' YAHYA AFRIDI, J.---Fakheryar Khan, petitioner, seeks the constitutional jurisdiction of this Court.
Praying that:- "It is, therefore, most humbly prayed that on acceptance of this Writ Petition, the impugned order dated 13.3.2015 may kindly be declared as illegal, without lawful authority and ineffective upon the rights of the petitioner, and the respondents may kindly be directed to allow the petitioner to continue his study without any break in the respondents University.
' Any other relief, which may not sought by the petitioner and if this Hon'ble Court deems proper may, also be granted in favour of the petitioner."
2. In essence, the grievance of the petitioner is that, he has been denied to continue his education leading to a Bachelor of Business Administration ("BBA") degree from the respondent University due to his advanced age.
3. The respondent university was put to notice and in response commented in writing stating that the petitioner had not mentioned his age in the admission form and being otherwise on merit was granted provisional admission; and that on being provided the date of birth, the respondent university found his age to be beyond the limit stipulated under Rule 19 of the "Admission Rules and Regulation" of the Prospectus, and accordingly the provisional admission granted to the petitioner was recalled. The relevant Rule reads:- "Candidates who have attained the age of 25 years on the fixed date for admission or have obtained a Bachelor Decree shall not be eligible for admission to Bachelor Degree Programs. A student convicted of any offence or has served a sentence in Jail will not be eligible for admission in the University."
(Emphasis provided)
4. Mr. Dildar Hussain Associate Director of respondent university appeared on Court notice and stated that the issue of relaxation of age limit of the candidates seeking admission in BBA would be placed before the Academic Council in the next available meeting. In pursuance thereof, the matter was placed before the Academic Council in its meeting held on 27.8.2015, and the decision made was as under:-- "Item No,6.
' Sub: Appeal of Mr. Fakheryar Khan s/o Faiz-ur-Rehman for restoration of admission in BBA (Hons)- orders of Peshawar High Court.
' The Counsel regretted relaxation in upper age limit in general and in respect of Mr.Fakheryar Khan s/o Faiz-ur-Rehman, for student of BBA (Hons)."
5. The Prospectus framed by public educational institutions is essentially administrative policy statement of the respective institution. The settled judicial trend is to exercise judicial restrain in interfering with matters dealing with such policy decisions of educational institutions. Some of the leading cases in this regard are Rana Aamer Raw Ashfaq's case (2012 SCMR 6), Government College University Lahore's case (2015 SCMR 445), Amna Sharif's case (2015 MLD 220) and Muhammad Abdullah Riaz's case (PLD 2011 Lahore 555).
6. This general rule of judicial restrain cannot be held to be absolute. Exceptions are always there, especially, when the impugned action or in action of the education institutions is 'ultra vires, vires, mala fide' or against the fundamental rights of a citizen or even when the same offends the principle of reasonability.
7. The apex Court in Muhammad labal Khan Niazi's case (PLD 1979 SC 1), has elaborately explained the legal status of Prospectus and the grounds on which the terms and conditions provided therein can be constitutionally challenged and struck down, in terms that:-- "On the footing that the prospectus is or can be equated with a bye-law, Craies observes in his Treatise on Statute Law Seventh Edition, page 325: "There are five main grounds on which the bye-laws may be treated as ultra vires.
(a) That they are not make, sanctioned and published in the manner prescribed by the statute which authorities the making of them.
(b) That they are repugnant to the laws of England.
(c) That they are repugnant to the statute under which they are made.
(d) That they are uncertain.
(e) That they are unreasonable."
Nonetheless, the rules can be challenged on the ground that they are repugnant to the laws of the country or on the ground that they are uncertain or unreasonable......
' It is true that the college in which the appellant was admitted is owned by the government, but the authorities running Government colleges cannot administer them as if they were their private fiefs, therefore, in my opinion, the rule of strict construction should be applicable with greater force to the instant case. Indeed for reasons which I will presently give, the prospectus must be construed even more strictly than the rules of Trade Unions, and, therefore, any provision in the prospectus which is unfair or unreasonable must be struck down as invalid." (emphasis provided)
' The ratio decidendi of the aforementioned judgment, clearly places the Prospectus of an educational institution;
(i) as a `bye-law ',
(ii) the principle of judicial restrain relating to education institutions is not absolute, and is surely justiciable, and
(iii) the conditions provided in a Prospectus can be struck down, if the same offends fundamental rights, bona fide of action or inaction, lack jurisdictional authority and also if it offends the principle of reasonability.
