P L D 2002 Karachi 131 (PLP)

S. ARMED SARWANA, J.

On 18-10-2000, the petitioner filed this Constitution petition under Article 199 of the Constitution seeking, inter alia, a declaration from this Court that the Order dated 30-9-2000 passed by Commissioner, Karachi, (respondent No.2) and Order dated 4-5-2000 passed by District Magistrate, Karachi Central (respondent No.3) denying the petitioner his P.R.C. of Karachi were without lawful authority, mala fide, without jurisdiction and void in the eyes of law. As the petitioner was seeking admission in N.E.D. University of Engineering and Technology, Karachi through its Registrar (respondent No.4) on the basis of his permanent residence at Karachi. He also sought an interlocutory order to direct the University to entertain his Admission Form for the year 2000-2001 and grant him admission in case he meets the requirements on merits without production of a P.R.C. and order respondent No.3 to issue him a Permanent Residence Certificate on the basis of the documentary evidence submitted by him. The basis of the application for the P.R.C. was that the petitioner was living with his father who is an Advocate practising at Karachi since 1984, that he had been studying in Karachi and had passed his Matriculation and Higher Secondary School Examination from the Board of Intermediate Education, Karachi, and, that he was also registered as a voter in District Central Karachi.

2. On 26-10-2000 after hearing the petitioner's counsel at length, this petition was admitted for regular hearing. As the petitioner had not only made out a strong prima facie case but had also shown that the balance of convenience was in his favour and that he would suffer irreparable injury unless he was protected during the pendency of the proceedings and that issue of a temporary injunction would be in aid of justice, the Court on the application of the petitioner under Order XXXIX, rules 1 and 2 and section 151, C.P.C. for temporary relief (Miscellaneous Application No.4440 of 2000) passed the following order:

4. Notice to respondents and A.-G. for 31-10-2000. Meanwhile, N.E.D. University of Engineering and Technology (respondent No.4) is directed to accept the admission papers without the domicile certificate and P.R.C. and consider his application in accordance with law. If he is otherwise found fit he shall not be denied admission on the basis of non-availability of domicile certificate and P.R.C. which is a question in dispute in this petition. (Emphasis added).

3. The University considered the petitioner's application, he passed the test, was found fit for admission in the University for the year 2000-2001 and was shown at Serial No.246 in the merit list against Roll No. 1392 displayed on the Notice Board of the University. However, the University did not grant him admission and asked him to produce a P.R.C. without which according to the University admission could not be granted to him.

4. On 7-12-2000 the petitioner filed an application under sections 3 and 4 of the Contempt of Court Act,' 1998 read with Order XXXIX, rule 2(3), C.P.C. and Article 199 of the Constitution of Pakistan, 1973 (Miscellaneous No.5090 of 2000) requiring the Court to take action against the Registrar and Professor Dr. Muzaffar Mehmood, Chairman Admission Committee, for violation of this Court's Order dated 26-10-2000 on 13-12-2000 the Court ordered Notice of the application to the respondents.

5. It transpires that on 12-12-2000, respondent No.4 filed C.M.A, No. 187 of 2001 seeking a clarification from the Court in the following terms: The Hon'ble Court has ordered in the above-quoted order that N.E.D. University should accept the admission papers without the P.R.C. and Domicile Certificate and consider his application in accordance with law if he is otherwise found fit he shall not be denied admission on the basis of non-availability of P.R.C. and Domicile Certificate. The practical difficulty being faced by N.E.D. University is that if the petitioner is granted admission without P.R.C. and Domicile Certificate then there will be a flood gate open for litigation by other students who are Intermediate and were not allowed to participate in the pre-admission test on the ground that they do not possess either the P.R.C. or Domicile Certificate of Province of Sindh. To avoid any further litigation the University humbly prays that above petition may be heard at an early date and decision be rendered prior to 7-1-2001 on which date admissions are going to close and new session will commence from 15-1-2001." It transpires that the learned Advocate for respondent No.4 did not follow up the application for obtaining Court order on it. In due course when Miscellaneous Applications Nos.4440 of 2000 and 5090 of 2000 were placed in Court, the said Application (Miscellaneous 187 of 2001) was also placed before the Court on 1-3-2001 when the Court ordered notice of the application to the petitioner and adjourned the hearing of the petitioner's two applications for temporary injunction and for punishment for contempt, to a date to be fixed by the Writ Branch.

