' This judgment will dispose of Writ Petitions Nos.24330, 24921 and 24999 of 1998 since common questions of law arising out of almost similar facts, are involved.
2. Each of the petitioners, after passing F.Sc. Pre-Engineering Examination applied for admission to the respondent University to B.Sc. Engineering Course for the Sessions 1998-99 which is known and referred to as "Entry 1999". Commencing from "Entry 1999", the respondent University prescribed an eligibility test and each of the candidate was required to pass the eligibility test with 50% marks.
The candidate who failed to pass this test, was not eligible to be admitted, notwithstanding his performance in Secondary School and Higher Secondary School Examinations or even B.Sc.
Examination. The petitioners took the Entry Test on 1-10-1998 and could not pass the same. These petitioners have therefore, filed these petitions to question the provision of Entry Test with the prayer that the holding of such a test on 1-10-1998 be declared as without lawful authority and of no legal effect.
3. The principle ground urged in these petitions is that the provision of Entry Test if without legal backing as the respondent University did not amend/add to the Regulation touching the admission into the course. It was pleaded that the Regulation was approved by the Academic Council on 24- 7-1998 and by the Syndicate on 27-10-1998, much after the insertion of the same in the Prospectus and after holding of the test on 1-10-1998. Some other grounds have been taken which will be examined hereinafter.
4. In the report and parawise comments, the respondent University has refuted the above assertion and has stated that the provision of Entry Test was recommended by the Academic Council in its meeting held on 3-3-1998 and was approved by the Syndicate on 18-4-1998, vide Annexures III and IV attached with the comments. It is explained that the decision of the Academic Council, dated 27-10-1998 and approval of the Syndicate, dated 27-10-1998 do not relate to the provision of Entry Test but to the subject of weightage and to the situation arising in pursuant to the judgment of this Court, dated 3-8-1998 passed in Writ Petition No,29967 of 1997.
5. During the course of hearing Mr. A.K. Dogar, Advocate alongwith other learned counsel for the petitioners reiterated the above submission. He has explained that till 1997, the admission into the course was granted on the basis of merit obtained in F.Sc./B.Sc. Examination. For the purpose of admission in 1997-98, the University introduced a system of weightage by which marks obtained by candidates in matriculation examination were also to be considered for purposes of preparing the merit list. Exclusive reliance on the marks obtained in F.Sc./B.Sc. Was done away with This change was challenged in Writ Petition No,29767 of 1997 which was allowed by this Court on 3-8-1999. It is the case of Mr. A.K. Dogar, Advocate, that in pursuance to the above judgment the Academic Council and Syndicate changed the Regulation for admission on 24-10-1998 and 27-10-1998 when the Entry Test had already been held on 1-10-1998. It is argued that the decision, dated 24-10-1998 and 27-10-1998 could not have been made applicable retrospectively so as to sanctify the holding of entry test on 1-10-1998. He has also argued that the system of marking of the Entry Examination was changed after holding the Examination. He explained that originally for answering correctly the candidate was to be given one mark for each correct answer and for each wrong answer, half of a mark was to be deducted. Later on, negative marking was done away with. According to Mr. A.K.
Dogar, Advocate this could not have been lawfully done and for this purpose he has relied on the case of Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of Pakistan and others 1998 SCM R 2679. He further submits that even if holding of the Entry Test is valid, the University ought to have provided weightage to the marks obtained by a candidate in the Entry Test, rather than making it an eligibility test only. He has also pressed in service Article 37 of the Constitution of Islamic Republic of Pakistan, 1973, in support of his submission. Mr. A.K. Dogar, Advocate, has also urged that holding of Examination by the Admission Committee is violative of section 17 of the University of Engineering and Technology, Lahore Act (Act V of 1974), (hereinafter referred to as the Act) since under this provision it is the responsibility of the Controller to hold the examination. The other learned counsel appearing for other petitioners adopted the above arguments.
