MUHAMMAD BASHIR KHAN JEHANGIRI, J.--This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the order dated 12-10-1988 passed by respondents 1, 2 and 3 on the application of Miss Tahira Jamila, petitioner herein.
2. The facts out of which this writ petition has arisen are that the petitioner applied for admission in M.Ed. Programme in Academic Session, 1987-88 against the seat reserved for Sports (male and female) in the Institute of Education and Research'(to be hereinafter called as the Institute) Gomal University, D.I. Khan. She was accordingly summoned for interview which was held on 28-9-1988 in the premises of the Institute. On the following day, to the utter dismay of the petitioner, when the names of the selected candidates were displayed on the Notice Board of the Institute, her name was missing against Sports seat. The petitioner was also surprised to learn that the Sports seat was converted into open merit and respondent No.4 was selected against the same. The petitioner in order to resent the arbitrary decision taken by respondent No.2 with the concurrence of the rest of the respondents 1 and 3 represented against the impugned decision and addressed an application to the Vice-Chancellor (respondent No.1). In pursuance of the remarks of the respondents 2 and 3 respondent No.1 passed an order to the effect that decision of the Admission Committee to convert the Sports seat into that on merit could not be changed inasmuch as he did not possess authority to change the criteria for admission on the basis of Sports. She also represented to the Institute as well as the Vice-Chancellor time and again for redress of the wrong done to her but all in vain.
Hence this petition.
3. During the course of pre-hearing, report and parawise comments were called for from the respondents and, for the interregnum and ad interim injunction was granted allowing the petitioner to get admission at her own risk and cost. Respondents submitted their report and parawise comments. The stance qua the conversion of the Sports seat to that of the merit adopted by the respondents was that the application of the petitioner was referred to the concerned Department which after due inquiry was disposed of under the existing Rules and decision made by the Chairmen Council in this regard and the application was rejected. "It was also observed that the criteria for admission is also settled by rules. The respondents annexed with the comments the copies of Minutes of the Chairmen Council meeting, Admission Regulations and Criteria" as Annexures `A', `B' and `C'. It was lastly urged that the petitioner did not qualify for the Sports seat in that "she had never been selected for Inter-University Sports participation". The conversion of Sports seat to open merit and selection of respondent No.4 thereagainst was defended on the legal plane without citing any rules or regulations. In this context the reliance was placed on what were described as "Admission Regulations".
4. In support of this petition the learned counsel for the petitioner made the following submissions:- "(a) That the refusal on the part of the respondents 1 to 3 in granting admission to the petitioner is based on mala tides besides being arbitrary and without lawful authority;
(b) that conversion of the seat in the Sports category to that of open meritand selection of respondent No.4 against the said seat is ultra vire;
(c) that the refusal of admission on the basis of non-production of Inter-- University Sports Certificate and failure on the part of respondents 1 to 3 to consider the petitioner's case for admission to the programme was in violation of the principles of natural justice in that the University had not allowed any female sports team to participate in the Inter-University Sports for the last four years and it was thus not possible to participate in any such event and get Inter- Universities Sports Certificate; and (d)that the minutes of the meeting of the Chairmen's Council held on 16-1--1988 in support of the stand taken up by respondents 1 to 3 refused admission are also without lawful authority in that the so-called Chairmen's Council is a body which is not warranted by the Gomal University Act, 1974 (Act X of 1974) (to be hereinafter called as the Act).
5. The official appearing on behalf of respondents 1 to 3 substantially relied upon the minutes of the meeting of the Chairmen's Council held on 16-1-1988 (Anx. `A') in general and its Item No.1 in particular which is to the following effect:-- "Only those candidates who are the members of the University team in various sports are eligible for admission against the sports seat. In case of tie between the two candidates academic merit of the last examination passed shall be the deciding factor."
