2018 PLP 5 (CLCN)

JAWAD HASSAN, J.

Through the instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has assailed the letters dated 16.03.2017 and 10.04.2017 issued by the Respondent No.2.

2. The facts tersely revealed from the instant petition are that the Petitioner is serving in the Respondents Department as Lecturer in Statistics (BPS-18) and applied for study leave to the Respondents with full pay w.e.f. 01.02.2017 for having admission in Ph.D. Statistics Programme at International Islamic University, Islamabad which was duly sanctioned vide letter dated 11.01.2017. In pursuance of Petitioner's application necessary No Objection Certificate (NOC) was issued to him on 05.01.2017. Prior to the said NOC the Respondent No.2 had already issued NOC vide letter dated 08.11.2016 when the Petitioner applied for admission in Ph. D. Statistics at Qaid-e- Azam University, Islamabad but the Petitioner could not get admission in the said University due to certain problems. The Petitioner had been issued both the NOCs after taking into consideration the eligibility criteria laid down in notifications dated 19.05.2016 and 01.11.2016. On having been granted permission by the University provisionally in Academic Semester SPR-2017 in the said programme, the Petitioner deposited the Spring Semester Fee, 2017 @ Rs.54200/-. But subsequently, vide the impugned letter dated 16.03.2017 the Respondents withdrew the said NOC dated 05.01.2017. Feeling aggrieved thereby the Petitioner preferred an Appeal before the Respondent No.1 on 20.03.2017 which was dismissed vide order dated 10.04.2017. Hence, this petition.

3. Learned counsel for the Petitioner submitted that both the impugned orders have been passed on the basis of mala fide; that the NOC of the Petitioner has been withdrawn on the basis of a matter which has already been closed in the year 2011; that the allegations levelled against the Petitioner are baseless, against the law and facts; that the NOC issued in favour of the Petitioner cannot be withdrawn as a vested right was created in favour of the Petitioner; that the Petitioner has fulfilled all the requirements by the Department and also has deposited fee for first Semester and in case the Petitioner is declined to complete the programme he may suffer an irreparable loss. In support of his contentions learned counsel for the Petitioner has placed reliance on the case titled Mst. Bashrat Jehan v. Director General, Federal Government Educations, FGEI (C/Q) Rawalpindi and others (2015 SCMR 1418), Akhlaque Hussain Memon and others v. Water and Power Development Authority through Chairman and others (2005 PLC (C.S.) 596).

4. In reply to the petition, the report and parawise comments were filed by the Respondents denying all the allegations levelled by the Petitioner and prayed for dismissal of the petition.

5. The learned counsel for the Respondents vehemently controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the grounds that the instant petition is not maintainable as the Petitioner has an alternate remedy of Appeal before the Syndicate under section 43 of the University of Gujrat Act, 2004 (the "Act"); that the NOC issued to the Petitioner was only with regard to granting permission for admission and for the grant of leaves separate application was to be filed which was filed by the Petitioner and was dismissed due to cogent reason, as such there is no illegality committed by the Department. Learned counsel for the Respondents, to strengthen his contentions, has placed reliance on the case titled Adamjee Insurance Company Ltd. v. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others (1993 SCMR 1798) and Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others (2014 SCMR 122).

6. I have heard the arguments advanced by both the learned counsel for the parties and have perused the record.

7. The record reflects that the Petitioner has challenged the letter dated 16.03.2017 issued by the Respondent No.2 as well as letter dated 10.04.2017 issued in pursuance of decision on the Appeal of the Petitioner before the Respondent No. 1/Vice Chancellor, University of Gujrat, District, Gujrat. Learned counsel for the Petitioner laid much stress on the point that the Petitioner's Appeal has been dismissed vide the impugned order dated 10.04.2017 and a specific remedy of Appeal before the Syndicate is available to the Petitioner under Section 43 of the Act which the Petitioner has not availed rather instituted this petition. Section 43 of the Act specifically deals with the issue which, for the sake of brevity, is reproduced below and is as follows: "

43. Appeal and Review.

(1) Where an order is passed punishing any officer, other than the Vice-Chancellor, or any teacher or employee of the University or altering or interpreting to his disadvantage the prescribed terms and conditions of service, he shall, where the order is passed by the Vice-Chancellor or any other officer or teacher of the University, have the right to appeal to the Syndicate against the order, and where the order is made by the Syndicate have the right to apply to the Chancellor for review of that order." (Underline is mine)

8. From the bare reading of the above-said section it is very much clear that where the order is passed by the Vice-Chancellor or any other officer or teacher of the University, the aggrieved person has the right to appeal to the Syndicate against the said order. In this view of the matter, the Petitioner has the alternate remedy of Appeal before the Syndicate. It is well established law that when alternate remedy is available Constitutional petition is not maintainable. Reliance in this regard is placed on the case reported as Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 SC 969) wherein the august Supreme Court of Pakistan has inter alia held as under:- "The invocation of constitutional jurisdiction where alternate remedy is provided which is convenient and beneficial cannot be made."

9. Moreover, the reasons advanced by learned counsel for the Petitioner for not filing the appeal are not persuasive as nobody can be allowed to bypass any provision of law and the procedure laid down for a particular purpose. Reliance can also be placed on the Dr. Imran Khattak case supra in which it has been held by the Hon'ble Supreme Court of Pakistan which is as follows: "Remedy provided by Ss.103, 103-A & 103-AA of Representation of the People Act, 1976, and Art. 218(3) of the Constitution were not only adequate but efficacious as well by all means. The High Court in such a situation could not encroach upon domain of Election Commission, nor could it arrogate to itself a power or jurisdiction which was not conferred on it by the Constitution or Representation of the People Act, 1976. The Executing Court did not fail at any stage or refused to perform its legal and constitutional duty which necessitated the High Court exercise of its constitutional jurisdiction. The High Court had overstepped the parameters laid down by the Constitution and law which was a case of exercise of jurisdiction not conferred on it by law and the Constitution. The Judge of High Court or Supreme Court was bound to abide by and adhere to law and the Constitution. The Supreme Court set aside judgment passed by High Court and observed that aggrieved persons could approach the fora provided by the Constitution and Representation of the People Act, 1976, for redressal of their grievance."

10. From the above, it can safely be held that this Court is bound to exercise its extra ordinary Constitutional jurisdiction where no other adequate remedy is provided by law but in the present case alternate remedy by filing an Appeal to the Syndicate is available to the Petitioner, therefore, this petition is not maintainable.

11. In view of what has been discussed above, this Court is not inclined to exercise its Constitutional jurisdiction in presence of alternate remedy to the Petitioner under the law rather observed that it would be more appropriate to issue direction to the Respondents to decide the Appeal of the Petitioner within two weeks positively, if filed before the competent forum. With this direction the instant petition stands disposed of. MH/A-93/L Order accordingly.