(a) Provisional Constitution Order (P. O. 1 of 1981)-- -- Art. 9-Constitution of Pakistan (1973), Art. 199--Law Reforms Ordinance (XII of 1972), S. 3(2)- Interpretation of statutes-Necessary intention of Legislature spelt out from law itself-Mistake of draftsman could in circumstances be supplied-No intention as to conferment or non-conferment of right of appeal spelt out from entire text of Provisional Constitution Order, 1981-Jurisdiction exercised by High Courts under Art. 199 of 1973 Constitution articulated in such Order in somewhat abridged and limited form in Art. 9-Art. 199, for practical and legal effect, held, substituted by Art. 9 in Provisional Constitution Order, 1981- Interpretation of statutes].
Muhammad Amir Khan v. Controller of Estate Duty PLD 1962 SC 335; Muhammad Amir Khan v. Controller of Estate Duty PLD 1961 SC 119 and Muhammad Ismail v. State PLD 1969 SC 241 distinguished.
(b) Provisional Constitution Order (P. O. 1 of 1981)- - Art. 9 read with Constitution of Pakistan (1973), Art. 199-Words and phrases-Word "abeyance"- Means state of suspension or dormant condition-Articles of 1973 Constitution not incorporated in Pro--visional Constitution Order, 1981, held, do not form part of law in force as long as Provisional Constitution Order holds field.-Words and prases ].
(c) Provisional Constitution Order (P. O. 1 of 1981)- -- Art. 9 read with Constitution of Pakistan (1973), Art. 199; Law Reforms Ordinance (XII of 1972), S. 3 and General Clauses Act (X of 1897), S. 8(1)-Interpretation of statutes-Right to appeal-Art. 9 of Provisional Constitution Order, 1981 admittedly being substitute of Art. 199 of 1973 Constitution and provisions of Art. 199 being re--enacted with modification in Art. 9 of Order, principle of construction laid down in S. F(1), General Clauses Act, 1897, attracted, viz. Reference in any other enactment to provisions so repealed. (unless a different intention appears) to be construed as reference to provisions so re-enacted and on such principle no need arose to amend S. 3 of Law Reforms Ordinance, 1972-Legislature .If really intended to take away right of appeal it could have easily stated so in Art. 9 itself as it did in order to abridge jurisdiction-Contention that Law maker by enacting Provisional Constitution Order, 1981, intended to take away right of appeal against orders passed under Art. 9 of such Order, held, not correct.-[Interpretation of statutes-Appeal (civil)].
(d) Constitution of Pakistan (1973)- --Art. 199-Provisional Constitution Order (P. O. 1 of 1981), Art. 9-- Law Reforms Ordinance (XII of 1972), S. 3-Right to appeal-Appeal against orders passed in exercise of writ jurisdiction having been provided by Law Reforms Ordinance, 1972, same continues to operate intact-Jurisdiction vesting in superior Courts, held, could only be taken away by express words.-[Interpretation of statutes- Appeal (civil)].
Maula Dad Khan v. West Pakistan Bar Council PLD 1975 SC 469 ; Khadim Hussain v. Ata Muhammad PLD 1967 Lab. 915 and Mir Hassan v. State PLD 1969 Lab. 786 ref.
(e) Law Reforms Ordinance (XII of 1972)- -- S. 3 - Constitution of Pakistan (1973), Art. 199 - Provisional Constitution Order (P. O. 1 of 1981), Art. 9 - Interpretation of statutes-Right to appeal-Art. 199 of 1973, Constitution wherever mentioned in S. 3 of Law Reforms Ordinance, 1972-Held: To be read as Art. 9 of Provisional Constitution Order, 1981- Right of appeal in any case cannot, iii absence of provision to- contrary be impliedly presumed to have been taken away-Any doubt as to existence of right of appeal even if existing such doubt to be resolved in favour of party seeking appeal-Appeal against orders passed under Art. 9 of Provisional Constitution Order 1981, hence maintainable.-[Interpre--tation of statutes-Appeal (civil)].
Muhammad Amir v. Federation of Pakistan etc. PLD 1977 Lab. 1086 ; AIR 1953 Cal. 433; AIR 1953 SC 357; Mumtaz Khan v. Chief Settlement & Rehabilitation Commissioner PLD 1966 SC 276; AIR 1959 Ph. 291 ; AIR 1959 Mad. 592 ; AIR 1954 Cal. 484 ; AIR 1957 Madh. Bha. 125 ; Muhammad Hussain v.
Additional District Judge PLD 1966 Lab. 128 and Wahid Bus v. Mailsi Transport Co. Ltd. PLD 1966 Lab. 684 ref.
(f) Legislature- Institutions or functionaries created by Law-Privileges and duty.
Wherever' Legislature in its wisdom creates bodies, institutions or functionaries for the discharge of acts .Functions and jobs prescribed by the law, the purpose-of the law and the interest of the society and the community will be well-served if those designated bodies are left on their own to carry out and perform the functions assigned to them without any outside interference and no individual however high, able or intelligent he may be, can be allowed to arrogate to himself the performance of these functions, acts or jobs for the performance of which functionaries, bodies or institutions were created, or prescribed as any interference in the prescribed - scheme would be violative of the law itself.