8. Let us first test the impugned criteria of age limit for admission imposed by a public university for reading Bachelor of Business Administration, on the touchstone of Article 25A of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") which provides that:- "25A. Right to education.- The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law."
' The importance of imparting education and the fundamental right enshrined under the recently inserted Article 25A of the Constitution has very forcefully been highlighted by the apex Court in its elaborate decisions in Fiaqat Hussain's case (PLD 2012 SC 224), and Petition Regarding Miserable Conditions of Schools (2013 SCMR 764). These judgments of the apex Court have rendered findings regarding right to free and compulsory education of children between the age of 5 to 16 years and does not expressly provide for the right of a person of an advanced age, such as the present petitioner. Thus, keeping in view the precise words provided in Article 25A ibid and the legal discourse in the precedents cited above, it would not be appropriate for this Court to stretch this Fundamental Right to the case of the petitioner, who is admittedly beyond the age of sixteen years and is seeking higher and professional education in a university.
9. Testing the impugned criteria on the threshold of discrimination to citizens beyond the age of 25 years, a provided under Article 25 of the Constitution, it is noted that the impugned criteria has created a class of applicants within a particular age group, who could apply for admission seeking to read Bachelor of Business Administration in the respondent university. It is in this perspective that, this Court will have to see whether this classification created by the respondent university, qualifies the legal test of constitutionability or otherwise. The issue of discrimination and the constitutional conditions precedent for qualifying the "test of classification" has been dealt with by this Court in Gul Taimoor Khan's case (W .P.No,676-P/2014), in terms that:- Reviewing the genesis, the text and the opinion rendered on this fundamental right .. Of 'equality' and 'non-discrimination' provided under Article 25 of the Constitution, by imminent Jurists and above all the superior Courts, it would be safe to state that:
(I) The fundamental right of 'Equality' and Non-Discrimination', as ordained under Article 25 of he Constitution, can be invoked by a citizen against any violative action, inaction, order, policy, legislation or subordinate legislation of the State.
(II) The fundamental right of `Equality' and 'non-discrimination' provided under Article 25 of the Constitution is not an absolute right, vesting in a citizen, unqualified right in all aspects to be equal to all other citizens.
(III) The State is, however, under a constitutional obligation to treat its citizens equally. However, in certain circumstances, it may treat them differently, as a class, on the fulfillment of the two condition precedents:
(i) the classification must not arbitrary but should reasonable and rational, and
(ii) The classification must be founded on an intelligible differentia, grouping the persons together, which distinguishes those who are grouped together from others, and the classification must have a rational relation to the object sought to be achieved by the State."
' The fulfillment of the aforementioned two condition precedents to legally validate an action or inaction of the State, on the touchstone of Article 25 of the Constitution, can safely be termed as the 'test of classification'.
' Keeping in view the two condition precedent for permissible classification, as provided hereinabove, it would be fair to state that the classification created by the impugned criteria not only has an intelligible F differentia, but also has a nexus with the advancement of education and encourage students of a certain age group. Thus, this 'policy decision' of the respondent university passes the 'test of classifaction'.
10. Now, the Court would determining the legality of impugned criteria on the threshold of reasonability. The challenge to administrative action on the ground of reasonability was initially discussed in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation ("Wednesbury case") (1948 1 KB 223, Court of Appeal). The essential facts leading to the decision were that the defendant, which was empowered by section 1(1) of the Sunday Entertainments Act 1932 to allow cinemas to open on Sundays 'subject to such conditions as the authority think fit to impose', permitted the owner to open its cinema provided that no children the age of fifteen years were admitted to Sunday performances. The owner of the Cinema theatre sought that the conditions was ultra vires and accordingly sought a declaratory order. Lord Greene speaking for the Court of Appeal, observed that:- "The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.
