This order shall also dispose of another similar petition (W. P. 502-82). The petitioner is a citizen of Pakistan engaged in the profession of Income-tax practice. He applied for admission to the F. E. L.
(Evening) class of the 198.1-82 session of the Punjab University Law College, on a prescribed form, on 10th January, 1982. His name being not displayed among the list of successful candidates, he made inquiries to find that his application had been rejected. The reason given was that as he was not an employee of Government, semi-Government or a statutory corporation, he was debarred from seeking admission to the evening classes, under the emergency Regula--tions framed by the Vice-Chancellor, under section 15(3) of the University of the Punjab Act, 1973 (hereinafter called the Act), in respect of the academic year 1980-81: The, petition is hit by regulations 9 and 12. Regulation 9 limits the age limit to 26 years though it can be relaxed by the Vice-Chancellor in certain cases.
Regulation 12, however, relaxes the Regulations relating to age and the year of graduation for the part time students who are the employees of Government, semi-Government and autonomous bodies created by an Act of Legislature.
2. On 23rd January, 1982, the petitioner submitted an application protesting against the action taken against him. He also challenged the vires of the emergency regulations, enforced by the Vice-Chancellor under which he was debarred from applying. The representation, however, failed and consequ--ently this petition.
3. It is contended by the learned counsel that the admission of students to the University is to be regulated by Regulations to be made by the Academic Council under section 28(2)(c) read with section 32(l)(c) of the Act. These Regulations, however, become effective under section 32(2) only after they are approved by the Syndicate.
4. The precise argument of the learned counsel is that the Vice----Chancellor is obliged under section 15(1) of the Act to see that the provisions of the Act, the Statutes, the Rules and Regulations are faithfully followed, to promote teaching etc. About his power under section 15(3), the learned 'counsel submitted that it only pertains to executive actions and is not. Meant to issue regulations in the form of subordinate legislation. Section 15(3) may be reproduced with advantage:- "15(3). The Vice-Chancellor may, in any emergency which in his .Opinion requires immediate action, take such action as he may consider " necessary and shall, as soon thereafter as possible, report his action for approval to the Officer, Authority or other body which in the ordinary course would have dealt with the matter."
5. It is to be noted that the Vice-Chancellor can certainly act in and emergency and take such action as he may consider necessary. He has then- -to report the same action for approval to the Officer, authority or other body which, in the ordinary course, would have dealt with the same. The action may then be approved or rejected. It stipulates three situations namely, an emergency; action and its approval by the competent body. The learned counsel for the respondent has not been able to show that there was any such emergency at all. In fact he stated on inquiry, that similar regulations, under the same emergency authority of the Vice Chancellor have been in force since 1974. In this view of the matter, I do not think the action taken by the Vice-Chancellor was to cater for any emergency at all. As shown, it might be a permanent need and an omission on the part of the Vice-Chancellor to get the same covered through the legally constituted bodies may rather amount to defeating the very law and violation of section 15(1) of the Act.
6: Section 15(3) as referred to above, envisaged taking of such an action in an emergency which would require approval of another Officer, authority or body which in ordinary course could have done so. The first thing to be determined is the meaning of the word `action'. Does it include a subordinate legislative act also or is it only confined to executive acts? The word `action' is not a term of art. One of the ordinary dictionary meanings of the word `action' is `an act or decision by an executive or legislative body (as of a Government or a political party)the action taken by Congress followed by a lengthy debate. (See Webster's Third New International Dictionary). In this view of the matter, I do not find any force in the contention of the learned counsel for the petitioner that the power to take action does not include taking a legislative action or that it would be confined only to an executive act.
7. However, the action must be such which, another Officer, -authority or body, could competently and effectively take. In this respect the question whether a particular regulation can be made by the Vice-Chancellor in hi emergency power has to be seen. Sections . 28(2)(c) and 32(1)(c) do not empower the Academic Council to pass Regulations. The Council can only propose and .It is only the Syndicate which can approve the same. Under section 15(3) the Vice-Chancellor, in an emergency, can replace the approving body but is in no case empowered to act both for the proposing and the approving authorities. Consequently, the impugned Regulations could not be made and enforced by the Vice-Chancellor in his emergency power.
