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Petitioner: UNIVERSITY OF THE PUNJAB AND 2 Other VS Respondent: REHMATULLAH
Court Name: Lahore High Court Judge(s): Ghulam Mujaddid Mirza, Khalil-Ur-Rehman Khan Title: UNIVERSITY OF THE PUNJAB AND 2 Other vs REHMATULLAH Case No.: Intra-Court Appeal No. 109 of 1982 Date of Judgment:1982-07-03 Reported As: PLD 1982 Lahore 729 Result: Appeal dismissed
Judgment (a) Provisional Constitution Order (P. O. 1 of 1981)-- -- Art. 9-Constitution of Pakistan (1973), Art. 199--Law Reforms Ordinance (XII of 1972), S. 3(2)- Interpretation of statutes-Necessary intention of Legislature spelt out from law itself-Mistake of draftsman could in circumstances be supplied-No intention as to conferment or non-conferment of right of appeal spelt out from entire text of Provisional Constitution Order, 1981-Jurisdiction exercised by High Courts under Art. 199 of 1973 Constitution articulated in such Order in somewhat abridged and limited form in Art. 9-Art. 199, for practical and legal effect, held, substituted by Art. 9 in Provisional Constitution Order, 1981- Interpretation of statutes]. Muhammad Amir Khan v. Controller of Estate Duty PLD 1962 SC 335; Muhammad Amir Khan v. Controller of Estate Duty PLD 1961 SC 119 and Muhammad Ismail v. State PLD 1969 SC 241 distinguished. (b) Provisional Constitution Order (P. O. 1 of 1981)- - Art. 9 read with Constitution of Pakistan (1973), Art. 199-Words and phrases-Word "abeyance"- Means state of suspension or dormant condition-Articles of 1973 Constitution not incorporated in Pro--visional Constitution Order, 1981, held, do not form part of law in force as long as Provisional Constitution Order holds field.-Words and prases ]. (c) Provisional Constitution Order (P. O. 1 of 1981)- -- Art. 9 read with Constitution of Pakistan (1973), Art. 199; Law Reforms Ordinance (XII of 1972), S. 3 and General Clauses Act (X of 1897), S. 8(1)-Interpretation of statutes-Right to appeal-Art. 9 of Provisional Constitution Order, 1981 admittedly being substitute of Art. 199 of 1973 Constitution and provisions of Art. 199 being re--enacted with modification in Art. 9 of Order, principle of construction laid down in S. F(1), General Clauses Act, 1897, attracted, viz. Reference in any other enactment to
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provisions so repealed. (unless a different intention appears) to be construed as reference to provisions so re-enacted and on such principle no need arose to amend S. 3 of Law Reforms Ordinance, 1972-Legislature .If really intended to take away right of appeal it could have easily stated so in Art. 9 itself as it did in order to abridge jurisdiction-Contention that Law maker by enacting Provisional Constitution Order, 1981, intended to take away right of appeal against orders passed under Art. 9 of such Order, held, not correct.-[Interpretation of statutes-Appeal (civil)]. (d) Constitution of Pakistan (1973)- --Art. 199-Provisional Constitution Order (P. O. 1 of 1981), Art. 9-- Law Reforms Ordinance (XII of 1972), S. 3-Right to appeal-Appeal against orders passed in exercise of writ jurisdiction having been provided by Law Reforms Ordinance, 1972, same continues to operate intact-Jurisdiction vesting in superior Courts, held, could only be taken away by express words.-[Interpretation of statutes- Appeal (civil)]. Maula Dad Khan v. West Pakistan Bar Council PLD 1975 SC 469 ; Khadim Hussain v. Ata Muhammad PLD 1967 Lab. 915 and Mir Hassan v. State PLD 1969 Lab. 786 ref. (e) Law Reforms Ordinance (XII of 1972)- -- S. 3 - Constitution of Pakistan (1973), Art. 199 - Provisional Constitution Order (P. O. 1 of 1981), Art. 9 - Interpretation of statutes-Right to appeal-Art. 199 of 1973, Constitution wherever mentioned in S. 3 of Law Reforms Ordinance, 1972-Held: To be read as Art. 9 of Provisional Constitution Order, 1981- Right of appeal in any case cannot, iii absence of provision to- contrary be impliedly presumed to have been taken away-Any doubt as to existence of right of appeal even if existing such doubt to be resolved in favour of party seeking appeal-Appeal against orders passed under Art. 9 of Provisional Constitution Order 1981, hence maintainable.