TARIQ JAVAID, J.---The petitioner, through this constitutional petition, has assailed the Order No,Gen/C-15-10649, dated 4-12-2008 issued by respondent No,3, whereby the petitioner's admission/course in Fine Arts was cancelled on the ground that at the time of filing application the petitioner was over-aged(sic). The petitioner applied for admission in Under Graduate Degree Course being conducted by the respondent-University. The applications were invited and after thorough scrutiny the candidates were selected and awarded admission. After having completed first semester the petitioner applied for transfer to B-Design academic course in the same department as one student namely Fiza Azam had already shifted to another department and seat was lying vacant. Initially his application was granted but at the stage of final approval his application was turned down and his admission in Fine Arts was cancelled on the ground that at the time for admission he was over aged(sic).
2. Learned counsel for the petitioner has maintained that once he had been admitted, his admission could not be cancelled on the ground that he was over-aged(sic); that he had mentioned true date of birth in the application form and respondents were not kept oblivious of the fact of his age; after thorough scrutiny he was allowed to join the course. Now he has vested right and his admission cannot be cancelled. It is further argued that since the seat is already lying vacant in the B-Design course then it will be of no use to keep the seat vacant and refuse the petitioner to admission/conversion by his course therein. He relies on Chairman, Selection Committee/Principal, King Edward Medical College; Lahore and 2 others v. Wasif Zamir Ahmad and another (1997 SCM R 15) and Muhammad Rafiq and another v. Director In-service Agriculture Training Institute and another (2007 CLC 1492).
3. On the other hand, learned counsel for the respondents has contested this petition and has maintained that even in absence of misrepresentation if candidate was over aged(sic) his admission, can be cancelled. Reliance has been placed on Mian Muhammad Afzal v. Province of the Punjab and others (2004 SCM R 1570); Muhammad Arshad v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 3 others (1999 YLR 968) and Syeda Saba Batool v. Bahauddin Zakaria University through Vice-Chairman and 2 others (2009 YLR 1406).
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4.In Chairman Selection Committee/Principal King Edward Medical College, Lahore and 2 others supra (1997 SCM R 15), the Honourable Supreme Court held that once the petitioner's application was scrutinized, dues were paid and admission was granted then it was not open for educational institutions to cancel the admission. It was B observed that:-- "We have heard the learned counsel for the parties and have also perused the record with their assistance. We do not find any substance in the arguments of the learned counsel for the petitioners and as such, these are repelled. The above narration of facts demonstrates that respondent No,1 was presumably given admission on merits by the competent College Authorities after considering his case. The requisite fee was accepted by them in lieu of valid receipts. He was directed to join Ist year class of M.B.B.S. It is admitted that the respondent is likely to complete the second year course of M.B.B.S. This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation, he could not be held to be at fault. It is well-settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission was given to respondent No,1 by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No,1 to meet the ends of justice. The petitioners cannot 'be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No,1 to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No,2 had been accommodated by giving admission instead of respondent No,1. This was not possible for the petitioner to do so under the settled law. If this was so, it surely occurred because of their gross negligence for which the respondent could not be held responsible. The decision of the petitioner to give admission to the respondent No,1 was implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on the basis of act of the petitioners,"
5. Similar situation arose in Muhammad Rafiq and another v. Director In-Service Agriculture Training Institute and another (2007 CLC 1492), wherein it was observed that:-- "I have considered the arguments of both the learned counsel and have perused the record. It is an admitted fact that the petitioners were granted admission even after having the knowledge of their being in third division in Matric. How they managed to pay the dues is another fact, which I do not want to dilate upon on the record, which fact has been displayed in the application of Iftikhar Ahmad, that he had paid the amount of dues of institute after selling some articles of his house to get the admission. It is also correct that the petitioners were third divisions and were not eligible to apply for the admission but in the same way, department has also not acted with vigilance. They had allowed them to join the course, after knowing that they were third divisions', The issuance of Roll numbers to them, permission to attend the classes and passing of some time with institute, thereafter, the cancellation of their names at the stage cannot be approved and held legal on the basis of rule of locus penitential. There was no fraud committed by the petitioner, so that they could, be removed afterwards. Therefore, relying upon the above noted decision of this Court as well as the apex Court, I fully endorsed the view taken by these Courts and declared the notice issued for cancellation of their admission to be illegal and unlawful. Consequently, the petitioner shall remain on the role of institute as student of the Diploma Course of Field Assistant and continue their study with all consequential liabilities and benefits.