6. On 3-7-2()()1, when the aforesaid two applications came tip for hearing before this Court, it transpired that the notice of the contempt application had not been issued and served upon Professor Dr. Muzaffar Mehmood. Accordingly, the Court ordered notice of the application to Professor Mehmood for today.

7. On 5-7-2001, Ghulam Qadir Shah, Registrar of the University filed a counter-affidavit to the Contempt Application as Registrar of N.E.D. University, a copy of which was sent by Courier to the counsel for the Petitioner. In the counter-affidavit, Mr.Shah, among others, stated as follows: "

5. I say that the order passed on 26-10-2000 has been complied with by the N.E.D. University and in pursuance of the aforesaid order the admission form, was accepted and the petitioner was allowed to participate in the pre-entry test. The petitioner participated in the pre-entry test and he has also passed the same. Since it is prerequisite as per prospectus of the N.E.D: University of Engineering and Technology for a student to attach his P.R.C. and Domicile Certificate alongwith his Application Form for admission the petitioner was asked to submit his P.R.C. which he has not submitted till date. 6..........

7. I say that University being an educational institution has full respect to all Courts including this Hon'ble Court and it has always complied with the orders of Courts including this Hon'ble Court. In the present case as well in pursuance of ad interim order Form was accepted and he was allowed to participate in the pre-entry test. Since the prerequisite as required under the Prospectus 2000-2001 P R C has not been submitted by the petitioner the University is ready and willing to grant admission to the petitioner subject to fulfilment of all the legal requirements for admission in the University and the action of the University will be strictly in accordance with law.

8. I say that after the service of the notice of above petition an application .being C.M.A. No.187 of 2000 was immediately preferred by the University for clarification of order dated 26-10-2000 which is pending adjudication. I humbly submit that the University has acted bonafidely and strictly in accordance with law and University or myself does not have any intention to violate the order of the Court. Still if the Hon'ble Court feels that order of the Court has not been complied with University is ready and willing to grant admission to the petitioner in pursuance of Court order. However, it is submitted that the prospectus framed by the two statutory bodies of the University who have acted within their domain is binding upon the University as also the student seeking admission.

9. I say that I have not committed any contempt of any order passed by this Hon'ble Court. Still if the Hon'ble Court thinks that some order of the Court has been violated I tender my unconditional apology for the same. I tender myself at the mercy of the Court and pray that I may kindly be excused for any action which has been taken bonafidely in accordance with law which has caused prejudice to any person including the petitioner." (Underlining added).

8. Mr. Tasnim, learned counsel for respondent No.4, submitted that the University had sought clarification of the Court's Order dated 26-10-2000 vide Miscellaneous No.187 of 2001 and in view of the explanation given by the Registrar in his counter-affidavit filed on 5-7-2001 there had not been any violation of the Court's Order dated 26-10-2000 whereby the University was directed not to deny admission to the petitioner on the basis of non‑availability of the Domicile Certificate and P.R.C. if he was otherwise found tit. After justifying the act of not granting admission to the petitioner because allegedly he had not complied with the prerequisite specified in the Prospectus and referred to the paragraph wherein the Registrar had tendered his alleged unqualified apology.

9. We have heard the arguments of both learned counsel, perused the record and especially the Order dated 26‑10‑2000 whereby University was directed to admit the petitioner if he was found fit in spite of the non availability of the Domicile Certificate and P.R.C. We have given serious consideration to the wordings of the Order dated 26‑10‑2000 and are of the considered view that the order is written in very simple and clear English which unambiguously states that if the petitioner is found fit on merits he shall be admitted in the University without a P.R.C. and Domicile Certificate. To remove any remote possibility of doubt, the order was couched in negative terms i.e. the University was directed that if the petitioner qualifies on merit, he shall not be denied admission because of the non‑availability of the domicile certificate and P.R.C., the non‑supply of which by respondents Nos. 2 and 3 is a question in issue in the petition. There is no ambiguity in the order at all. It is very simple and clear. The order should have been complied with by the University. No clarification was necessary at all. If it were so, Respondent No.4 would have pursued the application (C.M.A. No.187 of 2001) seriously and diligently and not slept over it. The notice of this application was got issued after about three months and even after that no steps were taken to ensure that the notice of the application was served on the petitioner expeditiously. The . alleged application (Miscellaneous No.187 of 2001) seeking clarification was not bona fide at all. It was filed after the petitioner had tiled the Contempt Application (Miscellaneous 5090 of 2000), Further, the counter‑affidavit against the contempt application was filed after we had pointed out to Mr.Tasnim on 3‑7‑2001 that neither his client (the Registrar) against whom the application had been filed was present nor had he filed any counter affidavit. On that day Mr. Tasnim insisted that in view of the N.E.D. University Statute and the Prospectus issued pursuant thVreto, granting of admission to the petition would have amounted to violation, of the University Statute and the Prospectus and, therefore, no contempt or disobedience of the Court Order had taken place and had sought time to bring his client. His request was granted and the hearing was adjourned to 6‑7‑2001. Notices were also ordered to be issued to the Contemnors personally.

