2023 PLP (C (PLC(CS)N)

LURNA SALEEM PERVEZ, J.

Through this petition, the Petitioner has invoked the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking following directions to Respondents:- "It is respectfully prayed that this Honourable Court may kindly direct the respondents to:

1. To issue orders to release the salary of the plaintiff (aggrieved person) from the date it was stopped without any notification.

2. To issue orders to provide any relevant documents updates as the Hon tie Court may requisite in reaching a judgment. Documents which are being kept not accessible to the petitioner.

3. To restrict the university from taking any measures, including stopping of the petitioner from dispensing his duties and stopping of pay, against the petitioner.".

2. The Petitioner, who is serving as Assistant Professor in respondent university is aggrieved of notification dated 30.05.2018, whereby his claim for salary and allowances during the period of study leave from 2013 to 2017 was rejected.

3. Petitioner, in person, submitted that he joined Respondent No. 1 on contract basis for six months and was regularized on 21.01.2012; that he as nominated by the Respondents to study abroad on scholarship and was allowed study leave, vide letter dated 27.07.2012; that vide Notification dated 30.11.2012, his study leave was extended for the period 05.02.2013 to 04.02.2014 with salary and thereafter his study leave was further extended, vide office orders dated 04.02.2914 and 27.01.2015, for the period. 05.02.2014 to 04.02.2016, with average salary and stipend; that he filed representation to Additional Registrar on 20.04.2018, requesting update regarding his pay status; that, vide letter dated 30.05.2018, the respondent issued clarification that he was granted Ex-Pakistan study leave (Malaysia) without pay as the words with pay or average pay should be read as without pay. He submitted that the denial to issue salary, vide office order dated 30.05.2018, during Ex-Pakistan study leave is unjustified and illegal as he was allowed to study abroad with pay / average salary, vide office orders dated 04.02.2014 and 27.01.2015.

4. On the other hand, learned counsel for Respondents submitted that instant petition is not maintainable as the subject matter pertains to terms and conditions of service of the Respondent University which are governed by non-statutory rules; that while he was selected for Ph.D from University in Malaysia, he was categorically informed, vide letter dated 27.02.2012 that since, his period of service is less than three years, therefore, as per rules no pay would be allowed during study leave. He referred to Leave Rules prepared under section 26(1) of Federal Urdu University Ordinance, 2002 (hereinafter referred as the Ordinance, 2002), whereby according to Rule 20(3) which pertains to study leave the Teacher is allowed study leave for the purposes of research etc. if his tenure of service is not less than three years and according to Rule 20(1), the study leave allowed to the Teachers, if the said facility is not available in Pakistan and that the employees who have period of employment less than three years are not allowed ex-Pakistan study leave. He submitted that in the office orders dated 04.02.2014 and 27.01.2015 "the leave with pay" was inadvertently typed which was clarified vide letter dated 30.08.2018. He thus, submitted that petitioner wants to take advantage of typographical error which cannot be granted being contrary to the statute, rules and regulations.

5. Arguments heard. Record Perused.

6. Learned counsel for the respondent University has objected to the maintainability of the petition on the ground that Employees Service Rules of the University are not statutory. Therefore, this being the preliminary legal objection, is required to be addressed before discussing the merits of the case.

7. Respondent University namely Federal Urdu University of Arts, Science and Technology Islamabad, has been created through an Ordinance of 2002, promulgated by the President on 13.11.2002, with the primary object to constitute and restructure universities setup by Federal Government. It has been incorporated, vide sections 3 and vide section 3(2) the university consists of the following:- "(a) the Chancellor, the Pro-Chancellor, the Deputy Chair of the Senate, the members of the Senate and the Vice-Chancellor; (b) the members of the Authorities of the University established . under section 16; (c) all University teachers and persons recognized as students of the University in accordance with terms prescribed from time to time; and (d) all other full-time officers and members of the staff of the University. ". As per Section 3(3), the university is body corporate and as per Section 3(6), the University enjoys 'power's in respect of academic, financial and administration autonomy including power to employee officers, teacher and others employees on such terms and conditions as may be prescribed. Powers and purposes of the University are prescribed in section 4, and vide clause (iv) it can also prescribe the terms and conditions of employment of officers, teachers and other employees of the university and to lay down terms and conditions that may be different from those applicable to the government servant in general. Following are the Principal Officers of the university, vide section 7: "(a) the Chancellor; (b) the Pro-Chancellor; (c) the Deputy Chair of the Senate; (d) the Vice-chancellor; (e) the Deans; (f) the Principals of the constituent colleges; (g) the Chairpersons of the teaching departments; (h) the Registrar; (i) the Treasurer:. (j) the Controller of Examinations; and (k) such other persons as may be prescribed by the Statutes or Regulations to be the principal officers of the University.".

8. Vide section 8(1), President of Pakistan is the Chancellor of the University and Chairperson of the Senate. The Senate and the Syndicate are the authorities vide section 16(a)(i) & (ii) respectively.