(g) University of the Punjab Act (IX of 1973)- -- Ss. 15(3), 28(2)(c) & 32(2)-Vices of University Regulations-Even if syndicate could not be called to session for approval of Regulations no reason existed for not calling upon Academic Council to perform its statutory functions of preparing Regulations on subject of admission--Impugned Regulation prepared as well as approved by Vice-Chancellor himself though Academic Council existing and Regulations put up before Academic Council later for its approval and approval obtained --Authority on whose behalf action taken-Not to be made to accept action taken as "fait accompli"-Use of emergency power by invoking provisions of S. 15(3) for purpose of preparing Regulations, held, unauthorised and impugned Regulations ultra vices.--(Vices of Regulations].
Even if it is assumed that the syndicate was not so available yet no reason existed for not calling upon the Academic Council to perform its statutory function of preparing the regulations on the subject of admissions as is provided by section 28(2)(c) read with section 32(2) of the Act. The impugned Regulations were prepared as well as approved by the Vice-Chancellor himself, though the Academic Council was in existence yet the council was not allowed to perform the prescribed function and instead the regulations prepared by the Vice-Chancellor were put up before it later on for its approval and statedly the approval sought for was also accorded, Prima facie it is reasonable to assume that the authority or the Officer on whose behalf action is taken should not be made to accept the action taken as `fait accompli". In the instant case as the Academic Council was not allowed to function, the use of emergency power invoking provisions of section 15(3), for the purposes of preparing the regulations, was rightly held to be un--authorised and this finding is sufficient to hold the impugned regulations as ultra vires. Under section 15 of the Act, the Vice- Chancellor has been conferred the power to take "such action" as he may consider necessary in a given emergency and thereafter to report his action for approval of the officer, authority or body which in the ordinary course would have originally dealt With the matter. It is apparent that "such action" does not contemplate taking of action on behalf of such officer, authority or body which under the Act have- only power to accord approval. The power to take `such action has been conferred on the Vice-Chancellor to act in order to achieve the scheme and the purposes of the Act for or on behalf of the officer, authority or the body who or which due to unavoidable situation is not available or cannot for the time being act and taking of action immediately is necessary and cannot be postponed till the time that such officer, authority or body is able to act. Thus Vice- Chancellor has been given the power to perform the prescribed act of the Officer, authority or body whatever it may be including the act of preparing the regulations or initiation of a matter. The power to take action is however dependent on the existence of emergency which in his opinion requires immediate action. Thus emergency as a matter of fact and not opinion has to be in existence and then the question is to be asked whether immediate action is required to be taken or not. In the instant case no reason or basis existed to act for the Academic Council and the Regulations were thus framed by the Vice-Chancellor incompetently and in disregard of the provision of the law, the faithful observance of which was one of his bounden duty. It was not a case of bad faith, in fact even the respondents have not alleged so but a case of defeating the law itself.
Secretary of State v. ASLEF (1972) 2 All E R 949 ref.
(h) University of the Punjab Act (IX of 1973)- --- S. 7 read with Constitution of Pakistan (1973), F. R. 23(b)-Admis--sion to Educational Institutions-Albeit no law confers a right on students to be admitted to an educational institution yet surely they have a right to demand authorities concerned to determine their applications in accordance with law, fairly, reasonably, and equitably-- University, open to all classes, creeds etc.- Any restriction on admission to University-Would not be operative if hit by prohibition appearing to be absolute-University authorities, held, cannot create classes so as to exclude some and allow admission to only one or more of other classes -Admission restricted to persons below 26 years of age for reason of facilities being not available so as to cater for needs of all young generation but on other hand faculty of law mainly reserved for majority of persons not only much above age of 26 years but also already employed - Classification of such nature, held further, cannot be justified on any reasonable hypothesis and evening classes if meant for persons of any age every person fulfilling required standard and conditions possessed right to be considered for admission.-- [Educational institution].
Hmera Sarwat Yusuf v. The Government of the Punjab PLD 1971 1Ab, 641; Arif All Hazoor v. The Administrator, K. E. M. C., Lahore C. P. S. L. A. No: 124 of 1970; Ikram Bus Service v. Board of Revenue and others PLD 1963 SC 564; Shahnaz Maqbool v. Province of Sind PLD 1979 SC 32 and Muhammad Iqbal Khan Niazi v. University of Punjab PLD 1979 SC 1 ref.
(I ) University of the Punjab Act (IX of 1973r-- - Ss. 7 & 15(3) read with Punjab University Regulations, regen. 12--Admission to Law College (evening classes) (Punjab University)-No disqualification could be spelt out from Regln. 12 which only relaxes conditions of age and year of graduation in case of employees of Government, Semi- Government or autonomous bodies-Regulation 12 -cannot be read in a manner to restrict admission to evening class to such employees only-College authorities, held, wrong in interpreting Regulation as debarring others from seeking admission in evening classes.-[Educational institutions].
(j) University of the Punjab Act (IX of 1973)-- -- Ss. 7 & 15(3) read with Punjab University Regulations--Admissions to evening classes of Law College (Punjab University)-Admission notice reading "limited number of seats available in evening class meant for part time students employed preferably in Government or Semi--- Government institutions" - Word "preferably" - Does not denote complete exclusion but means worthy to be preferred or more desirable - Word "preferably" used in notice thus signified that other things being equal employee applicants to be put in front of others-Act of complete exclusion of every one else though otherwise higher on merit and fulfilling all other conditions of admission, held, illegal and arbitrary.-[Educational institutions].
Ch. Muhammad Farooq for Appellant.
Muhammad Amin Butt for Respondent.
Dates of hearing: 5th May; 5th, 13th, 14th, 15th and 20th June, 1982.
