2011 SCMR 944
2011 SCMR 944
[Supreme Court of Pakistan]
Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ
ABDUL RASHID KHAN---Petitioner
Versus
REGISTRAR, BAHAUDDIN ZAKARIA UNIVERSITY, MULTAN and others---Respondents
C.P.L.A. No. 557 of 2008, decided on 7th October, 2009.
(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 2-4-2008 passed in ICA No. 19 of 2008).
Constitution of Pakistan---
----Arts. 185 (3) & 199---Constitutional jurisdiction of High Court---Educational institution---Non-statutory rules---Scope---Petitioner was employee of University and invoked constitutional jurisdiction of High Court for implementation of office order in his favour with regard to vice versa transfer---Constitutional petition and Intra-Court Appeal filed by petitioner were concurrently dismissed by High Court---Validity---University had no statutory rules, therefore, petitioner had no remedy before High Court under Art.199 of the Constitution---Supreme Court declined to take any exception to concurrent findings of two forums below---Leave to appeal was refused.
Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Ijaz Hussain Sulery v. Registrar 1999 SCMR 2381 and University of the Punjab v. Sardar Ali 1992 SCMR 1093 fol.
Rao Fazal Khan Akhtar, Advocate Supreme Court for Petitioner.
Malik Muhammad Rafiq, Advocate Supreme Court for Respondents.
Date of hearing: 7th October, 2009.
JUDGMENT
ANWAR ZAHEER JAMALI, J.---The petitioner, an employee of respondent No. 5 (Bahauddin Zakaria University, Multan), aggrieved by the non-implementation of office order No.PF/1711-185/Admin/4247, dated 11-6-2007, regarding his vice versa transfer to the post of respondent No.6 at University College of Engineering and Technology, and subsequent administrative order conveyed to him through letter No.PF/17/1-185/Admin/6594, dated 11-9-2007, issued by respondent No.1, directing him to report on duty in the Registrar's Personal Section till further orders, had preferred Writ Petition No.5286 of 2007, before the Lahore High Court, Multan Bench, Multan on 11-10-2007, with the following prayer:--
"It is, therefore, humbly prayed that this petition may very kindly be accepted and the act of refusal on the part of respondent No.2 to let the petitioner join his recent place of posting from Degree Cell (Examination Department) to University College of Engineering and Technology, Bahauddin Zakaria University, Multan, which posting was under the order of respondent No.4 (Vice Chancellor), and the order dated 11-9-2007 passed by respondent No.1 directing the petitioner to report for duty in his personal section till further orders by putting the order of respondent No.4 held in abeyance may please be declared as without jurisdiction and without lawful authority and the respondents Nos.1 and 2 may please be directed to implement the order of respondent No.4 in letter and spirit and to withdraw all subsequent orders thereto, thus act in accordance with law and to refrain from discriminating the petitioner or otherwise jeopardizing the petitioner by way of exploitation or encroaching upon his fundamental rights in any form whatsoever."
2. The said petition, after contest by the respondents, was dismissed by learned Single Judge at Multan Bench, vide his order dated 12-2-2008, for the reason that respondent No.5 (Bahauddin Zakariya University) has no statutory rules, therefore, the jurisdiction of the High Court under Article 199 of the Constitution, was not the appropriate/proper remedy available to the petitioner for seeking redress of his grievance. It was further observed that due to subsequent transfer of the petitioner to another post and considering the fact that the employees of the University were neither holder of statutory posts nor were they entitled to hold the same as a matter of right; it was, therefore, within the competence of the University to direct its employees to change their places of posting by issuing transfer orders from time to time in the best interest of the institution, and no relief could be granted to the petitioner. The said order of the learned Single Judge was further challenged by the petitioner by way of ICA No.19 of 2008 before the Division Bench of Lahore High Court, Multan Bench, which too concurred with the view of the learned Single Judge in the impugned order referred to above and, therefore, dismissed the said I.C.A. in limine, vide order dated 2-4-2008.
3. Mr. Pir Muhammad Asif Rafi, learned Advocate Supreme Court for the petitioner, agitating the grievance of the petitioner before this Court, vehemently contended that non-implementation of the earlier transfer order of the petitioner, vide office order dated 11-6-2007, was a conspiracy against the interest of the petitioner and, instead of accommodating the petitioner in this regard, by subsequent order, issued under the signatures of respondent No.1, he was asked to report to another office and this ,exercise was against all judicial norms and applicable procedure for transfer under the rules of the University. Replying to the observations of the learned Single Judge, contained in paragraph 4 of the order dated 12-3-2008, he pointed out that an application under Order VI, rule 17, C.P.C., seeking necessary amendment in the memo of petition, due to changed circumstances, was timely filed by the petitioner before the High Court, but the said application remained unattended till the disposal of main petition, and for this illegality/wrong committed by the Court, the petitioner could not have been penalized by way of such observations against him. Learned counsel, however, did not dispute that respondent No.5 University has no statutory rules and, thus, in view of the dictum laid down in Muhammad Mubeen-us-Salani v. Federation of Pakistan (PLD 2006 SC 602), the petitioner had no remedy before the High Court under Article 199 of the Constitution. The legal question, that in a case where anyuniversity/educational institution has no statutory rules, it will bar the remedy for its employees to invoke the jurisdiction of the High Court under Article 199 of the Constitution, has been comprehensively dealt with in the case of Ijaz Hussain Sulery v. Registrar (1999 SCMR 2381) and University of the Punjab v. Sardar Ali (1992 SCMR 1093). This position is further elaborated by another judgment of this Court in the case Muhammad Mubeen-us-Salam (supra). Thus, no exception can be taken to such concurrent findings of two forums below.
4. Keeping in view the above discussion, this petition for leave to appeal is dismissed.
M.H./A-71/SC Petition dismissed.
