Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT

WP No.14987 of 2014

Ameer Afzal etc. Vs. Govt. of Punjab through Secretary

JUDGMENT Date of hearing: - 01.07.2014

Petitioners by: - Mr. Muhammad Javed Iqbal Qureshi, Advocate Respondent by: - Mr. Muhammad Arif Raja, Addl. A.G. with Amir

Khatak, Addl. Secretary (Admn.) for respondent. --------

SHAHID WAHEED, J:- Shorn of dispensable details,

facts of the case are that Government of the Punjab, Agriculture

Department in terms of following criteria, incorporated in letter No. SO

(R&E) 3-10/2011 dated 5th

July, 2012, nominated the petitioners for Ph.D

studies at University of Agriculture Faisalabad and University of Arid

Agriculture, Rawalpindi for the year 2012-13:-

a) At least 1st division in M.Sc. or M.Sc.(Hons) with CGPA 2.5 or

better.

b) Maximum age limit 45 years.

c) Regular employee of Agriculture Department.

d) 5 years service including contract period in Agriculture

Department.

e) Nominations will be made strictly on merit/marks obtained/CGPA

in M.Sc/ M.Sc.(Hons).

f) Bio-data, Synopsis and Certificate that no departmental/anti-

corruption enquiry is pending against the nominee.

g) Surety Bond to the effect that after completion of Ph.D., the

nominee shall serve Agriculture Department at least for five years,

failing which he will pay Rs. 10 lac to the Agriculture

Department.

h) Study leave will be granted on due basis and remaining period

will be considered as without pay.

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i) The selected candidates will have to pass tests equivalent to GRE

(General) and International GRE (Subject) with at-least 50 %

score in each.

j) After completion of admission process, if nominee failed to join

the Ph.D. classes for any reason, disciplinary action under rules

will be taken against him.”

2. The petitioners through this petition under Article 199 of the

Constitution of the Islamic Republic of Pakistan, 1973, has challenged the

vires of clause (h) of the above said criteria on the ground that the same is

against the Leave Rules, 1981 read with Study Leave Rules prescribed by

the Governor [Appendix 20 of CSR (Punjab) Vol.-1, Part-II].

3. In response to the notice, the respondent has submitted report and

parawise comments. It has been stated in the report that before 2011 only

those government servant were nominated for M.Sc./ Ph. D. studies who had

five years‟ service in the Agriculture Department; that this policy was in

accordance with the Study Leave Rules, 1981 which provides that study

leave should not ordinarily be granted to Government servants who have less

than 5 years‟ service; that according to the said Study Leave Rules the

candidates having less than 5 years regular service were not eligible for

nominations; that for the year 2012-13, only one departmental candidate was

found eligible for Ph.D. studies against the reserved quota of the Department

in University of Agriculture, Faisalabad and Pir Mehr Ali Shah Arid

Agricultural University, Rawalpindi; that the Government of the Punjab

regularized the services of the petitioners in the year 2011 and thus they

were not eligible for nominations for Ph.D. studies in view of Study Leave

Rules, 1981 as they had less than 5 years regular service; and, that to

facilitate the petitioners the department amended criteria/conditions and it

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was decided that study leave would be granted on due basis and remaining

period would be considered as leave without pay.

4. Question involve in this petition is as to whether the clause (h) of

letter No. SO (R & E) 3-10/2011 dated 5th

July, 2012, that is, “study leave

will be granted on due basis and remaining period will be considered as

leave without pay” (hereinafter called the impugned clause) is valid. Since in

the case in hand the respondent while inserting the impugned clause in letter

No. SO (R & E)3-10/2011 dated 5th

July, 2012 had construed Rule 7 of the

Study Leave Rules, 1981 as hurdle in making nomination of the petitioners

for Ph.D. Course, it is imperative to examine the said rule which reads as

under:-

“Study leave should not ordinarily be granted to Government

servants who have less than five years‟ service.”

It is the argument of the Government that as per the above cited rule only an

employee who has more than 5 years‟ service is eligible for study leave and,

therefore, to smooth the way of the petitioners, whose services are less than

five years, for Ph.D. course the impugned clause was inserted in the policy

letter No. SO (R & E) 3-10/2011 dated 5th

July, 2012. I am afraid the ipse

dixit of the respondent while inserting impugned clause in the said policy

letter is not valid. It appears that the respondent while framing the impugned

clause had lost sight of the word “ordinarily” used in Rule 7 of the Study

Leave Rules, 1981 which is of great significance. The word “ordinarily” has

been defined in the following dictionaries:

(i) K.J.Aiyar‟s Judicial Dictionary, 13th Edition:

„Ordinarily‟ means, usual, normal, common, according

to the established order, not characterized by peculiar

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or unusual circumstances. [Munna Lal Agarwal v

Rajasthan High Court ( 1992) 1. Western Law Case

550 (559) ( Raj) ]. The insertion of the word

„ordinarily‟ does not alter the intendment of the

provision. [ Union of India v Vipin Chandra Hira Lal

Shah 1997 SCC (L & H) 41 ].