-[Interpre--tation of statutes-Appeal (civil)]. Muhammad Amir v. Federation of Pakistan etc. PLD 1977 Lab. 1086 ; AIR 1953 Cal. 433; AIR 1953 SC 357; Mumtaz Khan v. Chief Settlement & Rehabilitation Commissioner PLD 1966 SC 276; AIR 1959 Ph. 291 ; AIR 1959 Mad. 592 ; AIR 1954 Cal. 484 ; AIR 1957 Madh. Bha. 125 ; Muhammad Hussain v. Additional District Judge PLD 1966 Lab. 128 and Wahid Bus v. Mailsi Transport Co. Ltd. PLD 1966 Lab. 684 ref. (f) Legislature- Institutions or functionaries created by Law-Privileges and duty. Wherever' Legislature in its wisdom creates bodies, institutions or functionaries for the discharge of acts .Functions and jobs prescribed by the law, the purpose-of the law and the interest of the society and the community will be well-served if those designated bodies are left on their own to carry out and perform the functions assigned to them without any outside interference and no individual however high, able or intelligent he may be, can be allowed to arrogate to himself the performance of these functions, acts or jobs for the performance of which functionaries, bodies or institutions were created, or prescribed as any interference in the prescribed - scheme would be violative of the law itself. (g) University of the Punjab Act (IX of 1973)- -- Ss. 15(3), 28(2)(c) & 32(2)-Vices of University Regulations-Even if syndicate could not be called to session for approval of Regulations no reason existed for not calling upon Academic Council to perform its statutory functions of preparing Regulations on subject of admission--Impugned Regulation prepared as well as approved by Vice-Chancellor himself though Academic Council existing and Regulations put up before Academic Council later for its approval and approval obtained --Authority on whose behalf action taken-Not to be made to accept action taken as "fait accompli"-Use of emergency power by invoking provisions of S. 15(3) for purpose of preparing Regulations, held, unauthorised and impugned Regulations ultra vices.--(Vices of Regulations].
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Even if it is assumed that the syndicate was not so available yet no reason existed for not calling upon the Academic Council to perform its statutory function of preparing the regulations on the subject of admissions as is provided by section 28(2)(c) read with section 32(2) of the Act. The impugned Regulations were prepared as well as approved by the Vice-Chancellor himself, though the Academic Council was in existence yet the council was not allowed to perform the prescribed function and instead the regulations prepared by the Vice-Chancellor were put up before it later on for its approval and statedly the approval sought for was also accorded, Prima facie it is reasonable to assume that the authority or the Officer on whose behalf action is taken should not be made to accept the action taken as `fait accompli". In the instant case as the Academic Council was not allowed to function, the use of emergency power invoking provisions of section 15(3), for the purposes of preparing the regulations, was rightly held to be un--authorised and this finding is sufficient to hold the impugned regulations as ultra vires. Under section 15 of the Act, the Vice- Chancellor has been conferred the power to take "such action" as he may consider necessary in a given emergency and thereafter to report his action for approval of the officer, authority or body which in the ordinary course would have originally dealt With the matter. It is apparent that "such action" does not contemplate taking of action on behalf of such officer, authority or body which under the Act have- only power to accord approval. The power to take `such action has been conferred on the Vice-Chancellor to act in order to achieve the scheme and the purposes of the Act for or on behalf of the officer, authority or the body who or which due to unavoidable situation is not available or cannot for the time being act and taking of action immediately is necessary and cannot be postponed till the time that such officer, authority or body is able to act. Thus Vice- Chancellor has been given the power to perform the prescribed act of the Officer, authority or body whatever it may be including the act of preparing the regulations or initiation of a matter. The power to take action is however dependent on the existence of emergency which in his opinion requires immediate action. Thus emergency as a matter of fact and not opinion has to be in existence and then the question is to be asked whether immediate action is required to be taken or not. In the instant case no reason or basis existed to act for the Academic Council and the Regulations were thus framed by the Vice-Chancellor incompetently and in disregard of the provision of the law, the faithful observance of which was one of his bounden duty. It was not a case of bad faith, in fact even the respondents have not alleged so but a case of defeating the law itself. Secretary of State v. ASLEF (1972) 2 All E R 949 ref. (h) University of the Punjab Act (IX of 1973)- --- S. 7 read with Constitution of Pakistan (1973), F. R. 23(b)-Admis--sion to Educational Institutions-Albeit no law confers a right on students to be admitted to an educational institution yet surely they have a right to demand authorities concerned to determine their applications in accordance with law, fairly, reasonably, and equitably-- University, open to all classes, creeds etc.