' This will dispose of Writ Petition No,4348 of 1992 by the petitioner, Farooq Abdul Mannan and Writ Petition No,4379 of 1992 by the petitioner, Amir Ashfaq Kureshi.
2. Both the petitioners had applied for admission. In B.Sc. Of the University of Engineering & Technology, Lahore, for the Session 1991-92. The petitioner Farooq Abdul Mannan had obtained in the Intermediate Examination held in 1991 in Pre-Engineering Group 667 marks out of 1100 marks i,e.
More than 60% and the petitioner, Amir Ashfaq Kureshi had obtained 667 marks i,e.
60.55% in that examination. The father of Farooq Abdul Mannan, petitioner had served the University of Engineering & Technology for about four years on deputation as Registrar from 1979 to 1983 and the father of Amir Ashfaq Kureshi had served the University from 1-8-1972 to 4-10-1975 as Project Director "on deputation in the B & W 'Section". Admittedly the petitioners would not have been eligible to apply for and entitled to admission against open merits quota. They claim to belong to the category called the children .Of the University employees (described as Category M in the prospectus for the year 1991-1992). It appears that before 1975-76, there was no condition of service for admission of this category and children of the University, employees were granted admission even if their fathers/mothers have served" the University for a single day". "For the session 1976-77, the condition of. 2 years' service was imposed for admission of the children of the University employees. The relevant regulation was amended in the session 1981-82 and it was provided that the father or mother of the candidate should have served the University for five years". This condition was also applicable to the candidates for admission in the Session '1991-92 (see Regulation No36.13, Category M in the Undergraduate Prospectus 1992 Entry).
3. The applications of the petitioners were rejected on the ground that under the regulations the petitioners were not eligible for admission, for their fathers had not served in the University for five years.
4. It has been stated by Amir Ashfaq Kureshi, petitioner that he had submitted a representation to the Vice-Chancellor and that representation has remained undisposed of by the competent authority. The. University Authorities, it is stated thought that what the petitioner was asking for was relaxation of the five years condition; in fact he was claiming admissions as of right. In this behalf it is stated that the University had itself been interpreting the regulation in this way that it did not apply to the candidates like Amir Ashfaq Kureshi and had granted admission to a number of candidates. The names of those candidates are mentioned in para. 3 of the petition. It is maintained that the amendment made in the year 1980-81 which "substituted two years' service rendered by a parent of the candidate by five years "service, governed cases of employees joining University service after the date of amendment; it did not cover cases of those parents who had already rendered two years' service. In other words such vested right which accrued to such employees cannot, therefore, be retrospectively taken away or impaired, particularly when the amendment is of a policy matter, not of the provision of the Act or the statutory rules".
5. In its reply to the petition of Amir Ashfaq Kureshi, the University claims that the case, of the petitioner was to be examined in the light of the Regulation as contained in the prospectus for the session 1991-92 and not by the 1975 prospectus. As to the allegation that some students had been admitted in the past, the position taken by the University is that those students were admitted-- "by relaxing the relevant service condition when the number of candidates was even less than the seats allocated under Category `M'. But the situations is quite different from the last two years when the number of applicants had been more than the number of seats available under Category `M'.
In the last teaching session 1990-91 there were 52 eligible candidates against the reserved quota of 30 seats against which 30 were admitted in accordance with the quota available under Category 'M. This number increased further for the current session 1991-92 and 71 candidates applied for admission against the reserved quota of 30 seats but 41 candidates could not get admission for want of seats although they were eligible for admission and their parents had been continuously serving the University for more than 15 years. Hence the petitioner has not case for admission for the session 1991-92; whose father served the University for only 3 years, 2 months and 3 days."
6. The case of Farooq Abdul Mannan as laid in his petition is that "although the period of service of an employee was fixed at 5 years as back as in the year 1980 but it was never acted upon, which means all the employees were considered for the admission of their children; that there were precedents "wherein the sons of deputationists with one year service only, were admitted and also the sons/daughters of University employees who resigned from the University services were admitted in the past sessions", and that "the petitioner has been treated with discrimination by the respondents".