6. Syed Sajjad Hussain, Advocate, appearing for University has refuted the above contentions. He has argued that holding of Entry Test on 1-10-1998 is valid inasmuch as the Academic Council of the University provided for the same in its meeting, dated 3-3-1998 which provision/recommendation was approved by the Syndicate on 18-4-1998 (Annexures III and IV to the comments). He has explained that every year there was large number of complaints that the candidates manoeuvre higher marks from the various Boards in F.Sc. Examination and the marks obtained by them do not correctly and truly reflect their merits. It was to remedy this situation that the Academic Council, in exercise of its powers under the Act, provided for holding of Entry Test which was approved by the Syndicate under section 24(2)(aa) of the Act and with the approval of the Syndicate the recommendation became law. He has relied on the case of Miss Hina Javed and others v. Government of N.-W.F.P. And others 1998 SCM R 1469, a judgment of the Supreme Court to submit that holding of similar Entry Test for admission in Medical Colleges has been upheld by the Apex Court as legal and valid. He has also raised the plea that the petitioners having participated in the entry examination without protest and demur, and having failed to pass, cannot be permitted to turn around and challenge the same. For this purpose he has relied on the case of Maqbool Ahmed and another v. Military Accountant-General and 2 others 1993 SCM R 119. He has explained that the provision of Entry Test and method of marking was introduced for the first time and it was considered that the candidates were not familiar with the negative marking and, therefore, the same was dropped. He explained. That the petitioners have not been able to show that they suffered any prejudice on account of dropping the system of negative marking. He refuted other contentions noted above.
7. Undeniably the petitioners participated in the Entry Test held on 1-10-1998 and could not pass the same. This participation was without protest. The petitioners are, therefore, debarred from turning around and challenging the validity of the test. They acquiesced in the holding of the test and took a chance of getting admission by doing so. In equity, they are estopped from turning around and challenging that very exercise. These petitions can be disposed of on this simple ground alone.
Since, however, other arguments as noted, have been raised, I feel it appropriate to assess the same.
8. In the Guide for Admission to Undergraduate Courses for the Academic Session, 1999 issued by the respondent University the following eligibility criteria has been laid down:- "ELIGIBILITY CRITERIA
(1) General Eligibility Requiements.---An applicant for admission to any of the B.Sc.
Engineering/B.Sc./Bachelor's Degree Courses . Offered by the University must fulfil the following requirements:
(a) He should have obtained at least 60% adjusted admission marks (without NCC & Hafiz-e- Qur'an).
(b) Entry test has been introduced from the Academic Session, 1999. It would be mandatory for every applicant to obtain Minimum of 50% of marks to become eligible for admission. The marks obtained in the test would, however, not be considered for determining the merit for admission,
(c) He should be a bona fide resident of the area from where he seeks admission.
(d) He should meet standards of physique and eyesight, laid down in the medical certificate F-III.
No Age restrictions.---There is no age restriction for the applicants seeking admission to any Bachelor's degree course. Sex.---Both male and female persons are eligible to apply for seats shown in the Seats Allocation Chart except Category F which is open for female applicants only."
9. At a matter of fact the recommendation of the Academic Council, dated 3-3-1998 (Annexure-III) was approved by the Syndicate on 18-4-1998. The decision is reproduced below: "Item No,4. Admission/Addition in the regulation for admission in the university.
13(a) The Syndicate approved the following recommendations of the Academic Council made in its 186th meeting held on 3-3-1998:- ' To raise the standard of education, the Academic Council decided that all applicants, whether locals or foreigners, must have minimum of 60% merit marks (excluding NCC and Hafize Qur'an) to be eligible for admission to undergraduate courses at this University under all categories of admission from the Academic Session, 1998-99 (Entry 1999).
' The Academic Council also decided to introduce admission test from the academic session 1998- 99 (Entry 1999) in which it would be mandatory for every applicant to obtain minimum of 50% marks to become eligible for admission. The marks obtained in the admission test would, however, not be considered for determining the merit for admission' . "
10. The above clearly establishes that with the approval of the Syndicate on 18-4-1998, the recommendation assumed the force of a decision of the University and became applicable immediately. It has not been argued before me that the Academic Council or for that matter Syndicate was not competently entitled to take such a decision. The provisions of Entry Test, therefore, are valid and holding of the same on 1-10-1998 is beyond any legal objection.