[Supreme Court of Pakistan]
Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ
ABDUL RASHID KHAN---Petitioner
Versus
REGISTRAR, BAHAUDDIN ZAKARIA UNIVERSITY, MULTAN and others---Respondents
C.P.L.A. No. 557 of 2008, decided on 7th October, 2009.
(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 2-4-2008 passed in ICA No. 19 of 2008).
Constitution of Pakistan---
----Arts. 185 (3) & 199---Constitutional jurisdiction of High Court---Educational institution---Non-statutory rules---Scope---Petitioner was employee of University and invoked constitutional jurisdiction of High Court for implementation of office order in his favour with regard to vice versa transfer---Constitutional petition and Intra-Court Appeal filed by petitioner were concurrently dismissed by High Court---Validity---University had no statutory rules, therefore, petitioner had no remedy before High Court under Art.199 of the Constitution---Supreme Court declined to take any exception to concurrent findings of two forums below---Leave to appeal was refused.
Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Ijaz Hussain Sulery v. Registrar 1999 SCMR 2381 and University of the Punjab v. Sardar Ali 1992 SCMR 1093 fol.
Rao Fazal Khan Akhtar, Advocate Supreme Court for Petitioner.
Malik Muhammad Rafiq, Advocate Supreme Court for Respondents.
Date of hearing: 7th October, 2009.
JUDGMENT
ANWAR ZAHEER JAMALI, J.---The petitioner, an employee of respondent No. 5 (Bahauddin Zakaria University, Multan), aggrieved by the non-implementation of office order No.PF/1711-185/Admin/4247, dated 11-6-2007, regarding his vice versa transfer to the post of respondent No.6 at University College of Engineering and Technology, and subsequent administrative order conveyed to him through letter No.PF/17/1-185/Admin/6594, dated 11-9-2007, issued by respondent No.1, directing him to report on duty in the Registrar's Personal Section till further orders, had preferred Writ Petition No.5286 of 2007, before the Lahore High Court, Multan Bench, Multan on 11-10-2007, with the following prayer:--
"It is, therefore, humbly prayed that this petition may very kindly be accepted and the act of refusal on the part of respondent No.2 to let the petitioner join his recent place of posting from Degree Cell (Examination Department) to University College of Engineering and Technology, Bahauddin Zakaria University, Multan, which posting was under the order of respondent No.4 (Vice Chancellor), and the order dated 11-9-2007 passed by respondent No.1 directing the petitioner to report for duty in his personal section till further orders by putting the order of respondent No.4 held in abeyance may please be declared as without jurisdiction and without lawful authority and the respondents Nos.1 and 2 may please be directed to implement the order of respondent No.4 in letter and spirit and to withdraw all subsequent orders thereto, thus act in accordance with law and to refrain from discriminating the petitioner or otherwise jeopardizing the petitioner by way of exploitation or encroaching upon his fundamental rights in any form whatsoever."
2. The said petition, after contest by the respondents, was dismissed by learned Single Judge at Multan Bench, vide his order dated 12-2-2008, for the reason that respondent No.5 (Bahauddin Zakariya University) has no statutory rules, therefore, the jurisdiction of the High Court under Article 199 of the Constitution, was not the appropriate/proper remedy available to the petitioner for seeking redress of his grievance. It was further observed that due to subsequent transfer of the petitioner to another post and considering the fact that the employees of the University were neither holder of statutory posts nor were they entitled to hold the same as a matter of right; it was, therefore, within the competence of the University to direct its employees to change their places of posting by issuing transfer orders from time to time in the best interest of the institution, and no relief could be granted to the petitioner. The said order of the learned Single Judge was further challenged by the petitioner by way of ICA No.19 of 2008 before the Division Bench of Lahore High Court, Multan Bench, which too concurred with the view of the learned Single Judge in the impugned order referred to above and, therefore, dismissed the said I.C.A. in limine, vide order dated 2-4-2008.
3. Mr. Pir Muhammad Asif Rafi, learned Advocate Supreme Court for the petitioner, agitating the grievance of the petitioner before this Court, vehemently contended that non-implementation of the earlier transfer order of the petitioner, vide office order dated 11-6-2007, was a conspiracy against the interest of the petitioner and, instead of accommodating the petitioner in this regard, by subsequent order, issued under the signatures of respondent No.1, he was asked to report to another office and this ,exercise was against all judicial norms and applicable procedure for transfer under the rules of the University. Replying to the observations of the learned Single Judge, contained in paragraph 4 of the order dated 12-3-2008, he pointed out that an application under Order VI, rule 17, C.P.C., seeking necessary amendment in the memo of petition, due to changed circumstances, was timely filed by the petitioner before the High Court, but the said application remained unattended till the disposal of main petition, and for this illegality/wrong committed by the Court, the petitioner could not have been penalized by way of such observations against him. Learned counsel, however, did not dispute that respondent No.5 University has no statutory rules and, thus, in view of the dictum laid down in Muhammad Mubeen-us-Salani v. Federation of Pakistan (PLD 2006 SC 602), the petitioner had no remedy before the High Court under Article 199 of the Constitution. The legal question, that in a case where anyuniversity/educational institution has no statutory rules, it will bar the remedy for its employees to invoke the jurisdiction of the High Court under Article 199 of the Constitution, has been comprehensively dealt with in the case of Ijaz Hussain Sulery v. Registrar (1999 SCMR 2381) and University of the Punjab v. Sardar Ali (1992 SCMR 1093). This position is further elaborated by another judgment of this Court in the case Muhammad Mubeen-us-Salam (supra). Thus, no exception can be taken to such concurrent findings of two forums below.
4. Keeping in view the above discussion, this petition for leave to appeal is dismissed.
M.H./A-71/SC Petition dismissed.
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