P L D 1959 (W (PLP)

SHABIR AHMAD, J.

‑This petition under clause (4) of Article 2 of the Laws (Continuance in Force) Order, 1958, which seeks a writ of mandamus against the Principal, Hailey College of Commerce, Lahore raises points similar to those which arise in Writ Petitions Nos. 264 of 1959 and 269 of 1959 and consequently all these three petitions will be disposed of together.

2. Writ Petition No. 263 of 1959 was‑ put in by Hasan Imam and Muhammad Muslim, who claim that they were qualified to appear in Part II of the, Mp Bachelor of Commerce Examination of the Punjab University, but the Principal of the Hailey College of Commerce, Lahore, who was impleaded as the sole, respondent had illegally and without justification refused, to hand over to them their roll numbers sent by the Punjab University, to him. it was said in the petition that the. Principal of the College had refused to hand over the roll numbers to the petitioners on the ground that the petitioners had failed in the House Examination and their class work was unsatisfactory to which effect a notice had been put up on the 16th of May 1959 after the roll numbers had been received from the Punjab University. The petition averred that the admission forms of the petitioners were accompanied by the requisite certificates of the respondent which had been accepted by the Punjab University and, therefore, the respondent having become functus officio could not withhold the roll numbers issued by the Punjab University. In his reply the Principal, Hailey College, denied the right of the petitioners to appear in the Examination in spite of the fact that the Punjab University had issued roll numbers to them. It was claimed that the Principal of the College could at any time disallow a student of his College to appear in the Punjab University Examination, and the fact that the University had issued a roll number to a student did not entitle him to sit in the Examination against the wishes of the Principal. It was added that the names of the petitioners had been sent up to the University by the respondent only provisionally and as afterwards the result of the petitioners showed that their success in the Examination Was problematic, they had not been allowed to take the examination. It was also said in the written statement that in order to test the knowledge of those students who had not done well at the House Examination, the respondent had held a Special Test in which the petitioners did not qualify.

3. Writ Petition No. 264 of 1959 was put in by Nasim Ahmad and Anwar Hussain Naqvi who pleaded therein that they had attended the requisite number of lectures delivered at the Hailey College of Commerce, Lahore, and had consequently qualified themselves to appear in Part III of the Bachelor of Commerce Examination of the Punjab University held in May 1959 and that their admission forms had been sent up by the Principal of the College, who was impleaded as the sole res?pondent, to the Punjab University in March 1959, with the requisite certificates and though the roll numbers had been received by him from the Punjab University the respondent refused to deliver the roll numbers to them which act of the Principal was ultra vires and illegal. The reply put in by the Principal of the College was to the same general effect as that put in by him in Writ Petition No. 263 of 1959, namely, his right at all times to refuse a candidate to sit in the Examination held by the Punjab University in spite of the fact that the University had issued him a roll number.

4. Writ Petition No. 269 of 1959 was put in by eleven persons, namely, Muhammad Aslam and ten others, who claimed that they had attended the requisite number of lectures delivered in the Hailey College of Commerce and had thereby qualified themselves to appear in Part I of tire Bachelor of Commerce Examination in May 1959, that the Principal, Hailey College of Commerce, who was the first respondent in the case, the second respondent being the Punjab University, had sent up the names of the petitioners to the Punjab University with `the requisite certificates and though the Punjab University had issued roll numbers to the petitioners, the Principal of the College, res?pondent No. 1, was withholding the roll numbers and thereby depriving them of their right to appear at the Examination to be held by the Punjab University. The reply of the Principal of the College to this petition was practically the same as in the other two petitions, namely, that the Principal had the right at all times to refuse to allow a student of his College to appear at an Examination held by the Punjab University m spite of the fact that the University had issued a roll number to the student.

5. Mr. Mahmud Ali Qasuri, who appeared for the Principal, Hailey College of Commerce, in all the three writ petitions, appeared also for the Punjab University in Writ Petition No. 269 of 1959. During his arguments he made some assertions with regard to the powers of the Principal of the Hailey College of Commerce which, if accepted, would make the Principal entirely independent of the control of the University and as it appeared doubtful that the claim of complete independence made on behalf of the Principal was correct, the Punjab University was directed by order dated the 27th of May 1959 to put in a written state?ment wherein it should be mentioned whether or not they accepted the claim of the Principal, otherwise it would be presumed that they had nothing particular to urge.

6. It appears necessary for the purposes of the present petitions to have some knowledge of the working and status of the Halley College of Commerce. The Punjab University Calendar for the year 1951‑52, Volume I, deals with the Hailey College of Commerce in Chapter IV of Part VI entitled "Financial Rules in University Colleges". From the contents of this Chapter, which is found at pages 867‑70 of the above?mentioned calendar, it is clear that it had been made obligatory for the University to maintain a College with the object of 'promoting the study of commerce, the management of which College was to be vested in the Syndicate subject to the control exercised by the Senate in any matter requiring sanction of that body. It is provided that all matters in relation to the College shall be considered in the first instance by the College Com?mittee, which was to be appointed in the manner detailed in Clause

3. Clause (6) says that the Principal shall be under the orders and control of the College Committee in all matters connected with the definition and discharge of his duties and, except as otherwise provided, he shall, subject to such orders and control, have power over the internal discipline and arrangements of the institution. Clause (7) gives the Principal the power to detain such students as fail to attain the required standard of efficiency.