10. We have carefully read the Court Order dated 26‑10‑2000 passed on petitioner's application seeking interim relief. With our knowledge of English, we are of a view that the Court Order dated 26‑10‑2000 is written in simple and clear English, there is no doubt or ambiguity in the Order. It is not wanting in essential detail or is capable of bona fide misinterpretation or argument. To remove any possibility of doubt, the order was stated in prohibitory form directing the respondents that if the petitioner is otherwise found fit he shall not be denied admission on the basis of non‑availability of the domicile certificate and P.R.C. which is a question in dispute in the petition. Accordingly, the order should have been complied with by respondent No.4 without any hesitation or delay and no application for clarification ought to have been filed by the University/respondent No.4. The fact of not pursuing the said application iridicates that it was not bona fide and was filed with ulterior motive to display the absolute authority of the University in granting of admission, delay the proceedings and thereby deprive the petitioner of his legitimate right to get admission in the University on merit. By not complying with the order of the Court and filing an application seeking clarification which was patently mala fide, the University/respondent No.4 disobeyed and showed disrespect to the order issued by the Court and thereby interfered with and prejudiced the administration of law and justice.

11. Mr. Tasnim, learned counsel for respondent No.4 submitted that Mr. Shah (respondent No.4) has submitted an unconditional apology for his acts and has thus, purged himself. It is well‑established that if a person wants to purge himself he must submit his apology immediately, unconditionally, without any explanation and defiance and not attach any condition therewith. In the case of Muhammad Aslam v. Mahmood Ali, PLD 1992 SC 104, the Honourable Supreme Court observed as follows: "

7. In contempt matters apology should be offered immediately and as soon as possible. An apology after contesting the case and justifying the offending act and having been held guilty and convicted, does not demonstrate repentence and sincerity. Such apology would not necessarily purge the contempt. An apology does not provide the contemner with an absolute excuse for committing contempt by violating the order of the Court and he cannot claim discharge as a matter of right." In the present case, respondent No.4 justified and contested his act of disobedience of the order on the ground that N.E.D. University is a statutory body established under the N.E.D. University of Engineering and Technology Act, 1997, pursuant to which the prospectus was prepared which requires a P.R.C. before admission and again asserted in paragraph 7 that "since the prerequisite, as required under the Prospectus of 2000‑2001 has not been submitted by the petitioner, the University is ready and willing to grant admission to the petitioner subject to fulfilment of all the legal requirements for admission in the University will be strictly in accordance with law" (emphasis added). In our opinion, the act of justifying the disobedience of the Court's Order, which is very clear and can be understood by any person who has passed the High School Examination in Pakistan, reflects his stubborn and unreasonable attitude. The alleged apology is patently defiant, qualified, is not bona fide and does not exhibit sincerity on IC the part of respondent No.4.

