Malik Muhammad Awais Khalid, J:- Through the instant writ petition, the petitioner has impugned the orders dated 22.12.2023 and 23.10.2024 passed by respondents No.5 & 6 respectively claiming the same to be passed illegally, without any lawful authority and having no legal effect whatsoever with regard to the petitioner-Institute.
2. The facts narrated in the instant writ petition are that the petitioner-Institute is a body corporate established for the education of nursing, duly registered with the S.E.C.P. and Pakistan Nursing Council ('P.N.C'). The petitioner-Institute after obtaining authentication and approval from the respondent No.2 / P.N.C, applied to respondent No.3 / Islamia University of Bahawalpur for affiliation for a period comprising of four year degree program (BS-Nursing) for the academic session (2021- 22), which was duly granted by the respondent No.3 vide an order dated 09.05.2022 after receiving the application processing fee etc. and other one time endowment fund and security amount. The petitioner-Institute and the respondent / University sailed along with each other smoothly and the petitioner started depositing 04% of the fee submitted by each student for every semester in the accounts of respondent / University, which is being continued up till now. The petitioner-Institute also made certain improvements pertaining to the deficiencies pointed out by the Inspection Team of the Affiliation Committee of respondent / University, whereafter the respondent / University was immensely satisfied with the petitioner-Institute with regard to its working and performance. The petitioner in pursuance of an advertisement, published by the respondent / University with regard to "Notice of affiliation for the academic session 2022-23, submitted its application for the renewal of already affiliated Program of BS-Nursing and for the fresh affiliation of the Program of Post-RN. The requisite fee was duly deposited by the petitioner in the University accounts for the new Program but the Affiliation Committee / respondent No.4 recommended to the Syndicate / respondent No.5 to renew the already affiliated program of BS-Nursing and to refuse the petitioner's request for fresh affiliation of Post-RN Program, vide order No.71/AF dated 20.01.2023. Thereafter, the renewed affiliation of B.S-Nursing Program was granted by respondent No.5, vide order dated 20.01.2023. The petitioner-Institute, though went alongwith the renewed affiliation of B.S-Nursing Program but being dissatisfied and aggrieved challenged the refusal order dated 20.01.2023 pertaining to Post-RN Program before respondent No.5 by filing an appeal, which was also rejected on 29.03.2023. The petitioner-Institute again filed an appeal before respondent No.6 assailing the order dated 29.03.2023 passed by respondent No.5 but the same was subsequently withdrawn by the petitioner with the request to treat the petitioner's application for the fresh affiliation of Post-RN Program for the next academic session 2023-24. Consequently, respondent No.6, vide its order dated 28.04.2023, dismissed the petitioner's appeal as having been withdrawn. The petitioner-Institute then in pursuance of another advertisement published by the respondent / University for the affiliation for academic session 2023-24, submitted its application for the renewal of already affiliated BS-Nursing Program whereas a fresh request of affiliation for Post-RN Program in May, 2023 was made and deposited Rs.1,50,000/- for each program in addition to other fees in the accounts of the respondent / University. Meanwhile, the already affiliated Program of BS-Nursing was going well and in a remarkable manner at the petitioner-Institute about which the respondent / University was fully satisfied. Respondent No.5 considered the petitioner's request to treat the petitioner's application for affiliation of Post-RN Program for academic session 2022-23 but application for the session 2023-24 was declined on 22.12.2023, vide order No.926/AFF. Respondent No.5 through the same impugned order dated 22.12.2023 withdrew the already affiliated program of BS-Nursing as well, which was neither an issue before it nor the university ever raised any objection for that program. The sole matter before respondent No.5 was the petitioner's request for fresh affiliation of Post-RN program. The first para of the impugned order is about the petitioner's request for the affiliation of Post-RN Program, whereas, its second para is pertaining to the withdrawal of BS-Nursing Program and the blacklisting of the petitioner-Institute for future. As illegal and unjustified observations and directions made by respondent No.5 in the impugned order seriously tarnished the reputation of the petitioner-Institute and undermined its business miserably, so it filed a W.P.No.280/2024 assailing therein the impugned order dated 22.12.2023, but the same was dismissed by this Court on 22.02.2024 being not maintainable due to the availability of remedy of appeal before respondent No.6, hence the petitioner filed the appeal before respondent No.6 in this regard, which has been rejected now on 23.10.2024.
