Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT
WP No.14987 of 2014

Ameer Afzal etc. Vs. Govt. of Punjab through Secretary

JUDGMENT

Date of hearing: - 01.07.2014
Petitioners by: - Mr. Muhammad Javed Iqbal Qureshi, Advocate
Respondent by: - Mr. Muhammad Arif Raja, Addl. A.G. with Amir
Khatak, Addl. Secretary (Admn.) for respondent.
--------

SHAHID WAHEED, J:- Shorn of dispensable details,
facts of the case are that Government of the Punjab, Agriculture
Department in terms of following criteria, incorporated in letter No. SO
(R&E) 3-10/2011 dated 5
th
July, 2012, nominated the petitioners for Ph.D
studies at University of Agriculture Faisalabad and University of Arid
Agriculture, Rawalpindi for the year 2012-13:-

a) At least 1
st
division in M.Sc. or M.Sc.(Hons) with CGPA 2.5 or
better.
b) Maximum age limit 45 years.
c) Regular employee of Agriculture Department.
d) 5 years service including contract period in Agriculture
Department.
e) Nominations will be made strictly on merit/marks obtained/CGPA
in M.Sc/ M.Sc.(Hons).
f) Bio-data, Synopsis and Certificate that no departmental/anti-
corruption enquiry is pending against the nominee.
g) Surety Bond to the effect that after completion of Ph.D., the
nominee shall serve Agriculture Department at least for five years,
failing which he will pay Rs. 10 lac to the Agriculture
Department.
h) Study leave will be granted on due basis and remaining period
will be considered as without pay.
2

WP No. 14987 of 2014
i) The selected candidates will have to pass tests equivalent to GRE
(General) and International GRE (Subject) with at-least 50 %
score in each.
j) After completion of admission process, if nominee failed to join
the Ph.D. classes for any reason, disciplinary action under rules
will be taken against him.

2. The petitioners through this petition under Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973, has challenged the
vires of clause (h) of the above said criteria on the ground that the same is
against the Leave Rules, 1981 read with Study Leave Rules prescribed by
the Governor [Appendix 20 of CSR (Punjab) Vol.-1, Part-II].
3. In response to the notice, the respondent has submitted report and
parawise comments. It has been stated in the report that before 2011 only
those government servant were nominated for M.Sc./ Ph. D. studies who had
five years service in the Agriculture Department; that this policy was in
accordance with the Study Leave Rules, 1981 which provides that study
leave should not ordinarily be granted to Government servants who have less
than 5 years service; that according to the said Study Leave Rules the
candidates having less than 5 years regular service were not eligible for
nominations; that for the year 2012-13, only one departmental candidate was
found eligible for Ph.D. studies against the reserved quota of the Department
in University of Agriculture, Faisalabad and Pir Mehr Ali Shah Arid
Agricultural University, Rawalpindi; that the Government of the Punjab
regularized the services of the petitioners in the year 2011 and thus they
were not eligible for nominations for Ph.D. studies in view of Study Leave
Rules, 1981 as they had less than 5 years regular service; and, that to
facilitate the petitioners the department amended criteria/conditions and it
3

WP No. 14987 of 2014
was decided that study leave would be granted on due basis and remaining
period would be considered as leave without pay.
4. Question involve in this petition is as to whether the clause (h) of
letter No. SO (R & E) 3-10/2011 dated 5
th
July, 2012, that is, study leave
will be granted on due basis and remaining period will be considered as
leave without pay (hereinafter called the impugned clause) is valid. Since in
the case in hand the respondent while inserting the impugned clause in letter
No. SO (R & E)3-10/2011 dated 5
th
July, 2012 had construed Rule 7 of the
Study Leave Rules, 1981 as hurdle in making nomination of the petitioners
for Ph.D. Course, it is imperative to examine the said rule which reads as
under:-
Study leave should not ordinarily be granted to Government
servants who have less than five years service.

