1. ' HAZ1QUL KHAIR1, J.---The petitioner Adnan Zafar passed his . H.S.C. Examination in 1978 and was placed in second class, having obtained 546 marks. Being 49.6%. Since he had also joined National Cadet Corps he was entitled to additional 20 marks to the said aggregate 546 marks totalling 566 marks. Having placed in second class in H.S.C. Examination he could not be admitted in N.E.D.
2. University as per the policy of admission at that time, he therefore took admission in B.Sc. And obtained 1st Division in 1990-91.
3. ' After clearing his B.Sc. In 1st Division, the petitioner applied for admission to the 1st year Engineering at the N.E.D. University for the year .1991-92, but he was informed orally `by the University authorities that his admission form would not he considered as his marks in Intermediate were below 50% i,e.
4. 49.6%. In fact the petitioner's marks work out to be 566 which constitute 51.6% including additional 20 marks secured by him after successfully completing National Cadet Corps training. The petitioner as such has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calling in question the verbal refusal of respondent No,1 to accept his application for admission to N.E.D. University.
5. ' It was pointed out by Mr.Shahanshah Hussain, learned counsel for the petitioner, that at the time when the petitioner passed H.S.C. Examination and took admission in. Karachi University in B.Sc. The only condition fir seeking admission in N.E.D. University after passing B.Sc examination was that a candidate should have obtained second division in H.S.C. Examination and a first division in BSc (passed) examination. Subsequently, the rule was altered to the effect that a candidate should have aggregate 50% marks in H.S.C. To the exclusion of 20 N.C.C. Training marks: ' It was argued by Mr.Shahanshah Hussain that the decision of respondent No,1- in not allowing a candidate to add 20 marks to the marks secured in H.S.C. Examination is illegal, mala fide and repugnant to the provisions contained in National Guards Act, 1973. In support of his contention learned counsel placed reliance on Miss Imrana Malik v. Chairman, Selection Committee for Admission in Medical Colleges, Lahore, PLD 1977 Lah. 820, in which it was held that 20 marks obtained by a candidate upon completion of N.C.C. Training are to be added his examination marks and he is entitled to be considered for admission along with candidates who have passed in 1st Division. In Miss Amtul Jamil 'Samy v. Secretary Health, Government of Punjab, 1982 SCMR 44, the Supreme Court of Pakistan held that if by addition of 20 marks for undergoing National Cadet Corps training the total marks of a candidate .Becomes higher than others; he should be given preference-for admission to Medical College. This view was affirmed by the Supreme Court in Amjad Pervez v. Province of Punjab, 1985 SCMR 1018, that the benefit of adding prescribed 20 marks to the marks obtained by a candidate in the examination would go to a candidate so as to be considered for admission in M.B.,B.S. Along with a first divisioner. This view was followed in a recent decision of a division bench of this Court in Sarfaraz Ahmed v., Government of Sindh and others, 1992 CLC 1367.
6. ' Learned counsel for N.E.D. University, respondent. No,1, Mr.Rchanul Hassan Farooqui urged before us that admissions to the University arc given in accordance with the Prospectus issued by the University. The case of the petitioner falls under Rule 10.2(i) & (ii) of the Prospectus for 1991-92 in which the "basic qualification" is that a candidate should have passed earlier H.S.C. (Pre- Engineering) examination in at least "C" Grade (50% aggregate) in addition to B.Sc. (Pass)
7. Examination in First Division class in required subjects. It was argued by him that the petitioner did not acquire the basic qualification i,e. 50%. Aggregate marks in H.S.C. (Pre-Engineering)
8. Examination which clearly disentitles him to apply for admission in the N.E.D. University despite his obtaining First Division in B.Sc. This basic qualification as to obtaining 50% aggregate marks has reference only to Pre-engineering subjects having nothing to do with N.C.C. Training marks. In other words, to begin with, a candidate must have at least .Obtained 50% marks in the related. Subjects so as to be entitled for admission in N.E.D. University. Learned counsel also referred to the N.E.D.