(Emphasis provided)
' A similarly restrictive vision of substantive review was presented by Lord Diplock in his speech in Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374, in which 'reasonableness' was replaced with that of 'rationality'. This point was amplified by Lord Cooke in R
(Daly) v. Secretary of State for the Home Department [2001] UKHL 26 [2001] 2 AC 532 at [32], wherein he has commented upon the standard of 'reasonability' and administrative action, as adjudged by Lord Greene in Wednesbury's case, to be rather strict and harsh. He concluded that:- The day will come when it will be more widely recognized that.....Wednesbury....Was an unfortunately retrogressive decision in English administrative law...In so far as it suggested that `there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd." (Emphasis provided)
' Similarly, the challenge of 'reasonability' has also been a matter of legal discuss in our jurisdiction.
In this regard, the authoritative decision was rendered in Abul Ala Maudoodi's (PLD 1964 SC 673 673), wherein his Lordship Mr.Justice Hamoodur Rehman observed:- 'from the very nature of things, no hard and fast rule can be laid down as to what, matters are relevant or irrelevant for the purposes of determining the reasonableness of an act or restriction. Reasonableness is itself a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another different set of circumstances. In my view, it will neither be possible nor advisable to lay down any exact or precise enumeration of the matters which may be taken into consideration for testing the reasonableness of such a restriction, for there can be no meneral standard of reasonableness applicable to all classes. It will certainly depend upon the nature of the right sought to be restricted, the nature and the extent of the restrictions sought to be imposed, the nature of the circumstances in which the restriction is to be imposed, the evil sought to be prevented or remedied, the necessity or urgency of the action proposed to be taken and the nature of the safeguards, if any, provided to prevent possibilities of abuse of power. All these and there may well be other conditions at the time, in the light of which the reasonableness has to be considered ' But here again the reasonableness of it would be dependent I upon the circumstances which necessitate the taking of such drastic action, the duration for which it is to be taken and the safeguards provided against abuse of power. If the circumstances do not demand such action or the action is disproportionate to be mischief to be prevented and can be exercised without any check, then the restriction will certainly be unreasonable."
' This principle of 'reasonability' has been resounded in cases that followed. Some of the leading cases include Benazir Bhuto's case (PLD 1988 SC 416), Abdul Humid Kadri's case (PLD 1957 WP Lahore 213), Watan Party's case (PLD 2006 SC 697) and Khwaja Ahmad Hassan's case (2005 SCMR 186).
11. The 'ratio decidendi' of the precedents has been very appropriately summed by Justice (Retd)
Fazal Karim in his treatise 'Judicial Review of Public Action,' in terms that:- "I. The question whether a restriction is reasonable, is a justiciable question, but the court, in judging of the reasonableness of a restriction imposed by law, should proceed on the presumption in favour of the constitutionality of the law II. The restriction must have been imposed by law. "Imposed by law" necessarily implies that the restrictions have to be statutory restrictions; they cannot be imposed by the executive. !HA restriction in order to be constitutional must have a clear nexus with the interest or interests which the Article guaranteeing the fundamental right seeks to save IV. Each Article guaranteeing a fundamental right is exhaustive of the interests to save which reasonable restrictions are permitted to be imposed by law V. In deciding the validity of a restriction, the principle of proportionality is a legitimate test. To put it in a robust common sense way, it is not permissible to use a hammersledge to crack a nut. Thus where the restriction is wholly disproportionate to the interests to be saved or the mischief to be remedied, it will be against the principle of proportionality and therefore unreasonable. VI. The power to impose restrictions is not a power of total prohibition so as to kill or destroy the very right which is subject to the restrictions. But there may be cases in which restrictions will embrace total prohibition."
' Now, when this Court considers the legality of the impugned criteria on the basis of principles of 'reasonability', it is the concert of the Court that the same cannot be termed as 'un-reasonable', as it does not offend any one of the aforementioned six principles or even the standard laid down in Wednesbury case and those that followed in English Courts to test a restriction, such as the impugned criteria, on the ground of reasonability.