- Any restriction on admission to University-Would not be operative if hit by prohibition appearing to be absolute-University authorities, held, cannot create classes so as to exclude some and allow admission to only one or more of other classes -Admission restricted to persons below 26 years of age for reason of facilities being not available so as to cater for needs of all young generation but on other hand faculty of law mainly reserved for majority of persons not only much above age of 26 years but also already employed - Classification of such nature, held further, cannot be justified on any reasonable hypothesis and evening classes if meant for persons of any age every person fulfilling required standard and conditions possessed right to be considered for admission.-- [Educational institution]. Hmera Sarwat Yusuf v. The Government of the Punjab PLD 1971 1Ab, 641; Arif All Hazoor v. The Administrator, K. E. M. C., Lahore C. P. S. L. A. No: 124 of 1970; Ikram Bus Service v. Board of Revenue
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and others PLD 1963 SC 564; Shahnaz Maqbool v. Province of Sind PLD 1979 SC 32 and Muhammad Iqbal Khan Niazi v. University of Punjab PLD 1979 SC 1 ref. (I ) University of the Punjab Act (IX of 1973r-- - Ss. 7 & 15(3) read with Punjab University Regulations, regen. 12--Admission to Law College (evening classes) (Punjab University)-No disqualification could be spelt out from Regln. 12 which only relaxes conditions of age and year of graduation in case of employees of Government, Semi- Government or autonomous bodies-Regulation 12 -cannot be read in a manner to restrict admission to evening class to such employees only-College authorities, held, wrong in interpreting Regulation as debarring others from seeking admission in evening classes.-[Educational institutions]. (j) University of the Punjab Act (IX of 1973)-- -- Ss. 7 & 15(3) read with Punjab University Regulations--Admissions to evening classes of Law College (Punjab University)-Admission notice reading "limited number of seats available in evening class meant for part time students employed preferably in Government or Semi--- Government institutions" - Word "preferably" - Does not denote complete exclusion but means worthy to be preferred or more desirable - Word "preferably" used in notice thus signified that other things being equal employee applicants to be put in front of others-Act of complete exclusion of every one else though otherwise higher on merit and fulfilling all other conditions of admission, held, illegal and arbitrary.-[Educational institutions]. Ch. Muhammad Farooq for Appellant. Muhammad Amin Butt for Respondent. Dates of hearing: 5th May; 5th, 13th, 14th, 15th and 20th June, 1982. JUDGMENT KHALILUR REHMAN KHAN, J.-This judgment shall dispose of the two Intra-Court Appeals (I.-C. A. No. 109 of 1982 and 110 of 1982) filed under section 3 of the Law Reforms Ordinance, 1972 by the University of the Punjab and others against the judgment dated 4-4-1982 of the learned Single Judge whereby two writ petitions (W. P. 395 of 1982 and W. P. 502 of 1982) filed under Article 9 of the Provisional Constitution Order, 1981 by Rehmat Ullah and Sh. Asif Salam were accepted and the refusal on the part of the appellants to consider the respondents' application for admission to the evening class of the University of Law College on the basis that under the Regulations the evening class was exclusively meant for employees of Govern--ment, Semi-Government or Autonomous Bodies or that the age of the respondent, an unemployed person was above 26 years, was declared to be without lawful authority and of no legal effect. Consequently a direction to consider the application for admission to evening classes on merits was issued. 2. The factual background of the present controversy is that applications for admission to the F. E. L. (Morning and Evening Classes) were invited by the Principal of the University Law College, Lahore vide Admission Notice published in Pakistan Times dated 6th January, 1982. An extract relevant to the issues involved is being reproduced :- "(ii) F. E. L. (EVENING) CLASS FOR EMPLOYEES A limited number of seats is available in the Evening Class which is meant for Part-time students who are employed preferably in Govern--ment or Semi-Government Institutions Candidates desirous of joining this class must file besides all the documents listed above a Certi--ficate from Heads of their Departments/Employers permitting them to join the Evening Class. Those posted outside Lahore must attach a Leave-certificate for the period of their study in the Law College. Important Instructions (1) Preference for admission, to the Morning Class will be given to fresh graduates who have passed the B. A./B. Sc. 2nd Annual Examination 1980, Ist Annual Examination 1980, and 2nd Annual Examination 1979.
