total of 157 marks but she has not been granted admission, although several other candidates obtaining lesser marks as per the formula referred to above have been granted admission. He has explained that according to the merit list copy whereof has been placed on record, Miss Shazia Riaz with 154 marks, Miss Sabid Gul with 156 marks, Miss Naureen Munawar with 148 marks and Miss Afshan Human with 146 marks have been admitted in the M.A. Class despite the fact that they stood below the petitioner in the merit list, while admission in the college has been refused to the appellant merely on the ground that she did not obtain pass marks in the interview.

4. Learned counsel has contended that admission is to be granted according to the inter se merits of the candidates calculated on the basis of the prescribed formula. It is contended that there is nothing either in the admission policy or even in the Prospectus, that the candidates seeking admission are requested to separately obtain pass marks in the interview as well. It is submitted by the learned counsel that naked and uncontrolled powers cannot be given to the interviewers to refuse admission bypassing the overall performance of a candidate in the University Examination and the written test. According to the learned counsel, the admission policy framed by the Government has purposely avoided to give arbitrary powers to the selectors to decide merit for admission solely on the result of the interviews.

5. Learned Assistant Advocate‑General on the other hand has submitted that the admission to the appellant has been rightly refused because she did not show good performance in the interview. According to him the committee of the senior teachers who had interviewed the candidates were the best judges to determine as to who were the suitable candidates for admission in the college. According to him, the appellant obtained no mark in the interview and, therefore, she was disentitled to obtain admission in the college. Alternatively, it is submitted by the learned law officer that admission was granted to students in September, 1996 and at this belated stage even if admission is granted to the appellant, she will not be able to make up the deficiency of lectures etc. According to him, the relief on account of lapse of time has become unavailable to the appellant.

6. After hearing the learned counsel for the petitioner end the learned law officer we are of the considered view that this appeal must be accepted. According to the Government Admission Policy the inter se merit of the candidates for admission in colleges in the public sector is determined on the basis of overall performance of the candidates. For this purpose, the marks obtained by a candidate in the relevant subject in the last University Examination, Divisions obtained by him/her in various examinations, marks obtained in the written test and the interview from basis for the determination of the merit. The Admission Policy does not prescribe that if a person fails in the written test or in the interview she/he will become ineligible to obtain admission in the college. It is overall performance of a candidate which is relevant for the purpose of admission. Total marks obtained in all the 4 subdivisions mentioned in the Admission Policy ultimately determine the fitness of a candidate for admission. If a candidate obtains high marks in the University Examination in the relevant subject and he/she does well in the written test as well but shows poor performance in the interview, it would be unjust to deny him/her admission merely on poor performance in the interview. May be, he/she was confused at the time of interview or some unpleasant incident took place on account of which he/she was not in a proper state of mind at the time of interview. Above all, possibility cannot be ruled out that interviewers in some cases may also purposely fail a candidate in the interview for the ulterior purpose of granting admission to some other candidate with lesser merit for extraneous considerations.

7. No body should be allowed to have absolute discretion to grant or refuse admission in higher seats of learning. The discretion has to be structured even in those cases where no limitations are prescribed for exercise of the discretion by the relevant authorities. It may be observed that arbitrariness has to be avoided at all levels. All laws, rules/legal instruments have to be interpreted in such a way that exercise of powers in arbitrary manner is avoided. A legal instrument which contains arbitrary powers or whereunder powers are capable of being arbitrarily exercised cannot be countenanced and has to be struck down. Our Constitution guarantees equal protection of law to every citizen under Article 25 of the Constitution. Arbitrariness in favour of one and against another would be in violation of the Constitutional guarantee.

8. Article 37 of the constitution provides that higher education should be to all on the basis of merit. Clause (c) of its Article made equally accessible reads as under:‑‑ "(c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit. " Admission in colleges/Universities/Institutions of higher learning, therefore, has to be made on the basis of merit. Right to obtain admissions in places of learning is a valuable vested right. This right cannot be allowed to be decided by the interviewers/selectors in their sole discretion. This must be decided on the basis of merit which in turn is to be worked out according to the prescribed formula. Merit cannot be worked out on performance on non‑performance in only one of the many criteria. It is the overall performance which requires to be taken into consideration for assessing the fitness and suitability of candidates for the purposes of admissions in colleges and Universities.

9. We have noted with satisfaction that in the Government Admission Policy it has not been provided that candidates failing in the interviews are not entitled to obtain admission, even though they otherwise fall within the ambit of selection on account of other prescribed criteria. This has been done to safeguard arbitrariness of the selectors. Indeed if such a provision would have been included in the admission policy or in the Prospectus the same would have been declared unlawful by this Court. The impugned refusal to grant admission to the appellant in the M.A. Class is contrary to the provisions of the Government Admission Policy and 'the College Prospectus and hence the same is declared to be without lawful authority and of no legal effect. Resultantly, this appeal is accepted and the order passed by the learned Single Judge is set aside with no order as to costs. Respondent No. l is directed to grant admission to the appellant in the current class of M.A. Applied Psychology.

10. It may be observed that we inquired from the Principal of the college if the appellant could be accommodated for admission during the next admission. She expressed her inability because the admission in the next class will be granted on the basis of inter se merit of the candidates for the said class. The appellant must, therefore, be granted admission in the current class. May be she can make up the deficiencies on account of late admission and if she is not able to do so, she may not be promoted to next class in accordance with law. We are not inclined to order that the petitioner may, be granted admission in place of some other student with lesser merit. No one already admitted should be disturbed. One student can easily be accommodated in the current class alongwith the already admitted students. A.A./M‑275/L Appeal accepted.