The petitioners herein, by means of this Constitutional Petition, assail the validity of the action of the respondent, whereby he refused to allow them study leave for joining the classes at Government College of Technology, Rasul, District Gujrat.
2. The petitioners are diploma-holders in Engineering and serving as Sub-Engineers in National Pay Scale No. 11 (Rs. 430-24-550--EB-28-830) in the Irrigation Department of the Government of Punjab The diploma---holders in Engineering (hereinafter referred to as "Diploma Engineers") serving in various engineering departments in the country had been agitating fox better career prospects.
The Federal Government vide Memo. No. WA /4 (25)-74, dated 16-P1-1974, issued by the Ministry of Fuel, Power and Natural Resources, conveyed a number of decisions taken by the Federal Government in this behalf, to the Provincial Governments for implementation. The relevant decision in the matter was couched in the following words :- "The decision taken at the meeting convened by the Federal Minister for Education on 20-10-1973, regarding establishment of two degree courses namely. B. Tech. -(Honours) for Diploma Engineers should be implemented as. Early as possible. Diploma Engineers should be given all possible encouragement and facilities such as study leave, etc. For acquiring higher engineering qualifications."
3. In implementation of the aforementioned decision, the Government of Punjab Irrigation and Power Department, issued a policy letter No. E-A-SO-III (E) 10.97/72, dated 7-7-1975, informing all the Chief Engineers hat two degree courses, viz. B. Tech., (Pass) and B. Tech. (Honours) were being established for the Diploma Engineers and directed them that all Diploma Engineers within their respective regions be offered all possible encouragement and facilities such as study leave, etc. For acquiring higher engineering education.
4. In view of the decision of the Federal Government and the policy letter issued by the Provincial Government, some Diploma-Engineers had already been allowed study leave for the above- mentioned courses of studies in engineering as is apparent from Annexures "C/1" to "C/6".
5. The petitioners also applied for admission to B. Tech. (Pass) Course and their applications were duly forwarded by their Departmental Authorities. They were selected for admission by the College Authorities and consequently they deposited their admission and their incidental dues with the College Authorities. They applied for study leave and the respondent did not decide the matter which led them to institute com--plaints against the respondent before the Punjab Administrative Vigilance Commission, constituted under Ordinance X of 1979. The learned Member of Vigilance Commission, after hearing the parties, vide his order dated 2-2-1980, held that the respondent had committed administrative excess against the petitioners in withholding grant of study leave to them. The Commission, in exercise of the power under section 23 of the afore-mentioned Ordinance, advised the respondent to grant study leave, enabling the petitioners to join the courses by 9th February, 1980. The respondent did not comply with the direction' of the Punjab Administrative Vigilance Commission-and refused study leave to the petitioners. Faced with this situtation, the petitioners moved this Constitutional Petition.
6. Learned counsel for the petitioners contended that the petitioners' right to seek admission to higher courses of studies and grant of study leave for that purpose was recognised and ensured by the Federal Government in decision taken on 16-11-1974 and conveyed to the Provincial Govern- -ments for implementation, cannot arbitrarily be ignored by the respondent. It was further contended that the act of refusal to grant study leave was not only unjust and illegal, but discriminatory as well. It was submitted that the petitioners were workmen, as contemplated under section 2 (b) of the Punjab Civil Servants Act, 1973, read with clause (iv) of section 2 of the Workmen's Compensation Act. It was contended that in the given circumstances, the remedies availed by the petitioners were only efficacious and appropriate. It was further argued that the instructions of the Federal Government, as conveyed to the Provincial Government, and acted upon by the latter were not in violation of any law, therefore, the respondent was obliged to follow and implement the same.
7. The learned Assistant Advocate-General, Punjab, assisted by the Deputy Secretary (Admn.), Irrigation and Power Department, on the other hand, contended that the refusal to grant study leave did not infringe a justiciable right. It was also submitted that the petitioners being civil servants ought to have approached the Service Tribunal constituted for redress of their grievance as it emanates from terms and conditions of their service. It was next argued that grant or refusal of leave to the petitioners was discretionary with the respondent, there--fore, this Court-would not interfere, even if the same was exercised erroneously.
8. Undoubtedly, the Federal Government had agreed to establish two degree courses for Diploma Engineers and to provide them facilities like study leave for acquiring higher engineering education. This decision of the Federal Government was duly conveyed to the Provincial Govern-- ments and the respondent, in compliance thereof, had granted study leave to the Diploma Engineers.. It has also not been denied that the policy letter issued by the-Irrigation Department on 7th July, 1975 still holds the field, because no departure from the same was formally notified. In fact, no reason for refusal to grant study leave has been put up by the respondent except relying on legal pleas raised by the learned Assistant Advocate-General.
9. With this background, I proceed to examine first the contentions raised on behalf of the respondent. The first contention was that the petitioners were not aggrieved persons within the meaning of Article 199 of the Constitution, as no right enjoyed by them was infringed. In this regard, It is now well-settled that a person may not have a right in the strict juristic sense to maintain Constitutional Petition but it is sufficient to show that he has a personal interest in the performance of legal duty, which, if performed in the manner not permitted by law would result in the loss of some advantage of privilege. In the case of Munawar Ali and 5 others v. Secretary to the Government of the Punjab (PLD 1975 Lah. 544) a Division Bench of this Court observed at page 554 in the following words : ----- ....The petitioners may not have a right in the strict juristic sense to be admitted in the Medical Colleges, but doubtless they have a "personal interest in the performance of the legal duty which if ... Performed in a manner not permitted by law would result in the loss of some personal benefit or advantage...." to them. In the circumstances it was competent for them to file writ petitions seeking an order against the respondents to restrain them from granting 10% marks to the holders of the certificates testifying the fact that they had received training in National Cadet Corps. If the candidates who claim concession on the basis of such certificates are not entitled under law to such concessions, then, if the authorities concerned with the admission of the students to different Medical Colleges grant them this concession, they will be doing something which they are not permitted by law to do---."
