Farhana Sidiq Vs Director Comsats etc

Judgment Sheet

IN THE PESHA WAR HIGH CC

ABBOTTABAD BENCH.

JUDICIAL DEPAR TMENT

W.P.No.850-A/2012.

JUDGMENT

Date of hearing......17.7.2017.......................................................... Petitioner/s (Farhana Sadiq) by M/s. Qazi Muhammad Azhar and Nazakat Ali Tanoli, Advocates.

Respondents (Director COMSATS & others) by Mr. Muhammad Ali Khan Jadoon, Advocate.

SYED ARSHAD ALl, J:- The Petitioner seeks

constitutional jurisdiction of this Court praying that:

S

"On acceptance of instant writ petition, the respondents be directed to restore name of the Petitioner and also to restore her internet portal'.

toDe '1W

EXAW1INE

3 NO'4 L l 2. Brief but essential facts of the case are that the Petitioner applied to the Respondent University for admission in M.Sc Chemistry Programme "Programme" of the year 2012-2013. Through letter dated 28.08.2012, the Admission CommiUee recommended provisional admission to the Petitioner in the Programme. Accordingly the Petitioner deposited the required admission fee and other dues. She also

started attending classes from 03.08.2012 and appeared in the mid-term examination. However, the respondents through letter dated 12.11.2012 cancelled the admission of Petitioner owing to the reason that the Petitioner did not secure 60% marks in her M.Sc Chemistry which was relevant terminal qualification for obtaining admission in the Programme.

The Petitioner has challenged the said order of cancellation of her admission before this Court through the instant Writ Petition. When the case came up for hearing in motion on 12.11.2012, this Court was pleased to allow the Petitioner to continue her studies in the institute, as interim relief, till the final decision of the Writ Petition. Accordingly, the Petitioner has by now completed the course work, and she also appeared in the final examination of the Programme, however, her result has been withheld by the Respondents.

The Respondents submitted reply/comments,

le True 1t wherein they stated that provisional admission was allowed to

E

: ER

XAMINI

the Petitioner subject to verification of her credentials/documents, however, Petitioner submitted online pesha admission form, wherein she mentioned her qualification as Master's in Education in P' Division which was not relevant for the admission in the Programme. For admission in the Programme, a Master's Degree in Chemistry with l Division or 2.5 COP was required. The Petitioner was asked to submit her Master's Degree in Chemistry but she deliberately avoided to submit the same. Even at the time of the

interview the Petitioner did not submit her original documents and made commitment for submission of the original documents soon. On her commitment to produce her degree ( M.Sc Chemistry), the Petitioner was allowed provisional admission vide offer letter No. CIIT/CGC!ATD/FAI 2 dated 30.08.2012. However, when her documents were verified by the Registrar Office it transpired that the Petitioner had obtained 2' Division in her Master's Degree in Chemistry which was below the eligibility criteria! requirement.

Therefore, her admission was cancelled by the Registrar Office vide letter No. 296-499 dated 12.11.2012.

5.Admittedly, the Petitioner in her admission form had stated that she had obtained M.Sc Education in Pt Division and she did not mention obtaining any educational degree in the relevant field of Chemistry. It is evident from the Order Sheet dated 22.11.2012, that the then worthy Deputy ied to be True Copy Registrar of the Respondent University appeared before this

EXAMNE

Court and made a statement which was recorded by this court as, P eshaw ai

"when confronted, the worthy Deputy Registrar contended that there was no misrepresentation or fraud as far as the written comments of her admission is concerned He further explained that on obtaining the 2" Division MSc Chemistry, which was not the mandatory condition precedent for granting admission ".

ru

6.Admission/eligibility criteria dated 18.01.2012 for the Programme placed on file, requires a candidate to posses;

A sixteen years degree in the relevant field from an accredited educational institutional with 1 Division (Annual system) or CGPA 2.5/4.0 (semester system).

No 3' Division or D grade throughout the academic carrier.

OAT (General) with 15% marks minimum.

