' SAIDUZZAMAN SIDDIQUI, J.---We propose to dispose of above-mentioned 10 Civil Appeals, which are filed with the leave of this Court against the judgment of a learned Division Bench of the High Court of Sindh, dated 19-4-1995, by a common judgment as they are directed against the same impugned judgment. Leave has been granted in these appeals to consider the following contentions:-- Leave is granted in the abovementioned 4 petitions, inter alia, to consider whether the learned Judges of the High Court having reached the conclusion that the notification issued by the petitioners on 29-7-1990 under Bye-Law No,118 of the Chartered Accountants Bye-Laws being intra vires, were competent to partly strike it down on the ground that the numbers of attempts prescribed under the said notification were oppressive and against the public good and could further direct the petitioners to fix the said number not being less than 12. The interim order passed in the case on 25-7-1995 shall remain operative until disposal of these appeals. Appeals to be made ready on the present record with liberty to the parties to file such further documents as they may desire. The appeals shall be fixed for regular hearing on reopening of the Court after summer vacations.
2. Civil Appeals Nos. 1615, 1616, 1617' and 1618 of 1995 and 1088 of 1996 are filed by the Institute of Chartered Accountants of Pakistan (hereinafter to be referred as 'the Institute') and Council of the Institute of Chartered Accountants (hereinafter to be referred as 'the Council') against Federation of Pakistan and 192 private individuals, who are students within the meaning of section 2 (gg) of the Chartered Accountants Ordinance (Ordinance X of 1961) (hereinafter to be referred as 'the Ordinance'). The 192 private individuals, who are respondents in Civil Appeals Nos. 1615 to 1618 of 1995 and Civil Appeal No,1088 of 1996, are also appellants in Civil Appeals Nos.1078 to 1082 of 1996.
For the sake of convenience, we will hereinafter refer the private respondents in Civil Appeals Nos.
1615 to 1618 of 1995, 1088 of 1996 and appellants in Civil Appeals Nos.1078 to 1082 of 1996 as the respondents.
3. On 29th July 1990, the Council in exercise of the powers vested in it under bye-law No,118 of the Chartered Accountants Bye-Laws, 1983 (hereinafter to be referred to as the ' Bye-Laws') issued S.R.O. No,147 (KE)/90, dated 29th July, 1990 (hereinafter to be referred as 'the S.R.O.'), which was published in Gazette of Pakistan, Extraordinary, dated August 27, 1990. The S.R.O. Reads as follows:-- "S.R.O. 147(KE)/90: ' In exercise of the powers vested in it under Bye-Law 118, Chartered Accountants Bye-Laws, 1983, the Council of the Institute is pleased to notify as under:--
(i) New Entrants: ' Students whose Training Contracts are registered with the Institute on or after January 1, 1990 will be required to qualify full Chartered Accountants Intermediate Examination within one year of completion of their Training Contracts and the Chartered Accountant Final Examination within four years of completion of Training Contract.
(iii) Students who have not completed the Training Contract on or before January 1, 1990:
(a) Students who have not passed any examination of the Institute on or before January 1, 1990 will he required to pass Chartered Accountants Intermediate Examination within four years reckoned from January 1, 1990 or within one year of the completion of the Training Contract, whichever is later and Chartered Accountants Final Examination in 8 consecutive examinations recknoned after passing the Chartered Accountants Intermediate Examination.
(b) Students who have passed Chartered Accountants Intermediate Examination on or before January 1, 1990 will be required to pass Chartered Accountants Final Examination in 8 consecutive examinations recknoned after January 1, 1990.
(iii) Students who have completed Training Contract on or before January 1, 1990:
(a) Students who have not passed any examination on or before January 1, 1990 will be required to pass Chartered Accountants Intermediate Examination in 8 consecutive examinations reckoned after January 1, 1990 and will be required to pass Chartered Accountants Final Examination in 8 consecutive examinations after passing Chartered Accountants Intermediate Examination.
(b) Students who have passed Chartered Accountants Intermediate Examination on or before January 1, 1990 will be required to pass Chartered Accountants Final Examination in 8 consecutive examinations reckoned after January 1, 199(1"
4. The respondents, who were working as the trainees with some of the members of the Institute under training contracts, filed four separate identical Constitutional Petitions bearing Nos.593, 557, 556 and 678 of 1994 before the High Court of Sindh to question the validity of the S.R.O. The main grievance of the respondents in their petitions before the High Court was, that before issuance of the S.R.O. The respondents were entitled to avail of unlimited number of chances to clear the Intermediate and Final Examinations of Chartered Accountant (C.A.) which have now been restricted to 8 chances for the Intermediate Examination and another 8 chances for the Final Examination of the C.A. The contention of the respondents before the High Court was that under the Bye-Laws, the Council had no authority to fix the number of attempts for the students to clear the C.A. Examination. It was also contended before the High Court that the S.R.O. Could not be made applicable to the students who had joined the C..A. Course prior to issuance of the S.R.O., when unlimited numbers of chances to clear the C.A. Examinations were available to them. Another contention of the respondents before the High Court was that the restrictions to clear the C.A.
