' ASAD MUNIR, J.--- The petitioner joined the Government College University, Lahore, in February, 1998 as a Research Associate (BPS-16) on temporary basis but was on 6-9-2002 appointed as a permanent lecturer. After being awarded a Ph.D in Botany (Industrial Biotechnology) by the respondent-University, the petitioner since 9-5-2005 is working as an Assistant Professor (BPS-19) under the tenure track system in the Institute of Industrial Biotechnology of the respondent- University. Stately, the petitioner is the author of a number of research papers which have been published in international and national journals including those recognized by Higher Education Commission.
2. According to the record, the petitioner availed ex-Pakistan leave for 41 days to attend the TCDC International Training course from 16-6-2004 to 26-7-2004 in Hebei Research Institute of Microbiology in China and also attended "Biology in Asia International Science Conference" held in Singapore. In 2004 and "First International Conference on Environmental, Industrial and Applied Microbiology" held in Spain in 2005 both of which were 4-days long.
3. As it also appears from the record, the petitioner was awarded the Japanese Government Research Scholarship (MEXT) to pursue research in Molecular Biotechnology from October 1, 2005 to March, 31, 2007 at the Institute of Biotechnology, Osaka University but the petitioner's request for NOC and ex-Pakistan study leave was turned down by the Vice-Chancellor vide letter dated 17-9- 2005 without assigning any reason at all.
4. In April, 2010, an advertisement was issued on the internet by the Australian Government to offer scholarships for research/ professional development called Endeavour Awards. The petitioner applied and was in October, 2010 through a letter, issued by the Director, International Scholarships and Mobility Section, Australian Government, Department of Education, Employment and Workplace Relations, offered the 2011 Endeavour Research Fellowship, a postdoctoral research programme, which was to last from February 1, 2011 to July 21, 2011, at the Australian National University, Canberra. This offer letter was followed by a letter written in November, 2010, by the Australian Minister for Tertiary Education, Skills, Jobs and Workplace Relations, whereby the petitioner was congratulated "on joining the select group of individuals who have received the Prestigious Endeavour Award". After receiving the offer, the petitioner by letter dated 14-12-2010 applied to the Vice-Chancellor of the respondent-University for ex-Pakistan leave for a period of 4 to 6 months to avail the research fellowship. In response, the Registrar vide letter dated 6-1-2011 conveyed the rejection of the study leave sought by the petitioner with the remarks that he had not obtained prior permission/NOC required under the rules. Thereafter, the petitioner vide letter dated 12-1-2011, sought the intervention of the Higher Education Commission who vide letter dated 24-1- 2011, referred to the Tenure Track System rules for Sabbatical Leave and other Leaves regarding post-doctoral studies and called upon the respondent-University to give its comments by 24-1- 2011. The petitioner also through his letter dated 26-1-2011 approached the Chancellor of the University/Governor of the Punjab but no decision has been taken with the result that the petitioner is unable to join the research programme whose commencement date has been extended to March, 15, 2011, as a special case.
5. Learned counsel to the petitioner has submitted that the denial of the permission to grant ex- Pakistan study leave to the petitioner is a case of arbitrary exercise of discretion by the Vice- Chancellor as no rational reason has been given. Reliance has been placed on Amanullah Khan and others v. Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), Abdul Wahab and another v. Secretary Government of Balochistan and another (2009 SCM R 1354). According to the learned counsel, the sole reason given is that the petitioner did not obtain prior NOC while applying for the research programme but the relevant rules only do not provide for any specific time for seeking NOC and that in the present case the petitioner has sought permission after being granted the research scholarship as he could not have sought the permission at a stage prior to the award of scholarship.
6. Report and parawise comments have been filed by the respondents who have objected to the maintainability of the writ petition by referring to section 10 of the Government College University Lahore Ordinance, 2002, which provides the remedy of revision addressed to the Chancellor/Governor of Punjab. Another preliminary objection taken by the respondents is to the effect that the refusal of permission to the petitioner to proceed on ex-Pakistan study leave is a policy matter wherein this Court should not interfere in view of the rule laid down in Yahya Gulzar v.
Province of Punjab (2001 CLC 9). On merits, it has been asserted that a leave cannot be claimed as of right in view of Statute 19 of the Government College University. Lahore Service Statutes 2005 ("the Service Statutes").
7. I have heard the learned counsel for the parties and have also examined the relevant record and the statutes.
8. Reference has been made by the learned counsel for the respondent-University to paras 19.1 and 19.2 of the Service Statutes, which provide that "leave cannot be claimed as a matter of right" and that "in the matter of leave the authority for the grant of leave shall be the Vice-Chancellor". Para 25 of the Service Statutes provides for study leave but its perusal leaves no doubt that it is applicable only where an employee of the respondent-University wishes to pursue higher studies in the respondent-University. As such, para 25 is not designed to cater to a situation where an employee wishes to pursue higher studies outside Pakistan. There is no provision in the Service Statutes to specifically deal with ex-Pakistan study leave as even Para 30 while providing for ex- Pakistan leave does not mention the object of such leave. Reference has also been made to para 43 of the Service Statutes but the said provision need not be discussed as it is not relevant for the present controversy being limited to the circumstances where the employees of the University are invited to attend educational or academic conferences.
9. It appears that many of the Service Statutes are not applicable to such members of the academic staff, including the petitioner, whose terms and conditions are regulated by the tenure track system introduced by the Higher Education Commission and adopted by the respondent- University. As per its website, the respondent-University has also adopted the Tenure Track System Statutes issued by the Higher Education Commission on January 1, 2008. In this regard, it would be relevant to refer to Clause 2.6 of the said Tenure Track System Statutes, which is reproduced below:--- "2.6 Sabbatical Leave: ' A faculty member on tenure track may proceed on Sabbatical Leave at the rate of one semester (4 months) paid leave for every three year of service in the university. The leave period shall count towards the Tenure Track probationary period, if applicable. Sabbatical leave may not be combined with any other leave".
