' Yahya Afridi, J.--Kamranullah Khan, Assistant Director, Works (Electrical), Abdul Wali Khan University, Mardan, the present petitioner, seeks the constitutional jurisdiction of this Court, praying that: "It is, therefore, prayed that by accepting this petition, the impugned refusal/inaction of the respondents to issue promotion order to the petitioner be declared as illegal, unlawful and thus ineffective upon the rights of the petitioner and consequently respondents may be directed to issue promotion order to the petitioner as per the recommendations of Scrutiny Committee as well as Selection Board to the post of Deputy Director Works (Electrical) BPS-18."
2. The brief and essential facts leading to filing of the present petition are that the petitioner was initially appointed as Assistant Director (Electrical) BPS-17 on contract basis vide order dated 13.04.2011; that the said contract of the petitioner was extended for another year vide order dated '20.04.2012; that prior to the expiry of period of contract, the services of the petitioner were finally regularized as Assistant Director Works (Electrical) BPS-17 vide order dated 04.01.2013; that the petitioner applied for the post of Deputy Director Works (Electrical) BPS-18, for which the minimum qualification for appointment by promotion was Master of Science in Electrical Engineering with four years relevant experience in BPS-17 or above; that the case of the petitioner was placed before the Scrutiny Committee, which after considering the record of the petitioner found him eligible, and there aftar placed his case before the Selection Board of the respondent University on 13.11.2015, wherein, without recording whether the petitioner was recommended or otherwise, the Board, as reflected the minutes thereof recorded that: "After due process and confirmation of eligibility by the Scrutiny and Appellate Committees, the only eligible candidate in the cadre was called for interview before the Selection Board: Sr.# Name Attendance
1. Engr. Kamran UllahAttended ' The petitioner being the only eligible candidate for the said post, was not appointed, and thus has sought the instant writ from this Constitutional Court.
3. The respondents were put to notice. They have raised, inter alia, preliminary objections, regarding the maintainability of the present petition, and the eligibility of the present petitioner to be considered for the higher post, on the ground that, he did not have the requisite experience of four years in BPS-17.
4. The University's stance is that, the experience of the petitioner is to be taken from the date of his confirmation of service i.e 412013, which falls short of the requisite four years experience. Whereas, the petitioner contends that he has four years continuous service, as an Assistant Director Works (Electrical) BPS-17, and for the purposes of calculating his experience, his initial appointment is to be considered from 13.04.2011 and not from the date of confirmation of his service i,e, 04.01.2013. It was further contended that prescribed requirement was four years experience as Assistant Director Works (B-17), with no express requirement of the service to be regular service. The particular service having not been specified in the relevant rules, the petitioner having four years continuous service fulfilled the said requisite experience criteria.
5. Lest this Court passes any finding on this contentious contentions of the parties, suffice it to state that the present petitioner having been declared to be eligible for promotion to the next higher grade by the Scrutiny Committee of the respondent University, it would not be legally appropriate for this Court to hold otherwise onto pass any finding thereon. In fact, the, respondent University lhas admitted the affirmation of the petitioner's eligibility for the subject promotion in Para-6 of its comments.
6. When confronted with the above factual position regarding the eligibility of the petitioner, qua his experience, the worthy counsel for the respondent University raised another fresh factual dispute that, the petitioner was not recommended for promotion by the worthy Selection Board. In this regard, original record of the Selection Board was for the first time, introduced and produced before the Court and shown to the worthy counsel for the petitioner. It was noted from the said record that, not only the Vice Chancellor of the respondent University, but also Professor Dr. Muhammad Rasool Jan, the Vice Chancellor of the University of Peshawar and Syed Manzoor Ali Shah, a worthy member of Khyber Pakhtunkhwa Public Service Commission, were members of the said Selection Board and they had all recorded that the petitioner was 'not recommended' for promotion to the post of Deputy Director Works (Electrical) BPS-18.
7. The domain of a Constitutional Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), does not ordinarily extend to encompass matters relating to fitness of a candidate, determined in an interview carried out by a properly constituted Selection Body, unless the said determination is based on glaringly unfair, unlawful or irrelevant considerations. In essence, the constitutional Court would ordinarily not substitute its opinion to that of the Selection Body, comprising of members more acquainted with the subject of selection, and thus, in a better position to adjudge the fitness of a candidate for a particular assignment. This principle of jurisdictional restrain has by now been settled by the Apex Court and some of the authoritative decisions in this regard are Asif Mehmood Chughtai's case (2000 SCM R 966), Dr. Mir Alam Jan's case (2008 SCM R 960), Ghulam Shabbir Jiskani's case (2011 SCM R 1198), and Muhammad Ashraf Sangri's case (2014 SCM R 157).