8. Such Regulations, therefore, must have already been framed by the Academic Council before the Vice-Chancellor could act in his emergence power to grant interim approval subject to the final approval of the Syndicate: Admittedly, the Regulations in question had not Been initiated or considered or proposed by the Academic Council. They cannot be placed before Academic Council now for approval. Even the Syndicate cannot approve them as they have not been initiated by the Academic Council. It is well known principle of law that while a natural .Person can do all except what is prohibited, a statutory functionary or an executive authority has to rely on some law to give validity to its actions. Reference be made to Ghulam Sabir v. Pan Allotment Committee (1).
Similar observations were made) by the Supreme Court in Muhammad Asghar v. Safia Begun (2), with an addition that -it will remain inconclusive to be settled in some other case. The Regulations initiated and enforced by the Vice-Chancellor under section 15(3) are thus nullity in law and so in operative.
(1) PLD 1967 Dacca 647(2) PLD 1976 SC 430
9. Again, the scheme of section 15(3) suggests that the action taken by the Vice-Chancellor should preferably be such that it is revocable if the approving authority declines to approve. In the case in hand, I am told hundreds of students were refused admission as against six hundred who have been granted the same. It is thus a fact accomplished. Probably no approval of the Syndicate has so far been sought but even if that be done it will be very difficult, if not impossible, for it . To disapprove the action so as to start fresh selection after so much loss of time and at the risk of a storm of protests that may be let loose.
10. The learned counsel for the respondent submitted that the question whether there was an emergency or not lies within the exclusive jurisdiction of the Vice-Chancellor and is not at all justiciable. He referred in this regard to Malik Muhammad Suleman v. Islamic Republic of Pakistan (1), Des Raj v. Emperor (2) and Emperor v. Benoari Lal Sarma (3). It is to be noted that the question raised in 1976 case was about the promulgation of emergency by the President, under the Constitution itself, which did provide a forum for disapproving it, in the joint sitting of both houses of Parliament. The learned counsel has not been able to refer .To any sub-constitutional enactment so as to support his point. The two pre-independence cases, having arisen under the Government of India Act, cannot be cited as precedents, in the situation in hand, as no power of judicial review was available to the Courts at that time.
11. The learned counsel for the petitioner referred to Humera Sarwat Yusuf v. Government of the Punjab (4), and Qaseem-ud-Din v. The Province of West Pakistan (5), to say that no executive authority can claim immunity with regard to any action taken even though the same maybe under its discretion. He stated that the question whether there is an emergency or not is a jurisdictional fact and the Court has to be satisfied that the authority had some reasonable evidence before it to which it did apply its mind so as to come to that conclusion.
12. The question raised by the learned counsel for the respondent firstly does not arise, strictly, in this case, as stated in paragraphs 6 to 9 above. Here was an act which lay within the exclusive jurisdiction of the Academic Council to initiate. No emergency provisions provide that the Vice Chancellor may initiate such a Regulation. In fact the power, that be has, is only to substitute the approval to be given by another competent authority. In the case in hand that emergent power would come into play only if Regulations had already been made . By the Academic Council but it had not as yet received the approval of the Syndicate.
13. Even otherwise, in England and Dominions where the powers of the Courts, of judicial review, are subordinated to the ordinary laws, the scope and extent, of their scrutiny of the executive actions, is not so narrowly restricted as stated by the learned counsel for the respondents. The favourite phrases of a draftsman like, 'if a minister is satisfied', or 'if it appears to the...' or 'if the minister thinks fit...' or 'if in the opinion of...' or so and so have been considered in various cases to find against the submissions of the learned counsel. In Padfield v: Minister of Agriculture (6), the House of Lords rejected the plea that the discretion of the Minister was unfettered when law provided "if the Minister in any case so directs." Certain observations of Lord Reed may be reproduced:-
(1) PLD 1976 Lah. 1250 (2) AIR 1930 Lah. 781
(3) AIR 1945 P C 48 (4) PLD 1971 Lah.- 641
(5) PLD 1959 Lah. 76(6) 1968 A C 997 "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects must be determined by construing the Act as a whole and construction is always a matter of law for the Court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act, or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court."
14. In a matter falling under a Canadian Emergency provision, the Privy Council held, in A. G. For Canada v. Hallet & Carey Ltd. (1), that the Court can intervene in a hypothetical case of bad faith or unauthorised purpose. Some observations at page 450 are as under:- "Parliament has chosen to say explicity that the Governor shall do whatever things he may deem necessary or advisable. That does not allow him to do whatever he may feel inclined, for what he does must be capable of being related to one of the prescribed purposes and the Court is entitled to read the Act in this way."