7. Mr. Abid Hussain Minto, Advocate, who represented the petitioners in all the three writ petitions, urged that when the University issued the roll numbers to the petitioners, it entered into a contract with them to allow them to appear at the Examination mentioned in the roll numbers and if any right existed in any person to back out of that contract, it could exist in the Punjab University and not the Principal of the College. In addition, the learned counsel relied on Chapter XVII of Part VII of Volume I of the Punjab University Calendar for the year 1951‑

52. As the rules contained in this Chapter are of some importance for the purposes of the determination of the questions that arise in these writ petitions, those rules are reproduced below :‑ (a) An admission form once submitted may be withdrawn by a Principal only under the following conditions :‑‑ (i) when a candidate has been sent up provisionally for shortage of attendances and that shortage has not been made up nor condoned in accordance with Regulations. (ii) When a candidate's name has been struck off the rolls of the institution for non‑payment of College dues provided such action has been taken before the commencement of the examination. (iii) When a candidate has been rusticated or his character certificate has been withdrawn for misconduct before the com?mencement of the examination. (b) Refund of fees shall be allowed (i) when a candidate is found to be ineligible to appear in the examination concerned in accordance with University Regulations, and (ii) when a candi?date's name is withdrawn for shortage in attendance. (c) Refund shall not be allowed (i) when a candidate's name is withdrawn for non‑payment of college dues and (ii) when a candidate's name is withdrawn on account of his rustica?tion from college or withdrawal of character certificate for misconduct." A foot‑note appended to these rules after deliberations of the Syndicate of the Punjab University on the 23rd of February 1944 is in the following terms :‑ "Admission form of a candidate who has completed two?-thirds of his lectures calculated on the basis of lectures delivered up to the 15th of March cannot be withdrawn." Learned counsel for the petitioners further relied on circular letter No. 2529/E dated the 12th of May 1959, which was sent by the Punjab University to the Principals of all affiliated Colleges including that of the Hailey College of Commerce with the roll numbers of candidates who had been allowed to appear at a University Examination. One of the things mentioned in the circular letter is that the name of a candidate whose admission form had been submitted to the University cannot be withdrawn on the ground of unsatisfactory class work.

8. In reply Mr. Mahmud Ali Qasuri contended that the Rules in the Calendar and the part of the circular letter No. 2529/E dated the 12th of May 1959, on which reliance had been placed by the learned counsel for the petitioners, were of no avail to them, the latter because the letter in question was not issued by a person competent to issue the instructions relied upon by the learned counsel for the petitioners and the former because the Regulations of the Punjab University by implication gave the Principal of the Hailey College the power to refuse to allow a student of his College to appear at a Punjab University Examination in spite of the fact that the University had no objection to the student's doing so and the Rules relied upon, which, as distinguished from the Regulations, had no statutory force, could not curtail the powers of the Principal in that behalf. Mr. Mahmud Ali Qasuri amplified his arguments by saying that the Rules relied upon by Mr. Minto could not be acted upon as they could not be traced to any power vesting in the University to make them. He contended that unless the Rules had been made by an authority competent to make them, they could not be acted upon for any purpose, and added that at any rate even if the Rules were binding they were meant for cases of refund of fees when the form of a candidate was withdrawn, and were not intended to be exhaustive of cases in which forms of students sent to the Punjab University could be withdrawn by the Principal of the College who had sent them up. With regard to the circular letter No. 2529/E dated the 12th of May 1959, the contention of Mr. Qasuri was that though no doubt one of the instructions in this letter was that the name of 4 candidate whose admission form has been submitted to the University cannot be withdrawn on the ground of unsatisfactory class work, the instructions though couched in general terms and, on the face of it, applicable to all Colleges, was not applicable to the Hailey College of Commerce, and, therefore, even if the circular letter was issued by a person authorised to issue it, it did not affect the present cases.

9. I have mentioned already that the Punjab University was asked to state their position with regard to the points con?cerning the powers of the Principal, Hailey College of Commerce, Lahore, which were raised by Mr. Mahmud Ali Qasuri during his arguments. No formal written statement has been put in by the University, but Sardar Muhammad Iqbal, who appeared for them, produced a document sent to him by some official of the University wherein the points raised in arguments by Mr. Mahmud Ali Qasuri have been dealt with. The document produced by Sardar Muhammad lqbal is signed by the Assistant Registrar (Examinations) and Deputy Registrar (Examinations) and though it is not stated that they are competent to act on o behalf of the University in proceedings in Courts I will proceed on the assumption that they are competent to do so. The position taken up in the above‑mentioned document supports Mr. Mahmud Ali Qasuri in some respects, but not in others.