KHALILUR REHMAN KHAN, J.-This judgment shall dispose of the two Intra-Court Appeals (I.-C. A. No. 109 of 1982 and 110 of 1982) filed under section 3 of the Law Reforms Ordinance, 1972 by the University of the Punjab and others against the judgment dated 4-4-1982 of the learned Single Judge whereby two writ petitions (W. P. 395 of 1982 and W. P. 502 of 1982) filed under Article 9 of the Provisional Constitution Order, 1981 by Rehmat Ullah and Sh. Asif Salam were accepted and the refusal on the part of the appellants to consider the respondents' application for admission to the evening class of the University of Law College on the basis that under the Regulations the evening class was exclusively meant for employees of Govern--ment, Semi-Government or Autonomous Bodies or that the age of the respondent, an unemployed person was above 26 years, was declared to be without lawful authority and of no legal effect. Consequently a direction to consider the application for admission to evening classes on merits was issued.
2. The factual background of the present controversy is that applications for admission to the F. E. L.
(Morning and Evening Classes) were invited by the Principal of the University Law College, Lahore vide Admission Notice published in Pakistan Times dated 6th January, 1982. An extract relevant to the issues involved is being reproduced :- "(ii) F. E. L. (EVENING) CLASS FOR EMPLOYEES A limited number of seats is available in the Evening Class which is meant for Part-time students who are employed preferably in Govern--ment or Semi-Government Institutions Candidates desirous of joining this class must file besides all the documents listed above a Certi--ficate from Heads of their Departments/Employers permitting them to join the Evening Class. Those posted outside Lahore must attach a Leave-certificate for the period of their study in the Law College.
Important Instructions
(1) Preference for admission, to the Morning Class will be given to fresh graduates who have passed the B. A./B. Sc. 2nd Annual Examination 1980, Ist Annual Examination 1980, and 2nd Annual Examination 1979.
(2) Whole-time students may be accommodated either in the Morning or the Evening Shift at the discretion of the Principal.
(3) . . .
(4) ------------..
(5) ---------------.
It is pertinent to note that in the admission notice, no reference whatsoever was made to any Regulation, rule' or instruction made by any authority, body or person or to any prospectus or other conditions of eligibility for seeking admission.
3. Rehmat Ullah, respondent who is over 26 years of age and Sh. Asif Salam, respondent who is aged 22 years, both of them are self-employed as they represent their clients before Income-tax Authorities and as such are engaged in the profession of Income-tax Law Practice. They submitted applications seeking admission in the Evening Class. As the names of the respondents were not included in the list of the admitted applicants, they asked for the reason of refusal and were told that Regulations framed by the Vice-Chancellor under section 15(3) of the University of Punjab Act, 1973 in respect of the academic year 1980-81 debarred them from seeking admission as they were not employees of the Government, Semi-Government or the statutory corporations. A brief mention may appropriately be made here of some of the important regulations.
Regulation No. 5 provides that Principals of the Constituent Colleges etc. Shall each year communicate for approval to their respective Deans prior to admission, the total number of students to be admitted along with the criteria for admission. This number shall not be increased without the prior approval of the Vice-Chancellor nor shall the criteria be modified without his approval. It may be mentioned here that for the session in question 400 students were admitted in the F. E. L. Morning Class and 600 Government, Semi-Government employees were admitted to F. E.
L. Evening Class.
Regulation No. 9 provides that any person who has attained the age of 26 years on the last date fixed for receipt of applications for admission shall not be admitted. This age limit can however be relaxed by the Vice---Chancellor in certain cases. Regulation No. 12 however relates to relaxation relating to age and the year of graduation for the part-time students who are employees of Government, Semi-Government and Autonomous Bodies created by an Act of Legislature. It may be added that admission of the students to the constituent colleges/faculties etc. Is to be regulated by regulations to be prepared by the Academic Council and approved by the Syndicate in view of the provisions of section 28(2)(c) read with sections 3~(I)(c) and (2) of the University of Punjab Act, 1973, hereinafter to be called "the Act"'. The regulations for the admission in respect of the academic year 1980.81- were prepared and approved by the Vice-Chancellor in exercise of powers vesting in him under section 15(31 of the Act. This subsection reads as under;-- "The Vice-Chancellor may, in an 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."
4. Learned Single Judge in his well-considered and elaborate judgment held that 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 proposing and the approving authority ; that though it is for the Vice- Chancellor to decide if there is any emergency yet he must act on the basis of reasonable material of evidence relevant to the purpose of the law and sufficient to satisfy any reasonable mind that the action taken was neither arbitrary nor fanciful nor capricious ; that the discretion and the power conferred on the Vice-- Chancellor by use of the words "in his opinion" does not oust the power of judicial review of the Court and that the Vice-Chancellor cannot create classes so as to exclude some. And to shut on them the doors of the University and allow admission to only one or more of other class. These findings are under challenge before us in Intra-Court Appeals. Before we deal with the respective submissions on merits, we propose to dispose of the preliminary objection as to maintainability of these appeals raised by the learned counsel for the respondents.