3. Learned counsel for the petitioner-Institute has argued that both the impugned orders passed by respondents No.5 & 6 are liable to be set-aside as the same have been passed in violation of the applicable law i.e. Sections 34 to 38 of Islamia University of Bahawalpur Act, 1975 (IUB Act) and Section 10(1) of its Statutes; that these provisions deal with the affiliation matters of the respondent University and the bare reading of these provisions reveals that the Syndicate / respondent No.5, on the recommendations of the Affiliation Committee, may grant or refuse a request for the fresh affiliation but no such order shall be passed without providing an opportunity of hearing to that institute, against whom such order is being passed. He has further argued that it is evident from the contents of the impugned order dated 22.12.2023 that the issue for consideration before the respondent No.5 was the petitioner's request for affiliation of Post (R.N) Program solely but respondent No.5, by way of the impugned order, not only refused the request of the petitioner for affiliation of Post-RN Program but also withdrew the already affiliated Program of BS-Nursing along with blacklisting the petitioner-Institute; that respondent No.5 while passing the impugned order has not followed the procedure given in the IUB Act, as no notice / intimation was given nor the opportunity of hearing was provided to the petitioner in this regard so it is illegal, unlawful and in violation of the principles of natural justice, hence both the impugned orders are not sustainable in the eye of law and are liable to be set-aside. He has further argued that both the impugned orders are liable to be set-aside and the respondent Syndicate has no power to blacklist the petitioner after the completion of current academic session of BS-Nursing Program. While, the applicable law prescribes different grounds and different procedures for the refusal and withdrawal of the affiliation. Whereas respondent No.5 while passing the impugned order has miserably failed to follow the prescribed procedure and has dealt with both these issues through a single order without any notice / intimation and providing opportunity of hearing to the petitioner. So, the impugned orders are liable to be set-aside being passed without having jurisdiction and mandate in view of the doctrine of functus officio. He has placed reliance on Khan Muhammad Fazil Vs. Mumtaz Munawar (2024 SCMR 1059). He has further argued that passing the impugned orders by respondents No.5 & 6 without any intimation / notice and providing any opportunity of hearing to the Petitioner / Institute is also a violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) wherein the rights of fair trial and due process of law have been recognized as fundamental rights. He has relied on the case of Babar Hussain Shah etc. Vs. Mujeeb Ahmad Khan etc. (2012 SCMR 1235); that both the impugned orders have been passed by respondents No.5 & 6 in violation of provisions of Section 24-A of the General Clauses Act, 1897, which require any authority, officer or court to make an order or pass directions by exercising its powers in a reasonable, fair and just manner as well as to give reasons for that order. Relies on the case of Muhammad Amin, Muhammad Bashir etc. Vs. Government of Pakistan etc. (PLJ 2015 SC 535). Lastly submits that while setting aside both the impugned orders, the instant writ petition may be accepted.
