2013 PLP 1080 (CLC)

MRS. AYESHA A. MALIK, J.

Through this consolidated judgment, I intend to dispose of Writ Petitions bearing Nos.30214 of 2012, 30569 of 2012, 30570 of 2012 and 2029 of 2013 as common questions of law and fact are involved therein.

2. There are 13 petitioners in the above mentioned petitions. Facts of the case are almost similar in all the cases. Brief facts are that the petitioners applied for their admission in B.S./M.A. English session 2012-2016/2012-2014 at University of Sargodha, deposited the requisite dues with the University and joined their respective classes. Thereafter, respondent No.5 vide order dated 28-11-2012 cancelled the admission of the petitioners stating that the admissions were given to them without observing the merit policy of the University. Hence these petitions.

3. Learned counsel for the petitioners inter alia contended that the impugned order was issued without any notice to the petitioners. That the petitioners were attending classes, when their admissions were cancelled. He also argued that the order impugned is a non-speaking order. That the admissions of the petitioners were cancelled at the time when admissions in all universities had already closed, therefore, with the cancellation of admission of the petitioners, their one educational year is lost and they would suffer irreparably. Learned counsel for the petitioners prayed that this Writ Petition be allowed, the impugned order dated 28-11-2012 be set aside and the petitioners be allowed to join their respective classes.

4. On the other hand, learned counsel for the respondents opposed these petitions on the grounds that the petitioners were admitted to the University against the merit policy and in addition to the approved number of seats mentioned in the Admission Regulations, University of Sargodha. That the names of the petitioners were not on any merit list, hence their admissions were against the University Policy. That the University is well within its right to cancel an admission made contrary to the merit. In this regard, learned counsel relied upon Regulation 4.2.1 of the Admission Regulations, 2011 (Amended) 2012 which provides that the admissions contrary to the Regulations are void. That the admission of the petitioners was cancelled in accordance with law and no illegality, whatsoever, has been committed by the respondents, therefore, the instant Writ Petitions in hand be dismissed.

5. Arguments heard. Record perused.

6. The matter in issue in these petitions is whether the respondent University could have cancelled the admission of the petitioners. The petitioners were granted admission in September, 2012. They attended classes till 28-11-2012 when their admissions were cancelled. Pursuant to a complaint with respect to the admissions in BS and M.A. English Program of the University, a Committee reviewed the admission process and came to the conclusion that the Chairman of the Admission Committee admitted 60 students beyond the approved number of seats. These students did not satisfy the merit requirements and were not included in the merit lists issued by the University. The Committee came to the conclusion that a gross violation in the admission process was committed by the Chairman Admission Committee and it was recommended that action be taken against the Chairman of the Admission Committee and the admissions of those students who were admitted without merit be declared null and void. Learned counsel for the respondent-University argued at length. He stated that the admission process was flawed. That the petitioners did not come on any merit list, hence the respondents were well within their right to cancel the admission of the petitioners.

7. The record shows that the Committee which reviewed the admission process did not call the petitioners to inquire as to whether they were involved in any wrongful act for the purpose of procuring admission in the BS English and M.A. English Program of the University. On a query put by this Court, learned counsel for the respondent-University admitted that the petitioners were never called and no inquiry took place in this regard. As a consequence, neither the petitioners were called to explain as to how they got admissions nor their involvement in getting admissions with the connivance of the Chairman Admission Committee was investigated.

8. This Court gave the respondents an opportunity on 21-1-2013 to inquire from the petitioners about their admissions. The transcript of the questions asked by the respondents from the petitioners has been provided to the Court. Review of the transcript shows that the petitioners were asked five questions by the respondent No.1 but not a single question imputing any fraud or misrepresentation was put to the petitioners with respect to their admissions. No allegation of procuring admission through the Chairman Admission Committee was put to the petitioners. Consequently, the respondents have not been able to show to this Court what illegal act was committed and how they managed to get admissions with the connivance of the Chairman Admission Committee at the relevant time. The entire case of the respondents is based on their understanding that the previous Chairman of the Admission Committee, without adhering to the rules and policy, admitted 60 students over and above the approved number of seats. Essentially, the case against the petitioners is based on a presumption, being that since the Chairman of the Admission Committee acted contrary to the rules, hence the petitioners must have been involved in the process of getting admission unlawfully in the University. Admittedly, neither any show-cause notice was served on the Petitioners nor investigation was made against the Petitioners linking them directly to the fact of over admission of students by the Chairman Admissions Committee. There is no cavil to the proposition that once a student is granted admission, a vested right is created in his/her favour. As such, when a right is created, then admission can only be cancelled by following due process of law.