5. Mr. Muhammad Amin Butt, learned counsel for the respondents argued that upon promulgation of Provisional Constitution Order, 1981 the jurisdiction enjoyed by this Court under Article 199 of the Constitution of Pakistan (1973) ceased to exist as Article 199 of the said Constitution was not incorporated in the Provisional Constitution Order and now the writ jurisdic--tion of the High Courts in its abridged form stands articulated in Article 9 of the Provisional Constitution Order, 1981 hereinafter called "the Order". He argued that no appeal like the one provided against the Orders passed under Article .199 of the 1973 Constitution by section 3(2) of the Law Reforms Ordinance, 1972 has been provided against the order passed under Article 9 of the Order. It was argued that intention of the Law-maker to curtail the jurisdiction of the Superior Courts is evident from the Preamble of the Provisional Constitution Order as the very purpose of the promulgation of the Order was to remove the doubts which had arisen as to the effect of the Laws Continuance in Force Order as, regards the power and jurisdiction of the Superior Courts and that the Law-maker has not chosen to amend the provisions of subsection (2) of section 3 of the Law Reforms Ordinance with the result that the aforesaid provision which provided for an appeal against the order passed under Article 199 of the 1973 Constitution cannot now be invoked by an aggrieved person for filing appeal against an order passed by a learned Single Judge under. Article 9 of the Provisional Constitution Order.
6. Ch. Muhammad Farooq, learned counsel for the appellants in reply conceded that there was failure or omission on the part of the law-maker to make necessary amendment in subsection (2) of section 3 of the Law Reforms Ordinance, 1972 consequent upon the promulgation of the Provisional Constitution Order which by Article 9 provided for 'the same jurisdiction, exercised hithertobefore under Article 199 of the 1973 Constitution by the High Courts though the jurisdiction now conferred stands curtailed in certain respects as is apparent from sub-Article (4) of Article 9 of the Order. He argued that this Court would be justified in remedying the omission by reading the words "under clause (1) of article 199 of the Constitution of Islamic Republic of Pakistan" appearing in the said subsection, as under Article 9 of the Provisional Constitution Order, 1981. The relevant part of section 3(2) of the Law Reforms Ordinance, 1972 is quoted here for reference :- "An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under sub-paragraph (i) of paragraph (b) of that clause."
In support of the aforenoted plea reliance was placed on the view taken in Muhammad Amir Khan v. Controller of Estate Duty (1). In this case review was sought of the judgment delivered by the Supreme Court in the case reported as Muhammad Amir Khan v. Controller of Estate Duty (2), wherein it was held that;- "There being no doubt in the present case that the duty which the Legislature intended to be realized was that which was to be determined in accordance with the provisions of the Act. We find we have jurisdiction to modify section 57 so as to rectify the draftsman's mistake and to read in it references to the Controller and the Appellate Tribunal, etc., and we would hold that the proper duty could be realized in spite of the defective wording of section 57."
The forequoted conclusion was recorded after observing as follows :--: "It will be observed that there cannot be the slightest doubt in the present case as to the intention of the Legislature In fact, it is admitted on behalf of the appellants that the failure to make a consequential. Amendment in section 57 could only be due to a slip. After providing that the Controller could determine value subject to. An appeal to the Appellate Tribunal the Legislature could not possibly have intended that duty should be paid only on the account which was filed by the accounting party itself. All that has happened is that, the draftsman failed to refer in section 57 to the provisions relating to determination in accordance with the amended Act. That we can modify the language of an Act to give effect to the manifest and undoubted intention of the Legislature is a proposition which is well-supported by authority and well justified in reason."
This very position was reiterated by the learned Judges of the Supreme Court while rejecting the review petition in their separate judgments. Corne--lieus, C. J. Observed as under;- "In the judgment of this Court the section has been read as if it stood modified so as to accommodate the existing provisions for ascertain--ment of the correct value. Of an estate by the authorities, fiscal as well as judicial. I am not prepared to say that view was erroneous, and I am quite clear on the other hand that even if it was, the result which has been brought about is one which is in complete accord with the intention of the Legislature, as subsequently expressed by retrospective amending legislation, to make good what was clearly an accidental omission."
(1) PLD 1962 S 0-335(2) PLD-1961-SC-119 Fazle Akbar, J. In his judgment summed up the argument raised as follows :-- "It was first contended that this Court in interpreting section 57 of the Estate Duty Act, 1950 as amended by Estate Duty (Amendment) Act, 1953 exceeded the proper limit of interpretation and assumed for themselves power of Legislation. The Estate Duty Act was amended in 1953. Due to slip of draftsman consequential amendments were not made in section 57 of the Act. This Court after referring to Maxwell's Interpretation of Statutes and other decided cases held that it had jurisdiction to modify section 57 so as to rectify' the draftsman's mistake. If further, authority is needed for this pro--position it will be found in the case of Ram Kissendas Dhanuka and others v. Satya Charan Lal PLD 1949 P C 339. In the above case, it was held that "the omission to make such cross- references as may be required to reconcile two textually inconsistent provisions is a common defect of draftsmanship. In such cases, the cross references have to be implied in order to remove the inconsistency". I am therefore, of opinion that there is no substance in this con--tention." .
B. Z. Kaikaus4 J. Recorded his views as under:- "I find brother Hamoodur Rahman feels doubt as to whether we could modify the language of the relevant provisions of the Estate Duty Act. The rule which I regard as supreme in matters of interpretation of statutes is that we find out the intention of the Legislature . . . . .. If that intention is clear there is nothing further to be done. The function of the Court has ended by that discovery. The remaining rules of intention will apply only if the intention is not clear. Of course intention does not mean intention at the back of the mind of the Legislature. It means intention in the words which it used. What did ,the Legislature mean when it said this? That is the question we ask and when we know the answer there is no further task for us. If the Legislature has not sufficiently expressed itself we have no duty to act, for it, for we are concerned with what it lays down and not with what it has only in mind, but once it has been articulated enough we do no more than give effect to the intention that it had succeeded in expressing. That intention may be expressed in faulty language, in very faulty language, in extremely faulty language. This is of no consequence, as long as there is no doubt 'as to the intention. A draftsman's mistake as long it relates to the form in which the Legislative intent is expressed and not to the substance of it is of no effect. Of course once an element of doubt as to the intention of the Legislature enters the field considerations otherwise irrelevant may all become relevant.