However, the Petitioner has also placed on record the guidelines issued by the Higher Education Commission for the universities for MS/M.Phil Degree Programmes, which envisages the minimum academic requirement for the Programme as:

"Li Minimum Academic Requirement: A candidate seeking admission to the degree must; have sixteen years of education or 4 years education after F.A/F.Sc/A -level or equivalent (at least 130 credit hours) with at least second division/CGPA eW rti ri

EXAM%NER

2.50 in the degree on the basis of which admission is

03 LV

reque.ted and qual(JIed a GRF. (General Type Test as may be Peshawa! High dtri couhj t0\ ObCTUP c ?

prescribed by HEC or adopted by the Advanced Studies and Research Board of Government College University, Faisalabad. (Underline is for emphases)

7.We are conscious of our restrains, while exercising constitutional jurisdiction, that in the matters of admission and examination in education institutions, the Universities concerned are the sole judges of criteria laid down in the

prospectus and the Court normally does not interfere in the discretion of the Universities. However, in the present matter when the worthy Deputy Registrar of the Respondent University himself had admitted that the Petitioner had made no misrepresentation and further obtaining 2nd division M.Sc Chemistry was not the mandatory condition precedent for granting admission, obviously for the reasOns that her other terniinal degree i.e. Master's of Education was in l division.

Indeed, the Petitioner holds the required qualification of M.Sc in Chemistry but in Second Division. As per criteria laid down by the HEC, she was qualified to have obtained admission in the Programme. Under entry 11 of Part II of the Fourth Schedule to the Constitution of Islamic Republic of Pakistan, 1973, "The Constitution", the Federation has the exclusive authority to legislate on the standards of education.

The said entry is re-produced,

"Standards in institution for higher education and research, scientjfic and technical institution."

The contention of the learned Counsel for Respondents, that the HEC has explained, in response to a query that provisions of admissions in M.Phil/M.S Programme based on first/second/third division is the prerogative of the institution I does not appear to be legally correct as the same would offend article 143 of the Constitution.

IT

In this background when the Petitioner was given admission on merit by the competent authorities and she had not only deposited the fees but also appeared in the mid-term examination, then she could not have been deprived of her vested right which she had acquired on the basis of acts of Respondents/authorities. In Chairman Selection Committee/Principal, King Edward Medical College, Lahore & two others versus Asif Zamir Ahmad cited as 1997 SCMR 15, the august Supreme Court held, "That the above narration of the facts demonstrates that Respondent No.1 was presumably given admission on merits by the competent College Authorities after

considering his case. The requisite fee was accepted by them in lieu of valid receipts. He was directed to join Pt year class of M.B.B.S.

It is admitted that the Respondent is likely to complete the second year course of M.B.B.S.

This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation, he could not be held to be at fault. It is well settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission was given to respondent No. 1 by

accepting his credentials and in the result;

necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of Respondent No. 1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath.

To begin with, they accepted Respondent No. 1 to be entitled to get admission and at the belated stage, they took a turn by stating that Respondent No. 2 had been accommodated by giving admission instead of Respondent No.1.

This was not possible for the Petitioners to do so under the settled law. If this was so, it surely occurred because of their gross negligence for which the respondent could not be held responsible. The decision of the jjjo be irueCY EXAMINt Petitioners to have given admission to the C 3 NOV Ll"t } Respondent No. 1 was implemented in letter Peshawar High Court Awme It So: 75 Evid qj s:

and spirit. He, therefore, cannot be deprived of his vested right which he had earned on the basis of act of the Petitioners"

8.In University of Karachi & others vs Tariq Hussain & another 2012 SCMR 1694, the august Supreme Court rejected the contention of the university that the Respondent

was not eligible to be admitted to M.A Mass Communication as he did not fififihl the requirement of minimum eligibility of admission, which was 2nd division in the graduation examination, as the Respondent in the case had passed his B.Com examination in 3 d division. And the refusal by University to award degree for the aforesaid reasons were repelled by holding that " The perusal of the impugned judgment reveals that the learned High Court has after examining the record of the case came to the conclusion that since no objection as to the eligibility was made up to the timeof the completion of MA Mass Communication program by respondent No. 1 with flying colours, therefore, raising the question of eligibility after the result is unjustified and smacks ofmalafide. The learned High Court has also held that once the Respondent No. 1 had completed first Masters degree and was seeking admission to second Masters degree, the le C0W \ academic record, which was required for his admission to second degree, was the postgraduate record and not graduate L A record and since he had obtained second division in his Masters, therefore, he had been rightly granted admission.

In view of above, and in the circumstances when, the Petitioner has completed the entire course work pursuant to the order of this Court dated 22:11.2012 and has also

I,

II

44' appeared in the final examination, we allow this Writ Petition and set-aside the impugned order dated 12.11.2012, whereby

S

the admission of the Petitioner was cancelled. Accordingly, the Respondents are directed to declare the result of the petitioner and treat her in accordance with law.

Announced.

Dt17.7.2017.

[Ta/in-I

flu

03 Nov 2O !?awarHinhr.Pó1