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Civil Petition for Special Leave to Appeal No. 42 of 1982, heard on 1st February, 1982.

(On appeal from the judgment and Order of the Lahore High Court, Lahore, dated 7‑12‑1981 in I.C.A. No. 41 of 1981).

‑‑‑O. I, r. 10(2)‑‑Necessary parties‑‑Absence of‑‑Admission in educational institution‑‑Affected persons not made party to proceedings before High Court‑‑Prayers for impleading them in appeal before Supreme Court or to remand case to High Court for impleading necessary parties and deciding matter afresh, refused‑‑Impugned judgment set aside.

‑‑‑Art. 199‑‑Educational institutions‑‑Admission in educational institution challenged in writ jurisdiction of High Court‑‑Affected person not made party‑‑In appeal before Supreme Court prayers for addition or remand, refused‑‑Matter arising out of admission to a particular academic session, remand would further create confusion and postpone point of certainty for educational institution as also for students‑‑Impugned order set aside.‑‑[Educational institutions].

Muhammad Farooq, Senior Advocate Supreme Court with Abdul Karim, Advocate‑on‑Record for Petitioner.

Zakiuddin Pal, Advocate with Ejaz Ahmad, Advocate‑on‑Record for Respondent.

Date of hearing: 1st February. 1982.

‑Leave to appeal has been sought from judgment, dated 7‑12‑1981 of the Lahore High Court whereby an Intra‑Court Appeal filed by the respondent relating to his admission in the First Year class 1979‑80 session of institute of Chemical Engineering and Technology, University of the Punjab, was allowed.

2. Brief facts strictly relevant for the disposal of this matter are that for the relevant session eight seats were reserved for the candidates to be nominated by the Chemical and allied industry/ Metallurgical industry. The respondent, Shahid Nazir, it seems, could not compete for any of the eighty general seats to be filled on merits. He, therefore, applied for one of the aforementioned eight seats as a nominee of the industry. Ultimately, he was refused admission and as asserted by him, candidates with much lesser marks, as compared to his marks in the qualifying examination, were admitted. This grievance was brought before the High Court in its constitutional writ jurisdiction. A learned Single Judge dismissed the respondent's writ petition on the view that the High Court could not substitute its own decision as for the decision of the concerned authorities in so far as the criteria for admission to anyone of the reserved seats followed by the authorities is concerned.

On Intra‑Court Appeal by the respondent, a learned Division Bench held that any criteria which was not based on the preference on the basis of merits (higher marks) was arbitrary, unjust and unreasonable which rendered the decision of the concerned functionaries as without lawful authority. Accordingly, by the impugned judgment, dated 7‑12‑1981 the petitioners were directed to admit the respondent "immediately in coming session". It needs to be noted here that the relief sought by the respondent in the High Court was that he should be admitted to the First Professional Class 1979‑80 while the direction of the I.C.A. Bench would result in his admission to the First Year Class of 1980‑81 session. This change, according to the learned counsel for the petitioners, it needs further to be noticed, instead of affecting one Rashid Afzal, who was the last candidate admitted on the reserved seats in question for 1979‑80 session, would adversely affect one Sanaullah Khan, who according to the petitioners was entitled to be admitted as last candidate on these reserved seats for 1980‑81 session.

3. Aggrieved by the judgment of the I.C.A. Bench, the University authorities have moved for leave to appeal. Their learned counsel has contended that if the relevant provisions of the Punjab University Act, 1973, the regulations and Statutes made there under, are read together, would show that the authorities were competent to lay down the criteria which included academic performance of the candidate only as one of the factors for the reserved seats as distinguished from the general merit seats; that the learned single Judge had rightly declined to interfere with the decision of the concerned Authorities regarding the selection of candidates on the reserved seats, therefore, the learned I. C. A. Bench should not have allowed respondent's appeal on the ground that the appellate Bench differed, on merits and reasoning. According to the learned counsel, the concept of arbitrariness could not be attracted merely on account of difference of opinion. In any case, according to him, the learned I.C.A. Bench should not have interfered with the findings of factual nature. He also raised other points but in view of another important factor in this case, it is not necessary to note them.

4. Learned counsel for respondent has, after analysing the relevant provisions of the Act, the regulations and the statutes, tried to show that even, regarding reserved seats, the consideration for admission should have been merits (academic performance) and nothing else. He has also contended that the law did not permit the authorities concerned to lay down any criteria other than that of merit for admission to these seats. And in any case even if the criteria in question was not arbitrary, the respondent was qualified to be admitted on the basis of the criteria laid down by the authorities. On our question as to whether aforementioned Rashid Afzal who have been adversely affected if the prayer of the respondent in the writ petition regarding admission to 1979‑80 session would have been allowed and Sanaullah Khan (who has admittedly been adversely affected by the impugned direction contained in the I.C.A. order) were impleaded as parties before the High Court, the learned counsel for the respondent replied in the negative. He admitted that they were necessary parties and prayed that the respondent be permitted to now implead them in this Court. In the alternative, he prayed that the case be remanded to the High Court for impleading the necessary parties and deciding the matter afresh affording them opportunity of hearing.

5. There is no doubt that the High Court could not have directed the authorities to create an additional seat either for 1979‑80 session or for 1980‑81 session. And without such a direction one or the other successful candidate would have been adversely affected if the prayer of the respondent would have been allowed regarding either of the two sessions. It has been stated from the petitioner's side that the last date for admission for 1980‑81 session was 5‑12‑1981, i.e. two days earlier to the date of the impugned judgment. According to them, Sanaullah Khan with 648 marks would be getting the last reserved seat. All others on those seats have still higher marks. The respondent had 613 marks, therefore, even on the basis of merit (academic performance) the respondent would not have been able to compete with Sanaullah Khan. Learned counsel for the petitioners also stated that the criteria for admission to these reserved seats has been changed since 1980‑81 session.

6. In the aforenoted circumstances, we do not consider it proper to permit the respondent to implead the affected persons, now as parties in this Court. If they would have been before the High Court, it is not certain, in the above circumstances, the decision could have been different, They, therefore, in the circumstances of this case cannot be deprived of that opportunity by summoning them in this Court. The prayer in this behalf of the learned counsel for the respondent is refused. The second prayer of the learned counsel for remand of the case for the same reasons, in the circumstances of this case cannot be allowed. The matter arises out of admission to 8 particular session of an educational institution. If the case is now remanded it will further create confusion and postpone the point of certainty for the educational institution as also the students. Thus the second prayer is also refused.

7. Keeping in view this aspect of the matter, we have considered it just and necessary to convert this petition into an appeal and allow the same. Order accordingly. The impugned judgment set aside. There shall be no order as to costs. It needs to be observed that we have not considered it necessary to give a final judgment on the question raised from both the sides with regard to the criteria for admission to the reserved seats, as the same has been changed. And further, we do not consider it necessary to discriminate it in this case, as the above reached decision has proceeded on an entirely different reason‑ absence of essential parties.

M.I. Appeal allowed.

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