I have stated my own views but turning to authority, I do not find it laid down in any case that slips of the draftsman are incurable. On the other hand, we find a good deal in the commentary and the judgments to the effect that draftsman's mistake cannot be permitted to nullify the laws. I may just quote from Maxwell where it is said that "where the main object or the intention of a statute are clear it must not be reduced to nullity by the draftsman's unskilfulness or ignorance of law". I do not see any reason why this was not applicable to the case before us. The contention before us too was that the statute was nullified by the omission to make mere conse--quential amendments. It was never even contended that the intention of the Legislature was not clear for there was no room for such a contention. As long as the slip of the draftsman relates not to the subject matter but to the form in which the law is expressed, there, is no objection to its being disregarded."
The doubt expressed by Hamoodur Rehman, J. As noted above by B. Z. Kaikaus, J. Was in the following words:- "In spite of the high esteem that I have for the views of my learned brothers, who pronounced the said judgment, I must confess that I find some difficulty in subscribing to the view that it is open to the Courts to so radically alter the provisions of a statute even after the Legislature had itself accepted that its will has not been expressed in the language used by it and rectified the defect by a subsequent amendment. Although I would be prepared to concede that in certain exceptional circumstances a Court of law, which is concerned only with the interpretation of legislative measures, may interpret a legislative measure by supplying obvious omissions of a word or two but, with great respect, I doubt whether this power can be extended even to meet a case for which the Legislature has clearly and undoubtedly not made a provision or whether the words of the legislative measure as enacted are capable of being given a perfectly good sense and meaning, particularly in a taxing statute."
There is another case Muhammad Ismail v. State PLD 1969SC241where the learned Judges of the Supreme Court supplied the omission by reading the word "appeal" used in clause (1) of para. 6 of Provisional Constitution Order, 1969, as "appeal as of right". Hamoodur Rehman, C. J., speaking for the Court observed:- "In construing an enactment, passed by a legislative authority, it is also not permissible for the Courts to rely upon oral declarations of the intention of the law-giver, made at the Bar of the Court, if the language used in the legislative enactment is not reasonably capable of bearing such a meaning. But what is permissible is this that 'where the language of a statute in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construc--tion may be put upon it which modifies the meaning of the words 'and even the structure of the sentence', .Because, 'where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used"
(Maxwell, 11th Edition, page 221). Even though, as a general rule, a Court of law is not authorised to supply a cassus omissus or to alter the language of a statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the Courts to give the omission in order to avoid doing a manifest injustice."
In these two reported cases the defect or omission of the draftsman was supplied to give effect to the true and patent intention of the law-maker and to avoid a manifest injustice, and the slip of the draftsman related not to the subject-matter but to the form in which the law was expressed. The relevant observations made by each learned Judge in the above precedents have been quoted to indicate that necessary intention was spelled out in these cases from the relevant law itself and then the mistake of the draftsman was supplied. This is not the situation with which we are faced as no such intention as to conferment or non-conferment of the right of appeal can be spelled out from the entire text of the. Provisional Constitu--tion Order. Here the jurisdiction which the High Courts exercised under Article 199 of the 1973 Constitution has been articulated in somewhat abridged and limited form in Article 9 of the Provisional Constitution Order, 1981. For practical and legal effect, Article 199 has been substituted by Article'9 of the Provisional Constitution Order as Article 199 has nut been continued in effect as the said Article has not been incorporated in the Provisional Constitution Order. This Article 199 forms part of that portion of the 1973 Constitution which has been declared to be in abeyance. The word "abeyance" according to the Shorter Oxford English Dictionary mean "Expectation or contemplation of law, the position of being without a owner, a state of suspension, dormant condition". In other words so long as the Provisional Constitution Order holds the field, those Articles of 1973 Constitution which have not been incorporated in the Order are not to form part of the law in force. Hence Article 199 of 1973 Constitution for legal and practical purposes for the period it remains. Suspended does not exist and stands substituted by Article .9 of the Provisional Constitution Order. This situation is akin to the repeal of laws as when an act of Parliament ,is replaced it is considered, except as to transactions past and closed as if it had never existed. Up to the time that the Constitution and Article 199 is in abeyance and the substitutive dispensation is the law, this substitution of law in its legal effect means Repeal and re-enactment see AIR 1944 Bom. 259. Moreover both the learned counsel agree that Article 9 of the Provisional Constitution Order is substitute of Article 199 of 1973 Constitution and that the provisions contained in Article 199 of the 1973 Constitution I have been re- enacted with modification detailed in sub-para. (4) thereof in Article 9 of the Provisional Constitution Order, hence this situation aptly! Attracts the principle laid down in section 8 (1) of the General Clauses Act, 1897. This section reads as under:- "Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or wit4out modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted."