The same test was applied by the Privy Council in judging the validity of emergency regulations made in Cyprus. These regulations required the Commissioner to satisfy himself as to certain facts.
The argument that his own declaration was conclusive was rejected since it was open to a part) to show that there was no ground on which he could be satisfied. Reference be made to Rossclunis v.
Papadopoullos (2).
15. An Ordinance in Singapore provided that 'whenever it appears to the Board that...a dwelling place...Is in such a condition as to. Be unfit for human habilitation, the Privy Council held that the Board applied a wrong and inadmissible English Housing standard and to have acted beyond their powers'. See Estate and Trust Agencies (1927) Ltd. v. Singapore Improve--ment Trust (3). Also see Secretary of State v. A. S. L. E. F. (4), where Lord Denning observed that the minister should give reasons and if be gives none the Court may infer that he had no good reasons. Again the Court quashed a confirmation order passed by a minister who in R. v. Minister (5), was to be satisfied that the conditions specified in the Act are fulfilled. The grounds stated by the Minister were that the land was substantially diminished in value, whereas the Act required him to be satisfied that the land was incapable of reasonably beneficial use. Again, where a Minister based his order on a past default, his satisfaction was not approved by the Court as he could do so only 'if the school is being administered in contravention of any provision of this Act'. It was in the case of Maradana Mosque Trustees v. Mahmud (6). Similarly, the High Court of England in Commissioner of Customs & Excise v. Cure & Deeley Ltd. (7), swept aside on ground of unreasonableness, certain subjective language used in Regulations, made `by the Commissioner of Excise and Customs.
(1) 1952 A C 427(2) (1958) 1 W L R 549
(3) 1937 A C 898(4) (1972) 2 Q B 455
(5) (196011 W L R 587(6) (1967)1 A C 13
(7) (1962) 1 Q B 340 w
16. In an Housing Act, where an order, passed in pursuance to the provision `if the Minister is of opinion', came up for consideration, Lord Denning observed that the Court could quash it if the Minister had acted on no evidence or unreasonably or had gone wrong in law. Reference be also made to Ashbridge Investment Ltd. v. Minister of Housing etc. (I ). Similar view was taken in Secretary of State v. A. S. L. E. F. The House of Lords in Secretary of State v. Tameside Matropolitan Borough (2), up held unanimously the Court of Appeal, refusing to issue a mandamus to force the' council to comply with the direction of the Secretary of State to carry out the original scheme of introducing comprehensive school. The Act empowered the Secretary to issue directions `if he was satisfied... That any local authority... Have acted or are proposing to act unreasonably' in their statutory functions. Certain observations of Lord Wilberforce may be reproduced:- "The section is framed in a `subjective' form if the Secretary of State `is satisfied'. This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account."
17. In the Director of Public Prosecutions v. Head (3). Lord Danning held that the satisfaction of the minister meant reasonably satisfied and that if no reasonable person would be satisfied the minister's order would be liable to be quashed. The Privy Council in Minister of National Revenue v.
Wrights Canadian Ropes Ltd. (4), applied the standard of reasonableness, set aside the Minister's order with the following observations:- "The Court is, in their Lordships' opinion, always entitled to examine the facts which are shown by evidence to have been before the Minister when he made his determination. If those facts are in the opinion of the Court insufficient in law to support it, the determination cannot stand. In such a case the determination can only have been an arbitrary one."
18. In a Guayana law which provided that a tax assessment could be made only 'where ...The Commissioner is of the opinion that the person is liable to pay tax', the Privy Council held that on facts the Commissioner could have formed no reasonable opinion to that effect and the assessm ent was annulled. See Argosy Co. Ltd. v. I. R. C. (5).
