SABIHUDDIN AHMED, J.--- The facts of the case are brief and simple. The petitioner passed his B.
Tech. (Pass) Examination from the Mehran University of Engineering and Technology, Jamshoro and thereafter, joined the B. Tech. (Honours) Civil Courses offered by the respondent No. 1. He passed the aforesaid examination held by the aforesaid respondent in December, 1999 obtaining great point average (GPA) of 4.0. The result was announced on 19.1.2000 and the petitioner obtained second position in the University.
2. Admittedly certain seats are reserved in the respondent- University for direct admission in third year Engineering Classes for those who have passed the B.
Tech. (Honours) Examination. On 28.1.2000 public notices appeared in the press inviting applications from candidates who had passed the aforesaid examination in the respective Technologies for .Admission against two seats each in Civil Mechanical and. Electrical Engineering for direct admission in third year Engineering Classes for the Academic year 1999-2000. The eligibility criterion for such admission laid down in para. 2 of the notice as under:- "(i) They have passed B. Tech. (Honours) Examination with the minimum G.P.A. 3.75 (irrespective of the marks obtained) from N.E.D. University in the Broad relevant Technologies of Civil, Mechanical and Electrical (candidates with specialisation of Technology are , not eligible). After having passed B. Tech. (Pass) Examination also from N.E.D. University.
(ii) They are domiciled in Sindh Province."
3. The basis for assessm ent of merit for the purpose of admission was laid down in para. 3 which reads as under:- "Merit for admission of each candidate shall be determined on the basis of total marks obtained in the B. Tech. (Honours) 1st and 2nd Semesters of Second year Examination only."
4: Admittedly the petitioner was qualified to be treated at Serial No. 2 on the merit list having obtained 1470 marks and having acquired the second position in Civil Technology in the B. Tech. (Honours) Courses conducted by the respondent No. 1.
Nevertheless in the merit list announced on 10.2.2000, the second seat was given to respondent No. 2 who had only secured 1436 marks. The petitioner submitted a representation to the Vice- Chancellor very next day complaining against denial of admission to him, but by a letter, dated 21.2.2000 from the Deputy Registrar (Academics) he was informed that he was not eligible for admission as he had not passed the B. Tech. (Pass) Examination from the respondent No. 1 University. Thereafter, he moved this Court through the above petition presented on 9.3.2000 seeking redress.
5. Pre-admission notices were issued and parawise. Comments were filed on behalf of the respondent No. 1 on 30.3.2000. The respondent No. 2 also appeared in person on 13.4.2000 and sought to engage counsel. Vakalatnamas also filed by Mr. Muhammad Azam, Advocate on his behalf, but for reasons best known to the aforesaid respondent no appearance was made by him or his counsel ever since. Even today no appearance was made though the case taken out during the latter part of the day. Keeping in view the fact that career of a student was involved which could be marred by further delay, we decided in the circumstances, to hear the petition and pronounce judgment on merits.
6. Mr. Shamsuddin Khalid, learned counsel for the petitioner in the first place highlighted that apart from the 'Tact that the petitioner was to be placed at Serial No. 2 on the merit list strictly on the basis of the merit criterion laid down in the admission notice and on the basis of his performance in examination conducted by the respondent No. 1 itself, he satisfied most of the eligibility criterion inasmuch as he passed the B. Tech. (Honours) Examination conducted by' the respondent No. 1, and had obtained a G.P.A. Above 3.75 (4.0) from the respondent No. 1 itself. The only ground for denial of admission was that he had not passed his B. Tech. (Pass) from the respondent No. 1 University. Such a condition according to learned counsel was invalid, inasmuch as it never existed when the petitioner had obtained the B. Tech. (Honours) Courses in the respondent No. 1 University and did not even prevail at the time of announcement of the result. He referred to certain earlier admission notices appearing in the press where the condition of having passed B. Tech: (Pass)
Courses from the respondent No. 1 did not exist. Moreover, he urged that having granted admission to the petitioner in B. Tech. (Honours) Courses despite the fact that of his having obtained the B.
