' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the refusal of the respondent to grant scholarship under the Central Overseas Training Scheme to the petitioner in preference to respondent No,6.
2. The petitioner is working as an Associate Professor in the City and Regional Planning Department, University of Engineering and Technology, Lahore, while respondent No,6 is employed as a Lecturer in the same department. On 11th of November, 1989 a letter was addressed by the Deputy Educational Adviser, Government of Pakistan, to the University Grants Commission (respondent No,4), requiring it to obtain nominations for the grant of scholarship under the Central Overseas Training Scheme from various Universities. It was stipulated that the merit of candidates should be evaluated strictly in accordance with the enclosed criteria. Pursuant to this letter, the University Grants Commission, on 13th November, 1989, directed the University of Engineering and Technology, Lahore, to nominate candidates for grant of five scholarships earmarked for the University by 30th November, 1989. On the receipt of this requisition, the University of Engineering and Technology, asked the heads of its various departments to recommend the names of suitable persons for the award of scholarship. On 18th November, 1989, the Chairman, Department of City and Regional Planning, where both the petitioner and respondent No:6 were working, recommended the name of the petitioner as the principal candidate while that of respondent No,6 as an alternate. However, contrary to this recommendation, the University of Engineering and Technology vide its letter, dated 13th February, 1990 addressed to the Deputy Director, University Grants Commission, Islamabad, forwarded the name of respondent No,6 as the principal candidate and that of the petitioner as alternate candidate.
3. The petitioner having failed in his representation against this recommendation, filed Writ Petition No,5004 of 1990 in this Court, which' was accepted on 17th October, 1990 on the ground that the decision was taken without hearing the petitioner. The matter was remitted for redecision to respondents after hearing the petitioner, who was heard by a Committee comprising of four members, which once again refused to grant scholarship to the petitioner and instead awarded it to respondent No,6. This order, dated 30th October, 1990, has been assailed by the petitioner by filing this Constitutional petition.
4. Mr. Abdullah Khan Dogar, learned counsel for the petitioner has argued that according to the criteria laid down for selection of the candidates for the . Award of scholarship, the merit of the petitioner ranks much higher than that of respondent No,6 and as such respondents have acted in excess of their jurisdiction in depriving the petitioner of the scholarship and granting it to respnodent No,6. The learned counsel emphasized that the decision taken by the respondent is contrary to the policy laid down by respondents themselves on the subject.
5. The learned counsel appearing on behalf of the respondents have, however, objected to the maintainability of the petitioner on the ground that the petitioner has no vested right to grant of scholarship and, therefore, no Constitutional petition could be maintained. It was also explained that the petitioner had already availed of a scholarship and, was as such, not entitled to be considered for the grant of scholarship for the second time and it was on account of this reason that respondent No,6 was awarded the scholarship. The respondent was directed to file the policy laid down by the Government of Pakistan for grant of scholarship under the Central Overseas Training Scheme, which has been placed on record.
6. A perusal of various documents filed by the parties shows that applications for grant of scholarship under various schemes are invited by the Government of Pakistan, University Grants Commission, Islamabad. So far as the Central Overseas Training Scholarship Scheme for the year 1989-90 was concerned, in the letter addressed by the Deputy Education Officer, Government of Pakistan, on 11th of November, 1990, to University Grants Commission, it was clearly stated that the candidates should be avaluated in accordance with the prescribed criteria. The University Grants Commission informed the University of Engineering and Technology that five scholarships have been earmarked for University for the year 1988-89 in the disciplines of Architecture, City and Regional Planning, Civil Engineering, Electrical Engineering and Mining Engineering and University was called upon to nominate three Faculty members against each discipline strictly in accordance with the criteria of eligibility on the prescribed form. This criteria of eligibility (copy of which has been filed as Annexure 'B' to this petition) inter alia provided that the candidate should not have availed of any other facility of scholarship within the last three years. The merit of candidate was to be determined in accordance with criteria of evaluation (Annexure B').
7. On the receipt of this request, the University of Engineering called upon the heads of the Departments concerned to nominate the Faculty members for these scholarships. It is not disputed that by letter, dated 8th November, 1989 (Annexure `E'), the Chairman, City and Regional Planning Department nominated Ehsan Ullah Bajwa petitioner as the principal candidate, while Ghulam Abbas Anjum, respondent No,6, herein was mentioned as the alternate candidate. However, the University of Engineering and Technology, contrary to this recommendation, proceeded to nominate Ghulam Abbas Anjum, respondent No,6, as the principal candidate and the petitioner as the alternate candidate. The petitioner, represented against this action, but without success. It was at that stage, that he had filed writ petition bearing No,5004 of 1990 which, as already stated, was accepted and the respondent was directed to afford an opportunity to the petitioner of being heard, in pursuance whereof the order impugned in this petition was passed.
