' MALIK HAMID SAEED, J.--- The Writ Petitioner, Khizar Azam Khan, is a Lecturer of Mechanical Engineering in N.-W.F.P. University of Engineering and Technology, Peshawar, i,e, respondent No,1 .
He is the Ist Divisioner with Honours in B.Sc. Mechanical Engineering. He has also remained as elected Member of the Syndicate of N.-W.F.P. University of Engineering and Technology during his service tenure.
2. The N.-W.F.P. University of Engineering and Technology, Peshawar (respondent No,1) entered into an agreement with the George Washington University, Washington, D.C., U.S.A. Under which both the Institutions have to exchange academic personnel for teaching, research or both.
3. The respondent No,1 nominated the writ petitioner for M.Sc. Degree in Engineering Management for two years course in the George Washington University, U.S.A. And sent his nomination to the said University. The petitioner also received a letter from the George Washington University through Director, Finance and Planning (Liaison Officer) N.-W.F.P. University of Engineering and Technology, Peshawar (respondent No,3) regarding his confirmation/admission in M.Sc. Engineering Management for Fall 1999 commencing on 23-8-1999.
4. That before the petitioner could proceed to the George Washington University, he was sent on deputation to the Intelligence Bureau, vide order issued on 8-9-1999. He was, however, reverted back from the Intelligence Bureau to his parent department on 19-10-1999. As the petitioner due to such unavoidable circumstances had earlier applied to the George Washington University for deferring his admission from Fall 1999 to Spring 2000 and which request of the petitioners was acceded to, therefore, after his repatriation to the respondent No,1, the petitioner approached respondent No,1 to allow him to avail the scholarship facility offered under the Agreement. The request of the petitioner has been rejected vide order dated 5-11-1999 by the University Authorities, hence the present Constitutional petition.
5. We have heard the learned counsel for the parties and also respondent No,3, present in the Court. The documents placed on file have also been gone through.
6. It is true that the petitioner could not avail the opportunity for Fall 1999, but it is equally true that it happened so due to his 'transfer on deputation to the Intelligence Bureau, which fact in the circumstances was unavoidable. The respondents have placed on file no documentary proof to show that all this occasioned due to the negligence and fault of the petitioner. On the other hand, it is a matter of record that the petitioner remained vigilant even after his transfer on deputation and sent a written request to the George Washington University for deferring his admission from Fall 1999 to Spring 2000, which request of the petitioner stood accepted. The George Washington University even now is willing to admit the petitioner in the Spring Semester and a letter to this effect has been issued by the said University to the petitioner, which is placed on file. In the said letter even identification number has been assigned to the petitioner.
7. The Director Finance and Planning (Liasion Officer) University of Engineering and Technology, Peshawar respondent No,3, at the time of hearing the instant petition was present in Court and when asked about the hindrance in the way of the petitioner, his reply was that if the petitioner is sent on scholarship, no right of any other candidate would be affected as the nomination of only five persons had been made, out of which four have already joined their studies in the said University and that the respondents have also no objection over the availing of opportunity by the petitioner now, but the only impediment in the way of the petitioner is the minutes of the 16th Meeting of the Syndicate held on 28th/29th July, 1986, whereunder the petitioner becomes disqualified for scholarship after his failure to avail the award.
8. We have perused paras.6 and 7 of the said Minutes Which are to the following effect:- "6. Those who are awarded a scholarship should be given a dead-line for securing admission and availing the award. The dead-line shall be such that sufficient time remains available for the alternate candidate for availing this scholarship.
7. A person shall be disqualified for a scholarship if he;
(a) fails to avail and award;
(b) avails the award but did not complete the studies satisfactorily."
' As stated by respondent No,3, no other candidate is going to suffer on account of admission of the petitioner in the George Washington University and as stated earlier, the failure of the petitioner to avail the award cannot be attributed on his part because of his transfer on deputation to the Intelligence Bureau. Anyhow, the petitioner has properly informed the George Washington University about the fact and has made request to defer his admission from Fall 1999 to Spring 2000, which request has been duly accepted and the admission of the petitioner in the George Washington University is even now valid.
9. Paras.6 and 7 of the Minutes of the Syndicate cannot be treated as statutory in nature unless properly notified through notification/regulation/ rules, which is not the case here. Mere provision in the Minutes cannot be made basis for violation of a fundamental right guaranteed to the petitioner in the Constitution. The petitioner keeping in view his brilliant academic record has been nominated by the respondents for proceedings on scholarship and the George Washington University has already accepted such nomination of the petitioner which cannot be taken 'away from him on the ground that he failed to avail such opportunity, whereas the record suggests that had the petitioner been not sent on deputation, he would have proceeded for his studies to the George Washington University, U.S.A. It is also not a case where there is any inordinate delay for availing such opportunity. The period of deputation was hardly about 40 days and just after his repatriation, the petitioner submitted an application for the purpose, that is to say, after about 2 months of the acceptance of his admission in the George Washington University. We have also been made to understand and it is evident from the agreement between the two universities also that every fifth nomination would be given free scholarship. The four nominees have already joined the university at U.S.A. And the petitioner being fifth would certainly qualify for grant of free scholarship at the expense of George Washington University. Thus, on this score to, the N.-W.F.P.
University of Engineering and Technology would incur no monitory loss, if the petitioner is allowed to proceed on scholarship.
10. The learned counsel for the respondents has also no cavil to the above stated factual aspects of the case and both the respondent No,3 and learned counsel have stated at the bar that the respondents would have no objection, if the petitioner is allowed to proceed on scholarship for the Spring Semester 2000 at George Washington University.
11. For the foregoing reasons, this writ petition is accepted, the order of respondent No,2 dated 5-11- 1999 is declared to be illegal and without lawful authority and the respondents are refrained from interfering in the petitioners' right to proceed and complete his two years course at George Washington University, Washington D.C., U.S.A. The respondents are also directed to forthwith allow and grant to the petitioner the scholarship for his M.Sc. Degree in Engineering Management in George Washington University, U.S.A. For the Spring 2000 commencing on 18-1-2000, enabling him to join the University at U.S.A. Well in time.
12. Before parting with this judgment, we may observe that respondents Nos.1 and 2 during the course of proceedings in the instant petition, expressed their lack of confidence in this Court, verbally as well as in writing on the ground that the university has no faith in the impartiality of this Court as the petitioner is the son of one of the sitting Judges of this Court. Such prayer was later on requested to he withdrawn through a written application (Civil Miscellaneous No,2656 of 1999) on the ground that the contents of the application were not worded properly and the annoyance so caused was regretted. Like other parents, the Judges of this Court are also having parental feelings for the welfare of their children. If any discrimination or injustice is done to the son of a Judge and if he knocks at the door of the Court for justice, it could not be denied to him merely on the ground that he is the son of a sitting Judge, unless some other sound reasons for depriving him to seek such remedy from a Court of this Province is shown in black and white. The manner in which the objection was taken, if is raised from an ordinary citizen could be given least importance for his ignorance, but this is not expected at all from a high reputable institution of his Province like the N.- W.F.P. University of Engineering and Technology, Peshawar. Anyhow, the earlier application has been sent to the worthy Chief Justice for an appropriate action/order, therefore, the present application be also sent to the Honourable Chief Justice for his consideration. After hearing both the sides at a sufficient length, this writ petition is admitted and accepted alongwith the C.M. With the direction that every possible facility be afforded to the petitioner for proceeding abroad to join the course at George Washington University, U.S.A.