According to the above-quoted principle of construction reference in any other enactment or in any instrument to the provisions so repealed unless a different intention appears is to be construed as references to the provision so re-enacted. This principle applies if a different intention has no been manifested expressly or impliedly. We cannot accept the con--tention of the learned counsel that the intention was to take away the right of appeal against the order passed under Article 9 a the law-maker in his wisdom chose not to amend the Law Reform Ordinance, 1972. Firstly, in view of the principle of construction of references to repealed enactments there was no need to amend section 3 of the Ordi--nance. Secondly, if the intention was to take away the right of appeal, it could be easily stated so in Article 9 itself as was done to abridge the jurisdiction vide clause (4) thereof. Thirdly, Article 175 stands incorporated in Provisional Constitution Order by virtue of Article 2 thereof. Article 175(2) provides that no Court shall have any jurisdiction save as is or may be conferred on it by Constitution or by or under any law. An appeal against the order passed in exercise of jurisdiction under consideration was provided by the aforesaid Ordinance which continues to operate intact. Moreover, jurisdiction vesting in superior Courts could only be taken away by express words. It is well established that ouster of jurisdiction is not to be readily inferred.
See PLD 1975 SC 469; PLD 1967 Lab. 915; PLD 1969 Lab. 786). Thus no basis whatsoever exists to contend that intention was to take away the right of appeal. It naturally follows that there was neither any omission of the draftsman nor was there any failure to make consequential amendments in the law as the Courts can legitimately read Article 9 of the Provisional Constitution Order in place of Article 199 of 1973 Constitution in section 3 of the Law Reforms Ordinance, 1972.
In support of the above view we may refer to Muhammad Amir v. Federation of Pakistan etc. (1), wherein applying section 8(1) of the General Clauses Act, it was observed that under rule 10-A for the words "appeal filed under the Letters Patent against an order passed in exercise of writ jurisdiction", we will now have to read "each appeal filed under the Law Reforms Ordinance", because it is that Ordinance which repeals the relevant provision of the Letters Patent and re- enacts the same with some modifi--cation". Karam Elahee Chauhan, J. In this judgment noticed two judgments from Indian Jurisdiction and one of our own Supreme Court (A 1 R 1953 Cal. 433; AIR 1953 SC 357 and PLD 1966 SC 276). Similarly provisions of section 8(l) were applied in the case of AIR 1959 Pb. 291 and it was held that provisions contained in section 107 of the 1915 Act were replaced by Article 395 of the present Constitution and the provision has been re--enacted in Article .227 with modifications and so reference to section 107 of 1915 Act in clause 10 of the Letters Patent must be construed under section 8(l) of the General clauses Act, as reference to Article 227 of the Constitution. (See also AIR 1959 Mad. 592; AIR 1954 Cal. 484 and AIR 1957 Madhya Bharat 125); wherein references to the Factories Act, 1934 after 1948 was read as references to the Factories Act, 1948. We, therefore, hold that Article 199 of the Constitution wherever mentioned in section 3 of the Law Reforms Ordinance, 1972, is to be read as Article 9 of the Provisional Constitution Order. In any case right of appeal in the absence of provision to the contrary cannot be impliedly presumed to have been taken away and if there be any doubt as to existence of right of an appeal, then the doubt is to be resolved in favour of the party seeking the appeal.
Muhammad Hussain v. Addition District Judge (2), and Wahid Bus and Mailsi Transport Co. Ltd. (3).
Consequently, we hold that the appeals filed are competent and maintainable and accordingly repel the preliminary objection and proceed to examine the submissions made on merits.
(1) PLD 1977 Lab. 1086(2) PLD 1966 Lab. 128
(3) PLD 1966 Lab. 684
7. The findings of the learned Single Judge noted in one of the paras. Above were assailed by the learned counsel for the appellants by arguing that once it was accepted by the learned Single Judge that the power to take action includes legislative action as well, no reasonable basis exists for bolding that under section 15(3), the Vice-Chancellor cannot act both for the proposing and the approving authorities ; that the emergency power was reasonably and in good faith exercised in the interest of students and consistent with the purposes of the statute ; that such an exercise of subjective discretionary power can be interfered with in judicial review only on the ground of bad faith, unreasonableness and colourable exercise of power ; and that if reasonable basis for taking the action is shown to have existed then this Court does not substitute its own opinion as against the opinion of the authority designated under the statute as the designated authority is the best judge to form the opinion on the question whether circumstances exist requiring taking of action so as to meet the emergency, and that in any case, no right vests in the respondents to get admission in an educational institution which may be enforced under Article 9 of the Provisional Constitution Order, 1981. Reliance in this respect was placed on Humera Sarwat Yusuf v. The Government of the Punjab PLD 1971 Lab. 641He explained that impugned regulations had to be framed and approved by the Vice-Chancellor in October, 1981 as the admissions were to be made to the various departments, faculties and constituent colleges from the months of October onward but the Syndicate which was to accord approval under section 32(2) of the Act was replaced by the new Syndicate. To be constituted under newly-substituted section 25 vide the University of the Punjab Ordinance, 1980 (Ordinance XII of 1980). Hp argued that the constitution of the Syndicate bad not been by then completed and hence the Syndicate could not - be called into session to transact the business. Learned counsel further submitted that more than once meeting of the Senate was called for the purposes of appointment of Senate's nominee to the Syndicate but the meeting had to be adjourned on account of agitation of the students and that even teaching staff of the University was opposed to the making of the nomination by the Vice-Chancellor to Syndicate on behalf of the teachers. According to him it was on account of the afore--said difficulties being faced by the Vice-Chancellor and the fact that Syndicate could not be called to session that the Vice-Chancellor invoking his emergency powers promulgated the regulations for admissions.
