ORDER Through this Intra-Court Appeal, the appellants/NUST and others have challenged the validity of interim order dated 26-4-2010 passed by the learned single Judge in chamber in C.M.
No.1 of 2010 in Writ Petition No.1695 of 2010 wherein the learned single Judge in chamber suspended the order passed by the appellants regarding withdrawal. Of Dayyan Atta Tareen/respondent , from the University.
2. Facts giving rise to this Intra-Court Appeal are that the appellants announced admissions of Under-graduate programs in different disciplines for session 2009-13 in the newspapers and on the internet. The respondent applied for Bachelors in Engineering program. He appeared in a competitive written entry test conducted by the appellants in June, 2009. Every year more than thirty thousand students appear in the entry test, and out of those students, the respondent acquired a respectable merit position, of 580. According to the merit list, the respondent was offered a seat in the discipline of Civil Engineering at the Military College of Engineering (MCE), Risalpur. The respondent had kept Electrical Engineering at the School of Electrical Engineering, and Computer Sciences as first preference, and Civil. Engineering and Mechanical Engineering at Military College of Engineering followed as second and third prterences. The respondent before joining classes at Military College of Engineering was upgraded to the faculty of Civil Engineering at the School of Civil and Environmental Engineering situated in 1-1-12 Islamabad. The respondent joined classes on the 28th day of September, 2009 at the said school. The faculty of Electrical Engineering at the School of Electrical Engineering and Computer Sciences was respondent's first choice and as there was a seat available in that department, the respondent made an application in early October of 2009 for his transfer in the said department Respondent's application was .Accepted and he joined classes at the faculty of Electrical Engineering in the School of Electrical Engineering and Computer Sciences on 12th October, 2009. The transfer from the faculty of Civil Engineering to faculty of Electrical Engineering took more than 15 days. At the time when the respondent joined classes he had already missed initial important lectures/classes and was unable to sit in quizzes conducted by the appellants on a regular basis as part of the curriculum of the appellants/ University. The final examinations of the first semester were scheduled to be held between 1-2-2010 to 6-2-2010. Despite the fact that the respondent missed initial important lectures/classes he still managed to get sufficient attendance in order to sit in the exam. The respondent appeared in the examination held on the above mentioned dates and secured a Grade Point Average (GPA) of.1.00 and Cumulative Grade Point Average (CGPA) of 1.00 as well.
Appellants. Issued letter dated 17-3-2010 whereby they withdrew the respondent from the University and directed him to arrange clearance.
3. Learned counsel for the respondent in I.C.A entered appearance and raised preliminary objection that no I.C.A. Is competent against an interim order of the High Court under section 3 of the Law Reforms Ordinance (XII of 1972). In support of his contention, Learned counsel for the respondent relied upon PLD 1990' Supreme Court 709 and PLD 1992 Supreme Court 263.
4. On the other hand, learned counsel for the appellants contends that the suspension of the impugned order of the appellants dated 26-4-2010 by the learned. Single Judge in chamber amounts to final decision of the writ petition. Normally in such type of cases, the court obtains the view point of the respondents by seeking report and parawise comments and thereafter miscellaneous application for suspension . Of the order impugned in the writ is considered whereas in the present case, the order impugned in the writ petition has been suspended without undertaking the aforesaid exercise which is totally against the law and liable to be set aside.
In support of his contention, learned counsel for the appellants has not referred any case-law before this court.
5. We have heard the arguments . Advanced by the learned counsel for the parties and have also perused the available record.
6. The impugned order dated 26-4-2010 passed by the learned single Judge in chamber in C.M.
No.1 of 2010 in Writ Petition No.1695 of 2010 reads as under:-- Dayyan Atta Tareen v. National University of Sciences and Technology (NUST) Raja Jabran Tariq, Advocate "It is contended that the petitioner got admission in NUST on merits but due to late change of discipline conveyed "through letter dated 8-6-2009, he could not fare well in the first semester and his CGPA was equal to 1-00/4-00 so vide impugned order conveyed through letter dated 17-3-2010, a direction for his withdrawal has been passed. It is urged that this would ruin his C future and instead of ultimate action of withdrawal, he could have been relegated due to his bad result which is also permissible under the rules. It is urged that whenever two penalties are provided under the law for an act, the lesser severe should be passed but the respondents had imposed maximum penalty, which is against the spirit of the statute and they have thus not acted in accordance with law.
(2) The contention raised needs consideration. Admit. Notice to the respondents. They are directed to furnish report and para were comments within a fortnight.
Subject to notice, the operation of the impugned order is suspended.
C.M.No.2/2010 Dispensation sought for is allowed subject to all just exceptions. C.M. Stands disposed of."
7. Perusal of the above order passed by the learned single Judge in chamber reveals that the impugned C.M. No.1 of 2010 as well as main Writ Petition No.1695 of 2010 are still pending adjudication before him in which notice to the respondents/National University of Sciences and Technology (NUST) have been issued.
8. The term "Interlocutory order" does not find any specific definition in Civil Procedure Code of 1908 or the Law Reforms Ordinance 1972. In Black's Law Dictionary, Fifth Edition the term "interlocutory" has been defined as "provisional" interim temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.
9. The ordinary meaning of an interlocutory order or judgment is given in the Concise Oxford English Dictionary to be "(of a decree or judgment) given provisionally during the course of a legal action".
10. Similarly, the term "interim" has been defined in Black's Law Dictionary Fifth Edition as "in the meantime, Meanwhile; temporary between".
11. The term has also been interpreted by Supreme Court of Pakistan in a judgment reported as Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd. And others (PLD 1990 Supreme Court 709). After discussing various judgments it has been laid down that "an order, which does not decide the matter finally and the proceedings still remain to be tried and the rights in dispute between the parties have yet to be determined is not a final order and that it is an interlocutory order in nature against which an appeal before the Court is not competent.
12. A bare reading of section 3 of subsection (3) of the Law Reforms Ordinance, 1972 clearly provides that no appeal is competent against an interim order. This legal position has further been confirmed by the Supreme Court of Pakistan in the judgments reported as Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd., and others (PLD 1990 Supreme Court 709) and Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst.
Salma Afroze and 2 others (PLD 1992 Supreme Court 263).
13. Looking from any angle, the order F passed in C.M. No.1 of 2010 in Writ Petition No.1695 of 2010 by learned single Judge in chamber suspending the operation of the impugned order passed by the appellants can only be termed as an interim or interlocutory order which does not have the effect of disposing of the entire case put up before the court and the right in dispute is yet to be determined between the parties. Thus, the present Intra-Court Appeal against the said order is not maintainable as it is strictly barred by subsection (3) of section 3 of the Law Reforms Ordinance 1972. The same is therefore dismissed.
14. As the matter is pending before the learned single Judge of this Court, the parties are directed to appear before him for some date to be filed by the learned Single Judge who shall dispose of the matter expeditiously in accordance with law.