4. Whereas, on the other hand, learned counsel for respondents No.3 to 7 has argued that this writ petition is not maintainable as the petitioner has expeditious and efficacious alternative remedy of revision under Section 11-A of the IUB Act. Furthermore, remedy of appeal under Section 38 of IUB Act is also available. He has further argued that this Court has already settled the law of alternative efficacious remedy and maintainability of the constitutional petition in university matters in cases titled Muhammad Salah ud Din & others vs. The IUB & others (2019 PLC (C.S) 717), Usman Ghani & others vs. IUB and others (2012 PLC (C.S) 830) and Sher Dil Kamran vs. BZU & others (2012 PCL (C.S) 1190). He further added that the petitioner cannot invoke two jurisdictions at same time by filing review petition and instant petition before this Court whereas same is against the settled law of doctrine of election. He elaborated that an educational institution may apply annually for affiliation to the university for each academic session under Section 34 of the IUB Act and the Affiliation Committee, as defined an authority under Section 21 of the IUB Act, make recommendation to the Syndicate that has authority to grant affiliation or refuse the affiliation which is also appealable order under Section 38 of the IUB Act. Similarly, the Syndicate has the power under Section 37 of the IUB Act to withdraw the affiliation, if granted to any educational institution for any academic year/session and same is the case of petitioner wherein the university, after withdrawal of already granted affiliation, secured the future of students of said affiliated petitioner-Institution for academic session by transferring them to another institution. The grant of affiliation depends upon the inspection by the Affiliation Committee to examine that the applicant's institution has fulfilled the requirement such as infrastructure, teaching faculty administrative staff etc., thereafter the Syndicate being competent authority, on recommendation of Affiliation Committee, either grant or refuse the affiliation to applicant's institution and statutory remedies of appeal and revision are provided against said order of Syndicate and Senate. He lastly prayed for dismissal of instant writ petition on grounds of maintainability and merit, as well.
5. I have heard the arguments of learned counsel for the both the parties and perused the available record with the assistance of both the learned counsel for the parties.
6. The impugned order dated 22.12.2023 has been passed by the Syndicate and appeal has been dismissed by the Senate vide impugned order dated 23.10.2024. The Syndicate and the Senate are the Authorities under Section 21 of the IUB Act which reads as follow:- "21. Authorities.- The following shall be the Authorities of the University:-
(i) the Senate;
(ii) the Syndicate;
(iii) the Academic Council;
(iv) the Boards of Faculties;
(v) the Boards of Studies;
(vi) the Advanced Studies and Research Board;
(vii) the Selection Board;
(viii) the Finance and Planning Committee;
(ix) the Affiliation Committee;
(x) the Discipline Committee; and
(xi) such other Authorities as may be prescribed by Statutes."
The IUB Act being special law has the statutory provisions to regulate the action of the University.
The petitioner has approached the Syndicate for the redressal of grievance after filing of this writ petition against the impugned order through review application dated 19.12.2024. The Syndicate has no power of review under the IUB Act. But the Syndicate has referred the review application to the Chancellor who has power under Section 11-A of the IUB Act for the redressal of the grievance of the petitioner having highest rank under IUB Act to check the validity of these orders passed by authorities. Relevant letter No.352/AF dated 8.5.2025 issued by the Deputy Registrar (Affiliation) of the IUB, Directorate of Affiliation. The said letter is reproduced below:- "The Islamia University of Bahawalpur DIRECTORATE OF AFFILIATION Ph. No:062-9250225 E-mail: dr.affiliation@jub.edu.pk No. 352 /AF Dated: 08-05-2025 Ms. Saman Sherazi Deputy Secretary (Univ-I). Governor's Secretariat, Punjab, Lahore Subject: Appeal of TLC Institute of Nursing & Allied Health Sciences, Lahore to review/ recall of the order dated 22.12.2023 by IUB Syndicate w.r.t. blacklisting of the Institute Please refer to the subject cited above.
2. It is submitted that the subject application of the TLC Institute of Nursing & Allied Health Sciences, Lahore for recall / review of the IUB's Syndicate decision dated 22.12.2023 w.r.t. blacklisting of the said institution was placed before the Syndicate Committee for affiliation in its meeting held on 13.03.2025. The Syndicate Committee after thorough deliberation on the matter and keeping in view the relevant provisions of the IUB Act, 1975 decided that it would only be appropriate to convert the request of the college into an appeal for placing before the Honourable Chancellor under Section 11-A of the IUB to review the decision made by the IUB Syndicate dated 22.12.2023. (Copy of the minutes of the Syndicate Committee for affiliation is enclosed).