9. Cancellation of admission tantamount to a penalty. In order to impose a penalty, it was necessary for the respondents to follow due process which involved an inquiry, a show-cause notice, hearing and a decision by the competent authority after having heard all those concerned. In this case, the respondents themselves concluded upon an act of over admission and cancelled the petitioners' admissions. As such, they have not proved that the petitioners, in any manner, were involved in obtaining their admissions contrary to the merit and policy.

10. The record produced by the respondents shows that they put up five different merit lists wherein the petitioners' names were not included in any of the merit lists. However, hearing was given to the petitioners at the direction of this Court made vide order dated 21-1-2013. On a question as to how they came to know about the admission, most of the students replied that they were informed telephonically. On the basis of this response, the respondents concluded that the petitioners obtained their admissions by using unlawful means. At this point, it is necessary to note that during the course of arguments, it was revealed that one of the petitioners namely Suba Khan was adjusted in the LL.B. Program as his merit satisfied the requirements of the said program.

11. Learned counsel for the respondent-Univesity also argued that he who seeks equity must do equity and must approach this court with clean hands. He argued that ill-gotten gains cannot be protected through an order of the Court. He placed reliance on the dictums laid down in case titled "Muhammad Ali and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others (2012 SCMR 673) I have reviewed the judgment cited by learned counsel for the respondent-University and found that the petitioners of that case admittedly got their appointment from the back door without advertising vacancies calling for applications and their appointments were made without observing codal formalities. Based on this information, the Hon'ble Supreme Court of Pakistan concluded that they could not challenge the termination letters issued to them. The case of the petitioners of the instant petitions is distinguishable from the case cited as there is no admission on the part of the petitioners and there is no proven case against the petitioners by the respondents. The admission was liable to be cancelled if the petitioners were found guilty of suppression or misrepresentation of material facts or it was proved that they were involved in procuring their admissions by using unlawful means. In this case, it may be said that the Chairman of the Admission Committee acted negligently or against the policy but the petitioners cannot be held responsible for the acts of the Chairman Admission Committee. Reliance is placed on the ratio laid down in case titled "Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another (1997 SCMR 15)" wherein it was held that the petitioners of that case were not at fault, hence a vested right was created in their favour which could not be taken back arbitrarily. In the said case, the admission was given, fee was accepted and classes were attended. Subsequently, the University cancelled the admission of the students stating that the petitioners were granted admission through unfair means. It was on account of a computer error that the admission was given, hence the Hon'ble Supreme Court held that for a mistake or negligence on the part of the University, the students could not be made liable. Although in this case, it is not a computer error, nonetheless it is an act stated to be contrary to the policy committed by the Chairman of the Admission Committee. In order to cancel the admission of the petitioners, the respondents were obligated to follow due process and prove their case with respect to the involvement of the petitioners in obtaining admission with the connivance of the Chairman of the Admission Committee for admissions for which they were otherwise not entitled to.

12. There is nothing on record to show that the petitioners knowingly got admission contrary to the admission policy. Without such proof, the respondents cannot cancel the admissions of the petitioners, therefore, the impugned order cannot be sustained in the eye of law.

13. For what has been discussed above, this writ petition is accepted, the impugned order dated 28-11-2012 is set aside and the petitioners are allowed to continue their classes. It is clarified that the petitioners in the interregnum will be treated as they were attending their respective classes and their absence for the said period will not make basis to stop them to appear in the examination for want of attendance. KMZ/A-23/L Petition allowed.