Dr. Zahir & othres Vs Hazara University etc

JUDGMENT SHEET

PESHAWARHIGH COURT,

ABBOTTABAD BENCH

(ludicial Department)

WP No. 1283-N2020

JUDGMENT

Date of hearing : 03.12.2024 Petitioner:- (Dr. Zahir & Others ) bv Sved Amiad Shah. Advocate.

Resoondents: -(Hazara Universitv & others) bv M/s Muhammad Shoaib Khan . Tanvee r Ahmed Mushal and Haii Sabir Hus sain Tanoli. Advocates.

MUHAMMAD FAHEEM WALI. J.- This order is

directed to dispose of this and the connected constitutional petition bearing No. 1343-412020, as both the petitions pertain to a similar question of law.

2.In both the connected petitions, the petitioners are employees of Hazara University in different faculties. In the year 2006-2007, the petitioners were selected for pursuing their higher studies abroad on scholarship basis and as per stance of the petitioners, they were granted study leave on full pay in view of the decision of Syndicate of the Hazara Univelsity under Agenda Item No. 11 of its 10th meeting, convened on 28.04.2007, as well as Senate of the University vide its 4th meeting dared 19.07.2007. The

University issued separate letters, addressed to the petitioners, whereby they were communicated that their study leave with pay, has been approved. The petitioners thus went abroad for the purpose of pursuing their higher studies. Upon completion of their studies abroad, the petitioners retumed and reported their arrival to the University, however, they found that their salaries during the period of their studies, had not been credited to their respective accounts. The petitioners thus approached the respondents, seeking release of their salaries but their requests were not acceded to on the ground that the condition of the study leave on payment of salary was revoked by the Syndicate in its 16ft meeting dated 29.01.2009. Later on, the Syndicate in its 23'd meeting under agenda Item No. 14, amended the minutes of 16th meeting and allowed study leave with pay till 29.01.2009 only.

Petitioners then approached this Court through constitutional petition No. 19-412013. The said writ petition came up for hearing before this Court on 22.05.2019 when leamed counsel representing the petitioners, sought its withdrawal with pemrission to file appeal to the worthy Chancellor of the University under Section 40 of the Khyber Pakhtunkhwa Universities Act, 2012. The petitioners, thereafter filed

appeal before the worthy Chancellor, which was dismissed vide order dated 18.03.2020. After dismissal of their appeal by the worthy Chancellor, the petitioners have approached this Court through these connected constitutional petitions.

., Respondents were summoned, who have filed their para-wise comments. Arguments heard and available record gone through.

4 The contention of the petitioners is that they were given study leave rvith pay at the time when they left the University for pursuing their higher studies abroad, but when they completed their studies and reported their arrival to the university, they found that during period of their leave, no salaries had been credited to their accounts. There is no denial ofthe fact that the petitioners were appointed in the University during the year 2006-2007. The record shows that the Syndicate of the Hazara University, in its 10ft meeting, held on 28th April, 2007, considered agenda Item No. 11 in the following manner;

,,ITEM NO. 11 STUDY LEAVE WITH PAY TO

THE EMPLOYEES, PURSUING THEIR HIGHER

STUDIES

1 1.1 While tabling this item, the Syndicate was informed that the focility of the Study Leave with pay will provide a special concession to produce conductive

environment and material benefits, so that the scholarship holders could pursue their studies in a peaceful uninterrupted atmosphere.

Discussion The chair initiating the discussion that Hazara University had already signed MoU with sk top most British universities jbr ,split as well as joint program of higher studies. ln order to ensure the return of the 'scholarship holders to Pakistan, it will be ensured that the viva- vtsce of these scltoiarship hodlers be arranged in Pakistan. The 27 scholarship holders had already lefi the country and S0.foreign scholarships for PhD are in the pipeline. The Higher Education Commi.ssion, ERRA and the University will furnish the full benefits to encourage rhe sc'holarship holders. so that thel,could purs ue their higher studies without any fi.nancial constraints.

Decision:

The Syndicate was highly impressed with lhe innovative and upportive re- s

orientotion of scholarship programs for higher studies and unanimously approved the item."

Therealler, tlre Senate of theLlazara Llniversity, in its 4th meeting. held on 19.07.2007, further relaxed the study leave statutes under Agenda Item No. 4. The decision of the

Senate under Agenda Item }io. 4, is reproduced for ready reference;

" Decision:

The Senate unanimously decided to relax shrdy leaves statutes for a period of j t'cars to facilitate the young faculty for pursuing higher studies abroad subject to the filing of a security bond pledging their property, landholding, house or other regular source of income in case he violates the terms and conditions of the bond. They will be given leave with pay and considered on duty. "

5 Said relaxation was notified by the University vide notification dated 18.08.2007. In view of the above decisions ofthe Syndicate and Senate ofrhe University, the petitioners were granted study leave on fuIl pay. The petitioners thus pursued their studies. However, the Syndicate of the lJniversity, in its 16th meeting held on 29.01.2009, under agenda Item No. 6, decided that;

