' YAHYA AFRIDI, J.--- Hussain Muhammad, the present petitioner seeks the Constitutional jurisdiction of this Court praying that:--- "the impugned refusal of respondent No,1 to issue NOC to the petitioner, to grant of Ex-Pakistan Study Leave and release of fund be declared as illegal, without lawful authority and of no legal effect."
2. Brief and essential facts leading to the present writ petition, in chronological order, are as under:- -- 14-4-2011 Respondent No,3 published an advertisement in the local News Paper inviting applications for the award of PhD Scholarship under "HEC" program strengthening College University of Peshawar/respondent ("respondent University") in different disciplines including Pakistan Studies.
18-10-2012 Petitioner was Provisionally awarded scholarship for PhD in Pakistan Studies.
14-2-2013 Petitioner was finally awarded the scholarship to read for his PhD degree in Pakistan Studies.
4-4-2013 Higher Education Commission, Islamabad ("HEC") has issued a Certificate that Mr. Hussain Muhammad has been awarded overseas PhD Scholarships under the Faculty Development Program (FDD) of the Universities and admitted in Program at the Faculty of Humanities, UNIVERSITAT ERFURT, Germany.
29-5-2013 The petitioner was recommended by the Dean Faculty of Social & Behavioral Sciences of the Respondent University Appeal filed by the petitioner for the grant of NOC to proceed on the foreign scholarship has till date not been attended to.
' Hence, the present writ petition.
3. The respondent-University, when put to notice by this Court for the first time, brought on record the reasons for hot granting the NOC to the petitioner for proceeding on the Scholarship abroad.
Essentially, the refusal was on two grounds;--
(i) Firstly, that the entire process for award of scholarships, which included that of the petitioner was tainted with mala fide' and 'bias'; and
(ii) Secondly, due to lapse of time and the consequent enhanced cost since allocation of funds and better utilization of the scarce resources, the respondent-University had decided to reduce the number of scholarships from 25 to 19 and also to allocate the same to pure sciences, and that too in preference over the social sciences.
4. In this regard, the learned counsel for the, respondents referred our attention to the high powered meeting headed by the worthy Vice-Chancellor of the respondent-University on 22-7- 2013, wherein, it was decided that:--- "Decisions:
1. It was unanimously decided that since the whole procedure is ambiguous and questionable, so all the eligible candidates in all subjects advertised, shall be called for appearance before the 'Scholarship and Research Facilitation Committee' and then the Committee will thoroughly review the cases and recommended panel of candidates to the Selection Board per slot.
2. In view of decision No,1, all provisional award letters discussed (Mathematics, Statistics, Zoology, Pakistan Study, Economics etc.) stands cancelled and new award letters will be issued after due process of the Selection Board to the selected candidates.
3. On another point it was decided that the selected new scholars will only get stipend and tuition fee during their studies abroad and no salary will be given to them unless they join the university after the completion of their higher studies aboard."
' He further clarified that out of the 19 scholarships, 12 selected candidates, who had been awarded scholarships had already proceeded abroad, while seven scholarships were yet to be processed and finalized but were awaiting the outcome of the present petition.
5. The worthy counsel also argued that legally the impugned decision was a 'policy' decision of the respondents-University, which he urged was beyond the domain of this Court, while it was exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). In this regard, he sought reliance on the judgments rendered in the cases titled Amir Feroz Shamsi and another v. Institution of Business Administration and another (2006 SCM R 412) and Landirenzo Pakistan (Pvt.) through Chief Executive Officer, Karachi and 3 others v.
Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 6 others (2013 PTD 658 Sindh High Court).
6. The learned counsel for the respondent-University further argued that there was no discrimination against the present petitioner, as all the foreign scholarships awarded by the objectionable Scholarship Committee had been cancelled.
7. This Court is in consonance with the stance taken by the worthy counsel for the respondent- University to the extent that unless circumstances warrant, the Policy decisions ought not to be interfered with by a constitutional Court, while exercising its jurisdiction under Article 199 of the Constitution. The facts of the present case, do not warrant this Court to exercise its jurisdiction striking down the impugned policy of the respondent-University, especially when the same is based on public policy aimed for furtherance of 'transparency', reasonableness' and the principles of 'natural justice'.
8. This Court, in fact, appreciates the prompt action taken by the respondent-University to check the violation of principle of natural justice, particularly the allegations of 'bias' in the proceedings of the Scholarship Committee leading to the award of scholarships. This action on the part of the respondent-University is highly commendable and shall surely enhance the image of the respondent-University in upholding fair play and justice.
