' IQBAL HAMEEDUR RAHMAN, C.J.--- Through the instant writ petition, the petitioner has prayed that appropriate writ may kindly be issued declaring that:- .(a) the memo. Dated 11-1-2012, as being mala fide, without lawful authority, of no legal effect, discriminatory and illegal, inoperative and void, against the principles of legitimate expectations and locus penitential and issuance of mandamus directing the respondent to:---
(i) Pay salary w,e,f, 2-2-2008;
(ii) Pay sanctioned funds of US $ 18000 (at present rate) as per terms and conditions laid down in scholarship award letter dated 7-7-2007 and 12-9-2007 and;
(iii) order for conversion of EOL into study leave with full pay as is admissible under the rules;
2. The petitioner through the instant writ petition has alleged that he had joined Pakistan Council of Scientific and Industrial Research (PCSIR) as Junior Technical Officer (BS-16) on 1-3-2001 and his services were regularized from 1-7-2001 vide Office Order dated 9-1-2004. Thereafter, the petitioner was selected as Project Coordinator (BS-18) in the project "Establishment of Nano-Technical Lab PCSIR" vide memo dated 28-4-2005. The petitioner was relieved from PCSIR vide order dated 30-5- 2005 and he assumed his duties on the same day i,e, 30-5-2005 as Coordinator of the Project.
Subsequently the petitioner was nominated for MS in Project Management from Esc Lillie School of Management, France and no objection certificate was also issued in his favour. The petitioner was also granted study leave by the project authorities vide letter dated 12-9-2007 and case was submitted to the Embassy of France for issuance of Visa on 23-8-2007, however, astonishingly, without the approval of the competent authority and consent of Project Director, Pakistan Council of Scientific and Industrial Research, issued letter to Embassy of France to stop visa processing. The petitioner was verbally informed that if he wants to proceed abroad for studies he would have to bear all the expenses on his own. Thereafter, the petitioner was informed by PCSIR, vide letter dated 28-1-2008 that the competent authority was pleased to allow him to proceed to France for Master Degree in Project and Programme Management with one year ex-Pakistan leave (without pay) with no financial liability. The petitioner submitted a departure report after handing over the charge to Project Director and requested extension in study leave vide application dated 2-2-2009. The petitioner joined back as Project Coordinator after completion of his Master Degree and also submitted an application for release of pay and sanctioned funds vide application dated 7-7-2010.
Thereafter, the petitioner, on 18-10-2010 filed an appeal to the Chairman, PCSIR, but the same was not responded, whereupon, the petitioner filed Writ Petition No,2974 of 2011 in the Islamabad High Court and a direction was issued to the respondent to expeditiously decide the representation of the petitioner, where-after, memo dated 11-1-2012 was issued to the petitioner, hence, the instant writ petition.
3. Learned counsel for the petitioner has argued that services of the employees of Pakistan Council of Scientific and Industrial Research (PCSIR) are governed by the Pakistan Council of Scientific and Industrial Research Employees (Service) Regulations, 1981, which were made in exercise of the powers conferred by section 19 of the Pakistan Council of Scientific and Industrial Research Act 1973 (XXX of 1973) with the prior approval of the Federal Government, hence, the service rules of the employees of PCSIR are statutory in nature; that after the nomination of the petitioner for MS in Project Management from Esc Lillie School of Management, France and grant of study leave by the authorities, the respondent had no authority to refuse study leave to the petitioner; that withholding of entire process was unjust, unreasonable, unfair and is in colorable exercise of jurisdiction which is a violation of section 24-A of General Clauses Act, 1897; that according to Regulation-24 of PCSIR Service Regulations, 1981, employees of PCSIR are entitled to leave as admissible to civil servants and according to Revised Leave Rules, 1980, Study Leave may be granted as additional leave to the Government Servants for the study of scientific, technical or similar problems; that after issuance of No Objection Certificate, the respondent was left with no option to refuse study leave to the petitioner as a vested right had created in favour of the petitioner and principle of locus penitentiae was applicable; that the discretion has been exercised by the respondent in an arbitrary manner. Learned counsel for the petitioner has relied upon PLD 1956 Dacca 153, PLD 1975 Supreme Court 620, PLD 1997 Karachi 62,, 2010 SCMR 1458, 2011 SCMR 1220 and 2010 SCMR 1301.