6. Before adverting to the submissions made by the learned counsel for the petitioner and the official representing the respondents 1 to 3, it would be appropriate to examine the relevant provisions of the Act, with a view to ascertain the competency and sphere of activity of the respective authorities within the framework of the scheme of the Act.
Section 2 of the Act, inter alia, defines the relevant authorities as under:
(a) "Academic Council" means the Academic Council of the University;
(b) "Chancellor" means the Chancellor of the University;
(i) "Prescribed" means prescribed by "Statutes", "Regulations" or "Rules"; (q)"Senate" means the Senate of the University; (r)"Statutes," "Regulations" and "Rules" means respectively, the Statutes, the Regulations and the Rules made or deemed to have been made under this Act and for the time being in force; (x)"Vice-Chancellor" means the Vice-Chancellor of the University.
Section 3 (2) of the Act defines University which shall consist of:-- (i)The Chancellor, the Vice-Chancellor, the Deans, the Principals, the Directors, the Chairman of Teaching Departments, the Registrar, the Treasurer, Controller of Examinations, the Librarian, the Auditor and such other officers as may be prescribed; (ii)Members of the Senate, the Syndicate, the Academic Council and other Authorities of the University; (i.e)All University Teachers; and (iv)Emeritus Professors."
Sections 12 and 13 deal with the powers and duties of Vice-Chancellor and are set out herein below:- "12.--(l) The Vice-Chancellor shall be appointed by the Chancellor on such terms and conditions as the Chancellor may determine and shall hold office during the pleasure of the Chancellor for a term not exceeding four years.
(2)At any time when the office of the Vice-Chancellor is vacant, or the Vice-Chancellor is absent or is unable to perform the functions of his office due to illness or some other cause, the Chancellor shall make such arrangements for the performance of the duties of the Vice-Chancellor as he may deem fit.
13.--(1) The Vice-Chancellor shall be the, principal executive and academic officer of the University and shall ensure that the provisions of this Act the Statutes, the Regulations and the Rules are faithfully observed in order to promote teaching, research, administration and the general efficiency and good order of the University. He shall have all powers necessary for this purpose including administrative control over all officers, teachers and other employees of the University.
(2)The Vice-Chancellor shall, in the absence of the Chancellor, preside at the Convocation of the University and the meetings of the Senate and shall, if present, preside at the meetings of the authorities of which he is the Chairman and be entitled to attend and preside at any meeting of any other Authority or body of the University.
(3)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) ...................
Similarly section 23 (3) (1) enshrines Constitution of the Academic Council while section 24 caters for its functions, the relative texts whereof are produced hereinafter:- "23.--(1) The Academic Council shall consist of:-- (i)The Vice-Chancellor (Chairman); (ii)Education Secretary, Government of the North-West Frontier Province; (i.e)the Deans; (iv)the Directors; (v)the Principals of the constituent colleges; (vi)the University Professors including Emeritus Professors; (vii).The Chairman of the Teaching Departments; (viii).Director of Education, North-West Frontier Province; (ix)two Associate Professors, other than Chairman of the Teaching Departments, to be elected by and from amongst themselves; (x)two Assistant Professors and two Lecturers to be elected by and from amongst themselves; (xi)four Principals of affiliated colleges, Academies or Institutes, to be elected by the Principals of all such Colleges, Acadmies and Institutes from amongst themselves, of whom at least one shall be from professional colleges and one from the women's colleges;
(xii) five teachers of affiliated colleges in an affiliated college, other than the Principals, to elected by the Teachers of all such colleges from amongst themselves, of whom at least one shall be from professional colleges and one from the women's colleges;
(xiii) three persons eminent in the arts, the sciences and the professions, of them one shall be from such category to be nominated by the Chancellor; (xiv)the Registrar; (xv)the Librarian; and
(xvi) the Controller of Examinations.
(2)Members appointed by nomination or elections shall hold office for three years.
(3)The quorum for a meeting of the Academic Council shall be one-third of the total number of members.
(4)The Registrar, shall be ex officio Secretary of the Academic Council."
