PLJ 1991 Lahore 345
Present: MALIK MUHAMMAD QAYYUM, J
IHSANULLAH
BAJWA-Pctitioner
versus
CHAIRMAN, CITY AND
REGIONAL PLANNING DEPARTMENT, and
others-Respondents .
Writ Petition No 7845
of 1990, accepted on 30.3.1991
(i) Constitution of Pakistan, 1973-
—Art. 199--Overseas scholarship-Refusal to
grant of--Challenge to—Whether Constitutional petition is not maintainable-Question
of-Contention that petitioner has no vested right and cannot maintain petition-Held: It is
since long well established
that 'right' considered sufficient for maintaining a constitutional petition need not be 'right' in strict juristic and
legal sense, but if petitioner is
able to show that he has been deprived of some benefit by non- observance of law by statutory functionaries, he
is entitled to maintain
constitutional petition. [P.349JD
constitutional petition. [P.349JD
PLD 1969 SC 223 and PLD 1968 Lahore 1155 rel.
(ii) Discretion--
—Overseas scholarship-Refusal to grant
of-Challenge to-Objection that petitioner cannot claim scholarship as a right, for grant
of scholarship is within discretion of respondents-Held: Discretion vested in
public functionaries must be free from arbitrariness and caprice-Held further
Articles 4 and 25 of Constitution guarantee equal protection and equal
treatment of citizens similarly placed-Pctition accepted. [Pp.349&350]E&F
PLD 1976 Peshawar 97,
PLD 1990 SC 1092=PLJ 1990 SC 543 and PLD 1991 SC35 rcl.
(iii) Scholarship--
-—Overseas scholarship-Refusal to grant of-Challenge
to-It is not disputed that as per criteria of evaluation prescribed by
respondents, merit of petitioner ranked higher to that of respondent No.
6-Only reason for depriving petitioner of shcolarship is that he had already availed
of a foreign scholarship and was not entitled to grant of second scholarship-Only
restriction mentioned in criteria was that a candidate should not have availed of
any other facility
of scholarship within last 3 years—Held: A period of more than 3 years having elapsed since
previous scholarship granted to petitioner, he could not have been denied
scholarship on this ground-Held further: Respondents having themselves
prescribed criteria, were equally bound by same and could not deviate
therefrom. [Pp. 348&349]A,B&C
PLD 1976 Peshawar 97 rcl.
Mr. A.K. Dogar, Advocate for Petitioner.
Syed. Sajjad Hsassain, Advocate for Respondents 1 to 3.
Mr. Qamar Riaz Hussain, Advocate for Respondent No. 4.
5/i. Maqbool Ahmad, Standing Counsel for Respondent No. 5.
Respondent No. 6: In person.
Date of hearing: 30.3.1991.
judgment
This petition under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973, calls in question the refusal
of the respondent to grant scholarship under the Central Overseas Training Scheme
to the petitioner in preference to respondent No. 6.
2.
The petitioner is working as an Associate Professor in the
City •& Regional Planning Department, University of Engineering &
Technology, Lahore, while respondent No. 6 is employed as a Lecturer in the
same department. On llth of November, 1989 a letter was addressed by the
Deputy Educational Advisor, Government of
Pakistan, to the
University Grants Commission (respondent No.
4), requiring it to obtain
nominations for the
grant of scholarships under
the Central Overseas
Trailing Scheme from
various Universities. It was stipulated that the merit of candidates should be
evaluated strictly
in accordance with the enclosed criteria. Pursuant to this letter, the University Grants Commission,
on 13th November, 1989, directed the University of Engineering and Technology, Lahore,
to nominate candiates for grant of five
scholarships earmarked for the University by 30th November, 1989. On the receipt of this requisition, the University of Engineering & Technology, asked the heads of its various departments to recommend the names of suitable persons for the award of scholarship. On 18th November, 1989, the Chairman, Department of City and Regional Planning, where both the petitioner and respondent No. 6 were working, recommended the name of the petitioner as the principal candidate while that of respondent No. 6 as an alternate. However, contrary to this recommendation, the University of Engineering and Technology vide its letter dated 13th February, 1990 addressed to the Deputy Director, University Grants Commission, Islamabad, forwarded the name of respondent No. 6 as the principal candidate and that of ihc petitioner as alternate candidate.
scholarships earmarked for the University by 30th November, 1989. On the receipt of this requisition, the University of Engineering & Technology, asked the heads of its various departments to recommend the names of suitable persons for the award of scholarship. On 18th November, 1989, the Chairman, Department of City and Regional Planning, where both the petitioner and respondent No. 6 were working, recommended the name of the petitioner as the principal candidate while that of respondent No. 6 as an alternate. However, contrary to this recommendation, the University of Engineering and Technology vide its letter dated 13th February, 1990 addressed to the Deputy Director, University Grants Commission, Islamabad, forwarded the name of respondent No. 6 as the principal candidate and that of ihc petitioner as alternate candidate.