Examinations by the students within specified attempts could be prescribed only through a validly made Bye-Law in accordance with the provisions of the Ordinance while the S.R.O. Did not fulfil that test, and therefore, it was issued without lawful authority.
5. The Constitutional petitions filed by the respondents before the High Court were resisted by the Institute. It was contended on behalf of the Institute that on account of unlimited number of chances available to students to clear the Intermediate and Final Examinations of C.A, a sense of non-seriousness and casual approach towards the studies had developed amongst the students.
This also led to the accumulation of huge backlog at the Chartered Accountant Examination. To eliminate this non-serious attitude of the students towards their studies, the matter was examined in depth by Special Committee on Education and Training of Chartered Accountants consisting of outstanding personalities in the field of Accounting, Academics and Industries, which recommended limiting of number of attempts by the students in clearing the Intermediate and Final Examinations of C.A. The recommendations of the Special Committee were unanimously approved by a sub-committee constituted by the Council to study the recommendation of the Special Committee. The S.R.O. Was accordingly, issued in the light of the recommendations of the Special Committee approved by the sub-committee. It was argued before the High Court that the limiting of the number of attempts by the students to clear the C.A Examination was aimed at improving the standard of education in the field of Chartered Accountancy and to arrest the falling standard of education, which the Council was fully competent to do under the law.
6. The learned Division Bench of the High Court after hearing the learned counsel for the parties reached the conclusion that the S.R.O. Was intra vires but held that the S.R.O. Did not apply to students who were registered with the Institute before coming into force of the S.R.O. The learned Judges further found that the number of attempts allowed to the students to pass the Intermediate and final Examination of C.A. Should not be less than 12 and directed the Council to reconsider the matter in the light of these observations.
7. The respondents, the Institute and the Council feeling aggrieved by the above decision of the High Court, challenged the same before this Court in 10 separate petitions for leave to appeal in which leave was granted as aforesaid giving rise to the present appeals.
8. Mr. Fakharuddin G. Ebrahim, the learned counsel for the Institute and the Council, contended before us that the learned Judges of the High Court having reached the conclusion that the Council had the authority to issue the S.R.O., should have refrained from going further into the question whether the number of attempts fixed by it for the students to clear their Intermediate and Final Examinations of C.A. Was reasonable or not as it was sufficiently demonstrated to the Court that the notification was based on material which provided reasonable basis for limiting the number of attempts by the students to clear these examinations. It is contended by the learned counsel that by observing that the number of chances for clearing each of the Intermediate and Final Examinations should not be less than 12, the learned Judges assumed the role of the Council which was not permissible in exercise of their jurisdiction under Article 199 of the Constitution. The learned counsel further contended that the findings of the High Court that the S.R.O., did not apply to students who were registered with the Institute prior to the issue of S.R.O. Run contrary to the law laid down by this Court. Mr. Tanvir Bashir, the learned counsel for the Federation supported the contentions of Mr. Fakharuddin G. Ebrahim.
9. Mr. Rehanul Hassan Naqvi, the learned counsel for the respondents on the other hand, contended that by allowing unlimited chances to the students to pass the Intermediate and Final Examinations of C.A., no prejudice was caused to any one. The learned counsel very vehemently argued that the working conditions offered to articled clerk by the members of the Institute are such that the students hardly get any time for studies, and therefore, it was wrong to draw a parallel between the courses prescribed for studies in relation to C.A. Examination with other discipline of the University. The learned counsel contended that the ground realities were not kept in view while fixing the number of attempts to be allowed to students in clearing the two examination of C.A. Which caused great prejudice to the students. It is also contended by the learned counsel that the respondents having joined the C.A. Courses at a time when no limitation as to the number of attempts to clear the two examinations of C.A. Existed, the S.R.O. Could not be made applicable to them. It is further contended that the S.R.O. Was ultra vires as the mechanism prescribed under the Ordinance for framing bye-laws was not followed by the Council in issuing the S.R.O.
