' MAMOON KAZI,J,- The petitioner in these petitions desires to seek admission in the N.E.D. University of Engineering and Technology, Karachi, represented in these petitions by respondent No,1. The petitioner is a permanent resident of Karachi and has obtained a Certificate of Domicile and a Permanent Residence Certificate issued under the Sindh Permanent Resident Certificate Rules, 1971.
The petitioner was educated throughout in Karachi except for a short period of his life when he passed his H.S.C. Examination from a place outside Karachi. The prospectus issued for the year 1990-91 made the petitioner eligible to seek his admission in the said university on account of his being a permanent resident of Karachi, in case all other conditions as laid down in the prospectus were satisfied by him and 489 seats had been allocated for candidates who were permanent residents of Karachi Division and had passed H.S.C. (Pre-Engineering) Examination under category 10.2.1.(b) as shown in the prospectus for the said year. But according to the prospectus issued by respondent No,1 for the year 1991-92, a separate category numbered as 10.2.1 (c) has been introduced creating a separate class of candidates who, although are domiciled in the Province of Sindh (Karachi Division) and are permanent residents of the same but have either passed their S.S.C. Or H.S.C. Examination from the educational institutions situated outside Karachi Division. The grievance of the petitioner is that only 17 seats have been allocated to this new category which has limited contest for it from open general merit list originally fixed by the prospectus issued by respondent No,1 for the .Year 1990-91 only to the said number of seats. The number of candidates eligible under category 10.2.1 (b) has now been reduced from 489 seats to 477 seats and the 17 seats allotted to the new category has reduced the number of seats by 12 under category 10.2.1 (b) and 5 seats have been reduced from category 10.2.7 which was meant for outstanding sportsmen on all Sindh basis.
2. The grievance of the petitioners in C.P. No,D-758/91 and C.P. No,D-1065/92 relates to the creation of a new category, namely, 10.2.1 (a) by amendment of the original category 10.2.1 (a) in the prospectus issued by respondent No,1 for the year 1991-92 which has rendered the petitioners ineligible for admission to the University on account of their passing of B.Sc. Examination from a University other than University of Karachi. The petitioners are permanent residents of Sindh and have obtained their Domicile Certificates and Permanent Residence Certificates from the Additional Commissioner East, Karachi and although, according to the prospectus issued by respondent No,1 for the year 1990-91 which declared its admission policy, the petitioners were eligible under category 10.2.1 (a) but for the alteration made in the said Rule by the prospectus issued for the year 1991-92.
3. According to the counter-affidavit filed on behalf of respondent No,1, category 10.2.1 (c) has been introduced to exclusively take care of the candidates who have passed S.S.C./H.S.C. Examinations from educational institutions outside Karachi. It has been maintained by the respondent that the introduction of the said category is not on the basis of race, religion, caste, place of birth or the same is not motivated by parochial, tribal, sectarian, or provincial prejudices. As regards the original category 10.2.1 (b) appearing in the prospectus for the year 1990-91, the case of the respondent is that the same was under attack when it was framed in the year 1991 as being unconstitutional and illegal. Consequently, a new category meant for such students who are residents of Karachi and who have passed their S.S.C./H.S.C. Examinations from educational institutions outside Karachi was introduced as category 10.2.1 (c).
4. The contention of Mr. Abdul Hafeez Lakho and Mr. Raja Qureshi, learned counsel who have addressed us on behalf of the petitioners in these petitions is that, introduction of the new category, namely, 10.2.1 (c) in the prospectus for the year 1991-92 is discriminatory and violative of Articles 22(3) (b), 25, 33 and 37(c) of the Constitution besides being unreasonable and unjust.
However, this view is not shared by Mr. Rehanul Hassan Farooqui, learned counsel for respondent No,1. According to him, no vested right is created in favour of the petitioners by making of an application to seek admission to the University or obtaining a copy of the prospectus by them.
Consequently, the petitioner In each of the petitions is not an "aggrieved person" within the meaning of Article 199 of the Constitution. On merits, the contention of the learned counsel is that it is within the competence of the respondent to regulate the admission policy and classify candidates into different categories according to the conditions and circumstances prevailing in the University.
5. The status of the Rules framed by educational institutions to regulate their admission policy was examined by a Division Bench of the Lahore High Court in the case of Province of Punjab v. Miss Khakkan Mehmood (PLD 1985 Lah. 300) and the rules in prospectus issued by such institutions were equated with bye-laws framed in exercise of delegated powers by an executive authority and it was held that such rules can be struck down as invalid on the ground of unreasonableness.