12. Would this mean that it is 'lawful' to deprive a Pakistani citizen of advanced age from seeking education of his choice; and putting a clog on his choice to choose, which academic discipline to opt for and at which stage of his life. Allowing such a restriction to be imposed upon a citizen, such as the petitioner, would surely offend his fundamental 'right to life, as enshrined under Article 9 of the Constitution. As in similar situation, the superior Courts of our jurisdiction has considered right of .Livelihood, (Pir Imran Saiid's case 2015 SCMR 1257), right to suitable accommodation, food, water, education, medical care and shelter (Suo Motu case No,13 of 2009 and PLD 2011 SC 619), right to quality of life befitting human dignity (Imdad Hussain's case PLD 2007 Karachi 116) as fundamental right to life provided under Article 9 of the Constitution. The emphasis in all the above mentioned pronouncements was on the term life to be meaningful, complete, worth living and was not to be limited to mere vegetative or animal life. Thus, depriving a person to L better his standard of life by striving to obtain higher professiqnal education, even at a later stage of his life, would undoubtedly deny him his fundamental rights to live'. The criteria for admission in a public educational institution are generally based on the academic record, qualification of the student and his aptitude for the discipline he wants to read. In this regard, the applicants may be tested for their academic knowledge and aptitude for the subject through written test or even be interviewed by the teachers of the relevant subjects. Thus it would be rather harsh for a public educational institute, such as the respondent university, to fix the minimum or maximum age limit for any aspiring M student to apply for a subject being offered by the said public educational institution.
Surely, no such legal challenge could have been taken, had the respondent university reserved seats for aspiring applicants above the age of 25 years.
13. The apex Court has, however, taken a different view on the matter in Mian Muhammad Afzal's case (2b04 SCMR 1570), wherein it viewed the upper age limit prescribed for admission in MBBS to be non-justiciable and for constitutional Courts to show judicial restraint, in terms that:- "We have heard learned counsel for the petitioner and examined the impugned order which, enunciated correct position of law. Petitioner by getting admission in F. Sc with Biology and Science subjects neither acquired any vested right to admission in M. B. B. S. nor were the authorities debarred from prescribing maximum age limit for admission to such course of studies. This is purely an administrative matter relating to policy decision of the Government with which the superior Courts are always reluctant to interfere. In our view, there is no merit in this petition and the High Court has rightly referred to the dictum of this Court in Sultana Khokhar v. The University of the Punjab, through its Registrar (PLD 1962 SC 35), which clinches the issue under controversy." (emphasis provided)
' The view expressed in the aforementioned case, has been followed by Lahore High Court in Muhammad Arshad's case (1999 YLR 968), in terms:- "12. The prescription of a maximum age for admission into a particular class cannot be regarded as unreasonable or discriminatory as a classification on the basis of age grouping in permissible in include or exclude the persons of a particular age. The fixation of age group for admission to the class by the respondent University does have rational basis and cannot be held as discriminatory or violative of Art.25 of the Constitution."
14. In view of the clear findings on the issue in hand by the apex Court in ?Mian Muhammad Afzal's case (Supra), this Court, bound under Article 189 of the Constitution, shall follow the ratio decidendi laid down and thus, show complete judicial restrain by not acceptinhe Peshawar ALL PAKISTAN LEGAL DECISIONS Vol. LXVIII matter is one day revisited by their graces at the apex Court.
15. Moving to the other stance taken by the petitioner that he had been admitted by the respondent university and in pursuance of the same he had taken 'decisive steps', thereby the respondent university did not have the 'authority' to recall the admission order in view of the principle of locus ponetentiae, as decided in Wasif Zameer Ahmad's case (1997 SCMR 15) and Muhammad Ratio's case (2007 CLC 149).
16. This Court is not in consonance with this stance taken by the, worthy counsel for the petitioner, as the very application form of the petitioner did not disclose his age and was kept blank, which was the reason for the respondent university to grant him 'provisional' admission and directed him to submit his correct date of birth. On receiving the same, the respondent university passed the impugned decision. This Court finds that the respondent university by issuing 'provisional' admission to the petitioner, retained the authority to recall it prior to any finalization of admission.
Thus, the judgments cited by the worthy counsel for the petitioner are very illustrative but are not relevant to the facts of the present case.
17. Before parting with this judgment, this Court would appreciate the assistance rendered by Aamir Javed, and Khalid Rehman, worthy Advocates in the present case.
' This Court would also urge the respondent university to consider the allocation of seats for aspiring students of advanced age in its next academic Session.
' In view of what has been discussed above, this Writ Petition is dismissed.