10. The Institute was established under the Ordinance which was promulgated on 10-3-1961. The provision of the Ordinance came into effect on 1st July 1961, when the notification was issued by the Federal Government under section 1(3) of the Ordinance. Under section 15 of the Ordinance, the duty to carry out the purposes of the Ordinance is placed on the Council. Section 27 of the Ordinance vests the Council with powers to frame bye-laws for the purposes of carrying out the objects of the Ordinance. Section 27 of the Ordinance reads as follows:-- "27.---(1) The council may, by notification in the official Gazette, make bye-laws for the purpose of carrying out the objects of this Ordinance, and a copy of such bye-laws shall be sent to each member of the Institute.
(2) In particular, and without prejudice to the generality of the foregoing power, such bye-laws may provide for all or any of the following matters:--
(a) the standard and conduct of examinations under this Ordinance;
(b) the qualifications for the entry of the name of any person in the Register;
(c) the conditions under which any examination or training may be treated as equivalent to the examination and training prescribed for the membership of the Institute;
(d) the conditions under which any foreign qualifications may be recognised;
(e) the manner in which and the conditions subject to which applications for entry in the Register may be made;
(f) the fees payable for membership of the Institute and the annual fees payable by associates and fellows of the Institute in respect of their certificates;
(g) the manner in which elections to the Council and the Regional Committees may be held;
(h) the particulars to be entered in the Register;
(i) the functions of Regional Committees;
(j) the training of articled and audit clerks, the fixation of limits within which premia may be charged from articled clerks and the cancellation of articles and termination of audit service for misconduct or for any other sufficient cause;
(k) the regulation and maintenance of the status and standard of professional qualifications of members of the Institute;
(I) the carrying out of research in accountancy;
(m) the maintenance of a library and publication of books and periodicals on accountancy;
(n) the management of the property of the Council and the maintenance and audit of its accounts;
(o) the summoning and holding of meetings of the Council, the times and places of such meetings, the conduct of business thereat and the number of members necessary to form a quorum;
(p) the powers, duties and functions of the President and the Vice-President or Vice-Presidents of the Council;
(q) the functions of the Standing and other Committees and the conditions subject to which such functions shall be discharged;
(r) the terms of office, and the powers, duties and functions of the Secretary and other officers and servants of the Council;
(s) the rules of professional and other misconduct, and the exercise of disciplinary powers; and
(t) any other matter which is required to be or may by prescribed under this Ordinance.
(3) All bye-laws made by the Council under this Ordinance shall be subject to the condition of previous publication and to the approval of the Central Government.
(4) Notwithstanding anything contained in subsections (1) and (2) the Central Government may frame the first bye-laws for the purposes mentioned in this section, and such bye-laws shall be deemed to have been made by the Council, and shall remain in force from the date of the coming into force of this Ordinance, until they are amended, altered or revoked by the Council."
11. Keeping in view the provisions of section 15 of the Ordinance and the extent of powers conferred on the Council to frame bye-laws to carry out the purposes of the Ordinance, it was well within the competence of the Council, if it was of the view, after taking into consideration the relevant factors, that in order to maintain and improve the standard in the field of education and training of Chartered Accountants, it was necessary to provide reasonable restrictions in the number of chances to be availed by the students to pass the Intermediate and Final Examinations of C.A. Such decision of the Council was not open to review by the High Court under Article 199 of the Constitution except on ground of lack of jurisdiction, excess of jurisdiction or arbitrariness. The learned Judges of the High Court, however, found that provisions of the S.R.O. Were not applicable to students who were registered with the Institute prior to 28-7-1990, the date on which the S.R.O.
Was issued. This conclusion of the learned Judges of the High Court does appear to be correct.
There was no question of retrospective operation of the S.R.O. The S.R.O. Having been enforced on 29-7-1990, applied to all examinations, held after its enforcement. The students having joined, the Institute before coming into force of the S.R.O. Cannot claim any vested right to be governed by the practice followed before the issuance of S.R.O. The point was directly considered by this Court in the cases reported as Miss Sultana Khokhar and others v. The University of Punjab (PLD 1962 SC 35) and Saeed Ahmed v. Controller of Examinations (1996 SCM R 792).
' In the first mentioned case, the validity of the amended Statute No,21 of the University of Punjab, which changed the standard of examination by increasing the qualifying marks for B.Sc. Hons.