12. Mr. Tasnim, learned counsel for the petitioner, vehemently argued that the Prospectus 2000‑2001 was issued by the University under the provisions of N.E.D. University Act, 1997 according to which submission of a P.R.C. was an essential requirement for admission in the University and any grant of admission by the University to the petitioner without complying with the mandatory requirement would have been a gross violation of the Prospectus and the N.E.D. University Act, 1997. The argument is totally misconceived. It appears that the learned counsel is not aware that the High Court in the exercise of its Extra‑ordinary Constitutional jurisdiction under Article 199 of the Constitution enjoys very wide and immense powers to correct errors, issue any order or direction in the interest of justice and to safeguard the fundamental rights of the citizens guaranteed by the Constitution. The scope of Extraordinary powers of the High Court under Article 199 of the Constitution is wider than that of the English High Courts in writ jurisdiction to issue the specified writs and is controlled only by the provisions of the Constitution and the Judgments of the Honourable Supreme Court of Pakistan. Thus, the High Court has the power to issue writs of mandamus, quo warranto, certiorari, habeas corpus, any other writ and declare or strike down any law which is found to be contrary to or in conflict with the provisions of the Constitution which includes the power to strike down any provisions of the N.E.D. University Act, 1997 or the Prospectus issued by the University thereunder, if the same is found to be in conflict with the provisions of the Constitution, in violation of the fundamental rights guaranteed by the Constitution on the principles of natural justice. The Court after hearing the argument of the petitioner had admitted the petition for regular hearing because he had made out a strong prima facie case showing violation of law and improper conduct by the Government officials resulting in infringement of his fundamental rights which required consideration and correction by the Court and had consequently, in the interest of justice, granted to the petitioner equitable relief in terms stated in para. 2 above. As the High Court had power to grant the final relief prayed, it also had the E power to grant interim relief (Sindh Employees' Social Security Institution v. Adamjee Cotton Mills (PLD 1975 SC 32). The respondents were duty bound to obey the interim order without hesitation and not take the plea that it would be violative of the terms of the prospectus because the whole or any of its term or condition could be struck down by this Court: Further, it is an age‑old fundamental principle in the administration of justice in the civilized world that a person cannot be a judge in a cause wherein he is interested "Nemo debet esse judex in propria sua causa" and "Nemo sibi esse judex vel suis jus dicere debet" (See Broom's Legal Maxims, Sweet & Maxwell Limited, London, 1975 Edition, p.68). In the case of Kabir Ahmed v. S.D.O. and Controlling Authority, Chittagong and others, PLD 1968 Dacca 49, the learned Division Bench observed as follow: " ... ...it is also a well‑established principle of natural justice that a person who has a bias in favour or against either of the parties to a dispute is not competent to try it." Therefore; it is not the University, its officers or its Advocates who can decide what is legal or illegal; it is the prerogative of the High Court, the judicial organ of the State, which is the arbiter and has the jurisdiction and power to decide the validity of any law, order, rule and any document issue by any person or authority in the Province, subject of course, to the provisions of the Constitution and the supervision of the Honourable Supreme Court of Pakistan. It is duty of every person and authority in the G land to obey the orders of the Court and any disobedience thereof is liable to ‑punishment. The refusal of respondent No.4 to obey the order of the High Court in the circumstances was neither prudent nor in accordance with the established law. If such defiant and unlawful conduct is not checked, it would result in chaos and anarchy which cannot be allowed under any circumstance. The law and order in society must be maintained and no person should be permitted to disobey or break the law which includes orders issued by the Courts of law.

13. Professor Dr. Muzaffar Mehmood, who is present in Court, submitted that he had no connection with the admission of a candidate and that his only duty was to ensure that the persons who applied for admission were selected on the basis of merit and fulfilled other requirements of the University. He added that he had nothing to do with the denial of the admission of the petitioner to the University. His explanation is accepted and the contempt notice issued to him is hereby withdrawn.

14. During the course of hearing of this application, respondent tvo.4 admitted that he is responsible for the disobedience of this Court's Order and requested for leniency. In light of the above discussion, it is clear that the apology tendered by the respondent No.4 is defiant, not bona fide and cannot be accepted in the circumstances of the case. In view of the admission or disobedience by respondent No.4, it is not necessary to frame a charge H against him or record any evidence. We find him guilty of disobedience of this Court's Order dated 26‑10‑2001 which is liable to punishment under Order XXXIX, rule 2(3), C.P.C. with detention in prison for a term up to six months. However, as Mr. Shah, respondent No.4, is an officer of an educational institution, we take a lenient view and convict him to detention until rising of the Court.

15. Mr. Habibullah, learned Addl. A.‑G. for respondents Nos. 1 to 3, states that the petitioner is qualified for issuance of a P.R.C. of Karachi on the basis of the documents filed by him including the School Certificate, the Certificate of Board of Intermediate Education, Karachi and the fact that his father has been practising as an Advocate in Karachi since 1984. Accordingly, we set aside the Order dated 30‑9‑2000 passed by respondent No.2 and Order dated 4‑5‑2000, passed by respondent No.3 and direct respondent No.3 to issue a P.R.C. to the petitioner within 15 days hereof. Mr. Suleman Habibullah undertakes that he shall communicate the order to the said respondent and assures that the P.R.C. Certificate shall be issued within the time specified.

16. Petitioner's counsel states that the petitioner is not interested in admission in N.E.D. University any more as he has already taken admission in another Institution to save another one year of waiting. The petition is, accordingly, disposed of in the above terms. The petitioner shall be also entitled to costs. Q.M.H./M.A.K./M‑270/K Order accordingly