9. When the learned counsel for the respondents was confronted to comment on whether there was any allegation of 'mala fide', 'bias' , misrepresentation or fraud on the part of the present petitioner, his response was in the negative. Hence, it cannot be said that the petitioner has approached this constitutional Court with unclean hands to shut its door to him. Thus, the petitioner has crossed the main hurdle for his grievance to be entertained by this Constitutional Court.
10. Once the bona fide of the petitioner is confirmed, this Court has to consider the legality of the retrospective application of the impugned policy by the respondent University, leading, to the impugned decision affecting the 'rights' of the petitioner in the award of the scholarship abroad.
11. The term 'right' has been a matter of jurisprudential discourse of our superior Courts. To start with, in Montgomery Flour Mill's case (PLD 1957 (W.P) Lahore 914), it was held that;--- "Whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that, in a matter in which he is concerned, an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 170 of the Constitution of Pakistan."
12. The matter was also taken up by the Supreme Court of Pakistan in Ikram Bus Service's case (PLD 1963 564) and observed that:--- "Even an administrative body such as an R.T.A, is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with the law."
13. An eloquently legal discussion was also rendered by the apex Court in Fazaldin's case (PLD 1969 SC 223), wherein it was held that:--- "A scheme was introduced by the Lahore Improvement Trust for housing in Gulberg area. In the said scheme, there was an area earmarked for a market. Subsequently the area earmarked for the market was altered and was allotted for the construction of a religious school. The petitioner applied for a plot next to the market as he intended to open a shop for his steel business in the said market. He claimed that the said market was the main attraction for buying the said plot.
After the said scheme was altered, the petitioner filed a writ petition.
' The issue in the said case was whether any right could arise from a scheme and whether the expectation to have a market built under the said scheme could give the petitioner the grievance to file a constitutional petition.
' The Court held that a right is not to be envisaged in the strict sense and the courts are only to show some personal benefit or advantage or curtailment of a privilege or liberty or franchise.
Furthermore, representation in the scheme that a facility was to be provided and the deprivation of the said facility confers a sufficiently valuable right."
14. Later the Supreme Court of Pakistan in Mian Rafi-ud-Din's case (PLD 1971 SC 252) had observed that:- "A 'vested right', an 'accrued right' or a 'substantive right' does not mean only title to property or office; a right, benefit or an advantage conferred by a statute,:: availed of by doing a thing as required by the statute is also a right of this kind. Again, if a right, benefit or advantage conferred by a statute is dependent on the happening of contingency, then, the same becomes a 'vested or accrued-right' after the contingency has happened."
15. More recently, matter was again taken up by the Supreme Court in Dr. Abdur Rauf's case (1991 SCM R 483), wherein it was held that:- "Right entitling for maintaining a Constitutional petition was not necessarily a right in the strict juristic sense, but sufficiency of such right was enough if applicant disclosed that he had personal interest in the performance of legal duty which had not been performed in manner required by law."
16. Thus, it would be safe to state that a 'right' is a dynamic legal concept, which cannot be restricted to a static form; it may be in a form of a benefit, advantage, or protection, which a person derives from a clear enactment or rules made thereunder or on the basis of a representation or an offer, ' oral' or written', made by a person, Government, authority or statutory body, such as the present respondent-University.
17. We, in Pakistan are blessed because our Constitution, unlike some other jurisdictions, has expressed rights, known as 'fundamental rights' enshrined therein. The force of these 'fundamental rights' provided in Articles 9 to 28 of the Constitution are so powerful that any action of the executive or authority or even an enactment of the parliament can be struck down on the touchstone of any violation of the 'fundamental rights', as provided under Article 8 of the Constitution.
18. Our superior Courts have even recognized and enforced 'rights', which have not attained or strictly fall within the domain of 'fundamental rights' , as provided in the Constitution. This Court had earlier in Messrs Act International's case (2013 YLR 1396) recognized and classified the term 'rights' tto three categories, in terms that;--- ' Category No,! Fundamental Rights.
' These are clear 'fundamental rights' which are provided in the Constitution.
' Category No,II Vested Rights.
' These are rights, which derive their source from an Act of the Parliament, other than the Constitution.
' Category No: III Rights ' These are rights, which a person may acquire from any representation, oral or written, action or inaction of another person, authority or a statutory body, such as the respondent-University. These rights, though inferior to the 'Fundamental' or 'vested rights', are recognized and enforced by Courts of law and even its violation are held to be justifiable.
19. In, view of the above discussion, this Court finds that the present petitioner is seeking protection of his 'rights', as enumerated in Category No,III of the 'rights', discussed hereinabove.
