2019 PLP 373 (YLR)

GHULAM MUSTAFA MUGHAL, J.

The captioned appeal by leave of the Court arises out of the judgment dated 5.4.2018, passed by the learned High Court in Writ Petition No.1225 of 2014.

2. The facts forming the background of the captioned appeal are that respondent No.3, herein, filed a complaint before the Mohtasib (Ombudsman), praying therein, that she had passed B.A. examination held in August, 1999 under Roll No.2466 by securing 358 out of 800 marks, the percentage of which comes to 44.75%, however, for obtaining the second division, 0.25 numbers are required, which may be ordered to be granted to her as she is entitled to get the same according to the relevant regulations of the University. Appellant No.4, herein, submitted the detailed report on behalf of the appellants, wherein, it was stated that according to the existing regulations of the University of Azad Jammu and Kashmir relating to the conduct of examination, respondent No.3, herein, is not entitled to be granted second division for the reason that she has already been awarded 2 concessional marks in the subject of English Language. The Ombudsman vide judgment/order dated 2.4.2014, accepted the complaint and directed the appellants, herein, to issue the degree of second division by including 2 grace marks in the total/final result. The aforesaid judgment/ order was challenged by way of writ petition before the Azad Jammu and Kashmir High Court. The writ petition was contested by the respondents on several grounds including the bar of jurisdiction and at the final conclusion the same was dismissed through the impugned judgment dated 5.4.2018.

3. Raja Amjid Ali Khan, the learned Advocate appearing for the appellants argued that dismissal of the writ petition by the learned High Court for non-availing the remedy of representation as visualized by the Establishment of the Office of Mohtasib (Ombudsman) in AJK Act, 1992, was not justified in the circumstances of this case because the same was neither adequate nor efficacious, hence, it was enjoined upon the learned High Court to decide the writ petition on merits. The learned Advocate further argued that even otherwise, the order passed by the Mohtasib (Ombudsman) was ab initio void for having been passed on an incompetent, time barred complaint and without any express order regarding condonation of delay hence, such a void order can be challenged through writ petition without availing the statutory remedy provided through the sub-legislation. The learned Advocate further argued that the private-respondent, herein, was awarded 2 grace marks in the paper of English Language, hence, she was not entitled to the concessional/grace marks required for granting second class Bachelor's degree to her. The learned Advocate further argued that the order of the Mohtasib (Ombudsman) was also illegal on the ground that the regulations regarding admission have been miss-interpreted by the Mohtasib (Ombudsman) because under the proviso to regulation 9, of the University Admission, Registration and Examination Regulations, a candidate cannot be awarded grace marks twice. He/she can be granted grace marks either for passing a subject or for grant of first or second division.

4. Conversely, Sardar Muhammad Habib Zia, the learned Advocate appearing for the private-respondent, herein, argued that the question of limitation was not raised before the special Tribunal/Mohtasib (Ombudsman) and even before the High Court, by the appellants, herein, hence, they cannot be allowed to raise the same for the first time before this Court. The learned Advocate further argued that the right of representation before the President of AJ&K against the decision of the Mohtasib (Ombudsman) is statutory right and the President in vested with the jurisdiction to pass any order on the representation including setting aside or varying the same. The learned Advocate further argued that from the language employed in section 32 of the Establishment of the Office of Mohtasib (Ombudsman) in AJK Act, 1992, it cannot be said that the remedy of representation provided in the said statutory provision was neither adequate nor efficacious. The learned Advocate further argued that the University has do jurisdiction to refuse the claimed relief to the private-respondent, herein, and it has committed a mal-administration which has rightly been rectified by the Mohtasib (Ombudsman). The learned Advocate submitted that after awarding grace marks and counting the same towards the total credit of the private-respondent, herein, it was enjoined upon the University to issue amended result card as well as degree in her favour.

5. We have heard the learned Advocates for the parties and have gone through the record of the case. Mst. Zahida Perveen, private-respondent, herein, appeared in the annual examination of B.A. conducted by the appellants, herein, in August 1999, under role number 2466 and secured 358 marks out of