9. Vide section 17, the Senate has been made the body responsible for the governance of the University which consists of the following:- (a) the Chancellor who shall be the Chairperson of the Senate; (b) the Deputy Chair of the Senate; (c) the Vice-Chancellor; (d) Secretary, Ministry of Education or his nominee not below the rank of Joint Secretary; (e) five persons from society at large being persons of distinction in the fields of administration, management, education, academics, law, accountancy, medicine, fine arts, architecture, agriculture, science, technology and engineering such that the appointment of these persons reflects a balance across the various fields; (f) President, Anjuman-e-Taraqq1 Urdu Pakistan or his nominee; (g) one person from amongst the alumni of the University; (h) two University Teachers; (i) three persons from the academic community of the country, other than an employee of the University, at the level of professor or principal of a college; and (j) one person nominated by the Commission.".

10. Section 18 empowers the Senate for general supervision over the university and vide section 18(2)(h) it has also been vested with the following power:- "to consider the drafts of Statutes and Regulations proposed by the Syndicate and the Academic Council and deal with them in the manner as provided for in sections 26, 27 and 28, as the case may be: Provided that the Senate may frame Statutes or Regulations on its own initiative and approve it after calling for the advice of the Syndicate or the Academic Council as the case may be."

11. The Syndicate has been constituted, under section 20 and vide section 21(1)(r), the Syndicate has been executive body of the university with power to propose drafts of statutes for submission to the Senate. The Senate, vide section 26(d), has the powers to regulate and prescribe the scales of pay and other term and conditions of service of officers, teachers and other University employees and vide Section 29 of the Ordinance, 2002, provides for rules making power to the authorities and other bodies of the University:-- "

29. Rules. (1) The Authorities and the other bodies of the University may make Rules, to be published in the official Gazette, consistent with the Ordinance, Statutes or the Regulations, to regulate any matter relating to the affairs of the University which has not been provided for by the Ordinance or that is not required to be regulated by Statutes, or Regulations, including rules to regulate the conduct of business and the time and place of meetings and related matters. (2) Rules shall become effective upon approval by the Syndicate.".

12. The above analysis of the provisions of the Ordinance, 2002, shows that respondent university has been incorporated under section 3, as a body corporate having Senate constituted under section 17 of the Ordinance, 2002, as the supreme authority responsible for overall superintendence and governance of the university, and vested with powers for taking decisions regarding academic, financial and administrative matters and has been authorized to consider statutes regarding terms and conditions of the service of officers, teachers and other staff. These statutes, regulations and rules are drafted and proposed by the Syndicate that consists of members under section 20 of the Ordinance, 2002, and enforced with the approval of the Senate of the university. Thus the employee service rules of the respondent university have been framed by the authorities in exercise of powers under section 26 read with 4(iv) and 28 of the Ordinance, 2002. It is thus, clear that University being an independent autonomous body is vested with powers through Ordinance, 2002 to make rules and regulations to run, manage and regulate its affairs without obtaining the approval of Federal Government.

13. The test of holding any rules and regulations to be statutory or non-statutory have been laid down by the Hon'ble Supreme Court in the case reported as Muhammad Zaman v. Government of Pakistan (2017 SCMR 571), whereby the Apex Court, after reviewing the judgments cited by the parties have held that:- "

7. According to the judgment delivered in Civil Appeal No.654/2010 and others titled Shafique Ahmed Khan and others v. NESCOM through its Chairman, Islamabad and others the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it is the nature and efficacy of such rules/regulations. It has to be seen whether the rules/regulations in question deal with instructions for internal control or management, or they are broader than and are complementary to the parent statute in matter of crucial importance. The former are non-statutory whereas the latter are statutory.

14. Thus considering the provisions of Ordinance, 2002, in the light of guiding principle of the above cited judgment of Hon'ble Supreme Court, the Employees Service Rules of the Respondent University are framed to administer and regulate terms and conditions of the service of the employees of the University in exercise of powers under section 26 of the Ordinance, 2002, with the approval of the Senate on the recommendations of Syndicate, therefore, the service rules are non-statutory.

15. Furthermore the petitioner is aggrieved with the office order dated 30.05.2018, whereby, he was declined pay and salaries for the period he was abroad on study leave for completion of his Ph.D. The rule regarding "leave" is the subject matter of terms and conditions of his service/employment, governed under Employment Service Rules of the respondent University and any such order/act that causes grievance to the employee of the University and relates to the term and conditions of the service of employee is appealable under section 33 of the Ordinance, 2002. For reference section 33 of the Ordinance, 2002, reproduced below:- "

33. Appeal to the Syndicate and the Senate. Where an order is passed 'punishing any officer other than the Vice-Chancellor, teacher or other employee of the University or altering or interpreting to his disadvantage the prescribed terms or conditions of his service, he shall, where the order is passed by any officer or teacher of the University other than the Vice-Chancellor, have the right to appeal to the Syndicate against the order, and where the order is passed by the Vice-Chancellor, have the right to appeal to the Senate.".

16. Therefore, in view of the foregoing discussion, I am of the considered opinion that present petition is not maintainable firstly in view of the settled law that petition against the bodies/institutes/departments having non-statutory rules is not maintainable and secondly, the alternate remedy is available to the petitioner under the Ordinance, 2002.

17. The petition is dismissed accordingly. SA/193/Isl. Petition dismissed.