WALI MUHAMMAD KHAN, J.- Through this Constitutional petition, Ishtiaq-ur-Rehman petitioner, a candidate for admission to the First Year Mechanical Engineering Course of the N.-W.F.P. University of Engineering and Technology, Peshawar for Session 1983-84, has challenged the orders of the Chancellor and Vice-Chancellor of the said University as well as that of the Government of N.- W.F.P., whereby he was refused admission against the reserved seat meant for the children of employees of the Khyber/Ayub Medical Colleges.
2. The facts relevant to the disposal of the matter in issue, are, that the University of Engineering and Technology, N.-W.F.P., Peshawar (hereinafter to be called University) was established under the N.-W.F.P University of Engineering and Technology Ordinance, 1980 (hereinafter to be called Ordinance) for the purpose of disseminating technical education to the students, desirous of becoming Engineers in their future life. Since the number of seats available in the University cannot cater for the needs of all those aspiring for the said vocation, the University authorities have distributed the number of available seats amongst the various categories and have reserved certain seats for special groups including the children of the employees of Khyber/Ayub Medical Colleges. According to the prospectus issues for the Session 1983-84, one seat was reserved for the sons/daughters of the employees of Khyber/Ayub Medical Colleges and the petitioner, being the son of a Biochemist of the Khyber Medical College, Peshawar, submitted his application on the prescribed form to the Principal of the said College for onward transmission to the concerned authorities, for allowing him admission against the said reserved seat. The last date for the submission of the application forms, as per the direction made in the prospectus was, 15-5-1984 and the application of the petitioner was well in time, inasmuch as, he was nominated for admission against the said reserved seat by the Government of N.-W.F.P. Health and Social Welfare Department vide their letter NO.SO(H)II/2-1/84/KC, dated 5-5-1984, addressed to the Registrar of the University and a copy to the Principal Khyber Medical College, Peshawar with reference to his letter No.3632/Estt:/KMC, dated 30-4-1984. It appears that subsequently, other two contestants, for the instant reserved seat, also approached the Health Department, and their applications were also forwarded to the University for consideration along with the application of the petitioner. Since the nomination was the exclusive jurisdiction of the Government, the University returned all the applications to the Health Department for inter se decision between them and thereafter communicating their final verdict to them for further action. Consequently the Government of N.- W.F.P. Health Department maintained their earlier decision in favour of the petitioner and informed the University of the same through their letter No.SO(H)/11/2-1/84, dated 27-5-1984, wherein it was specifically mentioned that the petitioner was the eligible candidate for admission against the reserved seat out of the three, according to the rules of the Prospectus of their University. However, before this communication reached them, the Vice-Chancellor (respondent No.5) had, vide Notification dated 23-5-1984, already reduced the total number of seats including the abolition of the reserved seat in question with the result that the University refused to act on the nomination for the said seat by the Government and declined admission to the petitioner. Hence the instant writ petition.
3. We have heard Mr. Jehanzeb Rahim, Advocate for the petitioner and Abdul Qadir Khattak, Advocate for the respondents have perused the record with their assistance.
