Shaista Fazal Vs Chairman WAPDA & others

PESHAWAR HIGH COURT ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

JUDGMENT SHEET

WP No. 942-A/2024.

Date of hearing 06.03.2025.

Petitioner/s (Shaista Fazal & others) by Mr. Muhammad Riaz, Advocate.

Respondent/s (Chairman, WAPDA & others) by Ms. Sajjad Ahmed Abbasi, Aamir Khan and Muhammad Noor, Advocates.

SYED MUDASSER AMEER, J. Through the instant petition filed under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, petitioners have invoked the jurisdiction of this Court with the following prayer:-

That on acceptance of instant writ petition, the act of respondents by cancelling the admission of the petitioners vide impugned letters dated: 30.08.2024 and recalling the scholarship of petitioners and not allowing the petitioner to attend the classes may graciously be declared illegal, unlawful and

without lawful authority with

further direction to the

respondents to restore scholarship of the petitioners and to allow the petitioner to attend their classes.

2.Facts of the case leading to filing of the instant constitutional petition, in brief, are that in order to address parental care and maternal child heath the respondents through publication circulated in newspaper, announced two years’ fully funded scholarship training for local Lady Health Visitors (LHV) belonging to Kohistan Upper.

Petitioners belonging the same area being eligible in all respects applied for the said scholarship and ultimately, they were selected for the scholarship program and thereafter, petitioners joined the two years sponsored training program at Public Health School, Abbottabad and have studied for about 6/7 months. However, all of sudden and without prior notice respondents recalled the scholarship, and petitioners were dis-allowed to attend the classes, upon which the petitioners approached to this Court by filing

WP No. 817-A/2024, when in the meanwhile, respondents cancelled the admission of the petitioners vide impugned letter dated:

30.08.2024, therefore, in order to challenge the said letters, the petitioners withdrew the said writ petition and filed the present petition.

3.Arguments of learned counsel for the parties heard in considerable detail and record available gone through with their valuable assistance.

4.It is the stance of the petitioners that they, in response to the advertisement published in newspaper, being fully qualified, applied for the scholarship program and after fulfilling all the formalities, they were selected for the training program but all of a sudden their scholarship was recalled arbitrarily, without any cogent reason, without any allegation or show cause notice and without any lawful authority and vide impugned letter cancelled the admissions of petitioners. In response to the petition, respondents No. 3,4, 5 and 6 were directed to file parawise comments, which they filed

accordingly. Learned counsel for respondents asserted that in order to check the progress of the petitioners/trainees, the respondent No. 5 held a written examination [Continuous Assessment Test (CAT)], in which the present petitioners failed, therefore, respondents discontinued their trainings, however, when the respondents were asked about the source of “CAT” in the relevant rules/regulations, they were unable to provide the same. Infact there seems to be no such rule, regulation or bye law that provides for termination of the relevant scholarship or training as a result of failing the “CAT”. Thus, it is clear that the decision to terminate petitioners’ scholarship and training does not emanate from any law/rules etc but is based on some individual wisdom in the hierarchy of the respondent authorities.

While examining the comments of

respondents No. 5 and 6 it transpired that infact there is such a test, which must be passed by the petitioners and failure to pass the same could have resulted in termination of training after providing a chance for 15 days.

The said test, however, is not the “CAT” but PTS test, which the petitioners have passed.

The relevant comments of respondents No. 5 and 6 are given below for ready reference:

“6. That in reply to para No. 6, it is submitted that according to Curriculum/Prospectus for LHVs of Pakistan Nursing Council Islamabad and Provincial Health Services Academy Peshawar:-

1.According to Curriculum of Pakistan Nursing Council, Islamabad for Lady Health Visitors: “After the completion of preliminary Training Session (PTS 12 weeks period) the candidates will appear in the examination of the said subject. If she fails in t his examination, she will be allowed a chance after 15 days. In case the candidate does not clear the PTS examination, within the prescribed time, her training is to be terminated” However, the following LHVs student have passed their PTs examination.

2.According to Prospectus for LHVs:- There is no such rule on the basis of academic assessment student may be rusticate from LHV cause”.

5.It is clear that the curriculum and the prospectus provides for a test known as the Preliminary Training Sessions (PTS) exam, which if failed might lead to termination of the training of an LHV, provided she does not avail the 15 days chance to be provided to her.

However, as evident from the comments, the petitioners have passed this PTS examination.

It is also stated in the comments that there is no other exam provided in the approved curriculum, which if failed would result in termination of the training. In these circumstances we sought to know the real reason behind the petitioners’ training termination. In this regard our attention was drawn towards para-7 of the “Preliminary Objection” of the comments submitted by respondents No. 5 and 6. The same is also given below for ready reference:

“That the respondents acted in accordance with instruction communicated by WAPDA authorities. However, the petitioner passed their 12 weeks Preliminary Training Session (PTS) examination as per rule of answering respondent/institution. Moreover,

the prospectus for LHV post there is no such assessment test”.

6.Clearly, the petitioners have passed this 12 weeks PTS examination, which was the only requirement as per the relevant rules/prospectus of the institution as well as the LHV curriculum and there is no provision for terminating their training or scholarships on the basis of any other test. There is also no mention of the “CAT” in the relevant rules/prospectus. Thus, leaving no doubt that the impugned termination has no foundation in the relevant rules.

7.It is settled that all actions by governmental bodies, authorities, or departments must be conducted within the parameters set by law, regulations and the Constitution. Any action taken without legal authority or beyond the scope of jurisdiction is invalid and can be challenged in court.

Superior Courts of the country have consistently emphasized that an action taken without the authority of law is inherently ultra vires and has no legal effect. This is a general principle based on concept of "rule of law"

and "due process" so as to ensure that all actions taken by public authorities remain within the scope of the powers granted to them by law, protecting individuals and entities from arbitrary or unlawful administrative actions. In this case, when it has been admitted by the respondents No. 5 and 6 in the parawise comments that petitioners have already passed their PTS examination, which was conducted as per Curriculum of Pakistan Nursing Council, Islamabad, then the respondents in no way could be justified in terminating the petitioners’ training and canceling their scholarship on the basis of “CAT”. Thus, the respondents have acted in excess of their jurisdiction and without lawful authority calling for interference by this Court in its Constitutional jurisdiction to protect the fundamental and vested rights of the petitioners.

8.In view of above discussion, this writ petition is allowed and as a result thereof, the impugned letters dated: 30.08.2024 issued by the respondents are set-aside and the

scholarship program is restored with directions to the respondents allow the petitioners to attend classes.

Announced.

Tahir P/Secretary.

JUDGE

JUDGE

Hon’ble Justice Muhammad Faeem Wali & Hon’ble Justice Syed Mudasser Ameer.