19. It is to be noted that public power is a trust vesting in a public functionary. He has, therefore, to discharge it in the interest of public justly, fairly and equitably as held in 1kram Bus Service v Board of Revenue (6). Further, the power of judicial review of Courts in Pakistan is more than those of their counter-parts in England for the simple reason that our Courts exercise the same under provisions which are supra the ordinary law. Any how, in Ghulam Jilani v. Government of West Pakistan PLD1967SC373the Supreme Court held that the term `authority is satisfied' requires a stronger ground for action than mere suspicion, however, reasonable. The Court further stated that `if satisfaction' may, for securing protection to empowered authorities, be deemed to be included within the meaning of `suspicion', the other condition must also be deemed to apply viz, the requirement of reasonable ground for satisfaction". At pages 392-393 the Court observed as under:-
(1) (1965) 1 W L R 1320 (1326) (2) (1976) 3 W L R 641 (3)1959 A C 83 (4) 1947 A C 109 (5)(1971)1 WLR514(6)PLD1963SC564 "Under the Constitution of Pakistan a wholly different state of affairs prevails. Power is expressly given by Article 98 to the superior Court to probe into the exercise of public power by executive authorities howhighsoever, to determine whether they have acted with lawful authority. The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own `satisfaction' for imposing restraints on the enjoyment of the fundamental rights of citizens. Article 2 of the Constitution could be deprived of all its content through this process and the Courts would cease to be guardians of the nation's liberties.
20. In Abul Ala htaudoodi's case PLD1964SC673the Supreme Court discussed the same aspect at page 708-M as follows:- The Courts cannot regard themselves as satisfied that the citizen's freedom has been subjected to a reasonable restriction unless it is proved to their satisfaction that not only the grounds of the restrictions as stated by the law are reasonable in themselves, but they have been applied reasonably as required by the Constitution. The only manner which the Courts themselves would regard, reasonable is that existence of the factual grounds of the restriction should have been established in the mode which the Courts recognize as essential where a right to life or liberty or property is concerned, namely, after a proper hearing given to the person concerned Again at page 713-S the Court observed: The judgment at the same time indicates that in the view of the learned Judges, it is a duty of the Provincial Government to take into consideration all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed, consequent upon which the opinion must be formed honestly, that the restriction is necessary. In this process, the only element which I find to possess a subjective quality, as against objective determination, is the final formation of opinion that the action proposed is necessary. Even this is determined, for the most part, by the existence of circumstances compelling the conclusion. The scope for exercise of personal discretion is extremely limited. It is indeed difficult to make any appreciable allowance, for the play of a `personal equation' where the judgment has to beformed as to matters relating to the administration of law, the maintenance of law and order, and prevention of danger to public peace, such as attract the exercise of judgment by a host of Governmentofficials at all levels, as a part of their ordinary day-to-day duties. Should, therefore, the Courts, be asked to shut their eyes to all the facts and circumstances, and to consider themselves bound to hold the action to be within the section merely because the section employs the word `opinion', there would be involved a denial of the judicial function in a field where that is most directly attracted, namely, the maintenance of liberties of the subjective under a written Constitution, and where, moreover, the judicial mind is both apt and accustomed to travel with the utmost confidence."
21. In Abdul Baqi Baluch v. Government of Pakistan (1) the Supreme Court observed that the power of judicial review would be reduced to nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own satisfaction. The term `reasonable ground to believe' has also been elucidated by the Supreme Court in Zulfiqar Ali Bhutto v. State (2) to say that it means something short of actual proof but there should exist prima facie evidence in support of the existence of the fact in issue. "It reflects a state of mind where the lurking doubts, if any, have been dispelled and in their place an amount of conviction and assurance has developed giving rise to a belief based on some reasons, although it has not yet ripened into an absolute certainty or proof of the thing."
22. A Division Bench of Sind High Court in Star Rolling Mills v. C. I. T. (3) held that the proviso to section 13 of the Income-tax Act confers taking of an action by the Income-tax Officer on the basis of his opinion. The learned Judges relied on Corpus Juris Secundum to say that the opinion contemplates conclusion of judgment held with confidence, but falling short of positive knowledge.
Consequently, they held that an opinion may be accurate or erroneous but it must be an honest opinion or conviction, based on tangible material capable of sustaining such opinion, and not a mala fide opinion or a colourable exercise of statutory power.
23. A learned Single Judge of this Court in Begum Nusrat Bhutto v. D. M. L. A. (4) held that the word `opinion' in paragraph 2 of C. M. L. O. 12 is equal to word "satisfaction" mentioned in certain other enactments dealing with preventive detention. The learned Judge further observed that forming of the opinion or satisfaction of the Deputy Martial Law Adminis--trator on the basis of the material placed before him regarding prejudicial activities of the prisoner was a legal requirement of C. M. L.