7. The principal contention of learned counsel for the petitioner, Amir Ashfaq Kureshi, was that his father became Vested with a right to have his children admitted in the University in the year 1975, when he had served for more than three years in the University; according to him, he could not be deprived of that right retrospectively by a regulation, which is in the nature of subordinate legislation. For his contention, learned counsel relied upon two cases namely Messrs Mardan Industries Ltd., Sakhakot, Malakand Agency and another v. Government of Pakistan and another (PLD 1965 Peshawar 47) and Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599). Learned counsel also relied upon Nabi Ahmad's case for the meaning of the expression 'vested'. In that case, it was noticed that according to the Oxford English Dictionary 'vested' means "clothed, robed, dressed.... Vested rights essentially differ...From rights which are contingent....That is completely created...Vested interests may perhaps be defined as rights based not upon contract but upon custom". It was held in that case that "a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may he exercised".
8. The Courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement. (Halsbury's A Laws of England, Vol. XXXVI, P.423 cited in Nabi Ahmad's case at page 608).
9. It was said by I3uckley U in (1911) 2 Chi at 11, 12: "Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been what it was not, that I understand to be retrospective".
10. The statement of law on retrospectively of statutes as contained in paragraph 4 at page 215 of Maxwell on the Interpretation. Of Statutes, which statement has been "so frequently quoted with approval that it now itself enjoys almost judicial authority" is: "They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication".
11. We have seen that a vested right must be distinguished from a contingent right. Also, there is a distinction between a vested right and a mere right (assuming it to be properly so-called) to take advantage of an enactment. Thus in Abbot v. The Minister for Lands (1895) AC 425 the question for decision was whether the appellant was entitled under section 12 of the Crown Lands Act, 1884 to make additional purchases of adjoining Crown lands by virtue of his previous conditional purchase of other Crown lands under the Crown Land Alienation Act, 1861. Under section 22 of the latter Act, a holder in fee simple of Crown lands not exceeding 280 acres was entitled to make conditional purchases of adjoining lands not exceeding in the aggregate 320 acres including the lands held by him. The Act of 1884 repealed the Act of 1861 but saved all "rights accrued" under the repealed Act. It was argued that the appellant's right to make the additional purchases was a right accrued at the time the 1884 Act was passed and had remained unaffected. The Judicial Committee of the Privy Council held (i) that it was fallacious to say that the section in question conferred on the fee simple holder of land any 'right' to make conditional purchase, and (ii) that the mere right (assuming it to be properly so-called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment. This view was cited with approval by the. Supreme Court in Rafi-ud-Din v. Chief Settlement and Rehabilitation Commissioner (PLD 1971 Supreme Court 252, 271).
12. That, .1 venture to think, is also the principle on which the rules in Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P & E), Punjab and others (PLD 1988 Supreme Court 155) were held not to be retrospective. The respondents before the Supreme Court were aggrieved by amendments in their service rules made in 1976 prescribing for promotion to the post of Sub- Divisional Forest Officer, the minimum qualification of a degree in Physical and National Services.
Earlier to this notification, the certificate holders, as the respondents were called, were quJified ' for promotion to that post. They ceased: to be so after the amendmentas their qualification fell short of the minimum prescribed for promotion. The Service Tribunal had decided in the respondents' favour but the Supreme Court decided against them. Learned counsel for the petitioner thought that the ratio decidendi of that case is that promotion cannot be claimed as of right. I find however that the. Service Tribunal had in finding in the respondents' favour, 'expressly held that if any condition of service is changed that is only prospective in nature and would not affect the persons already inducted in service under the earlier Rules''. However, one of the grounds on which: the Supreme Court reversed the Service, Tribunal was that the rule, framed did not.....Affect any vested right of the respondents and that in the absence of impairment of vested right, it would be within the exclusive competence of the Governor to determine the terms and conditions of the service".