800. The percentage of these marks comes to 44.75% and for obtaining a 2nd class Bachelor's degree, 45% marks are required to be obtained by the private-respondent, herein. She filed a complaint before the Mohtasib (Ombudsman) of Azad Jammu and Kashmir on 24.01.2014, alleging therein, that she is entitled to grace marks for obtaining second division in view of the relevant University regulations governing the matter but the University authorities have refused to grant the grace marks while exercising the jurisdiction arbitrarily. The Mohtasib (Ombudsman) conducted an inquiry into the complaint and ultimately vide order dated 02.04.2014, directed the University for doing the needful as under:- The University authorities, appellants, herein, have not challenged the order dated 02.04.2014, by filing representation before the President of Azad Jammu and Kashmir in view of section 32 of the Establishment of the Office of Mohtasib (Ombudsman) in AJ&K Act, 1992, and directly assailed the order of the Mohtasib (Ombudsman) by filing writ petition before the High Court on 04.06.2014, on the ground that the order passed by the Mohtasib (Ombudsman) is illegal and violative of law as well as relevant regulations of the University of AJ&K. The writ petition was contested by the other side by filing written statement and the learned High Court through the impugned judgment dated 05.04.2018, has dismissed the writ petition on the ground that an alternate efficacious remedy by way of representation before the President as visualised by section 32 of the Establishment of the Office of Mohtasib (Ombudsman) in AJ&K Act, 1992 was available to the appellants, herein, but the same has not been availed by them.

6. The contention of Raja Amjid Ali Khan, the learned Advocate appearing for the respondents that the complaint before the Mohtasib (Ombudsman) was time barred, has a substance. Under section 10(3) of the Establishment of the Office of Mohtasib (Ombudsman) in AJ&K Act, 1992, a complaint to the Mohtasib (Ombudsman) can be filed within 3 months from the date on which the person aggrieved first had the notice of the matter alleged in the complaint. However, the Mohtasib (Ombudsman) can condone the delay, if some special circumstances are shown to him. A perusal of the record reveals that neither any objection regarding limitation was raised before the Mohtasib (Ombudsman) nor the High Court. This question cannot be allowed to be raised for the first time before this Court. Reference may be made to a case reported as Ali Begum and 10 others v. Noor Hussain Khan [2003 SCR 30] wherein, at page 35 of the report, it was observed by this Court as under:- "The argument advanced by the learned counsel for the appellants, on the face of it, is unfounded and baseless and is not the worth consideration for the reason firstly that this plea was never urged or argued before the Courts below nor the same was argued before the High Court. The plea was not even raised in the memo of appeal before this Court nor any permission was sought from this Court to argue the point, therefore, the same cannot be allowed to be raised for the first time during the arguments in this Court." The contention of Sardar Muhammad Habib Zia, the learned Advocate appearing for the private-respondent, herein, regarding availability of alternate remedy due to which the writ petition filed by the appellants, herein, challenging the legality and correctness of the order of the Mohtasib (Ombudsman), was dismissed by the learned High Court, has substance. The consensus is that where an alternate remedy is provided by the Statute then that must be availed/exhausted before resorting to the supervisory jurisdiction of the High Court. There is no second thought about this settled position of law, however, the question of adequacy and efficaciousness of a remedy depends upon the circumstances of each and every case. Where an order of an authority/special Tribunal is ab initio void or illegal, then the availability of the alternate remedy may not be a hurdle in the way of High Court for exercise of Constitutional jurisdiction. The matter has been considered in various judgments. We may refer a judgment of the Apex Court of Pakistan rendered in the Murree Brewery Co. Ltd.'s case [PLD 1972 Supreme Court 279]. In this case while dealing with the identical proposition, at page 287 of the report it was observed as under:-- "It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as the C.D.A.) to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and 91 others, that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority." The view was reiterated subsequently in the case reported as Town Committee, Gakhar Mandi v. Authority Under the Payment of Wages Act, Gujranwala and 57 others [PLD 2002 Supreme Court 452] wherein, at page 459, in paras. Nos.20 and 21, it was observed as under:- "Jurisdiction of any forum, Court or Tribunal holding any proceedings is always the core question. It is therefore obligatory for officers presiding over such fora to determine the question of their jurisdiction whenever some doubt exists or is expressed about it, irrespective of the stage of the proceedings at which such an objection is raised. The respondent-authority was, thus, in grave error in having ignored and having failed to resolve the issue of its jurisdiction when it was sought to be urged. Its order dated 24.08.1994, cannot therefore, be justified and sustained in law.