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"Oeci;iSrr; lfter through discussion it was decided that the policy already notified vide notification No. Acad 11(15)/HU- Reg/2007/766 dated October 10, 2008 regarding M. Phil and PhD Admission for in- service facilty and administrative staff of Hazara University should be implemented. It vtas also decided that Notification regarding study leave No. HU/Reg/2007/9t40 dated August 18,2007 should be y,ithdrawn and the

facility of study leave with full pay can not be allowed to those faculty who were not having j years certified regular services rendered in the same cadre by successful completion of the probation period. This will appl.y to all .faculty members whether studying in Pakistan or abroad. Also there should be a study leave committee of the University, which after proper scrutiny will recommend the cases to the Syndicate for consideration. " In the light of said decision of the Syndicate, the salaries of the petitioners were stopped. The said decision ofthe Syndicate was reconsidered by the Syndicate itself in its 23'd meeting held on 28.05.2013, under additional Agenda Item No. 14 and it was decided;

"Decision: After detailed discussion the following decisions were made:

a The University will issue corrigendum / addendum i.e. the (htiversity ownfaculty / employees who have completed their PhD under PQDP, University own resources or any other scholarship availed through university and are bounded with the university will be considered on BPS, and the TTS condition will be for other applicants. (new applicants from other institutions).

b The house decided unanimousll' that the scholars will be paid their salary'upto the withdrawal decision dated i.e.

c. I;'or the purpose of pension cnd pay fixation of the .iaculty members presumptive/ notional increments for the study leave period will be granted (without payment of arrears and their pay will be re-fixed accordingly). The same decision will apply to Mn Shah-i'Room as discttssed in Atlditional ltent No. 3, Part- il.

d. The Llniversity administration will consider the issue of maintenance allov,ance on case to case bqsis. "

6.The petitioners were however, not paid their salaries as per ptomise of the respondents, which was rnade at the time of approving their study leave. '[he respondents are takirrg shelter of decision of the Syndicate ir, its 16th meeting dated 29.01.2009 whereby the earlier decision of the Syndicate in its meeting dated28.04.2007 was revoked.

Therefore, the qr.restion for determination before this Court is "W'lti.ether thc .\yndicate had rightly revokecl its earlie-r decision dated 28.04.2007 regarding strub' lssr. stdtutes"?

or "whelher tlte respondents are bound to pay outslanciing

salaries to the petitioners under the principle of locus poenitentiae and promissory estoppel". There is no cavil to the proposition that the authority, which has power to pass any order, is also vested with the powers to vary, atuend.

add to or 10 I'escind the same under Section 21 of the General Clauses Act. Said sectiou of law being relevant lor the present discourse is reproduced hereunder fcrr ready reference;

21.Power to make to include power to add to amend, vary or rescind, orders, rules or by-laws. l|rhere by any (Central Act) or Regulation, q povier to l.issue notificationsl, orders, rules, or byJaws is conJerrecl, then that power includes a poh)er, exercisable in the like manner and suhject to the like sanction and conditions(if any) to add, to amend, vary or rescind any [notification], orders, rules or by-laws so [issued]."

An authority making an order has therefore the rrecessary locus poenitentiae i.e. power of an authority to recall its earlier order, under the ibid section larv' But an exception to the said rule has beeu recognized in our legal system which provides that an order of an authority which takes effect and in pursuance thereof certain vested rights are created, same cannot be rescinded or altered causing prejudice to enjoyrrent of snch rights. Thc Hon'ble Apex Court in the case of "Se cretarv Minis trv of Finance v/s Muhammad Hamalu reported as PLD 1969

Supreme Court 407 had held that an authority which had the power to make an order had also the powers to undo it, but subject to the exception that where the order had taken legal etfect and in pursuance thereof certain rights had been created in favour an individual, such an order could not be withdrawn or rescinded to the detriment of those rights.

7 The petitioners were granted study leave on full pay and pursuant to the said offer, the petitioners pursued and completed their studies abroad, hence a right has been accrued to the petitioners to receive their salaries during the leave period AS agreed and promised to them by the respondents. The respondents thereafter, could not resile from the commitment made with the petitioners. The approval of study leave on full pay, by the Syndicate in its 10th meeting dated 28.04.2007, has bestou'ed upon them legitimate expectation that they were being granted study leave on full pay. The doctrine of promissory estoppel and legitimate expectation are equitable doctrine evolved by the Judges while adjudicating upon the complaint lodged by the aggrieved party against an unfair and arbitrary action ofthe authorities. In our country, the doctrine of promissory estoppel has found acceptance in the case of Fedetation of Pakistan Vs Chuudhary Mohammatl Aslant, 1986 SCMR

916.However, the same principle has been elaborately expounded in "Feclo Belarus Traclors Limited Vs.