Reference was made to the case of Muhammad Iqbal Khan Niazi (PLD 1979 S.C. 1) wherein it was held that rules in the prospectus could be challenged on the ground that they were repugnant to the laws of the land or on the ground that they were uncertain, or that they were unreasonable. To the same effect are the observations made by the Supreme Court in Shahnaz Maqbool's case (PLD 1979 SC 32) and Rifat Parveen's case (1981 S.C.M.R. 1002).
6. On the question, whether a rule can be struck down on the ground of the same being violative of the "equality clause" found in many written Constitutions in different countries, Mr. Abdul Hafeez Lakho has invited our attention to the case of Sohbat Khan v. The State (PLD 1966 (W.P.) Pesh. 210) wherein reference was made by Anwarul Haq, J., who delivered the judgment, to the case of Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan, etc. (PLD 1957 SC (Pak.) 9).
The observations which appear at page 216 of the report are as follows:-- "Whatever also the expression 'equal protection of law' may mean, it certainly does not mean equality of operation of Legislation upon citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes equal rights to the enjoyment of life, liberty and property no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the 'equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like, circumstances, in their lives, liberty and property and in pursuit of happiness. Another generlisation more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the Legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant considerations, such as differences in race, colour or religion will certainly be rejected by the Courts. Applying these tests to the present case, it cannot but be held that if in consequence of abolishing the system of private rents for agricultural land, it also became necessary to make some provision for the outgoing landlords, the classification of the landlords on the basis of their net incomes at the time of their expropriating was a necessary and not an unreasonable classification."
7. Reference may also be made in this context to the case of Brigadier (Retd.) F. B. All v. The State (PLD 1957 SC (Pak.) 506) wherein the Supreme Court while expounding the meaning and scope of Article 25 of the Constitution, guaranteeing equality before law and equal protection of law for all citizens of Pakistan observed that:-- "The only generalist ion that is possible is that it means 'subject to equal laws applying to all in the same circumstances' but this does not mean that laws must affect every man, woman and child alike. This guarantee does not forbid discrimination with respect to things that are different nor does it prohibit classification which is reasonable and is based upon substantial differences having a relation to the objects or persons dealt with and to the public purpose sought to be achieved. ' It guarantees equality and not identity of rights."
' The Supreme Court further observed: "That a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact, almost all legislation involves same kind of classification where some people acquired rights or suffer disabilities which others do not.
What, however, is prohibited under the principle is legislation favouring some within a class and unduly burdening others. Legislation affecting alike all persons similarly situated is not prohibited.
The mere fact that legislation is made to apply only to a certain group of persons and not to others does not invalidate the legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification."
8. The same principle was enunciated by the Supreme Court of India in D.S. Nakara and others v.
Union of India (1983) 1 S.C.C.
305. While referring to the principle underlying Article 14 of the Indian Constitution, which corresponds with Article 25 of our Constitution, Desai, J. Has observed:-- "15. Thus, the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question."
' As to the question, on whom the burden would lie to affirmatively establish that the rational principle on which the classification is founded is co-related to the objects sought to be achieved, Desai, J. Has further observed in the same judgment that :-- "The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. International Airport Authority of India when at SCR page 1034 (SCC p. 506), the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
9. The cases cited before us, therefore, seem to indicate that, classification is permissible provided it is reasonable and is based upon substantial differences having nexus to the object or purpose sought to be achieved by the legislation. However, when the classification is not founded upon intelligible differentia or has no rational nexus to the object sought to be achieved by such legislation, the same can be struck down by the Courts.
10. Mr. Abdul Hafeez Lakho has also referred to Article 22(3) (b) and Article 37(c) of the Constitution to further support his contention that creation of the new category is further violative of the said Articles.
Article 22(3) (b) provides that:-- "(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth."
Article 37(c) further provides that:--"37. The State shall---
(a) ...............................
(b) ...............................
(c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit;"
A bare look at Article 22(3) (b) shows that it safeguards the right of a citizen by prohibiting denial of admission to him to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.. So far as category 10.2.1 (c) in the prospectus of 1991- 92 is concerned, it classifies candidates on the basis of their passing either S.S.C. Or H.S.C. (Pre- Engineering) Examination or both from certain educational institutions but nothing can be spelt out therefrom to suggest that any classification has been made on the ground of race, religion, caste or place of birth. As Article 22(3) (b) does not admit of any classification as referred to in category 10.2.1 (c). The same in our opinion, is not attracted at all to the facts of the present case. However, the question whether" Article 37(c) is attracted, is a different matter which requires to be examined by us.