8. This Court is alive to the fact that the Selection Board of the respondent University functions under the enabling provisions of The Khyber Pakhtunkhwa Universities Act, 2012 ("Act"), and is not mandated there under to provide any reasons for its decisions. Furthermore, this Court is also well aware that, administrative authorities carrying out administrative functions are conventionally not bound to render reasons for its decisions. But what has irked the Court is that, the petitioner being the sole eligible candidate has been declared not fit for promotion by the Selection Body, without assigning any reason.
9. It is well settled principle of administrations law that it is only when the administrative bodies are exercising their quasi judicial functions that, they are mandated to give reasons for its decisions.
The rationale behind this principle s that when the administrative authorities pass any orders, affecting the rights of a person or imposing a penalty, the reasons thereof are to be explicitly stated therein. Whereas, the administrative authorities rendering administrative functions, are not obliged to give reasons for each and every decision they take. This conventional approach of judicial review of administrative action has been a matter of great legal discourse in common law jurisdictions. The crucial issue, which remained central, was which actions or functions of the administrative authority, would qualify as quasi judicial, so as to legally require reasons for the decisions it made.
10. Lord Atkin L.J in R.V. Electricity Commissioner (1924) 1 K.B 171, has rendered the general test of determining the function of an administrative authority to be quasi judicial or otherwise, in terms that: "Any person or body having legal authority to determine questions affecting the rights of the subjects and having the duty to act judicially."
' V.N Khare, J. Of the Indian Supreme Court in Indian National Congress case (AIR 2002 SC 2158) after considering the English and the Indian judicial precedents, laid down a more comprehensive test for qualifying actions to be quasi judicial or otherwise, in terms that; "The legal principles, laying down when an act of a statutory authority would be a quasi-judicial act, which emerge from the aforestated decisions are those; Where
(a) a statutory authority empowered under a statute -to do any act
(b) which would prejudicially affect the subject
(c) although there is no lis or two contending parties and the contest is between the authority and the subject and
(d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial."
' Chief Justice Cornelius of the Apex Court in Faridson's case (PLD 1961 SC 537) dilating with approval, upon the earlier test laid down by the Supreme Court in Tariq Transport Company's case (PLD 1958 SC 437) explained it in terms: "The Tariq Transport Company's case was une where the need before the Road Transport Authority was to make proper provisions for public transport upon a certain route, conformably to the public interest and to the other general conditions e.g., the intensity of traffic which the road surface could bear, the need or otherwise for restricting competition upon the road and so forth. Although individual rights might have been advanced or injured by the eventual decision of the Authority favoring some of the applicants and not the others, yet the main duty upon the Authority was not the ascertainment of any individual rights, or the satisfaction of any individual claims, but the fulfillment of a large public purpose. That is not a judicial function in the ordinary sense and can rightly be described as an administrative act taken after evaluation of all interests, public and private, that were involved, with the object of adapting the action to future requirements and eventualities, as estimated by the executive authorities."
(emphasis provided)
' The worthy Chief Justice went on to explain the short comings of Common Law jurisdiction, when compared to the Civil Law jurisdiction based on the French Administration Law, in terms that: "Here, I may diverge a little from the main discussion to express regret that in our country there is no procedure similar to that of French Administrative Law which with variations appears to be in operation over the whole of Europe with the exception of the United Kingdom, on to a system of Administrative Courts which prevails in the United States, Under each of these systems, there is a quasi-judicial Tribunal provided to which a person injured by any action of a public servant performed in the exercise of public powers may have instant recourse, and these Tribunals are invested with powers to bring all the underlying processes into the light of day, and apply necessary correction to the executive action by issuing appropriate directions to the executive authorities. In our law, apart from departmental appeals on the executive side, the judicial remedy lies only with the prerogative writs, which the superior Courts are empowered to issue. The procedure, as these cases illustrate, is cumbersome and lengthy. Four years of waiting have been imposed upon the injured party in this case, to gain redress in regard to a trading license which was its main source of livelihood.