3.
The
petitioner having failed
in his representation against
this recommendation, filed Writ Petition No. 5004/90 in this Court, which was
accepted
on 17th October, 1990 on the ground that the decision was taken without hearing the
petitioner. The matter was remitted for re-decision to respondents after hearing the
petitioner, who was heard by a Committee comprising of four members, which once
again refused to grant scholarship to the petitioner, and instead awarded it to respondent No. 6.
This order dated 30lh October, 1990, has been
assailed by the petitioner by filing this constitutional petition.
4.
Mr.
Abdullah Khan Dogar, learned counsel for the petitioner has argued that according to the criteria laid down for
selection of the candidates for the award
of scholarship, the merit of the petitioner ranks much higher than that of respondent
No. 6 and as such respondents
have acted in excess of their jurisdiction in depriving the petitioner of the
scholarship and granting it to respondent
No. 6. The learned counsel emphasized that the decision taken by the respondents
is contrary to the policy laid down by respondents themselves on the subject.
5.
The learned counsel appearing on behalf of the
respondents have, however, objected to the maintainability of the petition on the ground
that the petitioner has no
vested right to grant of scholarship
and, therefore, no constitutional petition could be
maintained. It was also explained that
the petitioner
had already availacd of a scholarship and, was as such, not entitled to be considered for the
grant of scholarship for the second time and it was on account of this
reason that respondent No. 6 was awarded the scholarship.
The respondent was directed to file the polcy laid down by the
Government of Pakistan for grant of
scholarship under the Central Overseas Training Scheme, which has been placed
on record.
6.
A perusal of various
documents filed by
the parties shows
that applications for grant of scholarship under various schemes are invited
by the Government
of Pakistan, University Grants Commission, Islamabad. So far as the Central Overseas
Training Scholarship Scheme,
for the year 1989-90
was concerned, in the
letter addressed by the Deputy Education Officer, Government of Pakistan, on lllh of November, 1990, to
University Grants Commission, it was clearly
stated that the candidates should be evaluated in accordance with the prescribed criteria. The University Grants
Commission informed the University of Engineering
& Technology that five scholarships have been ear-marked for University for the year 1988-89 in the
disciplines of Architecture, City & Regional Planning, Civil Engineering, Electrical Engineering and Mining
Engineering and University was called
upon to nominate three Faculty members against each discipline striclty in accordance with the
criteria of eligibility on the prescribed form. This criteria of elgibility (copy of which has been filed as
Anncxure B to this petition) inter
alia provided that the candidate should not have availed of any Other facility of scholarship wiihin the last
three years. The merit of candidate was to be determined in accordanc with criteria of evaluation (Anncxure B).
7.
On
the receipt of this request, the University of Engineering called upon the heads of the Departments concerned to nominate
the Faculty members for these
scholarships. It is not disputed that by letter dated 8th November, 1989 (Annexure E), the Chairman, City & Regional
Planning Department nominated Ehsan
Ullah Bajwa petitioner as the Principal Candidate, while Ghulam Abbas Anjum, respondent No. 6, herein was mentioned as
the alternate candidate. However,
the University of
Engineering: &
Technology, contrary to
this recommendation, proceeded to nominate Ghulam Abbas Anjum,
respondent No. 6, as the principal candidate
and the petitioner as the alternate candidate. The petitionr, represented against this action, but
without success. It was at that stage, that he had filed writ petition
bearing No. 5004/90 which, as already stated, was accepted and the respondent was directed to afford an opportunity to the
petitioner of being heard, in
pursuance whereof the order impugned in this petition was passed.
8.
