1983 PLP (C (PLC(CS))

"Even an administrative body such as an R. 7 A., is under legal obligation to deal with all applicants before it fairly, justly and equitably ; an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with law. Similarly, in the case of Montgomery Flour and General Mills Ltd. v. Director Food Purchases (P L D 1957 Lah. 914) it was observed by this Court :‑ "It is true that a petitioner must have some right if he applies to the Court for a direction or order under Article 170 but need not have a personal or a proprietary right whose co‑relative is a duty. Whenever an enactment empower b a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that, in a matter in which he is concerned, an order be passed in accordance with law . In another case reported as Presiding Officer v. Sadruddin Ansari (P L D 1967 S C 569) their Lordships of the Supreme Court held at page 579 :‑ "It is true that a mandamus, does not lie where a duty is purely diseretionary but from this it does not follow that a party upon whom the duty rests can exercise his discretion in any and every manner. The mere fact that there is an element of discretion in the duty to be discharged is not by itself sufficient to exclude relief by way of mandamus, for, even a discretion must .be exercised reasonably and honestly and not arbitrarily or capriciously in bad faith." It was also noticed in the judgment at the same page :‑ "It is well‑settled, as observed by Ferris in his book on Extraordinary flu Legal Remedies at page 241, that mandamus, will issue to correct an abuse of discretion if the cause is otherwise proper." It is thus clear that even the Administrative authority has to exercise the discretion not in discriminatory manner, but fairly, equitably and justly. It can, therefore, hardly be said that the respondent had exercised the discretion in refusing study leave to the petitioners in public interest 'and not in violation of the standing instructions of the Federal Government. The respondent is under legal obligation to follow instructions issued by the Government, particularly when the same do not violate any law. In a more recent decision reported as Mian Munawar‑ud‑Din v. Federa tion of Pakistan (P L D 1979 Lah. 699) this Court has held at page 702 in the following words; "It maybe noted in this context that the Government itself is not only bound by the instructions it issues for the guidance of its officers and the public but is also obliged to follow and implement its own interpretation of a particular provision of law, unless the same are found to be in clear violation of any law."

11. The last point argued was that the petitioners were civil servants and the matter in issue related to the terms and conditions of their service. Therefore, they were required to approach the Service Tribunal constituted under Article 212‑A of the Constitution. The question whether the petitioners are civil servants would require examination of the definition of "Civil servants" as provided in section 23 (3) of the Punjab Civil Servants Act (VIII of 1974), it reads :‑ (b) `civil servant' means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province, but does not include :‑ (i) (ii) (iii) a person who is a `worker' or workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation. Act, 1923 (VIII of 1923)." It is, therefore, necessary to find out the definition of "worker" as given under the Workmen's Compensation Act. The word "workman" is defined under section 2 (n) of the Workmen's Compensation Act as follows :‑ "workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is‑‑ (i) (ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II. ' Item (viii) of Schedule II attached to the Act reads :‑. "empolyed in the construction, repair or demolition of‑ (a) any building or structure ; or (b) any dam or embankment which is twenty feet or more in height from its lowest to its highest point ; or (c) any road, or tunnel ; or (d) any wharf, quary, sea‑wall or the marine work including any moorings of ship ; (x) of the Schedule reads; "employed in the construction, working, repair or demolition of any aerial, ropeway, canal, pipeline, or sewer ; The perusal of the above provisions of law make it clear that the petitioners who are employed as Sub‑Engineers in the Irrigation and Power Department engaged in construction and. repair work of buildings, roads, canals, dams, etc, and draw salaries less than one thousand per mensem are covered within the definition of "worker" or "workman'. It was, therefore, not necessary for them to have approached the Service Tribunal for the relief prayed for. The petitioners ought to have resorted to Labour Courts ; but considering that remedy to be not speedy and efficacious, they invoked the jurisdiction of this Court, which in the stated circum stances, after the respondent's refusal to honour the advice of the Vigilance Commission, was appropriate.

12. For the foregoing reasons, I am satisfied that the action of respondent in refusing study leave to the petitioners was arbitrary an not sustainable at law.

13. Keeping in view the reasons recorded hereinbefore, I had accepted this petition by my short order dated 15‑3‑1980 and declared action of the respondent refusing study leave to the petitioner as of no legal effect and held the petitioners entitled to study leave for joining the classes at Government College of Technology, Rasul.

14. There will be no order as to costs. Petition accepted.