„Ordinarily‟ means usually or in a large majority

of cases, cannot obviously mean always. The word

„ordinarily‟ gives certain amount of elasticity and

would not mean invariably and without exception.

[Bhagbati Primary Fisherman’s Cooperative Society v

State of Orissa ( 1987) 64 Cut LT 464 (Ori) ].

As observed by the Full Bench, Allahabad Court

in its decision in the case of Municipal Board Kanpur

v Janki Prasada AIR 1963 All 433; the word

“ordinarily‟ does not mean “permanently” nor does not

mean “ universally”. It also does not mean “generally”.

It seems that it should not be taken to mean

„invariably‟ or „always‟. It leaves sufficient margin of

discretion with the competent authority and gives a

certain amount of elasticity to be Regulation 524 of

Uttar Pradesh Police Regulation whereunder the

discretion contemplated wherein can be exercised

depending upon the circumstances and the exigencies

of the situation on adequate grounds. [ Juranwan

Prasad Mishra v State of UP 1995 All LJ 1451at

1455].

In s 80-A of the Representation of the People Act

1951, the word „ordinarily‟ indicates that normally it

would be a single judge of the High Court who can

exercise the jurisdiction which is vested in the High

Court, but in appropriate cases, such jurisdiction can

also be exercised by two or more judges. [ Kirshan

Gupal v Prakaschandra (1974) 1 SCC 128 at 134].

The expression „ordinarily‟ indicates that this is

not a cast-iron rule. It is flexible enough to take in

those cases where the applicant has been prejudicially

affected by an act or omission of an authority, even

though he has no proprietary or even a fiduciary

interest in the subject-matter. [ Seethalakshmi Ammal v

State AIR 1993 Mad 1 at 4].

Ordinarily means unless there are special reasons

for not doing so. [F M Kolia v. G M Barot (1981) 22

Guj LR 700 (DB)].

Transporting of foodgrains including shunting of

wagons is ordinarily a part of the work of the Food

Corporation of India. [1973 ACJ 5 (Del)].

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The word „ordinarily‟ means regularly or

normally but not casually. [1974 AJ&K LR 527].

Section 177, CPC, embodies the ordinary or

general rule of jurisdiction. The word „ordinarily‟

occurring in the section means “except in the cases

provided hereinafter to the contrary”. The rule in the

section should, therefore, be read subject to any special

provisions of law which may modify it. [ Nikka Singh

v. State 6 DLR (Simla) 228].

In common parlance, „ordinarily‟ means in large

majority of cases. The expression is not used in

reference to a case to which there are no exceptions.

[Krishna Dayal v. General Manager, N Rly AIR 1954

Punj 245].

„Ordinarily‟ means habitually and not casually. It

cannot obviously means „always‟. [Per Suba Rao CJ].

The plain and popular meaning of the word

„ordinarily‟ is usually, normally and not exceptionally

as contrasted with extraordinarily. [Re Putta

Ranganayakulu 1956 Cr.L.J 1049, 1955 Andh LT

(Civ) 335, 1956 Andh WR 465 (S), AIR 1956 AP

161(FB)].

The word „ordinary‟ may have different shades of

meaning. Thus, in Kailash Chandra v Union of India

AIR 1961 SC 1364, their lordships while interpreting

the words „should ordinarily be retained‟ in r 2044 (2)

(a) of the Railway Establishment Code, held that the

word „ordinarily‟ means „in the majority of cases but

not invariably‟. That particular construction left a

discretion to the appropriate authority, and it was not

bound to retain the servant after he attained the age of

55, even if he continued to be efficient. It all depends

upon the contents as to what the meaning of a word

should be. The word „ordinarily‟ in sub-r (3) of r 4,

MP Detention Order 1971, must, in the context in

which it appears, mean „without exception

generally‟.[Nirmal Chand v DM AIR 1976 MP 95

(96), 1975 MPLJ 758, 1975 Jab LJ 810].

The word „ordinarily‟ in r 44 gives certain amount

of elasticity to that rule. I may be possible to say that

one of the „extraordinary‟ circumstances visualized by

the rule is the appointment of headmaster in

institutions like the one before us. [ Aido Patroni v E C

Kesavan AIR 1965 Ker 75].