"24.--(1) The Academic Council shall be the academic body of the University and shall, subject to the provisions of this Act and the Statutes, have the power to lay down proper standards of instruction, research, publications and examinations and 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 Act and the Statutes, the Academic Council shall have the powers:- (a)to advise the Syndicate on academic matter; (b)to regulate the conduct of teaching, research and examinations; (c)to regulate the admission of students to the course of study and examination in the University;
(d) to regulate the conduct and discipline of the students of the University; (e)to propose to the Syndicate schemes for the constitution and organization of Faculties, Teaching Departments and Boards of Study; (f)to consider or formulate proposals for the planning and development of teaching and research in the University; (g)to make Regulations, on the recommendations of the Board of Faculties and the Boards of Study, prescribing the courses of study, the syllabi and the outlines of tests for all University examinations; provided that if the recommendations of the Board of a Faculty or a Board of Study are not received by the prescribed date, the Academic Council may, subject to the approval of the Syndicate, continue for the next year the courses of study already prescribed for an examination; (h)to recognise the examinations of other Universities or examining bodies as equivalent to the corresponding examinations of the University; (i)to regulate the award of studentships, scholarships, exhibitions, medals and prizes; (j)to frame Regulations for submission to the syndicate; (k)to appoint members to the various Authorities in accordance with the provisions of this Act; and
(1) to perform such other functions as may be prescribed by Statutes." 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). ...................
Similarly section 23 (3) (1) enshrines Constitution of the Academic Council while section 24 caters for its functions, the relative texts whereof are produced hereinafter:- "23.--(1) The Academic Council shall consist of:-- (i)The Vice-Chancellor (Chairman); (ii)Education Secretary, Government of the North-West Frontier Province; (i.e)the Deans; (iv)the Directors; (v)the Principals of the constituent colleges; (vi)the University Professors including Emeritus Professors; (vii)the Chairman of the Teaching Departments; (viii)Director of Education, North-West Frontier Province; (ix)two Associate Professors, other than Chairman of the Teaching Departments, to be elected by and from amongst themselves; (x)two Assistant Professors and two Lecturers to be elected by and from amongst themselves; (xi)four Principals of affiliated colleges, Academies or Institutes, to be elected by the Principals of all such Colleges, Acadmies and Institutes from amongst themselves, of whom at least one shall be from professional colleges and one from the women's colleges;
(xii) five teachers of affiliated colleges in an affiliated college, other than the Principals, to elected by the Teachers of all such colleges from amongst themselves, of whom at least one shall be from professional colleges and one from the women's colleges;
(xiii) three persons eminent in the arts, the sciences and the professions, of them one shall be from such category to be nominated by the Chancellor; (xiv)the Registrar; (xv)the Librarian; and
(xvi) the Controller of Examinations.
(2)Members appointed by nomination or elections shall hold office for three years.
(3)The quorum for a meeting of the Academic Council shall be one-third of the total number of members.
(4)The Registrar, shall be ex officio Secretary of the Academic Council."
"24.--(1) The Academic Council shall be the academic body of the University and shall, subject to the provisions of this Act and the Statutes, have the power to lay down proper standards of instruction, research, publications and examinations and 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 Act and the Statutes, the Academic Council shall have the powers:- (a)to advise the Syndicate on academic matter; (b)to regulate the conduct of teaching, research and examinations; (c)to regulate the admission of students to the course of study and examination in the University;
(d) to regulate the conduct and discipline of the students of the University; (e)to propose to the Syndicate schemes for the constitution and organization of Faculties, Teaching Departments and Boards of Study; (f)to consider or formulate proposals for the planning and development of teaching and research in the University; (g)to make Regulations, on the recommendations of the Board of Faculties and the Boards of Study, prescribing the courses of study, the syllabi and the outlines of tests for all University examinations; provided that if the recommendations of the Board of a Faculty or a Board of Study are not received by the prescribed date, the Academic Council may, subject to the approval of the Syndicate, continue for the next year the courses of study already prescribed for an examination; (h)to recognise the examinations of other Universities or examining bodies as equivalent to the corresponding examinations of the University; (i)to regulate the award of studentships, scholarships, exhibitions, medals and prizes; (j)to frame Regulations for submission to the syndicate; (k)to. Appoint members to the various Authorities in accordance with the provisions of this Act; and
(1) to perform such other functions as may be prescribed by Statutes."