Courses. Was challenged on the ground that at the time the petitioners in that case had joined the course, the minimum marks required to pass the examination were less, therefore, they had the vested right to be governed by the same standard which was prevailing when they joined the course. The contention was repelled as follows:-- "The second ground of attack is that the Statute is sought to be enforced with retrospective effect and that the University is in its enforcement acting in a discriminatory manner, for, it was not applied in the case of examinees who appeared in the examinations held in 1960. So far as the charge of discrimination is concerned, the written statement of the University discloses that the examinations of 1960 had actually commenced on the 9th of May, 1960, some four days before the amended Statute received the assent of the Governor. Hence on the representations of the students it was decided that their cases would not be governed by the amended Statute, inasmuch as the examinations had already commenced under the unamended Statute. This was, in our opinion, a valid, legitimate and reasonable ground of.Differentiation and not a case of unfair or discriminatory application of the statute to examinees equally situated. No such excuse exists in the case of the present petitioners, for, the amended Statute came into operation even before the present petitioners embarked upon their final year of study. Hence it cannot be said that the University has either applied the amended Statute in a discriminatory fashion or that it has applied it retrospectively. The present petitioners had ample notice before they commenced their course of studies for the final year of the B.Sc. Honours School that they would be examined in the examinations in accordance with the amended Statute. If they did not wish to be governed by the amended Statute, they were free not to take up that course or not to offer themselves for examination at the end of the course.
' Before parting with this matter we would like to add that in spite of a careful examination of the provisions of the Punjab University Act and the Statute framed thereunder we have not been able to discover therefrom anything which would support the right sought to be asserted in this case. To uphold such a right would amount to placing an impossible burden upon the University, for, then it may well have to conduct different examinations upon different standards in each year in respect of the same degree for different students or groups of students in accordance with the Statutes, Ordinances and Regulations prevailing on the dates of their respective admissions, even though the same may have long since been validly altered in accordance with the provisions of the Act.
This could never have been the intention of the framers of the Punjab University Act. We have no hesitation, therefore, in coming to the conclusion. That no such vested right exists in the examinees which can be enforced by a writ of mandamus."
' In the second noted case, the petitioner was admitted to M.Sc. Zoology Part-I in the Bahauddin Zakaria University for the year 1989-90. He made 3 attempts but failed to clear the annual examination. Before he could make the fourth attempt, which was allowed under the old regulation, the relevant regulation was amended and he was debarred from appearing in annual examination. The amended regulation was challenged on the ground that at the time the petitioner joined the course, he was allowed under the regulation then enforced 4 chances and therefore, the amended regulation could not apply retrospectively. The contention was repelled relying on the case of Miss Sultana Khokhar (supra) as follows:-- "The contention, however, appears to be completely devoid of force. Universities in Pakistan have been vested with powers to regulate the conduct of examinations and undisputably a complete autonomy is enjoyed by them in this regard. The relevant Regulation No,18(b) no doubt had earlier made such candidates eligible to appear in a subsequent examination as private candidates who have failed to clear the examination previously in three attempts, but the said Regulation was amended after approval was given by the Syndicate of the University for its amendment and the permission to allow a fourth attempt to such .Candidates to appear as private candidates was withdrawn. It is, however, pertinent to point out that, admittedly, the amendment in question had come into force before the petitioner had made a third attempt. It, therefore, cannot be said that, the petitioner was taken by surprise as he had no knowledge in respect of the said amendment. In the case of Sultana Khokhar, referred to earlier in this judgment, the Supreme Court had observed: ' No such excuse exists in the case of the present petitioners, for, the amended statute came into operation even before the present petitioners embarked upon their final year of study. Hence it cannot be said that the University has either applied the amended statute in a discriminatory fashion or that it has applied it retrospectively. The present petitioners had ample notice before they commenced their course of studies for the final year of the B.Sc. Honours School that they would be examined in the examinations in accordance with the amended statute. If they did not wish to be governed by the amended status, they were free not to take up that course or not to offer themselves for examination at the end of the course.'
' However, in any case, the petitioner cannot claim any vested right to be governed by the said Regulation, as it originally was, throughout his career, till he cleared the said examination.
Sometime amendments in the regulations of Universities become necessary to improve standards of excellence of different course. With ever-increasing number of students and limited resources, the Universities have been found more keen to provide better opportunities to more deserving students. Therefore, recognition of any such right may create insurmountable problems for the Universities and may also arrest the process of improvement which may be undertaken by them.
We, therefore, find that the judgment of the Lahore High Court is not open to exception."
12. We are, therefore, unable to agree with the learned Judges of the High Court that the S.R.O. Did not apply to the students who were registered with the Institute prior to 29-7-1990, the date on which S.R.O. Was issued.
13. The learned Judges of the High Court were also of the view that the fixing of 8 chances for clearing each of the two examinations of C.A. Was oppressive and against the public good, and therefore, they set aside the same and directed the Council to re-examine the matter but should not fix the chances to be availed by the students at a number which is less than 12 in respect of each of the two examinations of the C.A.