O. 12 itself and its non-compliance renders the impugned order as illegal. Going into the purpose as mentioned in para. 2 of C. M. L. O. 12, the learned Judge observed that the action can be justified only if the alleged prejudicial activities of the detenu related to such purposes, as it will be difficult to read the mind of the detaining authority if it is not shown in the 'order as to which purpose or matter influenced him to, pass the detention order.
24. In Government of West Pakistan v. Bagum Agha Abdul Karim Shorish Kashmiri (5) the learned Judges of the. Supreme Court held that if it is an incident of power of judicial review granted to the Court by Article 98 of the Constitution then the question as to whether there are grounds upon which a reasonable person would have formed the same opinion is certainly within the ambit of power of judicial review, no matter what the language used in the sub-constitutional legislation.
They further observed that those provisions only confer a power which is coupled with the duty and the power can be exercised after the duty has been discharged in accordance with the guidelines provided in the statute and the rules. The authority is. Therefore, obliged to apply its mind to the particular matters mentioned therein i. e. whether the action of the person sought to be detained was in any manner prejudicial to Pakistan's relations with foreign powers, or to the security, the public satety or interest or the defence of Pakistan on any part thereof, the maintenance of supplies and services essential to the life of the community etc. Etc. Such an opinion, the learned Judges held, is formed by the honest application of the mind of the detaining authority. The learned Judges went on to say that the reasonableness of the action is on the face of those provisions also a necessary ingredient with regard to which the detaining authority must form an opinion and if it fails to do so then its action cannot be said to be an action in accordance with law.
(1) PLD 1968 SC 313 (2) P L -D 1979 SC 53
(3) 1974 PTD 200(4) PLD 1979 Lah. 91 (5)PLD1969SC14
25. In an election matter, the Supreme Court had to consider the scope of the phrase 'and the Tribunal is satisfied that the petitioner or some other contesting candidate was entitled to be declared elected. In this respect I cannot do better than quote the relevant portion of the judgment, reported as Saeed Hassan v. Pyar Ali PLD1976SC6, which runs as follows :- " . . . . . For a proper and reasonable interpretation of the provision, one has to closely examine in the first instance the connotation and implication of the two key expressions `satisfaction' and `entitlement'. `Satisfaction' is by no means a term of art and appears to have been used in its ordinary dictionary sense. `Satisfaction' is the existence of a state of mental persuation much higher than a mere opinion and when us-.d in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion it presumes observance of certain well settled judicialprinciples and is a firm state of mind admitting of no doubt or indecision or oscillation. To be `satisfied' with a state of things is to be honestly convinced in one's own mind.
According to Black's Law Dictionary apart from the `legal satisfaction which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a ,.Reasonable doubt. In Corpus juris Secundum `satisfy' has been held to be synonymous with `convince beyond a reasonable doubt' and `satisfaction' has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary `to satisfy' means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."
26. It is thus quite clear from the above that though it is for the Vice----Chancellor to decide if there is-sit emergency, yet he must have some reason--able evidence or material before him, which is relevant to the purposes of the law and is neither arbitrary, fanciful nor capricious.
Moreover, the mere satisfaction or opinion of the authority is not sufficient and no rule or law can oust the power of judicial review by use of any words. There must, be such evidence or material before him which may also satisfy any other reasonable person and the Courts shall .Go into the same, in exercise of their power of judicial review, to verify that no record had been produced to show what reasons or evidence weighed with the mind of the Vice-Chancellor and no circumstances explained. Rather, the fact that the same situation continu--ed for about eight years shows conclusively that it was, if at all, a permanent need.
27. The other question, therefore, is whether the action taken by the respondents can be justified in law irrespective of the Regulations, in view of section 7 of the Act, which reads as under "7. The University shall be open to all persons of either sex and of whatever religion, race, creed, class or colour and no person shall be denied the privileges of the University on the ground of religion, race, caste, creed, class or colour Provided .."
28. I am told by the learned counsel for the respondents that the Law College has admitted about 1000 students both in the morning and in the evening classes. He further told me that only 400 students were admitted in the morning classes whereas the remaining 600 were taken in the evening classes. This number by itself shows an unreasonable bias against the regular students and in favour of one set of employees. It is also to be noted that the duration of the morning and evening courses is the same. Both cover their courses of study in two years but one set of students is called full time while the others part-time. It is manifestly misleading. It also implies that every person who is a part time employee has sufficient energy left to take up a full time course in the evening, despite the fact that most of them be advanced in age.