10. It appears to me that the petitions merit success in view of the Rules contained in Chapter XVII of Part VII of Volume I of the Punjab University Calendar for the year 1951‑52 which have been referred in paragraph

7. The contents of the Chapter make it. clear that it is only in cases mentioned therein that the name of a candidate once sent up to the University for permission to sit in a University Examination can be with?drawn. The argument of Mr. Mahmud Ali Qasuri that the Chapter was intended to deal only with those cases of withdrawal of forms in which a refund of fee could be claimed by the candidate and did not deal with all cases does not receive any support from the language used in the Rules and was not sup?ported by Sardar Muhammad Iqbal, Advocate, who appeared for the Punjab University. In my view, the argument of Mr. Qasuri with regard to these Rules having no binding force is also without force. I could not find out when these Rules were made, and it is by no means improbable that they were made under section 18 of the Punjab University Act, 1882, but from the foot?note appended to the Rules, which has been reproduced in paragraph 7, it is clear that these Rules were in force in 1944, if not earlier. The validity of the Rules has not been questioned all this time, and in fact it is apparent from the circular letter No. 2529/E dated the 12th of May 1959 to which reference has already been made that they have been acted upon by the University. It is not without significance that Sardar Muhammad Iqbal did not question the validity of the Rules. The Rules have been acted upon for such a long time and it is too late in the day to say that they have no binding effect on anyone. In the document produced by Sardar Muhammad Iqbal, the learned counsel for the Punjab University, it is stated that the Rules in Chapter XVII of Part VII, Volume I, of the Punjab University Calendar; have now been sanctioned as Executive Ordinances by the Chancellor of the Punjab University vide his letter No. 756/GS/59/1355 dated the 27th of May 1959. It follows that even if the Rules relied upon on behalf of the petitioners had no binding force before the 27th of May 1959, they are applicable after that date. In order to have a verdict from this Court that his client, the Principal of the Hailey College of Commerce, was entirely immune from control by the Punjab University, Mr. Mahmud Ali urged that even the Executive Ordinances issued by the Chancellor of the University on the 27th of May 1959 were of no binding force but could not support his contention on any valid ground. Mr. Mahmud Ali Qasuri has not been able to show that the Rules in Chapter XVII regarding the withdrawal of admission forms after they have been submitted to the Punjab University are invalid and exist in the Punjab University Calendar for no purpose. It is, however, clear that whatever the effect of these Rules may be on the powers of the Principals of other Colleges they are binding on the Principal of the Hailey College of Commerce, Lahore, who, as I have stated above, heads a College which is run by the University, as it will be against all canons to hold that the Rules made by and acted upon by the University were not binding even on the Principal of a College over which the Punjab University has exclusive control. Now, if a form sent to the Punjab University for issue of a roll number to a student so that he may take an examination cannot be withdrawn by the Principal who sent the form up except for reasons mentioned in Chapter XVII of Part VII of Volume I of the Punjab University Calendar for 1951‑52 and in the circular letter No. 2529/13 dated the 12th of May 1959 sent by the Punjab University to Principals of all affiliated Colleges, I do not see how a roll number issued by the University can be withheld except for the reasons which wouldl3 justify the withdrawal of the forms. Mr. Qasuri also relied on clause 7 of Chapter IV of Part VI of Volume I of the Punjab University Calendar to which reference has been made in paragraph 6 above which deals with the powers of the Principal with regard to the detention of students. The power is no doubt given to the Principal of the Hailey College of Commerce in very clear terms, but the provision has no application to cases of the present kind and can be exercised before the name of a candidate has been sent up to the University for grant of a roll number to him. Once the name has been sent up to the Punjab. University and they have issued a roll number for the candidate, the candidate can be deprived of his right to appear in the examination by the Principal only if the case falls within 14 Chapter XVII of the Punjab University Calendar and the circular letter relied upon by the learned counsel for the petitioners. Though he had urged that circular letter No. 2529/13 dated the 12th of May 1959 was not issued by a person authorised to do so, Mr. Qasuri pointed to nothing to support that contention of his and as Sardar Muhammad Iqbal stated that the letter was issued by the Punjab University, it is clear that the letter cannot be brushed aside as a useless piece of paper which Mr. Qasuri wanted that it should be held to be.

11. In this connection I cannot overlook the fact that at the time when these petitions came up for preliminary hearing, the Bench which heard them at that stage directed that the petitioners should be allowed to take the examinations subjected to the result of these petitions. It is denied that the petitioners have appeared in their respective examinations already finished. In these circumstances, the issue of a writ in favour of the petitioners can work no hardship to anyone, but in the case of those who succeed in the examination, it would be unjust to declare them unsuccessful simply because the Principal of the College had not at one stage considered them fit enough to take the examination. In the case of those petitioners who fail in the examination no harm would result to anyone but to them?selves by their failure.

12. For the reasons given above, I accept all these petitions and direct that the petitioners would be considered to have rightly taken their respective Examinations and their results would be C declared by the Punjab University. In view of the circumstances of the cases, however, I leave, the parties to bear their own costs. A copy of the judgment should be sent to the Registrar (Exami?nations) Punjab University as soon as possible. MASUD AHMAD, J.

‑I agree. A. H.??????????????????????????????????????????????????????????????????????????? ??????????????????????? Petitions accepted.