4. Learned counsel for the petitioner vehemently argued that it was the domain of the Academic Council to regulate the admission of the students, the courses of studies and examinations of the University as per the provisions of section 17(2)(c) of the Ordinance and that the Vice Chancellor (respondent No.5) had no jurisdiction to alter or .Amend the number of seats fixed by the Academic Council and approved by the Syndicate, detailed in the Prospectus for Sessions 1983-84 and that the impugned order of the Vice- Chancellor (respondent No.5) dated 23-5-1984 whereby the reserved seat, meant for the sons/daughters of the employees of Khyber/Ayub Medical Colleges had been abolished, is without lawful authority and in excess of jurisdiction. He further contended that the last date for the submission of applications for admission being 15-5-1984 for the Sessions 1983-84 and the petitioner having already been nominated by the Provincial Government for admission against reserved seat referred to above on 5-5-1984, the petitioner had acquired vested right, of which he could not be legally and equitably deprived. He also drew our attention to the minutes of the 13th Meeting. Of the Syndicate, held on 13-10-198.1, item No.9, wherein two of the reserved seats, since abolished vide impugned Notification, were revived on the sole ground that the decision regarding the reduction and abolition of seats had been taken after the last date for submission of forms to the First Year Engineering Session 1983-84 and admission granted against those revived reserved seats to the sons of a Deputy Secretary Finance Department Government of Punjab and another one from Gadoon area. His grievance obviously is that the act of the University to allow admission to some and refuse the same to others on the same grounds and in the similar set of circumstances amounts to discrimination which offends against the fundamental rights guaranteed by the Constitution. Lastly he stressed that the alleged Notification by the Vice- Chancellor (respondent ~No.5) dated 23-5-1984 could not operate retrospectively and, therefore, according to him, the petitioner was entitled to admission in spite of the said Notification. On the other hand learned counsel for the respondents strenuously controverted the arguments of the learned counsel for the petitioner by referring to section 11 of the Ordinance which enumerates the powers and duties of the Vice-Chancellor and submitted that the Vice Chancellor (respondent No.5) was competent to pass the impugned order in an emergency. He also drew our attention to Para 4.25 of the Prospectus for the Session 1983-84 whereby the Chancellor had reserved the rights to make any change considered necessary in the existing policy of admission at any time without prior notice. The learned counsel for the respondents read. Out Para.4 of the parawise comments submitted by -the respondents and seriously dwelt at length regarding the existence of emergency which had necessitated immediate action by the Vice-Chancellor without recourse to normal procedure provided in the Ordinance. He forcefully asserted that on account of the hue and cry being raised by the jobless Engineers for absorbing them in the various Departments and the Government's inability to meet their demand, it was considered emergent by the Chancellor/Governor N: W.F.P to restrict future admission, so that the problem of unemployment of Engineers is not further aggravated. According to him this was a case of genuine emergency which called for immediate action by the Vice-Chancellor (respondent No.5).
5. We have given our anxious consideration to the learned arguments of the learned counsel for the parties. In order to appreciate the controversy involved, it is advisable to reproduce some of the relevant provisions of the Ordinance for ready reference:- Section 8. Chancellor The Governor of the North-West Frontier Pronvice shall be the Chancellor of the University.
(2)The Chancellor shall, when present, preside at the convocations of the University and the meetings of the Syndicate or any other Authority.
(3)If the Chancellor is satisfied that the proceedings of any Authority are not in accordance with the provisions of this Ordinance, the Statutes, the Regulations or the Rules, he may, after calling upon such Authority to show cause why such proceedings should not be annulled, by order in writing, annul the proceedings.
(4)Every proposal to confer an honorary degree shall be subject to confirmation by the Chancellor.
(5)The Chancellor shall have the powers to assent to such Statutes as are required to be submitted to him by the Syndicate or withhold assent or refer them back to the Syndicate for reconsideration.
(6)The Chancellor may remove any person from the membership of any Authority, if such person:- (i)has become of unsound mind; (ii)has become subject to any incapacity which prevents him from functioning as menuber of such Authority; or (iii)has been convicte,4 by a Court of law of an offence involving moral turpitude; or (iv)leaves Pakistan for more than one year.
Section 11. Powers :and Duties of the Vice-Chancellor (1)The Vice-Chancellor shall have the powers and perform the duties as hereinafter mentioned.
(4)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 to the Authority or other body which in the ordinary course would have dealt with the matter.
Section 15 Powers and Duties of the Syndicate.
(1)The Syndicate shall be the executive body of the University and shall. Subject to the provisions of this Ordinance and the Statutes, exercise general supervision over the affairs and the property of the University...
() to consider and approve the Regulations proposed by the Academia Council, or frame Regulations after calling for the advice of the Academic Council.