The above observations were in fact based on a dictum laid down by the Supreme Court in the case of Fazal Din v. Lahore Improvement Trust. (PLD 1969 SC 223) in the following words :- It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advant--age or the curtailment of a privilege or liberty or franchise."
The petitioners doubtless have real and substantial interest in seeking study leave so as to join their courses of studies for which they had already been admitted on the basis of selection made by the College Authorities.
10. The next point argued was that the respondent has exercised discretion in refusing study leave to the petitioners and the exercise of discretion, even if erroneous, was not liable to interference in the writ jurisdiction. This Court would certainly be reluctant to interfere in discretionary orders passed by the Executive Authorities, provided the same are neither arbitrary, nor in abuse of the powers of the authority. In Ikram Bus Service v. Board of Revenue (PLD 1963 SC 564) it was observed by the Supreme Court: "Even an administrative body such as an R. 7 A., is under legal obligation to deal with all applicants before it fairly, justly and equitably ; 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 law.--- Similarly, in the case of Montgomery Flour and General Mills Ltd. v. Director Food Purchases (PLD 1957 Lah. 914) it was observed by this Court :- "It is true that a petitioner must have some right if he applies to the Court for a direction or order under Article 170 but need not have a personal or a proprietary right whose co-relative is a duty.
Whenever an enactment empower b 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 .
PLD 1967 SC 569) their Lordships of the Supreme Court held at page 579 :- "It is true that a mandamus, does not lie where a duty is purely diseretionary but from this it does not follow that a party upon whom the duty rests can exercise his discretion in any and every manner. The mere fact that there is an element of discretion in the duty to be discharged is not by itself sufficient to exclude relief by way of mandamus, for, even a discretion must .Be exercised reasonably and honestly and not arbitrarily or capriciously in bad faith."
It was also noticed in the judgment at the same page :- "It is well-settled, as observed by Ferris in his book on Extraordinary flu Legal Remedies at page 241, that mandamus, will issue to correct an abuse of discretion if the cause is otherwise proper."
It is thus clear that even the Administrative authority has to exercise the discretion not in discriminatory manner, but fairly, equitably and justly. It can, therefore, hardly be said that the respondent had exercised the discretion in refusing study leave to the petitioners in public interest 'and not in violation of the standing instructions of the Federal Government. The respondent is under legal obligation to follow instructions issued by the Government, particularly when the same do not violate any law.
PLD 1979 Lah. 699) this Court has held at page 702 in the following words; "It maybe noted in this context that the Government itself is not only bound by the instructions it issues for the guidance of its officers and the public but is also obliged to follow and implement its own interpretation of a particular provision of law, unless the same are found to be in clear violation of any law."
11. The last point argued was that the petitioners were civil servants and the matter in issue related to the terms and conditions of their service. Therefore, they were required to approach the Service Tribunal constituted under Article 212-A of the Constitution.
The question whether the petitioners are civil servants would require examination of the definition of "Civil servants" as provided in section 23 (3) of the Punjab Civil Servants Act (VIII of 1974), it reads :-
(b) `civil servant' means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province, but does not include :- (i)
(ii)
(i.e) a person who is a `worker' or workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation. Act, 1923 (VIII of 1923)."
It is, therefore, necessary to find out the definition of "worker" as given under the Workmen's Compensation Act. The word "workman" is defined under section 2 (n) of the Workmen's Compensation Act as follows :- "workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is-- (i)------------------------------------------
(ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II. '
Item (viii) of Schedule II attached to the Act reads :-. "empolyed in the construction, repair or demolition of-
(a) any building or structure ; or
(b) any dam or embankment which is twenty feet or more in height from its lowest to its highest point ; or
(c) any road, or tunnel ; or
(d) any wharf, quary, sea-wall or the marine work including any moorings of ship ;
(x) of the Schedule reads; "employed in the construction, working, repair or demolition of any aerial, ropeway, canal, pipeline, or sewer ; The perusal of the above provisions of law make it clear that the petitioners who are employed as Sub-Engineers in the Irrigation and Power Department engaged in construction and. Repair work of buildings, roads, canals, dams, etc, and draw salaries less than one thousand per mensem are covered within the definition of "worker" or "workman'. It was, therefore, not necessary for them to have approached the Service Tribunal for the relief prayed for. The petitioners ought to have resorted to Labour Courts ; but considering that remedy to be not speedy and efficacious, they invoked the jurisdiction of this Court, which in the stated circum--stances, after the respondent's refusal to honour the advice of the Vigilance Commission, was appropriate.
12. For the foregoing reasons, I am satisfied that the action of respondent in refusing study leave to the petitioners was arbitrary an not sustainable at law.
13. Keeping in view the reasons recorded hereinbefore, I had accepted this petition by my short order dated 15-3-1980 and declared action of the respondent refusing study leave to the petitioner as of no legal effect and held the petitioners entitled to study leave for joining the classes at Government College of Technology, Rasul.
14. There will be no order as to costs.