11. While relying on the decision of the Academic Council, dated 24-10-1998, as approved by the Syndicate on 27-10-1998, for argument of retrospectively Mr. A.K. Dogar, Advocate, is missing the issue. The decision of the Syndicate dated 27-10-1998 reflects situation arising out of the judgment of this Court dated 3-8-1998 passed in Writ Petition No,29767 of 1997. What had happened was that the Vice-Chancellor in exercise of his emergency power under section 14 of the Act, prescribed a system of weightage for determining merit of the candidates. Previously the merit was determined on the basis of marks obtained in F.Sc./B.Sc. Exclusively but as a result of the decision of the Vice- Chancellor the marks obtained in Matric were given a weightage of 30% while those obtained in F.Sc./B.Sc. Were reduced to 70%. This was challenged by some of the affected candidates who wanted admissions solely on the basis of marks obtained in F.Sc./B.Sc. This Court held that the object achieved by the Vice-Chancellor by resorting to emergency powers was illegal and he could not bye-pass the Academic Council and the Syndicate whose exclusive domain it was to frame Regulation for admission. The question of provisions of Entry Test was not at all involved. As noted, the decision to hold Entry Test had already been taken by the Syndicate on 18-4-1998. This is one condition which a candidate has to fulfil for obtaining admission. A merit formula had also to be prescribed for preparing a merit list of the eligible candidate viz. Those who have passed the Entry Test. The judgment of the Court concerns the question of power of Vice-Chancellor to prescribe the weightage system. It is this aspect of the admission which has been considered by the Academic Council on 24-10-1998 and by the Syndicate on 27-10-1998. It is wrong to contend that the decision to hold Entry Test was taken by the Syndicate on 27-10-1998. This is factually incorrect. Therefore, I hold that the Entry Test was validly held on 1.10-1998.
12. The submission of Mr. A.K. Dogar, Advocate, that the performance of a candidate in the Entry Test should also be given due weightage, has to be rejected as it is not for this Court to advise on the matter of policy. It is for the Academic Council to take such a decision. In their wisdom they have decided the marks obtained in the admission test would, however, not be considered for determining the merit for admission." This Court cannot impose its wisdom on the Honourable Members of Academic Council and Syndicate. This Court is concerned with the legality of the provisions. What it should or ought to be is for the University to prescribe.
13. The other argument as to the change in marking system is equally of no avail to the petitioners.
Apart from the fact that the petitioners have not been able to show that if the marking was done as being pressed by them, they would have passed the test, it is clear that the entire lot of examinees were subjected to the same and identical marking system and no examinee was discriminated against. In fact doing away of the negative marking could only prove more helpful to the examinees. In PLD 1962 SC 35, it has been held that no examinee has a vested right in any system of examination or marking.
14. Nothing turns on invocation of Article 37 of the Constitution. Article 37 is appearing in the Chapter of Principles of Policy and clearly is not creating an enforceable right. Further, it has not been shown as to how Article 37 of the Constitution is at all relevant to the controversy arising in these petitions. If it is the case of Mr. Dogar that Article 37 of the Constitution enjoins the State to promote and ensure merit, I venture to say that the provision of Entry Test is a step in the right direction. For this purpose, I respectfully follow the judgment of the Supreme Court (supra).
15. Similarly nothing turns on the submission that the examination ought to have been held by the Controller and not by the Admission Committee. Although the petitioner is estopped from urging this, I see no harm, subject to all just exceptions, if to ensure the success of new experiment of Entry Test a Committee of Senior Academics/Professors/ Administrators is constituted to oversee the exercise.
16. For all that has been stated above, there is no merit in these petitions which are hereby dismissed, leaving the parties to bear their own costs.