' Moreover, in the exercise of the prerogative jurisdiction, the Courts are eventually reduced to the task of construction of the relevant statute, and may only interfere either by mandamus whereby there has been a clear violation of mandatory provisions be omission or commission or by certiorari where they find that the statutory act was essentially judicial in nature and not a purely executive act. They cannot consider the merits. Where, by expression, the act is within the discretionary field, the Courts are ordinarily powerless to interfere."
' The distinguishing factum of administrative and quasi judicial functions of an administrative body or a tribunal has been also dilated upon in Halsbury Laws of England in terms that: "Moreover an administrative body, whose decision is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision. Thus if in order to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, if at some stage of the proceedings leading up to the decision there was something in the nature of a lis before it, then in the course of such consideration and at that stage the body would be under a duty to act judicially. If, on the other hand, an administrative body in arriving at its decision had before it at no stage any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially."
11. When this Court applies the ratio decidendi of the aforementioned judgments, and the principles that have evolved thereof, to the facts of the present case, it can safely be stated that the impugned decision of Selection Board of the respondent University was the outcome of its quasi judicial functions warranting a reason for its decision; firstly, the Selection Board being a statutory body, was exercising its administrative functions, secondly, the decision seriously affected the rights of the present petitioner to be considered for promotion, and also his legitimate expectation to continue as Assistant Director BPS-17 in the respondent University, and lastly the decision was not essentially for implementing or propagating any policy decision of the respondents-University.
12. Faced with the rigidity in demanding reasons only for quasi judicial function of administrative authorities, jurisprudence moved to make inroads with time, and evolved another principle of fairness. In the Indian jurisdiction, the principle of fairness warrants reasons to be given by administrative bodies, for passing administrative orders involving civil consequences. The said term has been explained by the Indian Supreme Court in A.K. Kraipak's case (AIR 1970 SC 150) in terms that: "Civil consequences undoubtedly cover infraction of not merely property or personal rights but civil liberties, material deprivations and non-primary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence."
' The above view has been followed in judicial precedence of Indian jurisdiction. Some of the leading cases are Dr. Dinapani. Dei's case (AIR 1967 1269), Maneka Gandhi's case (AIR 1978 SC 597), Mohinder Sing Gill's case (AIR 78 SC 851) and S.L.Kapoor's case (AIR 1981 SC 136).
13. Our superior Courts and the English Courts have been rather slow in demanding reasons for decisions made by administrative bodies, based on the principle of fairness; the cases of S.S Miranda's case (PLD 1959 SC 134) and Doody's case [1993] 3 All ER 92) are some of the leading cases on the point. However, with time, the Judicial trend has swayed towards seeking reasons, for administrative actions. In Dada Amir Haider Khan's case (PLD 1987 SC 504), the Apex Court, while dealing with the case of the administrative officer, refusing permission to a citizen to travel abroad, opined that; "In the present case, no reasons whatever were given by the Appellant No, 2 to indicate why the applicant could not be issued a passport. Such an order is not a proper order, as without disclosing the reasons why the discretion had been exercised against the applicant it is not possible to say whether the discretion exercised has been exercised properly or arbitrarily."
' Interestingly, the English Courts in Ex Parte Fayed's case [1997] 1 All ER 228, while dealing with the application for naturalization of the Fayed Brothers, struck down the rejection orders passed by the Secretary of State on the principles of fairness. The case dealt with Section 44(2) of British Nationality Act, 1981, which expressly prohibited the Secretary of State to assign any reason for the grant or refusal of any application under the Act. Lord Woolf MR, while dilating upon the need for reason clearly held that; "Mr. Beloff argued that this is a case in which despite S. 44(2) the minister is required to give reasons. As I have indicated, the minister is not prohibited by the section from giving reasons. On the contrary, he has a clear discretion to given reasons. So, Mr. Beloff argues in a case like this which cries out for reasons the discretion can only lawfully be exercised by giving reasons.
I have already indicated that at common law there is no universal obligation to give reasons but despite this I would certainly regard this as a case where reasons should be' given but for S. 44(2).
However, in the light of the express prohibition on requiring the Secretary of State to give reasons I would not myself regard this as a case where the need for reasons is so essential that fairness cannot be achieved without reasons as long as an applicant has been given sufficient information as to the subject matter of the decision to enable him to make such submissions as he wishes. I therefore reject Mr. Beloff s argument "
(emphasis provided)
14. The cumulative effect of the principles of natural justice and fairness, demanded the Selection Board to have given reasons for its impugned decision of not recommending the petitioner. This omission on the part of the Selection Board has gravely affected the legitimate expectation, of the petitioner to continue his service in the respondent-University or his decision to re-apply for the said post again or even his decision to impugn the said rejection before an appropriate administrative forum solely depended on the 'reasons', which prevailed upon the worthy members, while considering his fitness to be promoted..