11. Article 37 is embodied in Chapter 2 of the Constitution which relates to "Principles of Policy."
Article 30(1) of the Constitution places the responsibility of deciding whether any action of an organ or authority of the State or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the Principles of Policy upon the organ or authority of the State or the person concerned. Article 30(2), however, provides that validity of an action or law shall not be called in question on the ground that it is not in accordance with Principles of Policy. The said Article further provides that no action shall lie against the State, any organ or authority of the State or any person on such ground.
12. We would like to point out that notwithstanding Article 30(2) of the Constitution, it is the duty of every organ of the State, be it a subordinate authority such as the University, to ensure that no law or rule is framed which is opposed to the general Principles of Policy enshrined in the Constitution.
Article 25 of the Constitution, as has been pointed out earlier, guarantees equality of all citizens and Article 37(c) makes it incumbent for the State to make technical and professional education generally available and higher education equally accessible to all on the basis of merit.
Consequently, the harmony between Article 25 and Article 37 of the Constitution is dearly noticeable. If there is no conflict between Article 25 and Article 37 of the Constitution then any rule made by the University which deflates from the policy propounded in Article 37(c) of the Constitution can be subjected to scrutiny on the touchstone of Article 25 of the Constitution. In fact, in such a case, what the Court would be enforcing is the fundamental right, without violating Article 30(2) of the Constitution. Therefore, reference to Artide 37(c) in the present case would be relevant while examining the rules impugned in these petitions.
13. This now brings us to the merits of the case, but before we advert to the merits, we would first like to deal with the preliminary objections raised by Mr.Rehanul Hassan Farooqui, the first of which is that mere submission of admission form by each of the petitioners cannot create any vested right in his favour and consequently, he is not an "aggrieved person" within the meaning of Article 199 of the Constitution.
14. There is no doubt that one of the conditions for maintaining a Constitutional petition is that a person can question the legality of an action taken against him when the cause of action has accrued to him, otherwise his right to seek the relief is non-existent. In the present case, the petitioners have only applied for admission to the University and they can be admitted only if they fulfil all the conditions as required by the prospectus. However, the grievance of the petitioners is that by introduction of the new category, 10.2.1 (c) or 10.2.1 (a) their prospective right of admission has been infringed as in view of the introduction of the new rule their chance of getting admission to the University has already been restricted. We would like to point out that the question whether any cause of action has accrued to the petitioner to file a Constitutional petition, or in other words, whether the petitioner is an "aggrieved person" would depend upon the circumstances of each case. When a person is desirous of seeking admission in the University the cause of action may accrue to him when he has been discriminated against at the time of consideration of his case for admission to the University by the concerned authorities. However, where a rule is introduced in the prospectus which has already rendered his right to seek admission non-existent or has restricted it.
Substantially, then, in our opinion, the person would be an "aggrieved person", the moment such a rule has been introduced in the prospectus by the University.
15. Such a distinction was drawn by the Supreme Court while dealing with a similar objection in the case of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). Muhammad Haleem, C.J.
While delivering the judgment for majority of the learned Judges hearing the case observed thus:-- "From the consideration of these cases, it is clear that the vires of an Act can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment is not required to be shown, but where it is not ex facie discriminatory but is capable of being administered discriminately then the party challenging it has to show that it has actually been administered in a partial, unjust and oppressive manner. On this view of the matter, the contention of the learned Attorney-General is devoid of any merit."
16. Similar observations were made by the Supreme Court in Mian Fazal Din v. Lahore Improvement Trust, Lahore (PLD 1969 SC 223). It was observed in this case as follows:- "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise,"
The same principle was followed by the Supreme Court once again in the case of Muhammad Afzal v. Government of Pakistan (1987 S.C.M.R. 2078).
17. In the present case, since the introduction of the new category 10.2.1 (a) or 10.2.1 (c) ex fade deprives the petitioners of their right to seek admission to the University; or as the case may be, restricts the same, the petitioners, therefore, have a right to maintain the petitions as a reeved persons. The objection is, therefore, overruled.