3. Accordingly, the application of the college alongwith decision of the Syndicate Committee and a brief on the matter duly annexed with relevant documents are attached for kind consideration of Honourable Chancellor, please.
Sd/- Zulqarnain Ahmad Malik Deputy Registrar (Affiliation)"
Now matter is pending before Chancellor for its final determination who is exercising power under Section 11-A of the IUB Act having the revisional authority to scrutinize the validity of impugned order. Section 11-A of the IUB Act is reproduced below:- "11-A. Revisional Power of the Chancellor:- The Chancellor may, of his own motion or otherwise, call for and examine the record of any proceedings in which an order has been passed by any Authority for the purpose of satisfying himself as to the correctness, legality or propriety of any finding or order and may pass such orders as he may deem fit.
Provided that no order under this section shall be passed unless the person to be affected thereby is afforded an opportunity of being heard."
Said remedy of Chancellor is an independent remedy as discussed in the case of Dr. Zahid Javed vs. Dr. Tahir Riaz Chaudhry and others (PLD 2016 SC 637) and University of Punjab vs. Sardar Ali (1992 SCMR 1093).
7. The scope of doctrine of election is elaborated in the case of Chief Executive Officer NPGCL, GENCO-III, TPS Muzaffargarh vs. Khalid Umar Tariq Imran and others (2024 SCMR 518), the relevant portion of which is as under:- "11. It is a well-settled proposition of law that when an aggrieved person intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst the actions or remedies available under the law. The choice to initiate and pursue one out of the available concurrent or co-existent actions or remedy from a forum of competent jurisdiction vest with the aggrieved person. Once the choice is exercised and the election is made then the aggrieved person is prohibited from launching another proceeding to seek relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/ action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by the courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in Order II, rule (2), C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order 1984 and principles of res judicata as articulated in section 11, C.P.C. and its explanations.
Reference in this regard may be made to the case of Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others (PLD 2018 Supreme Court 828)."
8. As the matter is already pending before the Chancellor, so this Court shows restraint to invoke extra-ordinary jurisdiction. The statutory revisional authority of the Chancellor under Section 11-A of the IUB Act cannot be undermined being an alternate adequate remedy where this issue has been already referred by the Syndicate on the application filed by the petitioner. While relying on the case law reported as Irfan Mehmood vs. University of the Punjab through Registrar, Quid-e- Azam Campus, Lahore and 3 others (2024 MLD 130), Dr. Ijaz Ahmad and another vs. University of Veterinary and Animal Sciences, through Vice Chancellor and another (2006 PLC (C.S) 251), Usman Ghani and others vs. Islamia University and others (2012 PLC (C.S) 830), Noor Muhammad Khan Marwat, Principal Lucky College of Education and Research, Lakki Marwat vs. Vice Chancellor, Gomal University, Dera Ismail Khan and 2 others (PLD 2001 SC 219), Gulf College of Nursing vs. Pakistan Nursing Council and others (2018 YLR 2255), Evergreen College of Education, Hingorja through Administrator vs. Shah Abdul Latif University, Khairpur through Registrar and 2 others (2013 MLD 681), Dr. Zahid Javed vs. Dr. Tahir Riaz Chaudhry and others (PLD 2016 SC 637) and University of Punjab vs. Sardar Ali (1992 SCMR 1093), copy of instant writ petition along with annexures be remitted to the Chancellor under Section 11-A of IUB Act where the matter is also pending for its resolution, who shall consider it as pending revision and scrutinize the legality of the impugned orders dated 22.12.2023 and 23.10.2024 passed by respondents No.5 & 6, respectively, and decide the same expeditiously strictly in accordance with law through a well- reasoned order after hearing all concerned including the petitioner while keeping in view the above discussion and the jurisdiction of the Syndicate to blacklist the petitioner as well as determining the validity of the impugned orders in the light of Sections 34, 36 & 37 of Chapter-VI (Affiliation) of IUB Act and Affiliation Rules.
9. This writ petition is, therefore, disposed of in above terms.