15. Let us also consider the legislative advancement made in our country on seeking reasons for decisions introduced vide Section 24-A in the General Clauses Act, 1897 ("Act of 1897"). It is noted that the legislature in its wisdom has expressly demanded reasons to be rendered by an authority, while exercising jurisdiction under an enactment passed by the Parliament. The said provision provides that; "Section 24-A. Exercise of power under enactments.
(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
16. The facts of the present case do not strictly attract the application of Section-24-A ibid, as the Selection Board of the respondents-University carries out its function under the Act, which is a provincial law, enacted by the Provincial Assembly and not the Parliament. This fact would in no way absolve an administrative authority performing functions under a provincially enacted statute to shun rendering reasons, while administering its affairs, and especially when it decides matters relating to valuable rights of its employees, such as in the present case.
17. This would take us to the eliminating legal discourse rendered in Administrative Law (Eight Edition) by H.W.R. Wade & C.F. Forsythia, wherein it was observed that; "The principles of natural justice do not, as yet, include any general rule that reasons should be given for decisions. Nevertheless, there is a strong case to be made for the giving of reasons as an essential element of administrative justice. The need for it has been sharply exposed by the expanding law of judicial review, how that so many decisions are liable to be quashed or appealed against on grounds of improper purpose, irrelevant considerations and errors of law of various kinds. Unless the citizen can discover the reasoning behind the decision, he may be unable to tell whether it is review able or not, and so he may be deprived of the protection of the law. A right to reasons is therefore an indispensable part of a sound system of judicial review. Natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's sense of justice. It is also a healthy discipline for all who exercise power over others. 'No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions."
' In conclusion, it was rightly urged that, with the expansion of the affairs of governance and the need for its transparency, it was time to revisit the conventional principles regarding reasons, in terms that: "The time has now surely come for the Court to acknowledge that there is a general rule that reasons should be given for decisions, based on the principle of fairness which permeates administrative law, subject only to specific exceptions to be identified as cases arise. Such rule should only be unduly onerous, since reasons need never be made elaborate then the nature of the case admits, but the presumption should be in favor of giving reasons, rather than, as at present. In favor of withholding them." (emphasis provided)
18. Accordingly, for the reasons stated above, this Court was inclined to remand the case of the petitioner back to the Selection D Board to render its 'reasons' for not recommending the petitioner, so as to provide him with an adequate opportunity to decide his future.
19; When the worthy counsel for the respondents-University was confronted with the said proposition, he urged the Court not to proceed with the same, as the Apex Court in Professor Dr. Razia Sultana's case (2016 SCM R 992) has clearly dismissed such a course in a similar matter, in terms that; "7. An administrative order is a final disposition of a matter before an administrative agency; product of an administrative adjudication, such order may be declaratory or it may contain an affirmative or negative command, whereas administrative forum while deciding rights has to take decisions by giving justice able reasons of the same.
8. The role assigned to the judiciary in a tripartite allocation of power is to assure that the Courts will not intrude into an area committed to the other branches of government.
9. In a democratic society, to have the final say whether the action of each branch is within the constituent grant is of judiciary. However, the judicial review of the propriety of administrative decision best serves "the public interest" are said to be question-beginning. The purpose of judicial review are first, to check abuse or dethronement of such power; second, to ensure to citizens an impartial determination of their disputes with officials; and third, to protect them from unauthorized encroachment on their rights and interest."
20. Surely, the ratio decedent of the above case applies to the facts of the present case, as in both cases, the central issue was whether reasons are to be rendered by the Selection Body of an educational statutory body in the process of appointments of its employees.
21. This Court is a Constitutional Court and is bound under Article 189 of the Constitution, to follow the decisions of the Apex Court. Accordingly, this Court would restrain from exercising its Constitutional jurisdiction in favor of the petitioner, for reasons explained earlier. However, with utmost respect, this Court urges the Apex Court to revisit its decision, in view of the peculiar circumstances of, the present case, and the prevailing need for transparency in governance and administration of affairs of statutory organizations having serious implications upon valuable rights of its employees, such as the present petitioner.
' Resultantly, this writ petition is dismissed.