The learned Judges having found the decision of the Council fixing the number of chances for the students to clear the two examinations of the C.A. Intra vires, they should not have travelled in the domain of policy matter of the Council which required consideration of various factual aspects of the case. The learned Judges while examining the above controversy in exercise of their jurisdiction under Article 199 of the Constitution could not act as a Court of Appeal against the decision of the Council, so as to entitle them to substitute their conclusions for that of the Council.
14. The jurisdiction of the High Court under Article 199 of the Constitution to interfere with the exercise of power by the Council under the Ordinance could only be justified on the ground that the Council in issuing the S.R.O. Had acted against the mandate of law (without jurisdiction) or in excess of the mandate of law (in excess of the jurisdiction) or the decision of the Council was arbitrary and devoid of any basis.
15. The decision by the Council in the present case to restrict the number of chances for a student to pass the Intermediate and final examinations of C.A. Was a matter of policy to regulate and maintain the standard in the field of education and training of Chartered Accountants. This decision was arrived at by the Council after taking into consideration the report of a Special Committee constituted by the Institute and the recommendations of the sub-committee appointed by the Council to study the report of Special Committee. The Institute has placed before us the copy of the report of the sub-committee appointed by the Council to consider the report of Special Committee which is the basis for issuance of the S.R.O. By the Council. From the report of sub-committee, it appears that a Special Committee consisting of experts in the filed of accountancy, academics and industries, was constituted by the Institute to undertake an in-depth study of various aspects of education and training of Chartered Accountants and to submit its recommendations to carry out reforms in connection therewith, in 1985. After deliberating on the matter for about 2 years, the Special Committee submitted its report to the Council in November, 1987. This report was widely circulated and suggestions were invited on the report to consider the responses received to the report of Special Committee, a sub-committee was constituted by the council which organised seminars/workshops on the report of Special Committee, at Karachi, Lahore and Rawalpindi/Islamabad and in the light of these deliberations the sub-committee formulated its recommendations to the Council in 1989. It is, therefore, quite clear that the S.R.O.
Was issued by the Council after the matter was considered at different levels for about five years.
We are also of the view that reasonable justification existed before the Council for fixing 8 chances for the students to clear each of the two examinations (Intermediate and final of the C.A.).
Therefore, the decision of the council fixing 8 chances for students to clear the Intermediate examination and another 8 chances to pass the Final Examination of C.A. Could not be interfered with by the High Court on merits, in exercise of its jurisdiction under Article 199 of the Constitution.
The contention of the respondents that C.A. Trainees may not be treated at par with students of other disciplines of a University as they work under very oppressive conditions with their principals and get very little time to devote to their studies, has not impressed us. Rules 97 to 108 of the Rules deal with the admission and training of the students of the C.A. These rules provide a mandatory period of continuous four years of training for every student with a principal if he is a commerce graduate, or holds an equivalent qualification approved by the Council, or is a member of the Institute of Cost and Management Accountants of Pakistan or M.B.A. Or B.B.A. And five years' training if he is a graduate in other subjects. The C.A. Trainees unlike students of other disciplines are not required to pay any premium either at the time of registration of the training contract or during the course of the training to their principal. On the contrary, the principal with whom the students work during training course, pays certain amount by way of stipends to the trainees during the training period. The courses prescribed for the students of C.A. Lay more stress on practical training as is evident from the above-referred Rules. The practical training of students being a part of the course of C.A., the respondents cannot justifiably make a grievance against the time they are required to spend on such training. It is not disputed before us that in number of Educational Institutions similar provisions restricting the number of attempts by the students to clear examinations, exist in the prospectus. In the case of Akbar Ali Javed v. Principal, Qudid-i- Azam Medical College (1994 SCM R 532), the validity and constitutionality of a provision in the prospectus of Quid-i-Azam Medical College, Bahawalpur, which provided that a student who failed to clear the 1st Professional M.B.,B.S. Examination in four attempts was not entitled to continue his studies any further was examined and it was held as follows:-- "The above rule being the part of the prospectus for the academic year 1986-87, under which the appellant was admitted to M.B.,B.S. Classes, his right to continue his studies was governed by that rule. The appellant having availed four clear chances to clear his First Professional M.B.,B.S. Examination, and failed, could not claim any right to continue his studies in views of the abovementioned rule. The learned counsel for the appellant is unable to show that the above- quoted rule contravened or came in conflict with any provision of law made applicable to the respondent's institution. The learned counsel for the appellant is also unable to demonstrate that the above-quoted rule contravened any of the fundamental rights guaranteed under the Constitution. The right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution, and therefore, a student who intends to pursue his studies in the institution is bound by such rules. The above- quoted rule, in our view, does not infringe upon the right of a student to pursue his studies in the Medical College. On the contrary it ensures arrest of falling standards of education in such institution. We, therefore, do not find any arbitrariness or unreasonableness in the aforesaid rule."
