' ABDUL HAMEED DOGAR, J.---By this petition the petitioner seeks leave to appeal against the order dated 12-6-2000 of a learned Division Bench of the High Court of Sindh, Karachi whereby the petition of respondent-No,1 Abdul Fareed was allowed and the petitioner was directed to accord him admission in IIIrd year BE (Civil) Courses for 1999-2000.
2. The facts relevant for filing the petition are that for seeking admission in third year Bachelor of Engineering Course in the Academic Session 1999-2000, the admission policy was advertised by the petitioner in daily "Dawn" and "Jang" dated 21-11-1998 and 28-1-2000 for two reserved seats each in Civil, Mechanical and Electrical Engineering. For being eligible the following pre-conditions were prescribed in the notice:
(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 Board 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.
(iii) 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."
3. Admittedly the respondent No,1 secured 1479 marks and acquired the second position in Civil Technology in the B.Tech. (Honours) Courses conducted by the petitioner and was placed at Serial No,2 on the merit list. Nevertheless in the merit list announced on 10-2-2000, the second seat was given to respondent No,2 who secured 1436 marks only. Being aggrieved the respondent No,1 submitted representation to the Vice-Chancellor and claimed entitlement to be admitted in third year class directly on the basis of his merit as he had secured second position in B.Tech. (Honours) and also more marks than respondent No,2, who was allowed admission on one of the only reserved seats. The said representation was dismissed and vide letter dated 21-2-2000, the Deputy Registrar (Academics) informed him that he was not eligible for the admission as he had not passed B.Tech. (Pass) Examination from the petitioner's University.
4. It was these orders which were challenged by respondent No,1 in Constitutional Petition No,D-338 of 2000 before the learned High Court of Sindh, Karachi wherein sought declaration that the induction of aforesaid clauses in the admission policy was vimsicable, capricious and also violative legitimate exceptions of students qualifying on merit under conditions prevailing since 1991-92.
5. We have heard Mr. Rehanul Hassan Farooqui, learned Advocate Supreme Court on behalf of the petitioner and respondent No,1 in person and have gone through the record in detail.
6. The petitioner's counsel mainly urged, that the insertion of the aforesaid condition in the admission policy by the petitioner was within its legal competence allowed to it under the N.E.D.
University of Engineering and Technology Act, 1977 (hereinafter referred to be as the Act"). The Academic Council under section 18(2)(c) and the Syndicate under section 16(2)(s) of the Act had the status of lawful regulation so as to frame admission policy and to carry into effect the same. He next contended that the learned High Court has erred to appreciate that respondent No,1 could not claim equal treatment with respondent No,2 who stood qualified having passed in B.Tech. (Pass)
Examination from the petitioner's University as such both were treated and governed by the same law and were placed in the same category. According to him mere consideration of merit was not sole prerequisite for eligibility to apply for admission but he was barred by the rules enforced at the time of the admission. He further contended that it was the prerogative of the petitioner to frame the new policies and was not bound in law to retain or continue the old policies. The said amendment in the admission policy was done in a lawful manner. He lastly argued that the petitioner has framed its policy in accordance with Article 30 of the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as the "Constitution") and its validity cannot be called in question and is not in violation,of Article 37 of the Constitution.
7. The respondent No,1 controverted the above submissions and argued that he had satisfied the conditions of his eligibility inasmuch as he passed his B.Tech. (Honours) Examination from the petitioner's University and obtained a G.P.A. Above 3.75 (4.0). The above referred disqualification condition never existed at the time he joined B.Tech. (Honours) Courses and did not even prevail at the time of announcement of the result. He referred to the notice of admission published in daily "Jang" dated 20-7-1995 and stated that by such notice the candidates qualifying from other Universities were also allowed to seek admission in the Third Year Engineering Course for Civil, Electrical and Mechanical Technologies for the Session 1994-95. According to him even the earlier policy set out for the admission of 1991-92 Session, the candidates from other Universities were eligible to apply for third year course. According to the admission notice published in daily "Dawn" dated 30-11-1997 the merit for admission was to be determined on the basis of total marks obtained in B.Tech. (Honours) 1st and second semesters of Second Year Examination only. Having allowed admission in B.Tech. (Honours) Courses in spite of the fact that he was a graduate in B.Tech. (Pass) from another University, he acquired a vested right for the admission in the third year. According to him the impugned action is in clear violation of the fundamental rights enshrined in the Constitution whereby the classification for the purposes of admission is not allowed and is discouraged.
8. There seems to be sufficient force in the averments of respondent No,1 mainly for the reasons that the petitioner not only allowed him admission in B.Tech. (Honours) Courses despite the fact that he had graduate in B.Tech. (Pass) from another University but obtained second position in the merit list in the examination. According to the admission policies of academic years 1991-92 and 1994-95 the candidates qualifying from other Universities in B.Tech. (Pass) were allowed to seek admission in the Third Engineering Courses for Civil, Electrical and Mechanical Technologies. The copies of admission notices published in daily "Dawn" dated 30-11-1997 and "Jang" dated 20-7-1995 are the proof to that effect.
