Musarrat Hilali J. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner , Muhammad Abbas, has prayed that:- a. To re-instate the petitioner to the post of professor in history/Civics with all back benefits by implementing the decision of Board of Governors dated 09.03.2012 and to remove all kinds of material from the personal file of the petitioner , which caused damaged to the Annual Confidential Report (ACR) of the petitioner and to direct the competent authority to conduct an inquiry against the respondent No. 4 by abusing his powers, b. The respondent No. 4 may kindly be probed and be prosecuted for the abuse of his power and authority , c. Any other remedy which deems fit in circumstances of the case.
2. The gist of the petitioner's case is that he was appointed as lecturer in Edwardes College, Peshawar , in year, 2000, subsequently , in year, 2008; he applied for twelve months leave, which was allowed without pay, but the ex- Principal of the College, namely , Dr. David L. Gosling, without giving him an opportunity of hearing, has illegally terminated his services. According to him, he had taken the matter to the Board of Governor (BoG) in appeal, who instructed Fact Findings Inquiry through Vice Chancellor of the Peshawar Univers ity, in pursuant thereto, the Vice Chancellor submitted his report wherein the petitioner was declared innocent, which report was also endorsed by the BoG in its meeting held on 09.03.201 2 but even then respondent No.4 is reluctant to re-instate him rather his case was sent to Pension Fund Actuaries where he was offered to take an amount of Rs. 1,66,300/- as lump sum as pension benefit, hence, the instant petition.
3. Respondents No. 2 and 4, in response to notice, filed their parawise comments wherein they raised the plea of maintainability of the instant petition on the ground that Edwardes College is non-statutory body , therefore, the service Rules,1991, are not amendable to constitutional jurisdiction of this court. They further stated that the case of petitioner for all intents and purposes is past and closed transaction as the petitioner was directed to take payment of Rs. 1,66,300/- as calculated upto 13.03.2012, the date of settlement decided by the BoG and he was directed to collect his cheques from the of fice but he did not receive his cheques.
4. Arguments heard and record perused.
5. Perusal of the record would reveal that the petitioner was appointed as lectu rer in History , vide order dated 26.08.2000 in Edwardes College, Peshawar . Subsequently , in year, 2008, he requested for one year leave, which was allowed to him without pay, vide order dated 15.09.2008. Later on, he was issued a show cause notice by Principal of the College (respondent No.4 ) on 23.09.2009, which was not replied by the petitioner , consequently , vide order dated 23.09.2009, he was removed from services. Feeling aggrieved, the petitioner filed an appeal before the Chairman, Board of Governor (BoG), who instructed Vice Chancellor , University of Peshawar , to investigate the whole matter . The Vice Chancellor conducted Fact Finding Inquiry in the matter and submitted his report on 29.06.2010. According to his report, the allegations against the petitioner were false and based on personal grudges of Dr. Gosling as the petitioner was victimized because of his honesty , sincerity and dedication.
The V ice Chancellor in his report recommended that:- "His Excellency , keeping in view the above mentioned fact findings, this office strongly recommends that Mr. Muhammad Abbas Khan be immediately compensated through the Edwardes College Service Rules No. 46 clause
(a) and his name be cleared in writing from all those departments and organizations that Dr. Gosling misused against an Honourable Faculty member ."
6. On receipt of the report of Vice Chancellor , the matter was placed before the BoG meeting, held on 09.03.2012, where the following decision was made:- "Case of Assistant Prof. Muhammad Abbas Khan.
The Principal informed the Board that it had been decided in the Executive Committee meeting held on 9 May 2011 that, after consultation with the Vice Chancellor of the University Peshawar , Dr. Azmat Hayat Khan, the Principal shall interview Mr. Abbas khan and make a final decision concerning the termination of his services as a faculty member by the previous principal. The Principal said that he had interviewed Abbas Khan and had reviewed the documents used by the Vice Chancellor in making his recommendation that Abbas Khan's name be cleared and that he be compensated in accord with service Rules provision 46 (a). He said that he was agreed with the conclusion of the V ice Chancellor and therefore recommended implementation of the same.
Action: The Board endorsed the Principal's proposed action in clearing the name of Muhammad Abbas Khan and compensating him in accord with the Service Rules."
7. Under Rule 46 of the Edwardes College Services Rules, 1991 payment is to be made to an employee in a situation where he is re-instated in service after his dismissal, removal or suspension for unjustifiable or not wholly justifiable reason, as in the instant case. At this juncture, it would be advantageous to reproduce the provisions of rule 46(a) of the, which read as under:- "46. When the suspension of an employee is held to have been unjustifiable or not wholly justifiable; or when an employee who has been dismissed, removed or suspended, is reinstated , the appellate or competent authority may grant him for the period of his suspension:
(a) if he has been, in its opinion honurably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed, or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension, the period of absen ce from duty being treated as a period spent on duty ."
8. In view of the above discussed facts , it is a clear case of abuse of authority as the respondents No.3 was required to re-instate the petitioner on his position but the Principal (respondent No.4) instead of re-instating him had issued a letter dated 15. 10. 2012 for payment of the pension amount to him which in view of the report of the Vice Chancellor and BoG decision is making no sense and logic, particularly , where, on one hand, the respondent No.4 in his letter was seeking an apology of the false allegation levelled against the petitioner by the Ex-Principal, while, on the other hand, he (the petitione r) was relieving him compulsorily from his services. Even otherwise, the letter is neither in line with the language of the Facts Findings Report of the Vice Chancellor nor is the decision of the BoG, nor is it under the mandate of Rule 46 of the Edwards College Rules.
9. So far as the objection raised by learned counsel for the respondents regarding maintainability of the instant petition that the service rules of the college are not statutory rules, therefore, not amenable to constitutional jurisdiction of this court is concerned, suffice it to mention that this issue has alrea dy been set at rest by this court in a case titled Bishop Humphrey Sarfaraz Peters, Chairman Board of Governors, Edwardes College Peshawar vs Governor of Khyber Pakhtunkhwa/Chancellor of Khyber Pakhtunkhwa Universities through Principal and 4 others (2020 CLC 219) wherein it has been held that the Edwardes College is a nationalized and autonomous institute pursuant to the Privately Managed Schools and Colleges (Taking over) Regulation, 1972 (Regulation No.118) which has been validated as per Article 269 of the Constitution, 1973, and its affairs are properly managed by the Board of Governors headed by the Governor of the Khyber Pakhtunkhwa. Even otherwise, as held by the august Supreme Court in a case titled Pakistan Defence Officers' Housing Authroity of Pakistan and others vs Arshad Nadeem (2013 SCMR 1707 ), when an order or action impugned was patently illegal, perverse or arbitrary , the constitutional jurisdiction of High Court to interfere could not be abridged. Reliance is also placed on the case titled Tanveer Asim vs. Pakistan institute of Fashion and Design, Lahore and others (2020 PLC (CS) 1537) where while relying on the case Pakistan Housing Authority , supra, Hon'ble Lahore High Court has held that in routine a writ petition is not maintainable on behalf of the employees whose terms and conditions are governed under non-statutory service rules/regulation, however , when the order/action impugned is patently illegal, perverse or arbitrary the jurisdiction of this court to take care of such fact cannot be abridged.
9. For what has been discussed above, the petitioner has successfully made out a case for issuance of the desired writ and, as such, this petition is admitted and allowed as prayer for, except relief of initiation of enquiry against respondent No. 4 by abusing his powers being a controversy factual in nature and to that extent the petition dismissed.