Pakistan through Ministry of Finance Economic Affairs, (2001 PTD 1829)", wherein the Hon'ble Supreme Court of Pakistan has held as under:-

"The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship lo arise in the funtre, lotowing or intending that it would be acted upon by the other party to whom the promise is made arid it is in fact so acted upon by the other party, the prornise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reason whlt it should be given only a limited application by way of defense. There is no reason in logic or principle t'hy promissory estoppel should also not be available as a cause of action. "

In tlre case of "Messrs M.Y Electronics industries (Pvt.) Ltd. Through Manager und others v. Government of Pakistan through Secretary Finance, Islamabucl and others" (1998 PTD 2728) while discussing the doctrine of promissory estoppel, the honourable Supreme Court of Pakistan held that:- "The doctrine of promissory estoppel is founded on equity. It arises when a person acting on the representation by the Government or a person competent to represent on behalf of the Government, changes his position to his detriment, takes a decisive step, enters into a binding contract or incur a liability. In such case, the Government will not be allowed to withdraw .fro* its promise or representation. However, a general promise without any time limitation cannot bind the Government for all times to come. The enforcement of doctrine of promissory estoPPel against the Government or a G overnment funct ionary competent to represent on behalf of the Government is however, subject to the following limitations as held by this court in the case of ArmY Welfare Sugar Mills Ltd. V. Federation of Pakistan (1992 SCMR 1652):- "(i) The doctrine of PromissorY estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation:

(ii)promissory estoPPel cannot be invoked for directing the doing of the thing which was against the law when the representation vas made or the promise held out;

(iii)no emergency or authority can be held bound by a promise or representation not latttfully extended or given;

(iv)the doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and

(v)the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded bY the enforcement of the promise. "

The promissory estoppel and legitimate expectation has been defined by Justice (Retd.) Fazl Karim in his book "Judicial Review of Public Actions" in the follo'*'ing words:- "The justification for treating 'legitimate expectation' and'promissory estoppel' together as grounds for iudicial review is, one, that they both fall under the general head fairness; and too, that 'legitimate expectation' is akin to an estoppel. As was explained by Simon' Brown lJ in R v. Devon CC, 'the various authorities shotu "that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or the other body will be held bound in fairness fu' the representatiort made unless only ils promise or undertaking

as to how its power would be exercised is inconsistent with the statutory duties imposed upon it". The relationship benveen them is more clearly brought out bS' what Bingham LJ stated in Rv. IRC ex p IMK" "If a public authority so conciucts itself as to create a legitimate expectation that a certain course will be followecl it tvotid oJten be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expecitation, particularly if he acted on it. If in private lav a bod1, would be irt breacjh o.f c'ontruct in so acling or estoppetl frotn so acting a public authority shoulcl generally be in no better position. The doctrine of lcgitimate expectaition is rooted in fairness."

8.The minutes of l0th meeting'of the Syndicate dated 28.04.2007,under agenda item No. 11, created vestetl rights in favour of the petitionels, whereby it was unanimously approved with appreciation that the study leave rvould be granted to the faculty members on full pay in order to enable them to pursue their higher studies vi'ith peace of mind and devotion. Aclditionally, the condition of pledging their properry with the tlniversity, was also introduced, so that the incumbenl should report back to the Llniversity upon completion of his studies. The petitioners have' performed

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their part of the prornise by pledging rheir property u,ith the respondent IJniversity, at the time o1 obtaining study leave, but the Syndicate later on, revoked its eariier promise of study leave on fuii pay, in its 16th meeting dated29.01.2009.

The Syndicate was having the authority to revoke its earlier coneession under the principle of locus poenitentiae, bttt as discussed earlier, such revocation was only allowed, when no vested right had accrued in favour of any incumbent.

Since in ttre case of petitioners, a vested right had accrured to them pursuant to.concession extended by the Syndicate, therefore, such concession could not be withdrawn to the extent of petitioners, b.scause they rvere estopped by the principles of promissory estoppel and legitirnate expectation Therefore, this Court has no hesitation to cc'nclude that the respondents. though had the authority to withdraw the decision of lOth meeting <lated 28.04.20C7, but under promissory estoppel and legitimate expectation, they are bound to pay saiaries to the petitioners for the period of their studv leave.

9 Accordingly, \,ve allow this and the connected constitutional petition by holding that the gretitioners rvould be entitled to stucly leave on fulI pay. Since the petitioners r.vere allowcd study leave on full pay up to 29.01'.2009, in

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the light of decision of the Syndicate in its 23'd meeting dated 28.05.2013, therefore, the respondents are directed to release the pay of the petitioners for the remaining period of study leave, but not beyond 48 months in gate.

ANNOUNCED ,{t Dt: 03.12 .2024

JI]DGE

Tiiai '

(DE),

]lolblz l!{r. Juslice Malwnrrad taz ]{h.w, llon'bk ll!r. Justice Mul'annod iaheen t dli