The meaning attached to the word „ordinarily‟ is

„as matter of regular court; in most cases; usually,

commonly; as is normal or usual‟. In Corpus Juris

Secundum, Vol 67, the meaning imputed is:

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WP No. 14987 of 2014

Usual; common; normal; regular; conforming to

general order; common in recurrence; often running.

The antonym is extraordinary, unusual or uncommon.

For new para, Chamber‟s Dictionary assigns the

meaning „according to common order; usual.[ State of

Uttar Pradesh v Shri Ram Gupta 1972 All Cr.R 415].

The term „ordinarily has been the subject-matter

of judicial interpretation and it is now settled that the

term means not mainly or regularly, but usually and

normally. [State of Kerala v Rajappan Nair 1977 Ker

LT 672 (674), (1977) 2 FAC 225, 1977 FAJ 393].

(ii) The Doubleday Roget‟s Thesaurus in Dictionary Form

(Revised Edition):

“ordinarily” adv. usually, commonly, mostly,

generally, habitually, as a rule, by and large, regularly,

conventionally, customarily, normally, routinely.”

(iii) The new Webster Encyclopedia-Dictionary of the

English Language:

“ordinarily” adv. In an ordinary manner; usually;

generally; in most cases.”

Keeping in view the afore-stated definitions of the word “ordinarily” it

becomes explicit that condition of 5 years of service is not mandatory for the

grant of study leave under the above said Rule. It is trite principle of law

that where doing of an act is bound by time but is qualified by the term

“ordinarily” it necessarily implies that such provision of law is intended to

be directory only[See Hassan Usmani, sole proprietor and another Vs. TF

Pipes Ltd. through Managing Director, (2003 YLR 1705)]. Thus it is clear

that the Government/respondent had misconstrued Rule 7 of the Study

Leave Rules, 1981 while inserting impugned clause in the criteria for

making nominations for Ph. D. studies for the year 2012-13. This condition

is expressly against the Study Leave Rules, 1981 which are applicable to the

employees of the Agriculture Department, Government of the Punjab. The

Agriculture Department without making amendment in the Study Leave

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Rules could not deprive the petitioners of their legitimate right of study

leave with full pay in the garb of the impugned clause of the criteria for

making nominations for Ph.D. studies. It is apposite to state here that policy

decision of the Government, unless it is absolutely capricious, unreasonable

and arbitrary and based upon mere ipse dixit of the executive or is violative

of any constitutional provision or law would be immune from judicial

review. In this context reference may be made to the cases of Messers Al-

Raham Tavels and Tours (Pvt.) Ltd. and others vs. Ministry of Religious

Affairs, Haj, Zakat and Ushar through Secretary and others (2011 SCMR

1621) and M.P. Oil Extraction and another vs. State of Madhya Pradesh

and others (AIR 1998 SC 145). As the impugned clause, that is, clause (h)

of letter No. SO (R & E) 3-10/2011 dated 5th July, 2012 is merely based

upon the ipse dixit of the executive; and, against the Study Leave Rules, I

have no hesitation in saying, that the same is illegal, irrational and shows

procedural impropriety.

5. Notwithstanding above, it has come to the notice of this Court

that action of the respondent for making nominations for Ph.D. studies at

University of Agriculture, Faisalabad and University of Arid Agriculture,

Rawalpindi is discriminatory. The petitioners in this regard have made a

specific reference to the case of Mst. Hunza Khakwani, Assistant Research

Officer, who has been nominated to a Ph.D. course with full pay. This fact

has not been denied by the respondent in its report and parawise comments.

Discrimination is a blemish and iniquity which spoils the action or policy of

public functionaries or Government. The injunction of Islam, provisions of

the Constitution of the Islamic Republic of Pakistan, 1973 and the cannons

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of morality abhor discrimination among citizens so as to maintain

transparency and fairness; and, to curb maladministration, corruption and

corrupt practices. Thus, to do away with discrimination the respondent is

required to give the same treatment to the petitioners which has been given

to Mst. Hunza Khakwani.

6. In view of above, this petition is accepted and the impugned

clause, that is, clause (h) of letter No. SO (R & E) 3-10/2011 dated 5th of

July, 2012 issued by the respondent is declared to have been incorporated in

the said letter without lawful authority and of no legal effect. Now it is for

the respondent to pass an order qua the leave of the petitioners. Thus, the

respondent is directed to pass appropriate order, without any delay, with

regard to leave of the petitioners for completing Ph.D. course. No order as to

costs.

(SHAHID WAHEED)

JUDGE

Noor Muhammad*

Approved for reporting

Judge