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(2) Whole-time students may be accommodated either in the Morning or the Evening Shift at the discretion of the Principal. (3) . . . (4) ------------.. (5) ---------------. It is pertinent to note that in the admission notice, no reference whatsoever was made to any Regulation, rule' or instruction made by any authority, body or person or to any prospectus or other conditions of eligibility for seeking admission. 3. Rehmat Ullah, respondent who is over 26 years of age and Sh. Asif Salam, respondent who is aged 22 years, both of them are self-employed as they represent their clients before Income-tax Authorities and as such are engaged in the profession of Income-tax Law Practice. They submitted applications seeking admission in the Evening Class. As the names of the respondents were not included in the list of the admitted applicants, they asked for the reason of refusal and were told that Regulations framed by the Vice-Chancellor under section 15(3) of the University of Punjab Act, 1973 in respect of the academic year 1980-81 debarred them from seeking admission as they were not employees of the Government, Semi-Government or the statutory corporations. A brief mention may appropriately be made here of some of the important regulations. Regulation No. 5 provides that Principals of the Constituent Colleges etc. Shall each year communicate for approval to their respective Deans prior to admission, the total number of students to be admitted along with the criteria for admission. This number shall not be increased without the prior approval of the Vice-Chancellor nor shall the criteria be modified without his approval. It may be mentioned here that for the session in question 400 students were admitted in the F. E. L. Morning Class and 600 Government, Semi-Government employees were admitted to F. E. L. Evening Class. Regulation No. 9 provides that any person who has attained the age of 26 years on the last date fixed for receipt of applications for admission shall not be admitted. This age limit can however be relaxed by the Vice---Chancellor in certain cases. Regulation No. 12 however relates to relaxation relating to age and the year of graduation for the part-time students who are employees of Government, Semi-Government and Autonomous Bodies created by an Act of Legislature. It may be added that admission of the students to the constituent colleges/faculties etc. Is to be regulated by regulations to be prepared by the Academic Council and approved by the Syndicate in view of the provisions of section 28(2)(c) read with sections 3~(I)(c) and (2) of the University of Punjab Act, 1973, hereinafter to be called "the Act"'. The regulations for the admission in respect of the academic year 1980.81- were prepared and approved by the Vice-Chancellor in exercise of powers vesting in him under section 15(31 of the Act. This subsection reads as under;-- "The Vice-Chancellor may, in an emergency which in his opinion requires immediate action, take such action as he may consider necessary and shall, as soon thereafter as possible, report his action for approval to the officer, authority or other body which in the ordinary course would have dealt with the matter." 4. Learned Single Judge in his well-considered and elaborate judgment held that under section 15(3) the Vice-Chancellor in an emergency can replace the approving body but is in no case empowered to act both for proposing and the approving authority ; that though it is for the Vice- Chancellor to decide if there is any emergency yet he must act on the basis of reasonable material of evidence relevant to the purpose of the law and sufficient to satisfy any reasonable mind that the action taken was neither arbitrary nor fanciful nor capricious ; that the discretion and the power conferred on the Vice-- Chancellor by use of the words "in his opinion" does not oust the power of judicial review of the Court and that the Vice-Chancellor cannot create classes so as to exclude some. And to shut on them the doors of the University and allow admission to only one or
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more of other class. These findings are under challenge before us in Intra-Court Appeals. Before we deal with the respective submissions on merits, we propose to dispose of the preliminary objection as to maintainability of these appeals raised by the learned counsel for the respondents. 5. Mr. Muhammad Amin Butt, learned counsel for the respondents argued that upon promulgation of Provisional Constitution Order, 1981 the jurisdiction enjoyed by this Court under Article 199 of the Constitution of Pakistan (1973) ceased to exist as Article 199 of the said Constitution was not incorporated in the Provisional Constitution Order and now the writ jurisdic--tion of the High Courts in its abridged form stands articulated in Article 9 of the Provisional Constitution Order, 1981 hereinafter called "the Order". He argued that no appeal like the one provided against the Orders passed under Article .199 of the 1973 Constitution by section 3(2) of the Law Reforms Ordinance, 1972 has been provided against the order passed under Article 9 of the Order. It was argued that intention of the Law-maker to curtail the jurisdiction of the Superior Courts is evident from the Preamble of the Provisional Constitution Order as the very purpose of the promulgation of the Order was to remove the doubts which had arisen as to the effect of the Laws Continuance in Force Order as, regards the power and jurisdiction of the Superior Courts and that the Law-maker has not chosen to amend the provisions of subsection (2) of section 3 of the Law Reforms Ordinance with the result that the aforesaid provision which provided for an appeal against the order passed under Article 199 of the 1973 Constitution cannot now be invoked by an aggrieved person for filing appeal against an order passed by a learned Single Judge under. Article 9 of the Provisional Constitution Order. 