4. Conversely, Consultant Legal appearing on behalf of the respondent argued that PCSIR is an autonomous body which is controlled by the Ministry of Science and Technology; that Pakistan Council of Scientific and Industrial Research Employees (Service) Regulations, 1981 are neither approved by the Federal Government/Establishment Division nor the same are published in the official Gazette, hence, the services of the employees of PCSIR are governed by non-statutory rules, as such, the instant writ petition is not maintainable; that on the representation of, the petitioner a comprehensive reply was conveyed to him; that the petitioner was working as a contract employee in the development Project sponsored by the Government of Pakistan and as per government rules, the contract employees are not eligible for foreign training; that the authority had reviewed the case of the petitioner and on the written request of the petitioner that he will bear all the expenses of his training, one year leave without pay was sanctioned; that sanction for payment of Travelling Allowance, Living- Allowance, Registration/ Tuition fee and one year study leave was made by the Project Director of "Establishment of Nano Tech Lab at PCSIR", whereas, the competent authority in this regard was the Chairman PCSIR. Consultant Legal appearing on behalf of the respondent has relied upon 2010 SCMR 1458.
5. I have heard the learned counsel for the petitioner as well as Consultant Legal appearing on behalf of the respondent and perused the documents made available on record.
6. In essence, the petitioner, through the instant writ petition has prayed for payment of US $ 18000 as tuition fee/traveling expenses etc. Incurred on his foreign study, as per terms and conditions laid down in scholarship award letter dated 7-7-2007 and 12-9-2007 as well as conversion of Extraordinary Leave (leave without pay) into Study leave (leave on full pay).
7 . It is evident from the photocopy of letter dated 4-8-2007 that Project Director, "Establishment of Nano-Tech Lab at PCSIR" had conveyed that "this office has no objection on the nomination of Mr. Shehryar for Master Degree training in Finance, subject to condition that his terms and conditions of appointment/lien with PCSIR are not violated". There-after a letter dated 12-9-2007 was also issued, whereby; the petitioner was allowed to proceed to France for MS in Project management, at ESC Lille, School of Management, Paris with one year Ex-Pakistan study leave. It was also mentioned in the said letter that Tuition Fee for one year i,e, US$ 2000, Maintenance Allowance and Return Air Ticket total amounting to US$ 18000/- will be met from said Project i,e, "Establishment of Nano-Tech Lab at PCSIR". It was further mentioned in the said letter that the petitioner will be entitled to draw '50% Pay during, study leave abroad and remaining 50% will be reimbursed to him after successful completion of programme. However, it is evident from the photocopy of the application dated 19- 11-2007 submitted by the petitioner that he himself had requested to the Project Director "Establishment of Nano-Tech Lab at PCSIR" that "one year study leave or one year LFP/LHP against LFP in my credit or whatever seems appropriate may please be granted for which I will bear all the expenditures of study from my own resources" as such, the petitioner himself had submitted his willingness with his free consent/without any protest, that he be granted leave of any kind i,e, Leave one Full Pay (LFP)/Leave on Half Pay (LHP) or any other leave as well as had shown his willingness to bear all the expenditures of study from his own pocket, therefore, the petitioner after completion of his foreign study and availing leave without pay had no justification to request for payment of expenditures incurred on his foreign study as well as conversion of leave without pay into study leave (leave on full pay) .