6. Conversely in Mian Muhammad Afzal v. Province of the Punjab and others (2004 SCM R 1570), it was held that the authorities were not debarred from prescribing the maximum age limit for admission in the course of studies. It is purely administrative matter relating to the policy decision of the Government with which the superior Courts are reluctant to interfere; therefore, the challenge thrown at the maximum age limit of the petitioner therein was repelled. In Muhammad Arshad v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 3 others (1999 YLR 968) supra, it was held that the respondent-University being statutory body was competent to frame its own rules and as such the University has not done anything unusual or unique in prescribing the upper age limit for admission. Similarly in Syeda Saba Batool v. Bahauddin Zakaria University through Vice-Chairman and 2 others (2009 YLR 1406), this Court held that the contention regarding upper age limit was legal and no exception could be taken. It was observed that:-- "After hearing to learned counsel at preliminary stage, it transpires that despite advertisement and prospectus issued for admission the age was given therein while the petitioner deposited the admission form in violation of the prescribed condition. It was also advertised that relaxation shall not be allowed in any case. The petitioner if in violative of these conditions being overage which could only be found on scrutiny cannot be absolved on her part to ignore the condition.
7. I have heard the arguments advanced by both the learned counsel for the parties and perused the judgments relied upon by both the parties.
8. In Chairman Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v.
Wasif Zamir Ahmad and another (1997 SCM R 15) supra the position was similar to one with which the present petitioner is confronted. In that case the petitioners had already been admitted to University and their admissions were sought to be cancelled; therefore, the Hon'ble Supreme Court came to the conclusion that once admission had been granted then vested rights accrued to the petitioners, It was held that admissions granted could not c be withdrawn merely on technical ground. Same was the position in Muhammad Rafiq and another v. Director In Service Agriculture Training Institute and another (2007 CLC 1492) supra wherein the ratio decided was that once candidate were admitted to a course their admissions could not be withdrawn for having inferior grades in their previous examinations.
9. The authorities cited by the learned counsel for the respondents are not attracted in the peculiar circumstances of this case inasmuch as that in Muhammad Sharif and others v. Abdul Rehman (2004 SCM R 1571) the petitioners had not been granted admission and their cases were turned down at preliminary stage, that is, at the time of filing of applications. Similarly, in Muhammad Arshad v. Bahauddin Zakariya University Multan through Vice Chancellor and 3 others (1999 YLR 968) the challenge was thrown on the upper age limit of candidates who applied for admission in Civil Engineering. Here again the admission had not been granted and it was at the preliminary stage that their applications were turned down. In Syeda Saba Batool v. Bahauddin Zakariya University through Vice-Chairman and 2 others (2008 YLR 1406), she was admitted, and thereafter her admission was cancelled and this Court upheld the decision of University. However, the judgment passed by the Hon'ble Supreme Court in Chairman Selection Committee/Principal, King Edward Medical College, Lahore and 2 others Surpa was neither cited nor it was considered by this Court, therefore, the said case is distinguishable and the judgment appears to have been passed per incur am.
10. In the present case the petitioner has already passed his First semester when his admission was struck down. This will result not only into vacant seat for the remaining years of the course, it shall not anure any benefit either to the University or any one else. On the other hand, the petitioner shall suffer and his future prospects shall be at stake. Similarly if his transfer to B-Design is not allowed solely on the ground D of him being over-aged(sic), then vacant seat in B-Design course shall remain vacant for the remaining years of the course. Another aspect of the case is that the University is being financed from the public exchequer. The public money cannot be allowed to be wasted by keeping the seat vacant instead of allowing the student to carry on the course of study.
11. No fraud or misrepresentation has been alleged in this case by the respondent. The case of the respondent is that present petitioner is over-age whereas the petitioner has unequivocally maintained that he had given his correct date of birth on the application form. If he was not entitled for admission his application form should have been turned down at initial stage, so that he could have approached some other institution or decided to get admission in some other course or degree whereas at this belated stage it is unfair to allow the respondents to cancel the admission. Obviously there is negligence on the part of the University staff who could have seen the application form at the time of admission and instead of the petitioner some other deserving student could have been accommodated, which is not possible at this stage.
12. For what has been discussed above, this writ petition is allowed, the impugned order passed by the respondent-University is set aside and the respondents are directed to allow the petitioner to join his course of studies in Graduate Fine Arts Program me. Regarding his application for joining B- Design the respondent may consider his application, however, he shall not be refused merely on the ground of some technicality viz., him being over-aged(sic), as the seat is likely to remain vacant for remaining period of course of studies. By keeping the seat vacant the pubic money will be wasted, which cannot be allowed. This writ petition is allowed with no order as to costs.