6. Ch. Muhammad Farooq, learned counsel for the appellants in reply conceded that there was failure or omission on the part of the law-maker to make necessary amendment in subsection (2) of section 3 of the Law Reforms Ordinance, 1972 consequent upon the promulgation of the Provisional Constitution Order which by Article 9 provided for 'the same jurisdiction, exercised hithertobefore under Article 199 of the 1973 Constitution by the High Courts though the jurisdiction now conferred stands curtailed in certain respects as is apparent from sub-Article (4) of Article 9 of the Order. He argued that this Court would be justified in remedying the omission by reading the words "under clause (1) of article 199 of the Constitution of Islamic Republic of Pakistan" appearing in the said subsection, as under Article 9 of the Provisional Constitution Order, 1981. The relevant part of section 3(2) of the Law Reforms Ordinance, 1972 is quoted here for reference :- "An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under sub-paragraph (i) of paragraph (b) of that clause." In support of the aforenoted plea reliance was placed on the view taken in Muhammad Amir Khan v. Controller of Estate Duty (1). In this case review was sought of the judgment delivered by the Supreme Court in the case reported as Muhammad Amir Khan v. Controller of Estate Duty (2), wherein it was held that;- "There being no doubt in the present case that the duty which the Legislature intended to be realized was that which was to be determined in accordance with the provisions of the Act. We find we have jurisdiction to modify section 57 so as to rectify the draftsman's mistake and to read in it references to the Controller and the Appellate Tribunal, etc., and we would hold that the proper duty could be realized in spite of the defective wording of section 57." The forequoted conclusion was recorded after observing as follows :--: "It will be observed that there cannot be the slightest doubt in the present case as to the intention of the Legislature In fact, it is admitted on behalf of the appellants that the failure to make a consequential. Amendment in section 57 could only be due to a slip. After providing that the Controller could determine value subject to. An appeal to the Appellate Tribunal the Legislature could not possibly have intended that duty should be paid only on the account which was filed by
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the accounting party itself. All that has happened is that, the draftsman failed to refer in section 57 to the provisions relating to determination in accordance with the amended Act. That we can modify the language of an Act to give effect to the manifest and undoubted intention of the Legislature is a proposition which is well-supported by authority and well justified in reason." This very position was reiterated by the learned Judges of the Supreme Court while rejecting the review petition in their separate judgments. Corne--lieus, C. J. Observed as under;- "In the judgment of this Court the section has been read as if it stood modified so as to accommodate the existing provisions for ascertain--ment of the correct value. Of an estate by the authorities, fiscal as well as judicial. I am not prepared to say that view was erroneous, and I am quite clear on the other hand that even if it was, the result which has been brought about is one which is in complete accord with the intention of the Legislature, as subsequently expressed by retrospective amending legislation, to make good what was clearly an accidental omission." (1) PLD 1962 S 0-335(2) PLD-1961-SC-119 Fazle Akbar, J. In his judgment summed up the argument raised as follows :-- "It was first contended that this Court in interpreting section 57 of the Estate Duty Act, 1950 as amended by Estate Duty (Amendment) Act, 1953 exceeded the proper limit of interpretation and assumed for themselves power of Legislation. The Estate Duty Act was amended in 1953. Due to slip of draftsman consequential amendments were not made in section 57 of the Act. This Court after referring to Maxwell's Interpretation of Statutes and other decided cases held that it had jurisdiction to modify section 57 so as to rectify' the draftsman's mistake. If further, authority is needed for this pro--position it will be found in the case of Ram Kissendas Dhanuka and others v. Satya Charan Lal PLD 1949 P C 339. In the above case, it was held that "the omission to make such cross-…
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