8. It is not disputed by the respondents that as per the criteria of evaluation prescribed by the Government and the University Grants Commission itself the merit of the petitioner ranked higher to that of respondent No,6, and on the basis of the criteria, it was the petitioner who was entitled to be recommended as principal candidate rather than as alternate. The only reason for depriving the petitioner of the scholarship which has been disclosed by the respondents before this Court is that the petitioner had already availed of a foreign scholarship granted to him, by the British Council under which he obtained the degree of M. Phil. From the University of Edinburgh during 1984-86, and as such he was not entitled to grant of second scholarship.
9. As already noted, the criteria for eligibility and evaluation for the candidates had been prescribed by the University Grants Commission itself. The only restriction mentioned therein in this behalf was that a candidate should not have availed of any other facility of scholarship within last three years. In the present case, on admitted facts the scholarship earlier granted to the petitioner ended on 6th October, 1986 when he returned to Pakistan. The applications for the grant of scholarship for Central Overseas Training Scheme were invited on 11th November, 1989 by which time a period of more than three years, since the previous scholarship had elapsed. The petitioner could not, therefore, have been denied the scholarship on this ground.
10. The learned standing counsel and the learned counsel for the University Grants Commission, however, relied upon certain other instructions of the Government issued on 25th October, 1975, which inter alia provide that no candidate shall be considered for any training facility, if he has availed of such facility under any of the programmes, previously, except under special circumstances and for cogent reasons, but in no case within three years of his return from his last training. On the strength of these instructions, it was claimed that the petitioner was not entitled to the grant of scholarship in question. The reliance of the respondents, on these instructions is, however, wholly misconceived. These instructions, on the face of the document, apply to the grant of scholarship under Technical Assistance Programmes and do not even purport to be applicable to scholarships under the Central Overseas Training Scheme for which separate criteria for eligibility and evaluation has been prescribed. The learned counsel for the respondents were not in a position to show as to how the instructions meant for grant of scholarship under other programmes could apply to scholarships under the Central Overseas Training Scheme.
11. As per the letter of the Deputy Education Adviser dated 11th November, 1989 addressed to the University Grants Commission, the nomination by the Universities was to be made strictly in accordance with the criteria for eligibility and evaluation enclosed with that letter. As regards the candidate who had previously been avyarded scholarship, the only condition laid down was that he should not have availed of any other scholarship within the last three years. It is, therefore, idle on the part of the respondent, to contend that they could refuse to nominate the petitioner on the basis of some condition applicable to grant of .0 other scholarships, which has no relevance to the Scheme under which the scholarship in question was to be granted. The respondents having themselves prescribed the criteria and conditions for eligibility and evaluation were equally bound by the same and could not deviate therefrom. Reference in this connection may be made to Miss Khola Jabeen and 2 others v. Government of N.-W.F.P. Through Secretary, Health Department, Peshawar and 5 others PLD 1976 Pesh.
97.
12. Adverting now to the legal objection raised by the learned counsel for the respondents that the petitioner has no vested right to claim the grant of scholarship and as such cannot maintain this petition there is hardly any merit in it. It is since long well-established that 'right' considered sufficient for maintaining a Constitutional petition need not be 'right' in the strict juristic and legal sense but if the petitioner is able to show that he has been deprived of some benefit by non- observance of law by the statutory functionaries, he is entitled to maintain the Constitutional petition. See Fazal Din v. Lahore Improvment Trust PLD 1969 SC 223. In Muhammad Ashraf v. Board of Revenue, West Pakistan and another PLD 1968 Lah. 1155, it was observed that all that the applicant has to show is that he is an aggrieved party and existence of a vested, legal or absolute right is not necessary.
13. It was next contended on behalf of the respondents that the petitioner cannot claim the scholarship as a right for the grant of scholarship is within the discretion of the respondents. This argument of the learned counsel cannot be accepted as a whole. In a democratic set up like ours, the Government and the other statutory functionaries are bound to act in public matters justly, fairly and in accordance with the rules and instructions on the subject. It is not open to the functionaries charged with public functions to make any indivious distinction for any extraneous reasons. The discretion vested in the public functionaries must be free from arbitrainess and caprice. Articles 4 and 25 of the Constitution, guarantees equal protection and equal treatment to citizens similarly placed.
14. In Miss Khola Jabeen and 2 others v. Government of N.-W.F.P. Through Secretary, Health Department Peshawar and 5 others PLD 1976 Pesh. 97, it was observed that the Government cannot act in utter disregard of criteria for admissions and rules for working out merits contained in the prospectus and was duty bound to treat the respondents of settled districts equally and to nominate persons having superior merit. The Supreme Court of Pakistan in Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092 ruled that:-- "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion. The structuring of discretion only means regularising it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure.
Somehow, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the powers and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."
' Reference may also be made to Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab, through the Secretary to Government of the Punjab, Lahore, and 2 others PLD 1991 SC 35. As in the present case, the petitioner had been deprived of the scholarship for considerations which have no relevance to the criteria for eligibility, the discretion exercised by the respondent in refusing to grant the scholarship cannot but be termed as arbitrary.
' For the reasons aforesaid, this petition is accepted and refusal of the respondents to grant scholarship to the petitioner is declared to be without lawful authority and of no legal effect. The respondents are directed to decide the matter again strictly in accordance with criteria laid down by them. There shall be no orders as to costs,