20. Keeping in view the peculiar facts of the present case, there remains no doubt that the petitioner on applying for the scholarships offered by the respondent University in the advertisement, acquired a 'right' to be considered in accordance with the terms of the advertised representation/offer made by the respondent-University to the public at large. However, the said 'right' further legally matured, after the petitioner had taken certain 'steps' in pursuance thereof; filing application for the admission abroad, appointment of supervisor for his directorate, grant of visa to Germany, the approval of HEC and the recommendation in favour of the petitioner for grant of NOC by the Dean of the respondent-University.
21. Once the 'offer' was made by the respondent-University through the advertisement to the public at large, seeking applications for scholarships including the discipline of Pakistan Studies, any change in respondent-University's policy regarding the choice of subject, after the applications had been received in pursuance thereof, would not be legally correct and appropriate. ##TE##In this regard, reference can safely be made to Ghulam Mustafa's case (1986 CLC 1056) which was *followed and reaffirmed by this Court in Raza Hasan's case 1999 MLD 1469 wherein in a case relating to the legal implication of change in admission policy after a candidates had been awarded the admission, the Court held that:--- "the candidates thus acquired a vested right to be considered for the admission on the basis of admission policy/rule existing on the expiry of the last date for filing the application."
22. In the present case, it is clear that the petitioner by applying in pursuance of the advertisement and thereafter taking steps, which were recognized and accepted by the respondent-University and was thus awarded the final scholarship, had gained valuable rights to be considered for the said scholarship in accordance with policy then prevailing. Moreover, the rights so acquired by the petitioner could not be taken away from him by the respondent-University, unless there was any fraud, misrepresentation or illegality committed by him in applying or obtaining the said scholarship. The respondent-University, however, categorically made it clear that neither the petitioner committed any misrepresentation or fraud in applying for the advertisement scholarship nor did he attempt or abuse the process of selection leading to the award of the scholarship.
23. As far as the authority of the respondent-University to recall its earlier order in applying the principle of 'locus Poeniteniae', the facts and the circumstances of the present case reveals that the 'valuable rights' had accrued in favour of the petitioner and steps had been taken by the petitioner, hence the same could not be withdrawn.
24. It has been settled by the apex Court in its authoritative judgment titled "Pakistan v. Muhammad Himayatullah Farukhi" (PLD 1969 SC 407) and thereafter consistently followed and recently in "Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others" (PLD 1991 Supreme Court 973), the Supreme Court has again reiterated that:- "It is quite apparent that restrictions imposed in Para-4 of the Revenue department's Notification mentioned above, pertain to the appointment as Mukhtiarkar and in the cases under consideration will have no bearing for the reason that respondents were granted exemptions in the accordance with circulars, requirements of which were duly fulfilled by them and not only that but exemptions were implemented and they received necessary training, as such valuable rights had accrued to them which could not by interfered with. In this context, reference can be made th section 20 of General Clauses Act and guidelines laid down in the case of Pakistan v. Muhammad Himatullah Farukhi (PLD 1969 Supreme Court 407), in which it is held that principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual". (emphasis provided).
25. In view of the 'ratio' decidendi' of the aforementioned judgments and the facts of the present case, it is safe to state the following:---
(i) That the representation/offer made by the respondent-University for seeking applications for award of scholarships abroad in the advertisement was by a competent authority;
(ii) that the representation/offer made in the advertisement was then not in violation of any law, rules or policy of the respondent-University;
(iii) that there was no mala fide or bias attributed to the petitioner in applying or being granted the challenged scholarship; and
(iv) that the petitioner had taken steps in furtherance of the award of the scholarship.
26. Once, the above condition precedents were fulfilled by the petitioner, it is but clear that valuable rights accrued in favour of the petitioner, and thus without committing any fraud or misrepresentation in applying for the same, the benefit so granted to him could not be withdrawn or recalled.
27. Accordingly, for the reasons stated hereinabove, this Court holds and---
(1) Declares that the policy of the respondent-University as decided in its meeting on 22-7-2013 is in furtherance of the transparency and good governance maintained as valid and legal.
However, the application of the said policy would be prospective and not retrospective, unless ' mala fide', 'bias' and ' misrepresentation' is attributed to the candidates granted foreign scholarships, and further that they said candidates were not granted the final award of scholarships in pursuance whereof they had taken decisive steps, as in the case of the petitioner.
(2) Declares the cancellation of the scholarship and inaction to grant NOC to the petitioner to proceed on the awarded scholarship was illegal and without lawful authority.
(3) Direct the respondent University to grant the NOC to the petitioner to proceed for the scholarship awarded to him, vide order dated 14-2-2013.