Constitution Petition is maintainable if petitioner is deprived anyway

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

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.

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.               ,

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.

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).

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 and 5 othes (PLD 1976 Peshawar 97), it was observed that the Government cannot act in utter disregard of criteria for admissions and rules for working out merits contained in the prospectus and was duty bound to treat the respondents of settled districts equally and to nominate persons having superior merit. The Supreme Court of Pakistan in Aman UUah Klian and others vs. TJie Federal Government of Pakistan, throutfi Secretary, Ministry of Finance, Islamabad, and others (PLD 1990 SC 1092=PLJ 1990 SC 543) ruled that:-

"Wherever wide worded powers conferring discretion exist, there remains always the need to structure the discretion. The structuring of discretion only means regularising it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalise it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often than is necessary apart from the exercise of such power appearing arbitrary and capricious at times".

Reference may also be made to Muhammad Iqbal KJwkhar and 3 others vs. Tlie Government of the Punjab, through the Secretary, to Government of the Punjab, Lahore, and two others, (PLD 1991 SC 35). As in the present case, the petitioner has been deprived of the scholarship for considerations which have no relevance to the criteria for eligibility, the discretion exercised by the respondent in refusing to grant the scholarship cannot but be termed as arbitrary.

For the reasons aforesaid, this petition is accepted and refusal of the respondents to grant scholarship to the petitioner is declared to be without lawful authority and of no legal effect. The respondents are directed to decide the matter again strictly in accordance with criteria laid down by them. There shall be no orders as to costs.

(MBC)                             (Approved for reporting)              Petition accepted.