10. From the afore-quoted clause 2.6 of the Tenure Track System Statutes, it is obvious that a tenure track faculty member is entitled to the paid Sabbatical Leave of one semester or four months for every three years of his service. The Sabbatical Leave is another name for study leave, which Universities all over the world allow and encourage to promote the professional growth of their faculty members and to also achieve the objective of acceleration of the quantum of research and development at the faculty. Being admittedly a permanent member of the faculty since 2002 and being on the tenure track since 2005, the petitioner in terms of clause 2.6 of the HEC's Tenure Track System Statutes has become entitled to the grant of Sabbatical Leave for the period he has remained in service which appears to be nearly nine (9) years long. I also find support from HEC's letter dated 24-1-2011, addressed to the respondent-University, which seems to suggest that the case of the petitioner is governed by clause 2.6 and clause 2.7 of HEC's Tenure Track System Statutes. However, it appears that the respondent-University has dealt with the petitioner's application for ex-Pakistan study leave without realizing that HEC's Tenure Track System Statutes are applicable to the petitioner and he is entitled to the study leave applied for. There is no reason the petitioner should be denied the opportunity to enrich his knowledge and improve his skills by joining the prestigious 4 to 6 months long Endeavour Research Fellowship in Australia. His experience of research fellowship will also be of immense benefit to the respondent-University where he is employed and where he will return after completing his fellowship in Australia.
11. Even if it is assumed that the Vice-Chancellor of the respondent-University had the discretion to grant or refuse ex-Pakistan study leave to the petitioner, what needs to be examined if such discretion has been exercised fairly in accordance with the established principles. It is settled law that when an authority has been conferred discretion it must be exercised fairly according to rational and intelligible reasons and any action or decision, which does not meet these thresh-hold requirements has to be considered arbitrary. In this regard, reference may be made to the case of Amanullah Khan and others v. Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others (PI,D 1990 SC 1092), the relevant portion whereof reads as under:--- "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing 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, in our context, 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 rationalize 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."
12. In another case, Abdul Wahab and another v. Secretary Government of Balochistan and another (2009 SCM R 1354), the Hon'ble Supreme Court observed as under:- "Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law. All judicial, quasi-judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law."
13. Applying the afore-stated principles, it needs to be examined if the refusal of ex-Pakistan study leave to the petitioner is a case of a proper exercise of discretion or is it arbitrary. From the facts on record, it is clear that the petitioner since joining the respondent-University in 2002 has availed ex- Pakistan leave on three occasions totaling a period of less than fifty days. It also appears from the record that petitioner's request for ex-Pakistan study leave for a post-doctoral fellowship under the Japanese Government Research Scholarship (MEXT) in Japan was turned down by the Vice- Chancellor vide letter dated 17-9-2005 without assigning any reason at all. The latest refusal of permission to the petitioner for ex-Pakistan study leave was communicated vide letter dated 6-1- 2011, the operative part whereof states:--- "...Since you did not bother to obtain prior permission /NOC which was necessarily required for the subject purpose under the rules: it is clear violation of rules, therefore, your request cannot be acceded to."
14. The aforesaid order of refusal is bereft of any rational or intelligible reason. It also follows that the impugned order of refusal also disregards the requirements of section 24-A of the General Clauses Act, 1897. No doubt the discretion has been exercised in an arbitrary manner as the refusal to grant permission is being justified by the petitioner's failure to seek prior permission when he applied for the award of the research fellowship. Learned counsel for the respondent-University was unable to point out any particular rule or Statute which provides that an NOC or permission has to be sought when an employee applies for an overseas scholarship or fellowship and that otherwise his right to seek leave is lost. No particular point of time appears to have fixed for the purpose in the rules or the statutes except that leave must be sought before it is to be availed. As such, if the petitioner has not sought NOC/permission while applying for the research fellowship, it does not mean any breach or violation of any rule by him. Needless to state that the petitioner's application for ex-Pakistan study leave made on 14-12-2010 was well in time and also prior to the leave with effect from 1-2-2011 sought by him.
15. The maintainability of the writ petition has been questioned on the ground that the remedy of revision under section 10 of the Act is available to the petitioner and therefore invocation of the constitutional jurisdiction of this court is premature. Record shows that the petitioner has availed the remedy of revision under section 10 of the Act but a period of over one month has passed but no decision has been taken one way or the other which means that the remedy although availed has not been efficacious enough but will also soon become infructuous considering that the research fellowship offered to the petitioner will lapse if not availed by 15-3-2011. In any case, the availability of the alternate remedy does not bar the constitutional jurisdiction of this Court in every case. Reference may be made to the Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279) and Mst. Hussain Bibi v. Haji Muhammad Din and 3 others (1976 SCM R 395) . The impugned order, being an instance of arbitrary exercise of discretion and being without regard to the provisions of HEC's Tenure Track Statutes, cannot be defended on the ground of being a policy matter. As such, the rule laid down in Yahya Gulzar v. Province of Punjab (2001 CLC 9) for non-interference in policy matters is not attracted in the instant case.
16. In view of the foregoing discussion, I have no option but to declare that the order dated 6-1-2011 is arbitrary, unlawful and has been passed without lawful authority. As a result, the writ petition is allowed and the order dated 6-1-2011 is set-aside and the respondent-University is directed to grant permission/No Objection Certificate and ex-Pakistan study leave to the petitioner so that he joins and completes the Endeavour Research Fellowship commencing from 15-3-2011 at the Australian National University, Canberra. There is no order as to costs.