9. University of Engineering and Technology Act, 1977 which under section 12 prescribes the authorities of the University including academic council. Section 17 relates to the composition of the Academic Council,. Whereas section 18 pertains to powers and duties of the Council which, inter alia, are as follows: "Section 18.--( l) The Academic Council shall be the academic body of the University and shall, subject to the provisions of this Act, the Statutes and the Regulations, have the powers to lay down proper standards of instructions, research 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, the Statutes and the Regulations the Academic Council shall have the power:--
(a) .....................................
(b) .....................................
(c) to regulate the admission of students to the courses of studies and examinations of the University;
(d) .........................................................
(e) .........................................................
10. (f ......................................
(g) to initiate Regulations for 'consideration and approval of the Syndicate;
(h) .. . . . .. . .. . .... . ....
(i) .............................................................................................................
11. (k).......................................
12. Next reference was made to section 47 which states as-follows:
47. (1)................................
(a) ....................................
(b) ....................................
(c) the admission of students to the University and conditions under which they are allowed to take course and examinations of the University and become eligible for the award of degrees, diplomas and certificates:
(h) .........................
(i) ....................................................
(j) ....................................
(k) .........................
(I) ...................................
13. (m).........................
(n) the other matters which, under this Act or Statutes, arc to be or may be prescribed by Regulations.
(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."
14. ' Learned counsel for N.E.D. University Mr. Rehanul Hassan Farooqui frankly conceded that there is nothing in the N.E.D. University of Engineering and Technology Act, 1977 or anywhere else which has expressly taken away the entitlement of a candidate to 20 N.C.C. Marks upon completion of his training. The main thrust of his argument, however, was that the powers to frame rules and regulations including those relating to admission were given to the Academic Council which in its collective wisdom had laid down a minimum and basic qualification for admission to the N.E.D.
15. University which the petitioner has failed to fulfil and hence his case was rightly refused for admission by the University. It was further contended that the Rules relating to admission were made by the Academic Council and Syndicate pursuant to powers conferred on them by the Statute itself and hence cannot be questioned.
16. ' While agreeing with Mr.Rehanul Hassan Farooqui that the expression "basic qualification" found in Rule 10.1 (i) and (ii) of the Prospectus for 1991-92 relates to marks at H.S.C. (Pre-Engineering) examination, we are not inclined to agree with him that by necessary implications, the said rule prepared by the Academic Council and approved by the Syndicate of N.E.D. University will take away or nullify the statutory concession provided to a candidate under section 29(c) of National Guards Act LXI of 1973 which reads as under: "29. Concessions.---On successful completion of training, a person shall be entitled to the following concessions, namely:-
(a) ..........................................
(b) ..........................................
(c) shall, for the purpose of admission to any institution of advanced studies, be awarded twenty marks in addition to the marks obtained by him in the examination held for the purpose of such admission or, if no such examination is held, in the examination on the basis of having qualified in which he seeks such admission."
17. It may be added here that the Prospectus for 1991-92 of the N.E.D. University and other rules and regulations are in the nature of subordinate legislation and are made under the N.E.D. University of Engineering and Technology Act, 1977, which does not anywhere purport to annul, set aside or supersede section 29(c) of National Guards Act, 1973, relating to the concession of 20 marks for N.C.C. Training to a candidate. The N.C.C. Training marks being so material for admission in N.E.D.
18. University as anywhere else, cannot be lost sight of by the legislature at the time of passing of the N.E.D. University Act, 1977. The two rights one under section 29 (c) of the National Guards Act LXI of 1973 and the other under Rule 10.1(ii) of the Prospectus for 1991-92 of N. E. D. University extending to two classes of candidates for admission cannot exist side by side and one of them must give way to the other. A delegated or subordinate legislation despite of its being made under a special statute cannot be allowed to prevail over another statute of general nature; earlier in time, unless firstly it is shown that there is a conflict between the two statutes which is not the case here.
19. Accordingly, we are of the view that section 29(c) of National Guards Act LXI of 1973 must be fully given effect to and hold that rule 10.1(ii) of the Prospectus issued by the N.E.D. University, respondent herein, is ultra wires of N.E.D. University of Engineering and Technology Act, 1977, and repugnant to section 29(c) of the National Guards Act, 1973. In the circumstances we direct the respondent to consider the case of admission of the petitioner on basis of concession of additional 20 marks to his aggregate marks in H.S.C. Examination.