' The above decision was cited with approval in the case of Khan Bahadur v. Principal, Ayub Medical College, Abbottabad (1996 SCMR 1102).
16. The learned counsel for the respondents have, however, contended that the Council has no power to restrict the numbers of chances to be availed by the students to clear the Intermediate and Final Examination of C.A. Through any administrative order or policy decision. Such power, if 1t all available to Council, the learned counsel contended, could only be exercised in accordance with the provisions of section 27 of the Ordinance. It is accordingly argued that the S.R.O. 167 (KE)/93, dated 9-6-1993, issued by the Council was invalid. The learned counsel for the Institute and the Council on the other hand contended that the power to restrict, the chances for the student to clear the two examinations of the C.A. Was conferred on the Council under Bye-law No,118, and therefore, exercising of this power by the Council was not subject to the provisions of section 27 of the Ordinance.
17. The contention of the learned counsel for the respondents, in our view, is not without force. We have already reproduced section 27 of the Ordinance which confers power on the Council to frame bye-laws for the purposes of carrying out the object of the Ordinance. Section 27(2)(a) (ibid) authorises the Council to frame bye-laws which may provide for standard and conduct of examination under the Ordinance. It has been the consistent stand of the Institute and the Council in these proceedings that the provision restricting the chances for the students to clear the Intermediate and Final Examination of C.A. Was aimed at improving and maintaining the standard and training of education in the field of chartered accountancy. Therefore, in our view, such provision could only by made through framing of appropriate bye-laws as prescribed under section 27 of the Ordinance. Bye-Law 118 relied upon by the learned counsel for the Institute and the Council reads as follows: "118. Failure of candidates at examinations.--- A candidate who has failed to pass the Intermediate or Final Examination or a group of Intermediate or Final Examination may offer himself again for that examination or group of examinations, as the case may be, on any subsequent occasion or occasions in such manner as may be prescribed by the Council provided that a candidate who is successful in all papers except in one paper of Intermediate or Final Examination or a group or groups thereof in the examination held in May, 1981, or thereafter may be referred and allowed to take that paper again instead of re-appearing in all the papers: Provided further that a candidate who is eligible under the foregoing proviso for being referred shall be permitted two attempts which shall be at the two immediately succeeding examinations."
18. The main Bye-Law No,118 provides that a candidate who has failed to pass the Intermediate or Final Examination, may appear in the examination on any subsequent occasion, in the manner prescribed by the Council. The first proviso to Bye-Law 118 provides that a candidate who is successful in all except one paper of Intermediate or Final Examination or group or groups thereof, in the examination held in May 1981 or thereafter, may appear only in the paper in which he failed instead of appearing in all papers. However, the chances to clear suck examination are restricted to only two attempts at the two immediately succeeding examinations ,under the second proviso to Bye-Law 118. Similarly under Bye-Laws 120 a student seeking admission to the Entrance Examination of the Institute is allowed only two attempts to pass the Entrance Examination. It is, therefore, quite clear that wherever, the Council was of the view that it was necessary to restrict the number of attempts/chances by a student to clear certain examination under the Ordinance, it so provided through the bye-laws. The restriction of chances/attempts by a student to pass the Intermediate and Final Examination of C.A. Being directly connected with the maintenance of standard of training and education in the field of chartered accountancy it could only be provided by the Council through a bye-law framed in accordance with the provisions of section 27 of the Ordinance. Even otherwise under Bye-Law No,118, the manner in which a failed student may offer on subsequent occasion in the examination is to be ,prescribed by the Council. The use of expression "prescribed" in Bye-Law 118 is significant as this expression is defined in section 2(1)(e) of the Ordinance as follows: "'Prescribed' means prescribed by the bye-laws of the Institute; "
19. Therefore, from whatever angle, we may examine the controversy, the consequence is inescapable that a Council could only prescribe the restriction of chances/attempts by the students to clear the Intermediate and Final Examinations of C.A. Through a validly framed bye-law in accordance with the provisions of section 27 of the Ordinance. The conditions for validity of a byelaw under section 27(2) of the Ordinance are, the previous publication of byelaw and its approval by the Government. The S.R.O. 167(KE)/93, dated 9-6-1993 which restricted the chances/attempts by the students to clear the Intermediate and Final Examinations of 'C.A. Did not meet the conditions prescribed under section 27 of the Ordinance, and therefore, it was invalid. We accordingly allows C.As. 1078 to 1082 of 1996 and declare the S.R.O. 167(KE)/93 dated 9-6-1993 as invalid. As a consequence, C.As. 1615 to 1618 of 1995 and 1088 of 1996 fail which are dismissed accordingly. No order as to costs.