Tech. (Pass) degree from another University the respondent No. 1 had acknowledged the courses offered by the two University to be equivalent and was estopped from creating a further condition of eligibility and the petitioner had acquired a vested right to be considered for ,admission in the third year Engineering Classes. Such right could not be taken away by a subsequent bar as to eligibility. Finally it was urged a stipulation to disqualify him on account of his having passed an earlier examination from a different University was discriminatory and bore not nexus with the object of the, law and the admission policy. It was urged that the impugned action was violative inter alia of Articles 2A, 14, 25, 29 and 37 of the Constitution.
7. Mr..Rehanul Hassan Farooqui , learned counsel for the respondent No. 1 on the other hand argued that the conditions prescribed in the admission notice were the result of a decision of the Academic Council and the Syndicate of the respondent No. 1 validly taken under. Section 16(2)(a) of the N.E.D. University of Engineering and Technology Act who were the best Judges for determining the eligibility and the merit criterion: He further argued that the petitioner had not acquired any vested right to be admitted and the respondent No. 1 had every authority to change the Rules of Admission without notice prospective applicants. Reliance was placed upon the D.B.
Judgments of this Court in Humayun Nizami v. Government of Sindh (1987 CLC.1487) and pronouncement of the Honourable Supreme Court in Muhammad Siddiq v. Government of Punjab (1987 SCM R 302). Mr. Mian Khan Malik, A.A.-G. Substantially adopted the contentions of Mr. Farooqi.
8. We have gone through the judgments cited by Mr. Farooqi and have no cavil with the proposition of law laid .Down therein. Learned counsel is indeed correct to the extent that the competent Authority can always change Rules of Admission and the petitioner could not claim to have acquired a vested right to be admitted according to the old Admission Rules or Policy. We would also prefer not to go into the question whether he had acquired a legitimate expectancy of such nature that would render the new conditions for admission per se invalid. There can also be no dispute as toe the question that Rules and Policies laying down prerequisite for admission to specialised course and for determining the equivalence of one degree with another ought to be left to the best judgment of the experts and Courts should be slow to interfere with their decisions.
Nevertheless, we cannot persuade ourselves to subscribe to the contention that a decision taken by such experts is altogether sacrosanct and it must be emphasised that such experts can only act within the framework of the Constitution and the law.
9. The argument of Mr. Khalid premised upon the constitutional validity of the provision disabling those having passed their B. Tech. (Pass) Examinations from Universities other than the respondent No. 1 is far more formidable. In the first place it needs to be clarified that on the basis of judgments cited by him Mr. Farooqi might be right in contending that the Academic Council or the Syndicate of the respondent No. 1 were fully competent to decide whether the B. Tech. (Pass) offered by the Mehran University could be treated as equivalent to the same course offered by the respondent No.
1. This, however, is not the issue involved in the controversy before us. Indeed upon having accorded admission to the petitioner in the B. Tech. (Honours) Course such equivalence was acknowledged by the respondent. The .Test of such equivalence stood affirmed when the petitioner performed exceedingly well in the examinations conducted by the respondent No. 1 and in fact did better than most of those who had obtained their B. Tech. (Pass) Degree from the respondent No.. 1.
Therefore, it is evident that the decision to disqualify the petitioner was not premised on any ground of Academic inadequacy.
10. Evidently the stipulation in question created two different categories of candidates having passed their B. Tech. (Honours) Examination from the respondent No. 1, i.e., those who had also acquired their B. Tech. (Pass) Degree from the same University and those from other Universities.
The former were declared ' eligible 'to apply for admission to Bachelors of Engineering Courses and the later were not. Article 25 of the Constitution guarantees equality and equal protection of law to all citizens. Indeed it is well-settled that all persons cannot be alike in all circumstances and the concept of reasonable classification is implicit in Article 25 itself. At the same time it is equally well-established that to pass the test of constitutionality, a classification must' be 'rational and based on intelligible differentia bearing a direct nexus with the object of the law. What needs to be seen is whether the classification made in the instant case satisfies such test.