It is
not disputed by the respondents that as per the criteria of evaluation prescribed by the Government and the University
Grants Commission itself the merit
of the petitioner ranked higher to that of respondent No. 6, and on the basis of the criteria it was the petitioner who was-
entitled to be recommended as principal
candidate rather than as alternate. The only reason for depriving the petitioner of the scholarship which has been
disclosed by the respondent before this
Court is that the petitioner had already avialed of a foreign scholarship granted to him by the British Council under which
he obtained the degree of M. Phil from
the University of Edinburgh during 1984-86, and as such he was not
entitled to grant of second scholarship. ,
entitled to grant of second scholarship. ,
9. As already noted, the
criteria for eligibility and evaluation for the candidates had been prescribed by the University Grants
Commission itself. The only restriction
mentioned therein in this behalf was that a candidate should not have availed of any other facility of scholarship
within last three years. In the present case, on admitted facts the scholarship
earlier granted to the petitioner ended
on 6th October, 1986 when he returned to Pakistan. The applications for the
grant of scholarship for Central Overseas Training Scheme were invited on llth
November, 1989 by which time a period of more than three years, since the
previous scholarship had elapsed. The petitioner could not, therefore, have
been denied the scholarship on this ground.
10. The learned standing counsel and the
learned counsel for the University Grnats
Commission, however, relied upon certain other instructions of the Government issued on 25th October, 1975, which inter
alia provide that no candidate
shall be considered for any training facility, if he has availed of such facility
under any of
the programmes, previously,
except under special circumstances and for cogent reasons, but in no case within three years
of his return from his last training. On the strength of these
instructions,!! was claimed that the
petitioner was not entitled to the grant of scholarship in quesiton. The reliance of
the respondents, on
these instructions is,
however, wholly misconceived.These
instructions, on the face of the document, apply to the grant of scholarship
under Technical Assistance Programmes and do not even purport
to be applicable to scholarships under the Central Overseas Training Scheme for which separate criteria for eligibilty and evaluation has been prescribed. The learned counsel for the respondents were not in a position to show as to how the instructions meant for grant of scholarship under other programmes could apply to scholarships under the Central Overseas Training Scheme.
to be applicable to scholarships under the Central Overseas Training Scheme for which separate criteria for eligibilty and evaluation has been prescribed. The learned counsel for the respondents were not in a position to show as to how the instructions meant for grant of scholarship under other programmes could apply to scholarships under the Central Overseas Training Scheme.
11. As per the letter of
the Deputy Education Adviser dated llth November, 1989 addressed to the
University Grants Commission, the nom nation by the Universities was to be made strictly in
accordance with the criteria for elegibility and
evaluation enclosed with that letter. As regard the candidate who had previously
scholarship, the only condition laid down was that he should not have availed of any other scholarship within the last
three years. It is, therefore, idle on the
part of the respondent, to contend that they could refuse to nominate the petitioner on the basis of some condition
applicable to ^i ant of other scholarships, which has no relevance to the Scheme under which the scholarship in
question was to be granted. The
respondents having themselves prescribed the criteria and conditions for eligibility and evaluation were
equally bound by the same and could
not deviate therefrom. Reference in this connection may be made to Miss KJwla Jabecn and 2 others vs. Government of N.W.F.P. through Secretary, Health Department, Peshawar and 5 others (PLD 1976 Peshawar 97).
not deviate therefrom. Reference in this connection may be made to Miss KJwla Jabecn and 2 others vs. Government of N.W.F.P. through Secretary, Health Department, Peshawar and 5 others (PLD 1976 Peshawar 97).
12. Adverting now to the
legal objection raised by the learned counsel for the respondents that the
petitioner has no vested right to claim the grant of scholarship and as
such cannot maintain this petition, there is hardly any merit in I it. It is since long
well-established that 'right' considered sufficient for maintaining j a constitutional
petition need not be 'right' in the strict juristic and legal sense but \ if
the petitioner is able to show that he has been deprived of some benefit by
non-1 observance
of law by the statutory functionaries, he is entitled to maintain the constitutional
petition (See Fazal Din vs. Lahore Improvement Trust (PLD 1969 SC 223). In Muhammad Ashraf vs. Board
of Revenue, West Pakistan and another (PLD 1968 Lahore 1155), it was observed that
all that applicant has to show is that he
is an aggrieved party and existence of a vested, legal or absolute right is not
necessary.
13. It was next contended
on behalf of the respondents that the petitioner cannot claim the scholarship < a right for the grant of scholarship is
within the discretion of the respondents. This argument of the learned counsel
cannot be accepted as a whole. In a democratic set up like ours, the Government
and the other
statutory functionaries are bound to act in public matters justly, fairly and
in accordance
with the rules and instructions on the subject. It is not open to the functionaries charged with public
functions to make any indivious (?) distinction for any extraneous reasons. The discretion vested in the public
functionaries must be free from
arbitrariness and caprice. Articles 4 and 25 of the Constitution, guarantee equal protection and equal treatment of
citizens similarly placed.
14. In Miss KJtola
Jabeen and 2 others vs. Government of N.Wf.P. tlvough Secretary, Health
Department, Peshawar