It is the argument of the Government that as per the above cited rule only an
employee who has more than 5 years service is eligible for study leave and,
therefore, to smooth the way of the petitioners, whose services are less than
five years, for Ph.D. course the impugned clause was inserted in the policy
letter No. SO (R & E) 3-10/2011 dated 5
th
July, 2012. I am afraid the ipse
dixit of the respondent while inserting impugned clause in the said policy
letter is not valid. It appears that the respondent while framing the impugned
clause had lost sight of the word ordinarily used in Rule 7 of the Study
Leave Rules, 1981 which is of great significance. The word ordinarily has
been defined in the following dictionaries:
(i) K.J.Aiyars Judicial Dictionary, 13
th
Edition:
Ordinarily means, usual, normal, common, according
to the established order, not characterized by peculiar
4

WP No. 14987 of 2014
or unusual circumstances. [Munna Lal Agarwal v
Rajasthan High Court ( 1992) 1. Western Law Case
550 (559) ( Raj) ]. The insertion of the word
ordinarily does not alter the intendment of the
provision. [ Union of India v Vipin Chandra Hira Lal
Shah 1997 SCC (L & H) 41 ].
Ordinarily means usually or in a large majority
of cases, cannot obviously mean always. The word
ordinarily gives certain amount of elasticity and
would not mean invariably and without exception.
[Bhagbati Primary Fishermans Cooperative Society v
State of Orissa ( 1987) 64 Cut LT 464 (Ori) ].
As observed by the Full Bench, Allahabad Court
in its decision in the case of Municipal Board Kanpur
v Janki Prasada AIR 1963 All 433; the word
ordinarily does not mean permanently nor does not
mean universally. It also does not mean generally.
It seems that it should not be taken to mean
invariably or always. It leaves sufficient margin of
discretion with the competent authority and gives a
certain amount of elasticity to be Regulation 524 of
Uttar Pradesh Police Regulation whereunder the
discretion contemplated wherein can be exercised
depending upon the circumstances and the exigencies
of the situation on adequate grounds. [ Juranwan
Prasad Mishra v State of UP 1995 All LJ 1451at
1455].
In s 80-A of the Representation of the People Act
1951, the word ordinarily indicates that normally it
would be a single judge of the High Court who can
exercise the jurisdiction which is vested in the High
Court, but in appropriate cases, such jurisdiction can
also be exercised by two or more judges. [ Kirshan
Gupal v Prakaschandra (1974) 1 SCC 128 at 134].

The expression ordinarily indicates that this is
not a cast-iron rule. It is flexible enough to take in
those cases where the applicant has been prejudicially
affected by an act or omission of an authority, even
though he has no proprietary or even a fiduciary
interest in the subject-matter. [ Seethalakshmi Ammal v
State AIR 1993 Mad 1 at 4].

Ordinarily means unless there are special reasons
for not doing so. [F M Kolia v. G M Barot (1981) 22
Guj LR 700 (DB)].
Transporting of foodgrains including shunting of
wagons is ordinarily a part of the work of the Food
Corporation of India. [1973 ACJ 5 (Del)].
5

WP No. 14987 of 2014
The word ordinarily means regularly or
normally but not casually. [1974 AJ&K LR 527].
Section 177, CPC, embodies the ordinary or
general rule of jurisdiction. The word ordinarily
occurring in the section means except in the cases
provided hereinafter to the contrary. The rule in the
section should, therefore, be read subject to any special
provisions of law which may modify it. [ Nikka Singh
v. State 6 DLR (Simla) 228].
In common parlance, ordinarily means in large
majority of cases. The expression is not used in
reference to a case to which there are no exceptions.
[Krishna Dayal v. General Manager, N Rly AIR 1954
Punj 245].
Ordinarily means habitually and not casually. It
cannot obviously means always. [Per Suba Rao CJ].
The plain and popular meaning of the word
ordinarily is usually, normally and not exceptionally
as contrasted with extraordinarily. [Re Putta
Ranganayakulu 1956 Cr.L.J 1049, 1955 Andh LT
(Civ) 335, 1956 Andh WR 465 (S), AIR 1956 AP
161(FB)].
The word ordinary may have different shades of
meaning. Thus, in Kailash Chandra v Union of India
AIR 1961 SC 1364, their lordships while interpreting
the words should ordinarily be retained in r 2044 (2)
(a) of the Railway Establishment Code, held that the
word ordinarily means in the majority of cases but
not invariably. That particular construction left a
discretion to the appropriate authority, and it was not
bound to retain the servant after he attained the age of
55, even if he continued to be efficient. It all depends
upon the contents as to what the meaning of a word
should be. The word ordinarily in sub-r (3) of r 4,
MP Detention Order 1971, must, in the context in
which it appears, mean without exception
generally.[Nirmal Chand v DM AIR 1976 MP 95
(96), 1975 MPLJ 758, 1975 Jab LJ 810].
The word ordinarily in r 44 gives certain amount
of elasticity to that rule. I may be possible to say that
one of the extraordinary circumstances visualized by
the rule is the appointment of headmaster in
institutions like the one before us. [ Aido Patroni v E C
Kesavan AIR 1965 Ker 75].
The meaning attached to the word ordinarily is
as matter of regular court; in most cases; usually,
commonly; as is normal or usual. In Corpus Juris
Secundum, Vol 67, the meaning imputed is:
6