(Sd.)
Saiduzzaman Siddiqui, J.
' I agree and have added my conclusion.
(Sd.)
Wajihuddin Ahmed, J.
' WAJIHUDDIN AHMED, J.---I have had the advantage going through the judgment proposed in these cases by my Lord, the Senior Puisne Judge, Saiduzzaman Siddiqui, J., I entirely concur that SRO 167 (KE/93 did not satisfy due requirements of law. I also, respectfully, agree that, on the principles discussed, the council may have acted in the larger interests of the Institution. At the same time, though, if and when the Council takes up the matter again, it should address itself, inter alia, to the aspect that, unlike other educational institution, once having completed the training, the students, pursuing the chartered accountancy course, do not block the seats or positions of new entrants nor entail any further expense on the pursuit. Much the same way, it may also need to be examined whether, by unnecessarily restricting the attempts to take, F in particular, the Final Examination, the standard of the examinees may not suffer by introduction of unfair means, in the face of a requirement to qualify within the prescribed and targeted number of attempts. Relevant in this behalf, as opined by the High Court, may also be the methodology in vogue in the Indian Union. In accordance, my concurring note, as to the vires of the impugned notification, follows: On the question of the impugned Notification bearing No,SRO 147 (KE)/90, dated 29-7-1990, being intra vires or otherwise the High Court, while holding the same to be competent and lawful, has not adequately considered the applicable provisions. Thus, the Chartered Accountants Ordinance, 1961, unless there be anything repugnant in the subject or context, in terms of section 2(e), defines "prescribed" to mean "prescribed by the Bye-Laws of the Institute" section 15(1) thereof envisages that the duty of carrying out the provisions of the Ordinance shall be vested in the Council (of the Institute of Chartered Accountants) whereas section 15(2) without prejudice to the forgoing generality, particularises the functions of the Council, amongst other things, to include examination of the candidates for enrolment and prescribing of fees therefor, regulation of the engagement and training of students and maintenance of the status and standard of professional qualifications of the members of the Institute. Further powers, besides, can be conferred on the Council by the Federal Government. Section 27(1) of the Ordinance, in turn, empowers the Council, by notification in the official Gazette, to make Bye-Laws for the purpose of carrying out the objects of the Ordinance and such Bye-Law, per section 27(2), without prejudice to the generality of powers in section 27(1), inter alia, may provide for matters, such as the standard and conduct of examinations, training of students, suspension of the training for misconduct or for any other cause, regulation and maintenance of the status and standard of professional qualifications of the members of the Institute and other matters which are required to be or may be prescribed under the Ordinance. Subsection (3) of section 27 makes the Bye-Laws framed by the Council, to be "subject to the condition of previous publication and to the approval of the Federal Government". In other words, the Bye-Laws even if squarely covered within the four corners of the powers' duties or functions of the Council, are conditioned by a previous publication and approval of the Federal Government.
' The Chartered Accountants Bye-Laws, 1983, were framed pursuant to subsection (1) of section 27 of the Ordinance by the Council of the Institute of Chartered Accountants of Pakistan with due approval of the Federal Government. In such Bye-Laws, Bye-Law 111, under the sub-heading, "Time and Places of Examinations" provides that "all examinations shall be held twice a year at such times as the Examination Committee may from time to time direct and at such place or places as it shall from time to time appoint". Bye-Law 118, which is relevant for our purposes here, because it is under that bye-law that the impugned notification was issued, in extenso is this:- "118. Failure of candidates at examination. ---A candidate who has failed to pass the Intermediate or Final Examination or a group of Intermediate or Final Examination may offer himself again for that examination or group of examinations as the case may be, on any subsequent occasion or occasions in such manner as may be prescribed by the Council: ' Provided that a candidate who is successful in all papers except in one paper of Intermediate or Final Examination or a group or groups thereof in the examination held in May, 1981, or thereafter may be referred and allowed to take that paper again instead of re-appearing in all the papers: ' Provided further that a candidate who is eligible under the foregoing proviso for being referred shall be permitted two attempts which shall be at the two immediately succeeding examinations."