7. A comparative examination of sections 2, 12, 13 and 23, reproduced above, would confirm that the Academic Council constituted under section 23 is the relevant organ of the University to regulate the admission of students to various courses of studies and examinations in the University. In this context reference may profitably be made to clause (c) of subsection (2) of section 24 ante providing for admissions of the courses of studies at the University. Whereas A on the other hand the Chairmen's Council, the Minutes of the meeting whereof (Annexure `A') have been invoked for the impugned conversion of Sports seat to that on merit, is a body absolutely alien to the organs provided for in the Act. It cannot, therefore, possibly be urged that the Chairmen's Council was in fact analogous to the Academic Council and that the order of conversion from Sports seat to that on merit was the authorised act of the Academic Council in the sphere of admissions to various courses of studies.
8. The answering-respondents have also placed reliance on the Gomal University Admission Regulations for M.Ed. Etc. (Annexure `B'). The Schedule of "Break up of the Seats for Various Categories of Candidates for Admission to Various Programme Courses of Gomal University" tagged with Annexure `B' shows allocation of one seat in M.Ed. Programme under the category of sports. The criterion for admission on Sport Seat (Annexure `C') is the same as reproduced in para. 5 ante.
9.We, however, find every force in the contention of the learned counsel for the petitioner that this criteria laid down by the "Central Admission Committee" and invoked by the Chairmen's Council to support the conversion of the Sports seat into that on merit having not been adopted by the Academic Council, a statutory body-under the Act, is ultra vires and in any case would be in violation of the principles of natural justice because the Gomal University have B not allowed any female Sports event to enable any female to participate in the Inter-University Sports Tournaments for the last four years and thereby rendered it impossible to get an Inter-University Sports Certificate. Section 24 of the Act is the verbatim reproduction of section 17 of the North-West Frontier Province University of Engineering and Technology Ordinance (No. XIII of 1980). A Division Bench of this Court in "Ishtiaq-ur-Rehman's v. The Chancellor, N.-W.F.P. University of Engineering and Technology Peshawar and 5 others" (1989 CLC 1303) relying on "Ghulam Mustafa v. Mehran University of Engineering and Technology" (1986 CLC 1056) has held that a bare reading of sections 8, 11, 15 16, 17 and 21 of the N.-W.F.P. University of Engineering the Technology Ordinance would make it 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. It was further held that the decisions of the Academic Council are subject to the approval of the Syndicate and that the Vice- Chancellor in his individual capacity cannot act in substitution of the Academic Council regarding any functions entrusted to them by the Ordinance.
Respectfully following the dictum in Ishtiaq-ur-Rehman's case referred to above, we are inclined to reiterate that Chairmen's Council or for that matter even the "Central Admission Committee" is an alien body to the Act to regulate the admissions and also to convert a sports seat to that on merits.
It is only the Academic Council which has the relevant authority to lay down the criteria for admission on various seats strictly in accordance with the break up of the seats fixed under the Gomal University Admission Regulations (Annexure `B'). In consequence the Vice-Chancellor respondent No.1 or for that matter the Central Admission Committee respondent No.3 are not shown to have been authorised under the Act to regulate the admissions of students to various courses of studies of the Gomal University either for or on behalf of the Academic Council constituted under section 23 of the Act. Undoubtedly the "Admission Committee" is a body constituted under the "Gomal University Admission Regulations" ~'(Annexure `B') but its functions under para (b) thereof are circumscribed to conducting tests, interviews and examining the suitability of candidates for admissions and selecting candidates for admission for approval by the Vice-- Chancellor.