Section 16. Academic Council.-The Academic Council shall consist of:-
(i) the Vice-Chancellor (Chairman); (ii) the Professors of University including Emeritus Professors;
(iii) the Chairman of the Teaching Department.
(iv) Four teachers, other than Professors to be nominated by the Chancello on the recommendations of the Vice-Chancellor;
(v) the Principals of Affiliated institutions;
(vi) three persons from amongst engineers and scientists to be nominated the Chancellor; and
(vii) the President of the University Students' Union as associate member t attend exclusively to matters concerning students welfare.
(2)Members of the Academic Council, other than ex officio members hold office for two years and if the office of any such member become vacant before the 'expiry of such term, such vacancy shall be filled accordance with subsection (1), and the member appointed to sac vacancy shall hold office for the unexpired portion of the term.
(3)The quorum for a meeting of the Academic Council shall be one-third the total number of members, a fraction being counted as one.
Section 17 Powers and Duties of the Academic Council.
(1)The Academic Council shall be the academic body of the University ax shall, subject to the provisions of this Ordinance, the Statutes and the Regulations, have the powers to lay down proper standards instructions, research and examinations to regulate and promote the academic life of the University and the Colleges.
(2)Without prejudice to the generality of the foregoing powers, and subject to the provisions of this Ordinance, the Statutes and the Regulations, the Academic Council shall have the powers:- (c)to regulate the admission of students, the courses of studies a examinations of the University; (g)to initiate Regulations for consideration and approval of the Syndicate.
Section 21. Regulations. -(1) Subject to the statutes, the Regulations may be made in respect of all or any of the following matters:- (c)the admission of students to the University and conditions under which they are allowed to take courses and examinations of the University and become eligible for the award of degrees, diplomas and certificates; (2)The Academic Council shall prepare and submit the Regulations to the Syndicate, which may approve them with or without modification or refer them back to the Academic Council for reconsideration or reject them".
6. The bare reading of the above provisions of law would make it abundantly clear that the Ordinance has made it the exclusive function of the Academic Council to regulate the admission of students and the courses of studies. However, their decisions are subject to the approval the Syndicate. Even the Syndicate while framing any regulation is required to seek the advice of A the Academic Council, under the provisions of the Ordinance. The Vice---Chancellor, in his individual capacity, cannot act in substitution for the Academic Council regarding. Any of the function entrusted to them by the Ordinance However, he is invested with limited powers to take such action as he may consider necessary in an emergency and that action too, he has to report to the authorities or other body which, in the ordinary course, would have dealt with the matter, in the instant case that body being the Academic Council. Unfortunately the copies of the impugned orders of the Chancellor, the Vice-Chancellor and the Syndicate have not been annexed with the parawise comments submitted by the respondents, thereby depriving this Court of the opportunity to see for itself the grounds of emergency which prevailed with the learned Vice-Chancellor for invoking his extraordinary powers conferred upon him by section 11. Of the Ordinance. Nevertheless it is mentioned in the parawise comments that due to day by day increase of unemployment of Engineers the reduction in the seats was urgently necessitated. We are not persuaded to agree that this was so grave an emergency in which the Vice-Chancellor could not convene the meeting of the Academic Council of which he himself was the Chairman. The alleged problem of providing job opportunity to the jobless Engineers was the headache of the State and could not be made an excuse to stand in the way of deserving students desirous of attaining technical knowledge in the institution run and financed by the Government for the sole purpose of imparting technical education. The learned counsel for the petitioner relying on the case University of The Punjab and 2 others v. Rematullah reported as PLD 1982 Lah. 729 submitted that the impugned orders being not in conformity with the provisions of the Ordinance may be struck down as ultra vires. No doubt, the facts of the said case and the instant one, are identical, but, as much time has elapsed since the time of the issuance of the impugned orders and the same having already been approved by Syndicate and having been acted upon for a long time, we do not consider it expedient to go to that extent lest it may create complications for the University. We would however, advise the University Authorities, in their own interest, to allow the functionaries of the University to discharge their duties and function in the manner, permitted by the Ordinance and the Executive Authorities of the University should not bypass them in the grabs of emergency.