As already 'seen, the impugned notification, while there existed no restrictions as to the number of attempts a student may make for clearing the Intermediate and Final Examinations, introduced and specified the number of such attempts in the various situations, contemplated by the notification. The first question, which arises is whether such a power could be exercised by the Council of the Institute within the ambit of the expression "A (failed) candidate...May offer himself again for that examination or a group of examinations, as the case may be, on any subsequent occasion or occasions in such manner as may be prescribed by the council". It has been seen that Bye-Law 111 provides for continuous holding of all examinations "twice a year", which when read with the word "again" occurring in Bye-Law 118 and the ensuing phrase "at any subsequent occasion or occasions" 'would suggest an accruing entitlement for students failing in the Intermediate or final examinations to avail of subsequent attempts interminably in'the examinations held from time to time. The concluding and, allegedly, controlling words "in such manner as may be prescribed by the Council" are themselves circumscribed by the word "manner", which literally means a particular way, style, fashion etc, and thus may have a nexus with the form or format of the examinations rather than with the number of attempts a student may be entitled to make. As already pointed out, the significant words in the operative part of Bye-Law 118 are denoted by the expressions "again" and "any subsequent occasion or occasions". Those aspects are either amplified or curtailed by the two provisos, occurring in Bye-Law 118 itself, the first proviso contemplating that, in specified circumstances, a failed student may be referred and allowed to take only such paper again in which he had failed instead of reappearing in all the papers and the second proviso conditioning the number of such attempts to the extent of "the two immediately succeeding examination", suggestive of the fact that if a student fails thereafter, he would be expected to offer all the papers rather than the single one or ones, which he had failed to clear. Likewise, Bye-Law 120(2), where the intention was to curtail the number of attempts, is specific in providing that only two attempts shall be allowed to pass the Entrance Examination and a candidate who fails to pass in such two attempts shall not be permitted to reappear in that examination. Similarly, under Bye-Law 121, pertaining expressly to Intermediate Examinations, the right to appear in the same in terms of Bye-Laws 111 and 118, is made subject to a preclusion, as contemplated, pertaining to specified period (s) of training. Not differently, in terms to Bye-Law 124 (2), relevant to Final Examinations, for candidates who have passed the Intermediate Examination, subject to such conditions as are reflected in Bye-Law 124(1), candidates are shown eligible to appear at the Final Examination immediately after the next final examination, without any restrictions as to the number of such successive examinations in cases of failure.
' The foregoing analysis makes it manifest that on such vital matters as relate either to controlling the right to appear and taking a particular examination or to confer a continuing right the Bye- laws are designedly specific, particularised and elaborate. It is, therefore, arguably the procedure which may be regulated and the manner and form which may be controlled by the general expressions such as are denoted by the words, "in such manner as may be prescribed by the Council" occurring in Bye-Law 118.
' There is yet another way in which the subject may be approached. As already noticed, the word "prescribed" stands defined by section 2 (e) of the Ordinance. It is, therefore, to be expected that wherever such word occurs either in the Ordinance or in the bye-laws framed thereunder, the same, unless there be repugnancy in the subject or context, would signify only that which is in the contemplation of the definition and stands translated in the Bye-Laws framed and promulgated in the manner visualised in the Ordinance. This could, in the scheme of things, possibly, impart a broader meaning to the word "manner" but a more restricted ambit to the word "prescribed". To put .It differently, the council would be within the scope of its authority if it makes and promulgates a bye-law expressly curtailing the number of attempts permitted to a student for offering the Intermediate or the Final Examinations much as has been postulated relevant to the Entrance Examination visualised by Bye-Law 120. Short of that, by merely issuing a notification under Bye- Law 118, such serious things, as the other bye-laws have widely provided for, cannot be curtailed.
This would involve supplanting a subordinate legislation by a mere administrative act, which law does not countenance. Here, though, it may be added that the word "precribed" may have been used in a loose sense, as Bye-Laws 115 and 124 (3) may perhaps suggest. Even if that be so, two aspects of the matter shall have to be contended with: firstly, a legislatively defined word cannot be lightly used in a subordinate legislative measure, and secondly, even if the laxity is overlooked, it cannot be allowed to travel into a field, introducing a penalty or disability, the last of which precisely seems to have occurred pursuant to the impugned notification. The conclusion, therefore, is that the notification impugned in these proceedings has travelled beyond the scope of authority and is incapable of being sustained.
' What is more, a very serious matter has being adverted to in the notification. Realising the imjplications, the Council itself undertook an apparently well-studied exercise. There was no reason or justification, therefore, not to publicise the outcome and to obtain the requisite prior approval of the Federal Government which, having approved the Bye-Laws, as they already stand, should have expected that such a cruical matter would not be given a final shape without its having been taken into confidence and made privy to the outcome. The conclusion, whichever way one may look, is the same namely, that the Council has, in issuing the impugned notification, overtaken the rule- making function through a mere executive act and, above all, has totally bypassed the Federal Government, neither of which was legally permissible.