Irfan Ahmad Vs Gomal University D.I. Khan through VC

2013 M L D 1365

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

IRFAN AHMAD and others---Petitioners

Versus

GOMAL UNIVERSITY, D.I. KHAN through Vice-Chancellor and 9 others---Respondents Writ Petition No.123 of 2012, decided on 10th January, 2013.

(a)Constitution of Pakistan---

----Art.199---Constitutional petition---Educational institution---Package of exemption of fee and other charges in respect of internally displaced students belonging to Swat and other affected areas---Chief Minister issued a directive to advise all the public sector universities/institutions of the province to exempt all such students of Swat from tuition fee and other charges for one year on the basis of proven domicile---Said incentive by the Chief Minister was approved by the Syndicate of the Gomal University---Gomal University, subsequently withdrew the concession of remission of one year dues through impugned letter---Said letter was held to be without lawful authority, and set aside---Constitutional petition was allowed.

(b)Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Petitioners were admitted in different departments of the university in the year 2009---Decision of the syndicate of the university that internally displaced students shall be exempted from fee and other charges and the university shall financially assist them for academic year 2009-2010---Scope---Students admitted in the last quarter of 2009-2010 were entitled to avail the said facility.

(c)Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Directive of Higher Education Commission was followed by the university for allowing the concession of remission of one year's dues to internally displaced students but for no valid reasons, same was withdrawn---

Record was silent as to why the authorities of the university had withdrawn the concession of remission of one year dues when it still held the field in the other educational institutions of the Province---Impugned letter of withdrawal of concession was declared illegal and constitutional petition was allowed.

Muhammad Mohsin Ali for Petitioners.

Muhammad Bilal A.R., Academics, Aurangzeb Khan, Addl: Registrar and Hamid Khan Kundi, Dy. Registrar for Respondents.

Date of hearing: 10th January, 2013.

JUDGMENT

ROOH-UL-AMIN KHAN, J.---Through this writ petition, the petitioners have prayed for declaring the Letter No. 648/Acad/GU dated 20-2-2012 issued by the Additional Registrar Academics, Gomal University D.I.Khan, respondent No.5, as illegal, without lawful authority and void ab initio being not binding on their rights.

2.Facts of the case are that petitioners Nos.1 to 9 are studying in the Institute of Engineering and Technology, Gomal University D.I. Khan for the Session 2009-2013, while petitioners Nos. 10 and 11 are the students of the said University in the Faculty of Pharmacy for the Sessions 2009-2014. Due to start of military operation against the terrorists in Dir, Swat and Malakand in the year 2009, the families of that area remained IDPs and thus vide letter No.EP-2- 1/HEC/2009 dated 21-12-2009 issued by the Higher Education Commission Islamabad, financial impact of exemption of fee and other charges in respect of IDPs students belonging to Swat and other affected area was allowed in the N.-W.F.P. (KPK). The said package was followed by all the educational institutions in the Province including the Gomal University vide its Syndicate meeting held on 16-5-2009 but subsequently it failed to honour the same when the impugned letter was issued to the petitioners.

3.Notice was issued to the respondents, who contested the petition through filing para-wise comments.

4.Arguments heard and record perused.

5.Due to increased insurgency in Malakand Agency, the Government decided to launch a military operation for elimination of miscreants. During that heavy handed operation, million inhabitants of Malakand, Swat and adjoining districts were internally displaced and became refugees in the different parts of the country, while in the illusive security, the psychological, social and economic cost and backlash remained inordinately high. The education sector has been particularly badly hit. In this hour of trial, every segment of the society played a pivotal role in helping the IDPs. At this juncture, the Chief Minister N.-W.F.P. (now Khyber Pakhtunkhwa) through Government of N.-W.F.P. Higher Education, Archive and Library Department issued a

directive to advise all the public sector universities/institutions of the province to exempt all the students of Swat, on the basis of proven domicile, from tution fee and other charges for one year, due to the destruction of the area's economy and lives. The above mentioned directive was circulated amongst all the universities/institutions including respondents vide letter dated 4-3-

6.In pursuance of the above circular/letter dated 4-3-2009, the Syndicate of the respondent University in its 78th meeting held on 16-5-2009 decided to remit all the dues (regular and self-supporting education) examination forms fee and other charges to Swat students studying in various departments of respondents university for one academic year, viz. 2009-2010 on the basis of proven domicile. The decision of meeting of syndicate was passed on to all the concerned departments vide office order dated 19-5-2009. On issuance of the office order above, the decision and directive of the Chief Minister was acted upon. Over and above the academic section of the Gomal University Dera Ismail Khan, further directed all the Heads of teaching departments, colleges/institutional centers of the university, that remission of one year dues of IDPs students of Malakand/Swat/Dir studying in Gomal University is under consideration of the Higher Education Commission and till any decision is taken by the Higher Education Commission, one year fee/dues may not be charged from the internally displaced students.

7.It is a known fact that the Higher Education Commission had announced to establish IDP Welfare auditable account for receiving contribution from universities and other donor agencies and even had committed one day salary for the purpose. The Higher Education Commission has also recommended that internally displaced students will be exempted from the tution and hostel fees. Even some subsistence allowance was also offered to such students. The Universities all across the countries also offered to accommodate displaced students in their programme free of cost. On the same patron, the Government of Punjab also had approved one year assistance programme for the students of IDPs families belonging to Malakand Division with a monthly stipend of Rs.2000 per student for their day-to-day expenses.

8.Admittedly, the petitioners are internally displaced students hailing from Malakand and Swat area. They have been admitted in different departments of the University in the year 2009. It is also clear than crystal from the directive of the Provincial Government, letter of Higher Education Commission dated 21-12-2009 and decision of the syndicate that the internally displaced students shall be exempted from fee and other charges and the university shall financially assist them for academic year 2009-2010. Despite the clearcut and trenchant directions, the issuance of impugned letter bearing No.648 dated 20-2-2012 is nothing but colourful exercise of powers. The arguments of the learned counsel for the respondents that the directive of Chief Minister and decision of Syndicate is not applicable to the case of the petitioners because they have been admitted in last quarter of 2009-2010 is flimsy and unpersuasive. It is manifest from all correspondence that the incentive was approved by the Chief Minister and then by the Syndicate for the year 2009-2010. The petitioners were admitted in the year 2009-2010, thus were obviously entitled to avail the facility. The respondents while issuing the impugned letter have misdirected themselves by wrongly interpreting the decision of syndicate and directive of the Chief Minister.

9.The petitioners have produced a decision and list issued from University of Engineering and Technology Peshawar wherein all the IDPs students studying therein have been asked to deposit their refund claims for the year 2009-2010. The record shows that initially, the directive of the Higher Education Commission Islamabad was followed by the respondents of the Gomal University but for no valid reasons, it was subsequently withdrawn. The record is silent to show that as to why the authorities of the Gomal University has withdrawn the concession of remission of one year dues when it still holds the field in the other educational institutions of the Province.

10.For the reasons discussed above, we admit and allow this writ petition and declare the impugned letter of respondent No.5 as without lawful authority and of no legal effect qua the petitioners. No order as to costs.

JJK/72/P Petition allowed.