' Furthermore, the petitioner, after completion of MS degree in "Project and Programmed Management" from the SKEMA Business School, Paris France (formerly ESC Lille School of APM, UK) on 1-2-2010 had submitted his joining report and thereafter on 7-7-2010 i,e, after five months of his joining report, he for the first time, had submitted application for conversion of his leave without pay into study leave and for payment of expenses incurred on his study abroad. The respondent along with the comments has annexed a copy of letter dated 3-3-2009 which shows that the completion report of project "Establishment of Nano-Tech Lab at PCSIR" was submitted to the Ministry of Science and Technology. From the letter dated 3-3-2009, written by one Dr. Muhammad Nawaz Khokhar, Principal Scientific Officer Pakistan Council of Scientific and Industrial Research, it is very much evident that the completion report of the project i,e, "Establishment of Nano-Technology Laboratory at PCSIR" was submitted to the Ministry of Science and Technology and after submission of completion report of the Project to the Ministry of Science and Technology, the project was closed, as such, the request of the petitioner, regarding payment of expenditures incurred on foreign study and conversion of Leave without pay in to study leave (leave on full pay), could not be acceded to by PCSIR, as the Project, which was the basic foundation for sending the petitioner abroad had come to an end and the petitioner on his joining back was posted as Junior Experimental Officer in Technology Wing, PCSIR, head Office Islamabad vide Office Order dated 19th July, 2010 and he was not posted as Project Director . "Establishment of Nano-Technology Laboratory at PCSIR". It is pertinent to mention here that the petitioner had submitted application, for the first time for grant of expenditures incurred on his foreign study and for conversion of E.O.L.
Into study leave on 7-7-2010, whereas, the project i,e, "Establishment of Nano-Technology Laboratory at PCSIR" in which the petitioner was working at the time of proceeding abroad, had come to an end in the year 2009 and completion report of the said project was also submitted to the Ministry of Science and Technology vide letter dated 3-3-2009, as such, on 7-7-2010, when the petitioner had submitted application for grant of expenditures incurred on his foreign study and conversion of E.O.L. Into study leave, neither the project under whom the availability of funds for the foreign study of the petitioner was mentioned in letter dated 12-9-2007 was in existence nor the Project Director who had ranted stud leave to the petitioner was holding the said post, hence, the petitioner by any stretch of imagination could not ask PCSIR for granting him funds and conversion of E.O.L. Into study leave as at the relevant time he was not working as regular employee of PCSIR rather he at the relevant time was working as Project Director of project "Establishment of Nano- Technology Laboratory at PCSIR" and all the consequential benefits and liabilities of the said project had come to an end on its completion. It would not be out of place to mention here that the respondent has also mentioned in his parawise-comments that the Project authorities were not competent to issue NOC and all the actions were without lawful authority. Therefore, keeping in view the same, the prayer made by the petitioner regarding grant of expenditures incurred on his foreign study and conversion of Extraordinary Leave (without pay) in study leave (leave on full pay) in the instant writ petition is without any legal force.
8. Learned counsel for the petitioner has also argued that after issuance of letter by the Project Director regarding payment of expenditures on foreign study of the petitioner and granting him study leave, a vested right had accrued in favour of the petitioner, as such, principle of locus penitential is applicable in the case of petitioner.
9. As far as, the applicability of principle of locus penitential is concerned, the said principle applies where certain vested rights accrue in favour of some in furtherance of a valid legal order, however, the said principle would not arise in a situation when some benefit accrues due to an illegal order.
Reliance in this regard, reliance is placed on the case of Executive District Officer (EDU.) Rawalpindi and others v. Mst. Rizwana Kausar and 4 others (2011 SCMR 1581), wherein it was held that:--- "There is no cavil with the proposition that the principle of locus penitential would not arise in a situation when some benefit is awarded to a person against the declared law."
' Similar view was also taken by the Hon'ble Supreme Court of Pakistan in the judgment reported as (2011 SCMR 408). Hence, keeping in view the verdict delivered by the Apex Court, the principle of locus poenitentiae does not apply to the case of the petitioner, as the respondent has mentioned in his parawise comments that the project authorities were not competent to issue NOC to the petitioner and all the actions were without lawful authority, therefore, the petitioner is not entitled for any relief, keeping in view the principle of locus poenitentiae.
10. In view of what has been discussed above, the instant writ petition has no merits, resultantly the same stands dismissed.