Abdul Ghani vs Registrar Bzu etc.

FORM No. HCJD/C-121

Order Sheet

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

Judicial Department

W.P. No.2461 of 2018

Abdul Ghani. Vs. Baha-ud-Din Zakariya University, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 23.02.2018. Mr. M. Sohail Iqbal Bhatti, Advocate for petitioner. Mr. Muhammad Ali Siddiqui, Advocate for respondent BZU.

Through this constitutional petition, the petitioner seeks a direction to respondent No.2 to grant him study leave with full pay and allowances.

2.Brief facts of the case are that the petitioner is working as Stenographer in the respondent Baha-ud-Din Zakaria University (‘University’) and sought permission for paid leave to study LL.M from the Karachi University on 02.09.2008 and earlier filed W.P.No. 7331 of 2008 before this Court to challenge the order of the Vice Chancellor of the University, whereby permission for grant of study leave had been declined. The said petition was withdrawn in order to seek remedy before the Syndicate of the University, however, direction was issued to the Syndicate to decide the said matter. Consequently, the petitioner was allowed permission to complete the LL.M after availing earned leave. The petitioner again applied

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for ex-Pakistan study leave/NOC for doing Ph.D. in Law at Malaysia, which was rejected by the University on the ground that the petitioner did not hold administrative/research/teaching post and his matter for availing paid leave earlier is pending before the Hon’ble Supreme Court of Pakistan for its adjudication.

3.The counsel for the petitioner argues that under the Constitution of Islamic Republic of Pakistan, 1973, every citizen has a right to get education freely and the decision of the respondent University for not granting ex-Pakistan study leave/NOC is not justified. States that the afore- referred CPLA filed by the University does not prevent the petitioner to seek further education.

States that the petitioner has been discriminated against as respondent No.2 has already granted study leave with full pay to similarly placed persons namely Abdul Jabbar for his study in China, Mumtaz Hussian, Lab. Supervisor in the University itself and also Mehtab Ullah, Assistant Computer Programmer for doing Ph. D in the department of Physics BZU, Multan.

4.On the other hand, counsel for the University vehemently opposed the contention raised by the counsel for the petitioner by stating

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that the University has non-statutory Rules and, therefore, writ petition is not maintainable on this score. Further argues that the petitioner has already availed 799 days earned leave on account of his LL.M study and now he wants to take further ex- Pakistan Leaves for his Ph.D., for which no provision is provided under the University Rules.

Further as per statutes, study leave can only be granted to the employees holding post of permanent administrative/research/teaching staff, whereas the petitioner is a Stenographer and this seat does not require any administrative/research/ teaching duty, therefore, the petitioner is not entitled for grant of NOC/ex-Pakistan paid Leave for further education.

5.Heard. Record perused.

6.The service rules framed by the University are not statutory. The question arises whether such non-statutory Rules can be enforced by means of a constitutional petition, the answer to this question must be in the negative in view of the judgments of the Hon’ble Supreme Court of Pakistan reported as ‘Abdul Wahab and others v. HBL and others (2013 SCMR 1383) and M/o IPC through Secretary and others v. Arbab Altaf Hussian and others (2014 SCMR 1573). In the case of Abdul Wahab and others (supra), the Hon’ble Full Bench comprising

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of six members of the Hon’ble Supreme Court of Pakistan observed as under:-

“It is settled law that, where a service grievance is agitated by a person/employee who is not governed by statutory rules of service, before the High Court (s), in terms of Article 199 of the Constitution, such petition shall not be maintainable, reference in this behalf can be made to PLD 2010 SC 676 (Pakistan International Airline Corporation v. Tanweerur- Rehman) and PLD 2011 SC 132 (Pakistan Telecommunication Co. Limited v. Iqbal Nasir).

7.Besides the petitioner has earlier availed paid study leave and as per Rules, as claimed by the University, only one time permission is permissible and 2nd time permission is not permissible. From the perusal of the Rules, the same appear to be silent as to how many times a person/employee can avail paid study leaves and besides whether the petitioner is entitled to study leave without pay when the University claims that vacancy on which the petitioner has been appointed would have to remain vacant till the time the petitioner did not join the same again as fresh appointment on the said vacancy could not be made.

8.In this backdrop, instead of exercising constitutional jurisdiction of this Court, it would be appropriate to refer the matter to the Syndicate of the University with the direction to look into grievance of the petitioner and decide the same in accordance with law through a well-reasoned/

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speaking order. Office is directed to transmit copy of this petition along with its annexures to the Vice Chancellor of the Baha-ud-Din Zakariya University, Multan (respondent No.2), who shall place this matter in the up-coming Syndicate meeting for consideration and decision. With this direction this petition stands disposed of.

(Muzamil Akhtar Shabir) Judge

Announced in open Court on 25.04.2018.

Judge Zeeshan Khan