13. The leaning against giving certain statutes a retrospective operation rests upon the presumption that the legislature does not intend what is unjust". As was held in Nabi Ahmad's case this presumption is "a manifestation of more or less a natural or instructive sense of justice, or perhaps an instinctive repugnance to what one feels to be injustice". And, it is plain that the time at which this presumption against retrospectively arises is to be determined by the circumstances which call for protection against injustice. Thus, in Nabi Ahmad's case the offences were committed on 1-4-1964, the law, by which the offences were made triable by a Tribunal under the West Pakistan Civil Law (Amendment) Act, 1963, was amended on 25-5-1966 and the order referring those offences to the Tribunal was made on 9-9-1966. It was held that as the offences were committed before the amendment, the accused persons had become vested with a right to be tried under the ordinary law and, therefore, the impugned order had been applied retrospectively. Similarly in Messrs Mardan Industries Ltd. Case, on the faith of a notification exempting for four years excisable goods produced and manufactured in a certain area, the petitioner had invested a large sum of money, Rs,35 lacs, on machinery etc. The exemption was however withdrawn before the expiry of that period. It was held that the petitioner had acquired vested rights of exemption "of the whole of the excise duty when on the faith of the first notification, they placed the order for the machinery...".
14. The essential question that must be asked therefore is whether, at the time of the amendment of the regulation in the year 1980-81, such facts as were necessary to make the petitioners eligible for admission had come into existence? For, it is obvious that if no such facts had come into existence before the amendment, then the amendment will not be regarded as retrospective.
15. The argument was so formulated by the petitioner's counsel as to give the impression that it was the petitioner's father who had become vested with a right before the present regulation came into force. It seems to me however that the facts upon whose existence depends the existence of the petitioners alleged right are all facts, with one exception, namely, the service of the petitioners' parents, relatable to the petitioners.
16. Now, when the petitioner Amir Ashfaq Kureshi's father left the service of the University in 1975, the petitioner was only about three years of age. Therefore, all that the father had at that time was a hope or an aspiration that his son would live to become an engineer. That hope or aspiration depended upon his attaining the minimum qualification of F.Sc. That qualification he attained in - the year 1990 or 1991, that is long after the regulation had been amended. So, the fact which qualified him and made him eligible for admission to B.Sc. (Eng.), came into existence after the amendment; it 'was not in existence when The amendment was made. Even after passing that examination, the petitioner might well have opted for another profession. The regulation cannot therefore be regarded as retrospective in operation: It must therefore he held that all that the petitioner had, before 1980, was a right (as the Privy Council observed in Abbot's case, if it can, without impropriety be termed a right) to take advantage of a benefit. But as the regulation was amended before the petitioner could avail himself of that advantage, and at the date when the petitioner became eligible to take its advantage, the two years' service regulation had long ceased to be applicable, no question of retrospectively arose.
17. It was said that the petitioner's father had agreed to serve the University on the understanding that he would have this benefit. There is no evidence that such an understanding was given. I wonder also that, as a public servant, the petitioner's father could refuse to go on deputation to serve in the University. In any case, in the facts of the case, by merely serving in the University, he did not acquire the right to have his son admitted at a distant future date.
18. Learned counsel for the petitioner Amir Ashfaq Kureshi also tried to make grievance of the fact that the petitioner's representation was not considered by the Vice-Chancellor and it had remained undisposed of Learned counsel, however, conceded that there is no provision of law which gave the petitioner a right to make the representation. As there was no such right, nothing in my view turns upon the representation having not been considered by the relevant authority or upon its having remained undisposed of.
19. It was then contended that the University Authorities have themselves been so construing the regulation as not to give.It retrospective effect. In this behalf reliance was placed upon the admissions granted to the candidates mentioned in para. 3 of the petition; they included a brother of the .Petitioner, who was admitted in the year 1986-87. As has been "noticed above, the reply of the University is that those admissions were granted in relaxation of the rules and not because the candidates were held entitled as of right to admission. I cannot, therefore, think that it is a case of what the learned counsel for the E petitioner described as departmental construction. Even if the University had taken that view of the regulation in a certain case, that being a plainly wrong view of the regulation, I would not allow it to be invoked in aid of the interpretation tried to be placed by the petitioner's counsel.
20. The case of Farooq Abdul Mannan, petitioner stands on a -much weaker footing. His father had served the University on deputation from 1972 F to 1983. Ii was during that period that the regulation was amended. Thus at the date of the amendment, he had hardly about a year's service at his credit. There was, therefore, no question of his becoming vested with a right.
21. For these reasons, the petitions are dismissed. The parties are left to bear their own costs.