18. The second contention of Mr. Rehanul Hassan Farooqui is that it is within the competence of the respondent University to regulate the admission policy and classify candidates into different categories in accordance with the conditions and circumstances prevailing in the University.
Reference in this regard has been made to the N.E.D. University of Engineering and Technology Act, 1977 which empowers the said University to formulate its own admission policy. In support of the said contention, reliance has been placed by Mr. Farooqui on the case of Humayun Nizami v.
Government of Sindh (PLD 1989 Karachi 343), Naeem Mirza v. Government of Sindh (1987 CLC 1487) and Gul Khan v. Government of Balochistan (PLD 1989 Quetta 8).
19. In the first case, Equivalence Committee appointed by the Academic Council set 'up under University of Karachi Act, 1972 passed a resolution for conversion of grades of British Schools and American Schools for Intermediate Science Examination (Pre-Medical Group) for admission to M.B.,B.S. First Year Class and it was further decided that from each Grade-15 marks would be deducted. The action was challenged before this Court by a Constitutional petition. It was held that the petitioner could not take objection to the additional precondition in regard to deduction of marks which was not contrary to the powers and authority vested in the University under the said Act. It wai further held that the petitioner would have vested right only then he can get admission after fulfilling all the preconditions. Referring to the resolution passed by the Equivalence Committee it was opined by the Court that the said Committee was created by Academic Council and the resolution was further approved by the Syndicate of the University and since the said Forums acted within the ambit of their jurisdiction and authority and there was no deviation from the guidelines laid down by any other authority within the four corners of the said Act, the said Forums had acted within their rights and authority and no exception could be taken to the change of formula laid down for the purpose of admission to the Medical College.
20. In the case of Naeem Mirza which was also decided by a Division Bench of this Court, the additional conditions prescribed by the relevant prospectus issued by the University of Karachi regulating the admission policy were held to be neither unreasonable nor contrary to the conditions laid down by the University and it was further held that alterations made in the prospectus or the admission rules could be made before a vested right was created.
21. In the third case relied upon by Mr. Farooqui which was decided by a Division Bench of the High Court of Balochistan, the education policy regulating terms and conditions for admission to the Baluchistan Engineering College, Khuzdar was held to be neither violative of Article 22 of the Constitution nor Article 25 of the Constitution.
22. The cases cited by Mr. Farooqui, in our opinion, can be distinguished owing to the different circumstances of the present case. Even otherwise, the proposition advanced by Mr. Farooqui that laws competently made cannot be challenged, is too broad a proposition which we find difficult to 'accept. We' have already pointed out in this judgment that validity of any law can be challenged on the touchstone of the Constitution. We have also pointed out in this regard that any classification which is not founded on intelligible differentia and which has no nexus with the object sought to be achieved by the legislation in question can be struck down as violative of the "equality clause" in the Constitution. We would, however, like to point out that the question raised by Mr. Farooqui is not germane to the issue raised by the petitioners in these petitions as no challenge has been thrown to the competence of the respondent University to regulate its admission policy or to introduce a new set of rules for different categories of the candidates seeking admission to the said University. The question that has been raised by the petitioners relates to the validity of creation of the new categories, namely, 10.2.1 (a) and 10.2.1 (c) in the prospectus issued by respondent No,1 for the year 1991-92. The contention raised by Mr. Farooqui has, therefore, no force.
23. It now remains to be determined: Whether introduction of categories 10.2.1 (c) or 10.2.1 (a) in the prospectus issued for the year 1991-92 tantamounts to infraction of Article 25 or Article 37(c) of the Constitution. A plain reading of the prospectus issued for the year 1991-92 clearly indicates that the said categories respectively restrict the right of the petitioners to seek admission to the University not on the basis of any educational quantifications or their residence or domicile but only on the ground of having acquired part of their education in an institution situated outside Karachi Division.
Article 37( b) of the Constitution enjoins that the State shall make technical and professional education generally available and higher education equally accessible to all on the basis of merit.