21. It is true that as a general rule a person would not be permitted to invoke the extraordinary Constitutional Jurisdiction of a High Court under Article 199 of the Constitution if an adequate remedy was available to him to seek redress of his grievance. But then this is also equally true that such was not an inflexible rule of law not subject to any exception. This Court has held, more than once, that a writ of certiorari for instance, could be granted, despite availability of an alternate remedy, where, for example, the impugned order was ex facie without lawful authority or where it was a case of lack or absence of or even excess of jurisdiction, reference may be made to the cases of S.A. Haroon v. The Collector of Customs PLD 1959 SC (Pak.) 177; Pakistan v. Zia-ud-Din PLD 1960 SC 440; Lt.-Col. Nawabzada Muhammad Amir than v. The Controller of Estate Duty and others PLD 1961 SC 119; Nagina Silk Mills v. The Income-tax Officer and others PLD 1963 SC 322; Premier Cloth Mills Ltd. v. The Sales Tax Officer 1972 SCMR 257 and Murree Brewery Co. Ltd. v. Pakistan PLD 1972 SC

279. As has been held above, the case in hand was a case of absence of jurisdiction on the part of the respondent-Authority and the High Court therefore, not right in rejecting the Petition under Article 199 of the Constitution only because a remedy by way of appeal was available to the petitioner before it. The order dated 24.04.1996 of the High Court passed in Writ Petition No.13342 of 1994 could, therefore, not be said to be an order justifiable in law." This Court has also taken the same view in the cases reported as Waqas Ahmad Baig v. Samara Moin and 9 others 2010 CLC 1749. Noman Razzaq v. Faryad Hussain Ch. and 13 others PLD 2015 SC (AJ&K) 7, Syed Mazhar-ul-Hassan Hamdani and another v. Zubina Nayyar and 10 others [1994 CLC 1428] and Attaullah Atta v. Ghulam Bashir Mughal and 5 others [1996 CLC 1551]. In view of the aforesaid case law, in presence of statutory remedy in the shape of section 32 of the Establishment of the Office of Mohtasib (Ombudsman) in AJ&K Act, 1992, the writ petition under Article 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, was not competent because the president in the capacity of the appellate authority is vested with the power to set aside or amend the judgment/order passed by the Mohtasib (Ombudsman). By no stretch of imagination, it can be said that this statutory remedy was not adequate or efficacious.

7. In view of the above conclusion, no further deliberation is required but in order to clarify the position, we have considered the contention of Raja Amjid Ali Khan, Advocate, that the respondent could not be benefited twice under the relevant regulations of the University which is devoid of any force, because, this question is not directly involved in the present case. For proper appreciation of the matter, the relevant regulations are reproduced as under:- "

9. The minimum number of marks required to pass the examination shall be 33% in each subject, whether compulsory or elective (separately in written and practical); provided that if a candidate fails by a margin of 5 marks, he may be declared successful. These concessional marks way be spread over if a candidate is failing in more than one subject; Provided that if a candidate misses first or second division by 5 marks or less he shall be awarded grace marks upto a maximum of 5 and placed in the First or Second Division as the case may be. A candidate who is declared successful after getting grace marks shall not be given grace marks for being placed in a higher division.

10. No candidate who passed in second annual examination shall be entitled to a scholarship, a prize or medal.

11. Candidates who gain in the pass papers at least sixty percent marks will be placed in First Division, those who gain at least forty-five percent in the Second Division and all below, who pass, in the third division provided that a candidate may be granted upto 5 grace marks to place him/her in higher division if he/she did not avail of the concession of 5 grace marks under the regulation 9 above." A perusal of the above would show that minimum passing marks are 33% in each subject and if a candidate fails by a margin of 5 marks, he may be declared successful. Under proviso to regulation 9 reproduced above, it is provided that a candidate who is declared successful in any of the subject after getting grace marks, will not be given grace marks again for being placed in a higher division. In our estimation, this provision has been mis-interpreted by the appellants, herein. A perusal of the record reveals that the private-respondent, herein, has secured 64 marks out of 200 in the paper of English Language. The total calculation of the marks comes to 358 marks out of

800. Two marks have admittedly been given to her as grace marks in the subject of English Language to declare her successful in that subject but astonishingly these two marks have not been included in the total marks. After addition of these two marks, her total marks come to 360 out of 800 marks which makes the percentage as 45% and she becomes entitled to be placed in second division, therefore, grant of additional 5 marks for awarding the BA. second class, degree were not at all necessary. Hence, the proviso to regulation 9 was not attracted in this case. We are afraid to accept the argument of the learned Advocate that grace marks given by the University cannot be counted towards the total marks. No law has been cited in this regard by the learned Advocate. The private-respondent, herein, has been declared as successful in the paper of English Language after awarding 2 grace marks, hence, non-inclusion of these 2 marks in the final result card and refusal to grant 2nd class degree of B.A. is not justified. The upshot of the above discussion is that finding no force in this appeal, the same is hereby dismissed with no order as to costs. ZC/46/SC(AJ&K) Appeal dismissed.