10. It would thus be seen that Admission Committee constituted under para. 2 (b) of the Regulations could not possibly lay down, amend, vary or substitute a new criteria for the old one.
This power obviously vests under the Act in the Academic Council constituted under section 23 of the Act. Any order passed by the Admission Committee for varying criteria so as to convert a sports seat to that on merit was, therefore, without lawful authority. Be that as it may, it has been admitted by respondents Nos. 1 to 3 in their parawise comments that the petitioner's grievance expressed in her application photo-copy Annexure `E' "was referred to the concerned Department and after due inquiry the same was disposed of under the existing rules and decision made by the Chairmen's Council in this regard" and thus her request was not acceded to. Now this request could legally be put up before and considered by the Academic Council. It could not possibly be referred under any provisions of the Act.
11. Before proceeding further it would be worthwhile to reproduce hereunder the orders passed by the Director of the Institute, to whom it had been earlier marked by the Vice-Chancellor, on the application Annexure `E' of the petitioner: "The matter was discussed by the Admission Committee of the I.E.R. And following decision was made.
"As per previous orders of the Vice-Chancellor on a similar application of Miss Nuzhat Kulsoom (copy attached) the admission committee of I.E.R. Has no authority to change the existing criteria for admission on sports basis. The matter desired by the Vice-Chancellor may be referred to Sports Central Admission Committee."
Sd./ Director I.E.R.
12. The impugned orders of the Vice-Chancellor are to the following effect:- "Nobody has the authority to change the rules except the Academic Council/Syndicate. If desired the matter may be referred to one of these bodies".
Sd/ Vice-Chancellor."
The criteria laid down for sports seat has been reproduced in para. 5 ante. No one could possibly get admission on the criteria in that no female sports event or tournament had been held by the University during the span of the last four years. Obviously it was not the fault of the female candidates that University Tournament for females were not held since the criteria was laid down.
The Vice-- Chancellor ought to have, at the earliest referred, the matter himself to the Academic Council rather than leaving it to the discretion of the Director I.E.R. Due to the indifference of the Vice-Chancellor one female seat reserved for sports has either remained unutilised or was purposely converted into that on merit for no fault of those for whose benefit it had been allocated.
The impugned order is thus manifestation of non-exercise of powers which vested in respondent No.1. He ought to have either seen that the sports events or female tournaments are held at the University level or else the matter should have been placed before the Academic Council.
Consequently, the application Annexure `E' of the petitioner could neither be referred to the Department concerned, nor, it could be referred to the `Admission Committee' nor was it or could be disposed of "under the existing rules and decisions made by the Chairmen's Council", for, the last mentioned Council is not a body constituted under the Act. As stated earlier, it was body alien to the provisions of the Act. In this context it may be observed that section 13 (3) of the Act sets out powers of the Vice-Chancellor as the principal executive and academic officer of the University which, inter alia, enables him to take certain actions warranting immediate intervention on priority basis in an emergent situation which thereafter should be submitted, as soon as possible, for approval of the authority competent under the Act, to deal with it.
13. Looked at from any angle, we find that the impugned action of the respondent to refuse admission of the petitioner to the M.Ed. Programme was ultra vires the Act which cannot be sustained on any hypothesis.
14. In the light of what has been discussed above, we accepted this writ petition, set aside the impugned orders whereby the petitioner was refused admission in the M.Ed. Course of study and direct that the petitioner, who is said to have already been provisionally admitted and has almost completed the course and had taken the examination with the permission of this Court, may be allowed to complete her course of studies and she shall be deemed to have been validly admitted.
We may, however, clarify at this juncture that this order shall have no adverse affect on the admission of respondent No.4, who had been admitted on open merit in consequence of the conversion of the sports seat. The parties shall; however, bear their own costs.