Although this policy appears to be reflected in the prospectus issued by the respondent University for the year 1990-91 by proving equal opportunity to seek admission to the University for all such candidates who are domiciled in Sindh and are permanent residents of Karachi Division in case they possess the required educational qualifications, however, the introduction of category 10.2.1(c) or alteration of original category 102.1(a) in the prospectus issued by the University for the year 1991-92 clearly aim at depriving the candidates who, although, are permanent residents of Karachi Division and possess the other required qualifications entitling them to seek admission to the University of equal opportunity to compete on the basis of merit with other such candidates merely for the reason of their having acquired a part of their education at a place other than Karachi Division. Such classification per se appears to be unreasonable, unjust and violative of Article 25 and Article 37(c) of the Constitution. The onus, therefore, was clearly on the respondent to show the object which was sought to be achieved by such classification. In the counter-affidavit filed on behalf of respondent No,1, it has been stated that there was a demand to alter the original policy as reflected in the original category 10.2.1(b) embodied in the prospectus issued for the year 1990-91 which has, consequently, resulted in introduction of category 10.2.1(c) or alteration of the original category 10.2.1(a) in the prospectus issued for the year 1991-92. In our view, the explanation furnished by the said respondent is hardly tenable as no further details have been provided in this regard. It is further evident that notwithstanding the fact that the educational qualifications obtained by the petitioners from outside Karachi Division are recognized, being equivalent to the examination for the similar course of education obtained in Karachi Division, the petitioners have been discriminated against by limiting of the contest in their case from open general merit list, which in the past years was fixed at 489, to only 17. We have further noticed that the discrimination created under the new categories does not relate to the basic qualifications laid down by the same prospectus as paragraph 10.1(i) in the same prospectus reads as follows:-- "(i) The basic qualification for candidates under admission categories 10.2.1(b) to 10.2.8 and 10.2.10 to 10.2.13 is only HSC (Pre-Eng.) Examination of the Board of Intermediate Education Karachi in the Group of Mathematics, Physics and Chemistry or an equivalent Examination from any other Board or University accepted as such by the NED University in at least C-Grade (50% aggregate)."
' Mr. Lakho has pointed out that in fact the category is 10.2.1 and clauses (a), (b) and (c) thereof only relate to reservation of seats. Further division of students into categories 10.2.1 (a), 10.2.1 (b) and 10.2.1 (c) has clearly adversely affected the right of such candidates to seek admission to the University, notwithstanding the fact that they hold the same basic qualifications and are permanent residents of Karachi. It is thus clear that the petitioners have been discriminated against only on the basis of acquiring part of their education outside Karachi Division for which no plausible justification has been shown by respondent No,l. We have already pointed out that any classification which is not based on intelligible differentia showing no rational relation with the object sought to be achieved by the legislation in question would be liable to be struck down as violative of the fundamental right embodied in Article 25 of the Constitution. The prospectus issued by the Universities are also to be governed by the same rule as the word "law" occurring in Article 25 of the Constitution is to be understood not in its narrow sense but the same would include any rule, regulation or bye-law, etc. Made by a subordinate legislative authority. In our opinion, the introduction of the said F categories in the prospectus of respondent No,1, besides being violative of a fundamental right is also unjust and highly unreasonable because a permanent resident of Karachi who has acquired almost his entire education in Karachi can be deprived of an equal right to continue his education in Karachi only on the ground that he has passed one or the other examination or has acquired a part of his education outside the Karachi Division. The said provisions, therefore, create a separate class not on the basis of domicile or permanent residence in Karachi or the basic qualifications but only on the basis of acquiring education outside Karachi Division. We, therefore find no justification for such discrimination when it is not the case of the respondents that educational institutions situated outside Karachi Division are not equally recognized or cannot be treated at par with those inside Karachi Division. I our opinion, the discrimination is unreasonable and unjust as the petitioners who arc domiciled in Karachi and are permanent residents of Karachi and hold the basic qualifications required for admission to the said University will either be deprived of their right to seek admission or will have to contest only against 17 seats, and have thus been denied equal opportunity with other candidates on the basis of open merit. We are, consequently, of the view that there has been a clear infraction of the relevant Articles of the Constitution, reference to which has already been made in this judgment.
24. For the aforesaid reasons, these petitions were allowed by us by the short order dated 1-6-1992.
25. Before parting with this case, we would like to point out that during the hearing of this case it had transpired that some of the petitioners have not yet applied for admission to the University although the last date for the purpose has already expired. We would like to point out that only such candidates would be considered for admission by the respondent University in the light of this judgment who have applied for admission within the time-schedule fixed by the University. The University is under no obligation to consider the case of the candidates who have not yet applied for admission to it or have sent their applications or submitted the required documents after the expiry of the last date announced for such purpose.
26. The parties are left to bear their own costs in view of the questions raised in these petitions.