9. There is no dispute to the fact that by the admission policies framed by the petitioner's University prior to the policy in question, the candidates qualifying from other Universities in B.Tech. (Pass) were allowed to seek admission in the Third Year Engineering Course for Civil, Electrical and Mechanical Technologies for the Session 1994-95. In proof respondent No,1 has placed on record the copies of admission notices published in daily "Dawn" and "Jang" newspapers during the years 1991-92 and 1994-95.
10. It may be mentioned that the N.E.D. University of Engineering and Technology, Karachi was established under the N.E.D. University and Technology Act, 1977 which empowered its Academic Council and the Syndicate to regulate the admissions of the students and frame admission policies. The Syndicate in exercise of its statutory powers under section 18(2)(c) of the Act is authorised to consider and approve the Regulation proposed by Academic Council.
11. Whether any legal sanctity' could be attached to the principle of policy, it would be relevant here to refer Article 30 of the Constitution according to which, the responsibility of deciding whether any action of an organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the Principles of Policy is that of the organ or authority of the State, or of the person, concerned. Article 30(2) provides that the validity of an action or of a law shall not be called in question on the ground that it is not in consonance with the Principle of Policy. While examining this we would like to mention that it is the duty of every organ or authority of the State to ensure that no rule or regulation is framed against the general principle of policies and the fundamental rights enshrined in the Constitution. Article 25 of the Constitution guarantees the equal protection of law and in equal treatment to all the citizens whereas Article 37(c) makes its incumbent for the State to make technical and profession education generally available and higher education equally accessible to all on the basis of merit. Even according to Article 8(1) any law, or any custom or usage having the force of law, in so far as it is inconsistent with the fundamental rights, shall, to the extent of such inconsistency, be void.
12. That inclusion of the said clause in the Admission Policy 1999-2000 Session shows that it restricts the right of admission in the petitioner's University only on the ground of having obtained a degree of B.Tech. (Pass) from the institution other than that of the petitioner. Such classification does not only seem to be unjustified but is in clear violation of the guarantees provided in Articles 2-A, 8, 25 and 37(c) of the Constitution.
13. It would be pertinent to note that the said admission policy is also in clear violation of the guarantees provided in section 6 of the petitioner's University whereby the University shall be open to all persons irrespective of sex, religion, race, creed, class or colour and no person shall be denied the privileges of the University on any such ground. It would be relevant here to produce the observations made by this. Court at page 483 in the case of Miss Benazir Bhutto v. Federation of Pakistan and others (PLD 1988 SC 416): ' "Therefore, there can be no doubt that when the impugned legislation by reference to its provisions is ex facie violative of Fundamental Rights of an individual or political parties or associations or unions, proceedings lie for the enforcement of those rights irrespective of the fact whether any prejudicial order has been passed by the Executive under the law as the Constitution treats the Fundamental Rights as superior to ordinary legislation and for that reason sub-Articles
(1) and (2) of Article 8 of the Constitution have been enacted which clearly reflect the object and intention of the framers of the Constitution, that is, to keep the Fundamental Rights at a high pedestal and to save their enjoyment from legislative infractions. Sub-Article (1) of Article 8 lays down that any law in so far as it is inconsistent with the rights conferred by this Chapter shall, to the extent of such inconsistency, be void. This could not have been without a purpose but to preserve and protect the Fundamental Rights. Sub-Article (2) of Article 8 places a restriction on the Legislature not to make law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall to the extent of such contravention, be void. Article 199 (1)(c) authorises the High Court to enforce the Fundamental Rights of an aggrieved person and to declare that so much of the law which is inconsistent with the Fundamental Rights shall be void.
Therefore, there is the power to declare the law to be void and the power to enforce the Fundamental Rights which are violated by the law itself. Article 184(3) of the Constitution empowers the Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it is hardly of any importance whether the Executive has passed a prejudicial order or not when the infraction of the Fundamental Rights takes place by the operation of the law itself. In this context what would be relevant would be the language of the provisions of the impugned Act itself. It will then not be a question of the Court merely granting a declaration as to the validity or invalidity of law in the abstract. Reference in this connection may be made to K.K. Kochunni v. State of Madras, AIR 1959 SC 725, wherein at page 731, it was held: ' "An enactment may immediately on its coming into force take away or abridge the Fundamental Rights of a person by its very terms and without any further overt act being done. In such a case the infringement of the Fundamental Right is complete co instani the passing of the enactment and, therefore, there can be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the Constitutional remedy under Article 32. To say that a person, whose Fundamental Right has been infringed by the mere operation of an enactment, is not entitled to invoke the jurisdiction of this Court under Article 32, for the enforcement of his right, will be to deny him the benefit of a salutary Constitutional remedy which is itself his Fundamental Right."
14. In the light of what has been discussed above and the principle laid down in the above-referred judgment, we are of the view that above classification is ultra vires of the Constitution and is not sustainable in law.
15. The impugned judgment on the face of it does not suffer from any illegality and is based on sound reasonings, as such we do not find any substance to interfere with the same which is accordingly maintained.
For the reasons stated above, the petition does not merit consideration and is dismissed and leave to appeal is refused.