7. Admittedly the last date for the submission of application forms for admission was 15-5-1984 and the petitioner had not only submitted his application B before the due date but gad also got himself nominated from the concerned functionary of the Provincial Government prior thereto, thereby acquiring a vested right for admission against the reserved seat of which he could not be legally deprived. Exactly a similar question came up for consideration before the Division Bench of the Sind High Court in case Ghulam Mustafa v. Mehran University of Engineering and Technology 1986 CLC 1056 and it would be profitable to reproduce the dictum of their Lordships which is as follows:-- "The determination of such date is necessary as once a vested right is created any amendment in the admission rules affecting such vested right cannot be allowed. The admission policy is announced by publication of the prospectus. On the basis of such prospectus the applications are invited up to a particular date. These applications are considered and scrutinized immediately on the expiry of the last date for their submission. The applicants are then interviewed and selected for admission. In this process for admission the moment date for submission of application expires, the applicant becomes entitled to be considered for admission. This seems to be a reasonable and proper approach to the problem. After the expiry of the last date no one can apply for admission.
The applicants are to be considered on the basis of conditions, categories and criteria laid down in the prospectus or rules of admission. If the concerned authorities are allowed to amend the rules or policy after the last date and at any time before the admission process is completed. Then it is likely to result in serious abuses, malpractice, manipulation and favouritism. Even if the authority honestly and bona fide amends during this period it is likely to be viewed with suspicion and will injure the reputation and prestige of august bodies like Syndicate. Amendment after the expiry of the date for submission of applications is fraught with serious consequences and likely to cause mistrust. The possibility cannot be ruled out that after scrutiny if it is found that in the normal course a candidate is not likely to be admitted, then to accommodate him the Rule is changed to the detriment of other applicants who on the basis of un amended Rule were likely to get the admission." 8.In the instant case the moment the petitioner was nominated on 5-5-19841 for the reserved seat, a vested right accrued to him for admission against the said reserved seat and the University authorities had no jurisdiction to take away this valuable vested right from him by the abolition of reserved seat in the regular process allowed by the Ordinance, much less through the exercise of emergency powers by the Vice-Chancellor. The plea of the respondents that the nomination of the petitioner was made on 27-5-1984 and that the previous nomination vide letter dated 5-5-1984 had been superseded, is not entertain able because the subsequent letter of the Government dated 27-5-1984 confirms the previous nomination of the petitioner after due consideration of the competence and eligibility of the contestants for the reserved seat.
Consequently the orders of the respondents whereby the petitioner was refused admission to the University of Egineering and Technology were without lawful authority and of no legal effect.
9. The argument of the learned counsel for the petitioner that Notifications cannot operate retrospectively, carries great force. In support of his contention, he cited the judgments of the Supreme Court Koh-i-Noor Textile Mills Ltd. v. Commissioner Income-tax Lahore PLD 1974 SC 284, Muhammad Suleman etc. v. Abdul Ghani PLD 1978 SC 190, Shahnaz Maqbool v. Province of Sind and another PLD 1979 SC 32. We have gone through these judgments and respectfully following the view expressed therein, we hold that the impugned orders of the respondents could, at the most be treated at par with notifications amending certain regulations, and consequently it is held that they shall operate only prospectively. In this view of the matter, too, since the petitioner had a vested right for admission, the orders impugned in the instant writ petition, were ineffective against his rights and on the strength thereof the respondents were, not within their rights to refuse admission to him against the reserved seat.
10. We accordingly accept this writ petition, set aside the impugned orders whereby the petitioner was refused admission in the Engineering University and direct that the petitioner, who has already been provisionally admitted and has taken some of the examinations as well with the permission of this Court, may be allowed to complete his course as he shall be deemed to have been validly admitted.