WP No. 14987 of 2014
Usual; common; normal; regular; conforming to
general order; common in recurrence; often running.
The antonym is extraordinary, unusual or uncommon.
For new para, Chambers Dictionary assigns the
meaning according to common order; usual.[ State of
Uttar Pradesh v Shri Ram Gupta 1972 All Cr.R 415].
The term ordinarily has been the subject-matter
of judicial interpretation and it is now settled that the
term means not mainly or regularly, but usually and
normally. [State of Kerala v Rajappan Nair 1977 Ker
LT 672 (674), (1977) 2 FAC 225, 1977 FAJ 393].

(ii) The Doubleday Rogets Thesaurus in Dictionary Form
(Revised Edition):
ordinarily adv. usually, commonly, mostly,
generally, habitually, as a rule, by and large, regularly,
conventionally, customarily, normally, routinely.

(iii) The new Webster Encyclopedia-Dictionary of the
English Language:
ordinarily adv. In an ordinary manner; usually;
generally; in most cases.

Keeping in view the afore-stated definitions of the word ordinarily it
becomes explicit that condition of 5 years of service is not mandatory for the
grant of study leave under the above said Rule. It is trite principle of law
that where doing of an act is bound by time but is qualified by the term
ordinarily it necessarily implies that such provision of law is intended to
be directory only[See Hassan Usmani, sole proprietor and another Vs. TF
Pipes Ltd. through Managing Director, (2003 YLR 1705)]. Thus it is clear
that the Government/respondent had misconstrued Rule 7 of the Study
Leave Rules, 1981 while inserting impugned clause in the criteria for
making nominations for Ph. D. studies for the year 2012-13. This condition
is expressly against the Study Leave Rules, 1981 which are applicable to the
employees of the Agriculture Department, Government of the Punjab. The
Agriculture Department without making amendment in the Study Leave
7

WP No. 14987 of 2014
Rules could not deprive the petitioners of their legitimate right of study
leave with full pay in the garb of the impugned clause of the criteria for
making nominations for Ph.D. studies. It is apposite to state here that policy
decision of the Government, unless it is absolutely capricious, unreasonable
and arbitrary and based upon mere ipse dixit of the executive or is violative
of any constitutional provision or law would be immune from judicial
review. In this context reference may be made to the cases of Messers Al-
Raham Tavels and Tours (Pvt.) Ltd. and others vs. Ministry of Religious
Affairs, Haj, Zakat and Ushar through Secretary and others (2011 SCMR
1621) and M.P. Oil Extraction and another vs. State of Madhya Pradesh
and others (AIR 1998 SC 145). As the impugned clause, that is, clause (h)
of letter No. SO (R & E) 3-10/2011 dated 5
th
July, 2012 is merely based
upon the ipse dixit of the executive; and, against the Study Leave Rules, I
have no hesitation in saying, that the same is illegal, irrational and shows
procedural impropriety.
5. Notwithstanding above, it has come to the notice of this Court
that action of the respondent for making nominations for Ph.D. studies at
University of Agriculture, Faisalabad and University of Arid Agriculture,
Rawalpindi is discriminatory. The petitioners in this regard have made a
specific reference to the case of Mst. Hunza Khakwani, Assistant Research
Officer, who has been nominated to a Ph.D. course with full pay. This fact
has not been denied by the respondent in its report and parawise comments.
Discrimination is a blemish and iniquity which spoils the action or policy of
public functionaries or Government. The injunction of Islam, provisions of
the Constitution of the Islamic Republic of Pakistan, 1973 and the cannons
8

WP No. 14987 of 2014
of morality abhor discrimination among citizens so as to maintain
transparency and fairness; and, to curb maladministration, corruption and
corrupt practices. Thus, to do away with discrimination the respondent is
required to give the same treatment to the petitioners which has been given
to Mst. Hunza Khakwani.
6. In view of above, this petition is accepted and the impugned
clause, that is, clause (h) of letter No. SO (R & E) 3-10/2011 dated 5
th
of
July, 2012 issued by the respondent is declared to have been incorporated in
the said letter without lawful authority and of no legal effect. Now it is for
the respondent to pass an order qua the leave of the petitioners. Thus, the
respondent is directed to pass appropriate order, without any delay, with
regard to leave of the petitioners for completing Ph.D. course. No order as to
costs.


(SHAHID WAHEED)
JUDGE
Noor Muhammad*


Approved for reporting


Judge