11. Mr. Rehanul Hassan Farooqui learned counsel for the respondents has not been able to offer any rational explanation for the classification in question. All that he has urged is that the Academic Council and the Syndicate of the respondent No. 1 in their wisdom chose to accord a particular right or privilege upon its own alumni, who had acquired both their B. Tech. (Pass) and B. Tech.
(Honours) Degrees from the respondent No. 1 and they were fully empowered to do so by the N.E.D.
University of Engineering and Technology Act; 1977. Indeed the Act does empower the authorities in the University to, regulate admissions but being in the nature of public power it must not only be exercised according to law and the Constitution but also in the public interest, reasonably, fairly and justly.
12. Mr. Shamsuddin Khalid on the other hand placed reliance on Article 37(c) of the Constitution which stipulates that the State shall make technical and professional education generally available and higher education accessable to all on the basis of merit. Though the provisions of this Article which appears in the Chapter on Principles of Policy is not directly enforceable by Courts, its importance in two dimensions can hardly be under-scored. In the epoch-making case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) their Lordships described these principles of policy as "the conscience of the Constitution and the basis of all executive and legislative action" and in Employees of Pakistan Law Commission v. Ministry of Works (1994 SCM R 1548) it was held that the provisions relating to fundamental rights ought to be read together with the directive principles of policy. It would, therefore, follow that Article 25 has to be read with Article 37(c) which would imply that any classification made for the purpose of admission into institutions of higher learning on a basis other than merit would be invidious and violative of Article 25. From the above stand-point, the classification in question cannot be sustained.
13. Secondly, when Article 29(1) confers a responsibility upon every organ of the State to act in accordance with such principles, it must be assumed that any law conferring authority upon a State functionary, subject to a specific provision to the contrary, implies that such authority would be exercised for the purpose of implementing those principles. No provision of the N.E.D. University of Engineering and Technology Act has been shown which could enable the University Authorities to accord admissions or lay down a criterion based on something other than merit for the purpose of admissions. It must, therefore, be assumed that the power available was only exercisable according to such principles and laying down the policy violating the same would be ultra vices the powers available.
14. Finally Mr. Shamsuddin Khalid has relied upon .a D.B. Judgment of this Court in Abdul Qadir Shaikh v. Registrar, N.E.D. University of Engineering and Technology 1992 CLC 2222, which appears to be directly on the point. A stipulation was made in the prospectus of the University requiring that only candidates having passed both their Matriculation and intermediate Examination from educational institutions in Karachi. Their Lordships struck down the classification premised on the Constitution that a student' partly acquired his education from institution outside Karachi as a distinct .Class as being ultra vires Article 25 read with 37{c) of the Constitution.' Respectfully following the same view, we are constrained to declare the classification in question ultra vires the Constitution and the law and have allowed the petition in terms of the short order announced in Court on 12.6.2000.
S.A. RABBANI, J.--- While agreeing with the judgment and reasons of my learned brother, I wish to add an observation that for lack of an appropriate procedure prescribed by an enactment delegated legislation in this country has been a source of injustice. And a cause of multiplicity of litigation.
Almost all enactments contain a clause delegating rule-making powers to executive bodies. These powers are usually exercised in an arbitrary manner and almost in all cases, to the total exclusion of those who are likely to be affected by such rules or other delegated legislation.
The concept is recognised, for instance, in the case of a private bill in the British Parliament and in the U.S.A. By way of Administrative Advocacy Acts at the Federal level as well as in the States.
The Ministry of Law and Justice, Islamabad as well as the, provincial Law Department may like to examine the advisibility of an Act providing for the procedure of rule-making and other delegated legislation on the pattern of Administration Advocacy Acts in the U.S.A. Copy of this judgment be forwarded to the Law and Justice Ministry and The Law Department, Government o Sindh