29. If that be so, it would mean that young-men who are full of energy and also need to complete their studies in the least possible time, in order to find a job or a vocation, are wasting all that time and energy and might, as they would, at the most, complete the whole course in one year, if their energy is utilized as equally as that of the employed group. Or it may also mean that the employed group is not doing its job well in the morning so as to conserve its energy for the evening classes.
Be that as it may, it appears to be a great contradiction and may not be justified on any ground whatever. It, therefore, cannot be said that the evening classes are any special type of classes to be distinguished from others. Rather, they would appear to have been designed to benefit full time employees, at the cost of the young students and those who are unemployed and are over 26 years of age.
30. The wording of section 7 of the University Act is similar to that used in some of the Fundamental Rights as contained in the various Constitu--tions. Both contain prohibition language also.
Reference be made to Article 121 of the 1962 Constitution, Article 22 (3) (b) of the 1973 Constitution and Article 14 of the Indian Constitution. No restriction on admission to the University can, therefore, be operative unless it is shown that it is not hit by the l prohibition and is reasonable as to contents.
The University, therefore, shall have no authority to prohibit or even restrict admission if it violates the prohibitions.
31. The scope of the provisions as contained in the above Fundamental Rights had been considered at various stages in the superior Courts. It was held in Humera Sarwat Yusuf v. Government of the Punjab PLD 1971 Lah. 641 P.,that as there was no prohibition on the ground of sex any restriction placed on admission of a girl student in an institution exclusively meant for boys was not he by the Article. Similarly in Naseem Mahmood v. Principal (1) this Court opined that no restriction on the basis of residence would be hit by the Article, as the prohibition contained there was about the place of birth. Similarly, in Abdul Wadood v. Pakistan (2) the directives of the Government to reserve some seats for students from particular regions or belonging to a particular class were upheld on the ground that they did not make any discrimination on the basis of religion, race, caste or place of birth. The University may, there--fore, prohibit or restrict admission only on the basis of such considerations as age, place of residence, domicile etc. Which do not find specific mention in section 7, but not to a class or classes of people or on the grounds of religion, caste etc. '
32. In the case in hand, the Vice-Chancellor framed regulations and the Principal interpreted them to mean that morning classes are meant for persons below 26 years of age and the evening classes exclusively for employees of Government and statutory bodies irrespective of their ages.
The proposi--tion thus is. Is it in violation of section 7 of the Act an age limit has been fixed for the morning time students without any other violation of the prohibitions contained in section 7. That could, of course be done as such a prohibition is not given in section 7. The University may also in a lawful manner fix number of students for each course or class depending on the resources of the University and lay down minimum or competitive standards for the same reason. However, once it is done then there can be no discrimination on the ground given in section 7. As for the evening classes students, there is no distinction or difference with that of the morning course. The classification or categorization is based on their being employees of Government, semi-'
Government or autonomous bodies without any age limit and evening time is just to facilitate their participation in the course. The so-called regulation No. 12 does not say that the admission to the evening classes shall be restricted only to the so called part time students but I was told by the learned counsel for the respondents that it had been followed rigidly to that effect so as to exclude all other classes of students.
33. Unlike some of the fundamental rights given in the Constitution no power is given. In the Act to the Vice-Chancellor to relax, in any case, the' contents of section 7. The prohibition is absolute. Thus he cannot create classes so as to exclude some, to shut on them the doors of the University a.1i allow admission to only one or more other classes. Further, it may look) highly unjust, unfair and unreasonable to allow admission to those who are already employed at the cost of unemployed.
The respondents also could not discriminate on the basis of age and justify their refusal to admit to the evening classes, on the ground that an unemployed person, such as the petitioner, was above 26 years of age. If evening classes are meant for, persons of any age, then every person fulflling the required standard and conditions did have the right to be considered and the refusal is clearly unlawful.
(1) PLD 1957 Kar. 740(2) PLD 1965 Lah. 272 For the reasons stated above, the refusal on the part of the respondent to consider the petitioner's application for admission to the evening classes on the basis of the so-called Regulations, that the evening classes were exclusively meant for employees of Government, Semi-government or autonomous bodies or that the age of the petitioner and unemployed person, was above 26, are declared to be without lawful authority and of no legal effect. It is further directed that the application shall be considered for admission to evening classes on merit. In view of the complexity of the questions involved, there will be no order as to costs.