8. With regard to the alleged difficulty in calling a meeting of the Syndicate, Mr. Muhammad Amin Butt, counsel for the respondents submitted that it was an imaginary difficulty as even in the absence of the nominated members, meeting of the Syndicate as constituted by the new section 25 could be called and the business could be transacted in view of provisions of sec--tion 48 of the University Act which provides that on account of vacancies proceedings held are not invalidated.
He submitted that under section 15(1) of the Act it is the bounden duty of the Vice-Chancellor to see that each provision of the Act is followed, complied with and obeyed by all including himself in letter and spirit and no supposed or imaginary or self-created difficulty is made a basis for bypassing, infringing or ignoring any provision of the Act. In this respect, we will like to impress that wherever Legislature in its wisdom creates bodies, institutions or functionaries for the discharge of acts, functions and jobs prescribed by the law, the purpose of the law and!, the interest of the society and the community will be well served if those designated bodies are left on their own to carry out and perform the functions assigned to them without any outside interference and no individual how--soever high, able or intelligent he may be, can be allowed to arrogate to himself the performance of these functions, acts or jobs for the performance of which functionaries, bodies or institutions were created, or prescribed as any interference in the prescribed scheme would be violative of the law itself. The lesson a civilized man has learnt from the experience of ages is that negation of law can in no circumstances be conducive to the interests and well-being of the society or the institution itself. Even the least infringement of the law at the hands of the person or authority in whom vests the sacred duty of ensuring the faithful observance of the law by others cannot be countenanced what to say of permitting him to ignore or bypass the law specially on account of some difficulty which can be resolved by taking action in accordance with law at the proper time. In this connection the fact cannot be lost sight of that since 1974 every year similar regulations are being brought into force, meaning thereby that a permanent need was being dealt with under emergency powers, in disregard of the method provided by the Act.
9. In the instant case we need not go into the question whether the Syndicate could be called to session for according approval or not as even if it is assumed that it was not so available as is being pleaded yet no reason existed for not calling upon the Academic Council to perform its statutory function of preparing the regulations on the subject of admissions as is provided by section 28(2) (c) read with section 32(2) of the Act. The impugned regulations were prepared as well as approved by the Vice-Chancellor himself, though the Academic Council was in existence yet the council was not allowed to perform the prescribed function and instead the regulations prepared by the Vice-Chancellor were put up before it later on for its approval and statedly the approval sought for was also accorded. We have also noted that in previous years also the same method was adopted and when an objection was raised, the objector had to accept the regulations made as "fait accompli". Reference may be made to copy of the minutes of the meeting of Academic Council held to approve regulation for admission made in 1976, wherein representatives of Board of Studies in Islamic Studies and Department of Administrative Science sought the reference back of the regulations for reconsideration but were told that as admission according to these regulations were made in the beginning of the current academic sessions, it will not be possible to reconsider these regulations petaining to admissions made in 1976. The question, that the action taken under section 15(3) should preferably be such that it could be revoked if the authority which was originally to deal with the matter declines to approve it may be reserved for answer in an appropriate case. Prima facie it is reasonable to assume that the authority or the officer on whose behalf action is taken should not bemade to accept the action taken as "fait accompli". In the instant case as the Academic Council was not allowed to function, the use of emergence power invoking provisions of section 15(3), for the purposes of preparing the regulations, was rightly held to be unauthorised and this finding is sufficient to hold the impugned regulations as ultra vires.
We, however, do not feel persuaded to agree with the view of the learned Single Judge that under section 15(3) of the Act, the Vice-Chancellor, in an emergency can replace the approving body but in no case is empowered to act both for the proposing and the approving authorities. Such a distinction cannot be made on the basis of the wording of subsection (3) of section 15 of the Act, as under this provision, the Vice-Chancellor has been conferred the power to take "such action" as he may consider necessary in a given emergency and thereafter to report his action for approval of the officer, authority or body which in the ordinary course would have originally deal with the matter. It is apparent that "such action" does not contemplate taking of action on behalf of such officer, authority or body which under the ' Act have only power to accord approval. The power to take `such action' has been conferred on the Vice-Chancellor to act in order to achieve the scheme and the purposes (,f the Act for or on behalf of the officer, authority or the body who or which due to unavoidable situation is not available or cannot for the time being act and taking of action immediately is necessary. And cannot be postponed till the time that such officer, authority or body is able to act. Thus Vice-Chancellor has been given the power to perform the prescribed act of the officer, authority or body whatever it may be including the act of preparing the regulations or initiation of a matter. The power t take action is however dependent on the existence of emergency which in his opinion requires immediate action. Thus emergency as a matter of fact and not opinion has to be in existence and then the question is to be asked whether immediate action is required to be taken or not. It is here where: "opinion making" of the Vice-Chancellor is involved. Learned counsel ford the appellants in this respect did not claim complete immunity from judicial review of the actions of the Vice-Chancellor as was urged before the learned Single Judge.
Instead he argued that whether subjective or objective test is applied, the opinion formed in a given situation by the Vice-Chancellor can--not be substituted by the opinion that may be formed by this Court, once it is shown that opinion as to existence of emergency and the necessity of the action taken was formed by applying mind reasonably and in good faith. We need not go into this question in detail as the learned Single Judge bas discussed the question in depth and we respectfully agree with his view. We may however, quote here the words of Lord Denning from the case Secretary of State v. Aslef (1972) 2 All E R 949,as follows :- "This brings me to the important question : what is the effect of the words 'If it appears to the Secretary of State'? This, in my opinion does not mean that the Minister's decision is put beyond challenge. The scope available to the challenger depends very much on the subject matter with which the Minister is dealing. In this case I would think that, if the Minister does not act in good faith, or if he acts on extraneous considerations which ought not to influence him, or if he plaintly misdirects himself in fact or in law, it may well be that a Court would interfere ; but when he honestly takes a view of the facts or the law which could reasonably be entertained, then big decision is not to be set aside simply because thereafter someone thinks that his view was wrong."
