' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by Rai Mazhar Iqbal and another, who are private students of M.Sc. Part-I (Mathematics), against the University of Punjab and two otheRs, praying that the decision of the respondents to hold separate examinations and prescribe separate syllabus for regular and private students of M.Sc. Part I (Mathematics) declared to be without lawful authority and of no legal effect.
2. The facts which have emerged from the respective contentions of the learned counsel for the petitioneRs, and which are not in dispute, are that till the year 1969, no private student was permitted by the University to what at that time was known as MA. Mathematics Examination. It appeaRs, that in the year 1969, the syllabus was revised and the examination was re-named as M.Sc. (Mathernatices). In 1979 again, new syllabus was prescribed but even at that time there was prohibition for private students to appear in the examination. It was for the fiRs,t time on 16th May, 1987 that the University decided to allow private students to take the examination. However, the syndicate of the University of the Punjab in its meeting held on 14th April, 1984, approved the recommendation of the academic counsel to the effect that the private candidates be allowed to take M.Sc. (Mathematics) Part I and Part II new scheme examination. Consequently, the private students were allowed to appear in the same examination which was prescribed for the regular students. On 2nd November, 1989, a notification was issued by the University of the Punjab, whereby a different syllabai and couRs,es for Reading M.Sc. (Mathematics) examination was prescribed for private candidates who were required to take examination separately from the regular students.
This decision of the University was challenged by the petitioner by filing Writ Petition No,618/90 which was, however, disposed of with the direction that the petitioner should fiRs,t approach the Vice-Chancellor of the University of Punjab by filing a representation, which shall be disposed of before 10th August, 1990.
3. It appeaRs, that the Vice-Chancellor did net accept the representation made by the students.
Consequently, another constitutional petition, namely, Writ Petition No,6260/91 was filed in this Court which came up before the learned Single Judge on 12th September, 1990, when it was stated by Ch. Muhammad Farooq, learned Legal Adviser of the respondent that the impugned notification respecting MA (Mathematics) examination has been withdrawn. In view of that statement, the petition was not pressed by the petitioner, which was disposed of accordingly.
4. Unfortunately, despite having made the above statement in this Court, it was again decided by the University on 24th September, 1991, to hold separate examination for the regular and private candidates and separate syllabi for regular and private students. This notification dated 24th September, 1991, has been assailed in this petition.
5. It is argued by the learned counsel for the petitioneRs, that after having withdrawn the earlier notification unreservedly by making a statement before this Court, it was clearly not open to the respondents' to again issue a notification to the same effect. It was further contended that the exercise undertaken by the respondents is mala fide besides being unfair, unjust, discriminatory and unreasonable.
6. It may be observed to the credit of Ch. Muhammad Farooq, learned counsel appearing for the respondents that in his opinion the action of the University in prescribing separate examination and different syllabi for regular and private candidates was not justified. He, however, put across the view of respondent No,2 according to whom the action was unexceptionable.
7. The University of Punjab was reconstituted and reorganized in the year 1973 by promulgation of University of Punjab Act, 1973. Under Section 4 of the Act, the University is inter alia empowered to hold examinations, to prescribe couRs,es of studies and to award and confer degrees on successful candidates. Section 27 of the Act envisages the setting up of an academic council.
Section 28 empoweRs, the council to lay down proper standards of instructions and examinations.
It is stated in subsection (4) of section 28 that the academic council shall have power inter alia to make regulations to prescribe the couRs,es of studies, the syllabi and outlines of test for all University examinations.
8. It needs no gainsaying that the objective behind all these provisions is to lay down proper standards for testing the proficiency, knowledge and skill of candidates. It is with this view that the syllabi are prescribed by the academic council on behalf of the University. Although, according to the language of the statute and so in view of the nature of the power, the discretion vesting in the respondents for prescribing the couRs,es of studies for the students, is wide and vast and this Court would normally be reasonably loath, to interfere in such matteRs, but like any other administrative authority or agency, the University while performing its functions is bound to act fairly, justly, properly and rationally.
9. In Aman Ullah Khan and otheRs, v. The Federal Government of Pakistan, through Secretary, Ministry of Finance, Islamabad and otheRs, (PLD 1990 SC 1092), the Supreme Court of Pakistan was pleased to observe that:- "Wherever wide worded poweRs, conferring discretion exist, there remains always the need to structure the discretion. The structuring of discretion only means regularising it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, the wide worded conferment of discretionary poweRs, or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression, in the fiRs,t instance but where the authorities fail to rationalise it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."
' To the same effect are the observations of the Supreme Court in Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14) and Muhammad Iqbal Khokhar and 3 otheRs, v. Government of the Punjab through the Secretary to Government of the Punjab, Lahore and two otheRs, (PLD 1991 SC 35).
10. It is also well-settled in law that the action taken by an executive. Authority must fulfil the test of reasonableness. If it can be demonstrated that the discretion vesting in authority has been exercised unreasonably or irrationally, the order passed or the action taken is liable to be struck down. In Federation of Pakistan and otheRs, v. Ch. Muhammad Aslam and otheRs, 1986 SCM R 916 it was ruled that it is well recognised that all executive poweRs, are to be exercised fairly and justly for advancing the object of legislation. In other words, every such exercise of power has to be exercised fairly and justly, for the advancing the object of legislation. In other words, every such exercise of power has to satisfy the test of reason and relevance.
11. The following statement of law, appearing in Administrative Law by H.W.R. Wade Sixth Edition at page 39 is of relevance:- "An extensive repertory of similar statements is to be found in the speeches of the Law Lords in Roberts v. Hopwood, a celebreted case where the whole issue revolved round reasonableness. The district auditor had disallowed as 'contrary to law' the overgenerous wages paid by the Borough Council of Poplar to their employees under an Act empowering them to pay such wages as they 'may think fit'. What limit should the law set to this apparently unbounded discretion. In upholding the auditor the House of Lords decided unanimously that the Council were not at liberty to pay more than, what was reasonable in the light of rates of wages generally. Lord Sumner said that the words 'as they think fit' contained a necessary implication both of honesty and of reasonableness, and that the admitted implication as to bad faith was wide enough to include both. This is precisely what Lords Macnaghten had said. Lord Sumner added: ' There are many matteRs, which the Courts are disposed to question. Though they are the ultimate judges of what is lawful and what is unlawful to borough councils, they often accept the decisions of the local authority simply because they are themselves ill-equipped to weigh the merits of one solution of a practical question as against another. This, however, is not a recognition of the absolute character of the local authority's discretion, but of the limits within which it is practicable to question it."
12. Viewed in the light of the above principles, it is to be seen that no rational basis has been disclosed by the respondents for prescribing different syllabi and different examination for regular and private students. As already observed, the objective behind the examination is to test students' knowledge and proficiency, so as to find out whether they have acquired an accepted standard. It is not unders tandable as to why different standards should be prescribed for private and regular candidates when the degree to be conferred upon them is the same. Even the learned counsel for the respondents is unable to explain the reasons. It appeaRs, that the decision is whimsical and discriminatory and unreasonable. It is also hit by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
13. It is also to be noticed that in the earlier writ petition bearing No,36/90, filed by the petitioneRs, the respondents had withdrawn the notification impugned therein by virtue of which separate couRs,es have been prescribed for regular and private students. Unfortunately, for reasons best known to those in authority, the same decision appeaRs, to have been taken again without any change in circumstances. The impugned decision is, therefore, clearly not sustainable.
' As a result of what has been said above, this petition is allowed and the impugned notification to the extent it prescribes separate examination for regular and private candidates, is declared to be without lawful authority and of no legal effect.
There shall be no ordeRs, as to costs.