2001 SCMR 865


Per Abdul Hameed Dogar, Ja) Constitution of Pakistan (1973) Arts. 2A, 8, 25, 37(c) & 185(3)
r/w N.E.D University of Engineering and Technology Act (III of 1977 Ss. 6 & 18

The 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 & 37(c) of the Constitution.

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 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 teats the Fundamental Rights as superior to ordinary legislation and for that reason sub-Article (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 there is the power to declare the law to 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 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 infarction 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 would 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. 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 ay 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.” (p. 869) B

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.

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. (p. 870) C

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