In the instant case no reason or basis existed to act for the Academic Council and the Regulations were thus framed by the Vice-Chancellor in--competently and in disregard of the provision of the law, the faithful obser--vance of which was one of his bounden duty. It was not a case of bad faith, in fact even the respondents have not alleged so but a case of defeating the law itself.
10. We may now attend the last submission that no right enforcible in writ jurisdiction vests in the respondents to seek admission in an educational institution. Reliance was placed on the reported case of Humera Sarwat Yusuf. In the reported case after quoting from the unreported case of Arif Ali Hazoor v. The Administrator, K. E. Al. C., Lahore (C. P. S. L. A. No. 124/1970 decided by the Supreme Court on 29-5-1970), the following observations :- "There is no authority for the proposition that the right to apply for admission to an educational institution carries with it a legal right to be admitted which can be enforced under Article 98 of the Cons--titution." it was observed that the petitioners before them did not have any public or private right to claim admission to any medical college in pursuance of the application submitted and the orders fixing the number of seats for the various categories of students to be admitted to the institutions concerned has not injured any legal right inhering in them. It is to be noted that these observations were made in the context of the plea of discrimination advanced on the basis of Article 2 of the 1962 Constitution and the objection to the action of fixation of number of seats was repelled observing that Article 2 of the Constitution can only be invoked in aid by a citizen if any of his public or private right has been infringed and not otherwise and we conceive that it is in this light that the proposition that before any executive action can be taken, it .Must be backed by a contemporaneous law, is to be understood".
11. Undoubtedly, no law confers a right on the respondents to be admitted to an educational institution, but surely they have the right to demand that the College authorities should determine their applications in accordance with law, fairly, reasonably and equitably. See 1kram Bus Service v.
Board of Revenue and others (1). We may also cite two recent cases of Supreme Court, i. e.
Shahnaz Maqbool v. Province of Sind (2) wherein direction to admit the applicant was issued after striking down a provision of the prospectus as illegal. See also Muhammad 1qbal Khan Niazi v.
University of Punjab (3).
12. Moreover, the educational facilities being provided by the Universities cannot be denied to the citizens except for valid and legal reasons. In this connection it is pertinent to quote section 7 of the Act :- Section 7. "University open to all classes, creeds, ete.--The University shall be open to all persons of either sex and whatever religion, race, creed, class or colour and no person shall be denied the privilege of the University on the grounds of religion, race, caste, creed, class or colour."
The wording of section 7 of the Act is wider in connotation and in meaning as compared to the words used in Fundamental Right No. 23(b) of the 1973 Constitution, Article 12 of the 1962 Constitution or Article 14 of the Indian Constitution. The privileges of the University cannot be denied to any one on the grounds of religion, race, caste, creed, class or colour. It, therefore, follows that any restriction on the admissions to the University would not be operative if it is hit by the prohibition which appears to b absolute. The University authorities, therefore, cannot create classes so as to exclude some by shutting on them .The doors of University and allow admission to only one or more of the other classes. It will be seen that on one hand admission is being restricted to persons below 26 years of age for the reasons that facilities available with the University are not in abundanceso as to cater the needs of all the young generation on the other hand the faculty of law is being mainly reserved to the majority of those persons who are not only much above the age of 26 years but are also already employed. Such a classification cannot be justified on any rensonable hypothesis. We are in full :agreement with the learned Single Judge that if the evening classes are meant for persons of any age then every person fulfilling the required standard and conditions did have the right to be considered for admission. We also agree fully with the observation of the learned Single Judge that the University may in a lawful manner fix number of students for each course and class depending on the resources of the University and lay down minimum or competitive standard for the same reasons and that there cannot be any discrimination on the grounds enumerated in section 7 of the Act. The refusal to admit Asaf Salam, respondent was unjustified and arbitrary as he fulfilled the conditions of age as well as year of Graduation. Moreover no disqualification can be spelled out from Regulation No. 12. It will be re- called that Regulation No. 12 only relaxes the conditions of age and year of graduation in the case of employees of Government, Semi-Governmentand Autonomous Bodies. This regulation cannot be read in a manner to restrict admission to the evening class to the said employees only. The College authorities were, therefore, in any case wrong in interpreting these regulations as debarring others from seeking admission in the evening class. ,Even in the admission notice such an interpretation was not put on these regulations by the Principal of the Law College as the words used were that a limited number of seats is available in the evening class which is meant for part- time students 'who are employed preferably in Government or Semi Government institutions. The word "preferably" does not denote complete exclusion. It means worthy to be preferred, more desirable. It thus signified that other things being equal, applicants who were Government and Semi---Government employees would be put in front of others or preferred. The act of complete exclusion of every one else though otherwise higher on merit and fulfilling all the conditions of admission was, therefore, illegal and arbitrary.
(1) PLD1963SC564(2) PLD1979SC32 (3)- PLD 1979 SC I
13. For the reasons given above, both these appeals fail and are hereby dismissed with costs.