GHAZANFAR ALI Versus VICE-CHANCELLOR, UNIVERSITY OF AZAD JAMMU AND KASHMIR

ORDER

RAZA ALI KHAN, J.---- It is trite law that in presence of any other efficacious remedy, discretionary relief under writ jurisdiction is not available to an aggrieved person. Law with respect to exercise of judicial review of public actions or inactions, in presence of alternative adequate remedy, is firmly settled. Although the decision-making powers of lower courts or other executive bodies are subject to judicial review of Constitutional Courts, but it is essential to emphasize that judicial review should only be invoked as a residual jurisdiction. In exceptional circumstances, which must be proven, this power should not be exercised sparingly where an adequate alternative legal remedy is available to an aggrieved person. The well recognized principle is that whenever an alternative statutory mechanism exists to redress the grievance of an aggrieved party, the Court will be reluctant to grant any relief. The alternative remedies may encompass various statutory mechanisms and when the public interest demands that power of judicial review should be exercised speedily, it is necessary to limit the number of cases in which such power may be exercised. In many ways, adherence to the exhaustion of alternate remedies rule helps to reduce the burden placed on constitutional Courts.

2. Although the rule of exhaustion of alternate remedy is not an absolute one. There may be exceptional cases where a person may be permitted to seek judicial review despite the availability of an alternate remedy, frequent deviation from this general rule will overwhelm the constitutional Courts with the matters that could be addressed by alternative fora. Moreover, strict adherence to this settled principle will improve the functioning of statutory bodies in resolving disputes, reducing the need to invoke the jurisdiction of judicial review. The purpose of this principle has eloquently been explained by Justice (R) Fazal Karim in the following words:

"The object of this rule, which has in Article 199 received constitutional recognition, that in the presence of another adequate remedy, the power of the Judicial Review under Article 199 will not be exercised, is to provide against short cuts in legal proceedings." (Judicial Review of Public Action, Justice Fazal Karim, Second Edition published by Pakistan Law House, Volume-III, page-1453) 12.

The Supreme Court of Pakistan has expounded this principle in PLD 1996 SC 246 as under:

"9. The High Courts are already huddled up with thousands of cases. If the litigant public is permitted to take all sorts of disputes to the High Court without first availing of the other remedies available to them, under law, it not only necessarily increase the work-load of the High Courts but would also defeat the provisions of law by which the said remedies have been made available. Such a spree on the part of the litigant public would, if we may say so, amount to abuse of the Constitutional jurisdiction which is to be exercised by the High Courts in exceptional cases to provide justice which cannot be otherwise obtained by the aggrieved parties."

Under common law, remedy of judicial review through writ jurisdiction is also not available in presence of adequate alternate remedy and this principle has been settled by the English Courts. It is settled there that remedy by way of judicial review should be treated only as a remedy of last resort and should only be used in exceptional circumstances when other remedies, which could provide efficacious redressal, have been properly exhausted by a litigant. In R. v. IRC, Ex parte Preston case cited as [1985] BTC 208, House of Lords had categorically held that: "a remedy by way of judicial review is not to be made available where an alternate remedy exists. This is a proposition of great importance. Judicial review is a collateral challenged; it is not an appeal. Judicial review should not be granted where an alternative remedy is available."

The same principle was reiterated by Court of Appeal (England and Wales) in Regina v. Secretary of State for the Home Department, ex parte Swati, [1986] 1 WLR 477 where it was held by the Court that:

"However, the matter does not stop there, because it is well established that, in giving or refusing leave to apply for judicial review, account must be taken of alternative remedies available to the applicant"

3. The principle of non-maintainability of writ petition in presence of alternate remedies has also been expounded by this Court in numerous pronouncements. In the case reported as Muhammad Munir v. Chairman Azad Jammu and Kashmir Board of Intermediate and Secondary Education and others [2006 SCR 29] it was held that: -

"Without availing remedy under the statute particularly where right of appeal is provided the filing of writ petition in the High Court cannot be justified, appellant would have availed right of appeal before the Board and the same would have remained unattended for indefinite period only then he could have availed writ jurisdiction of the High Court seeking direction to decide his appeal at earliest. As the remedy of writ was availed without availing the alternate remedy of appeal before the Board, therefore, no error was committed by the learned Chief Justice of the High Court while dismissing his writ petition."

In the case reported as Forest Department v. Mst. Saleem Akthar and others [2024 SCR 17] similar view was reiterated, conforming that in presence of an alternate remedy a writ petition is not maintainable.

4. In this case, the petitioner, who was serving as an Associate Professor at the University of Azad Jammu and Kashmir, was removed from service through notification dated 07.02.2023, on the charges of misconduct and involvement in subversive activities. The petitioner challenged this notification by filing a writ petition before the High Court on various grounds. However, the High Court dismissed the writ petition, both on merits as well as on the basis that, according to the University Statutes, the petitioner had the right to file an appeal before the Syndicate. Consequently, since an alternative and efficacious remedy was available, the writ petition was deemed not maintainable.

5. In the present petition, the learned counsel for the petitioner argued that the petitioner submitted an application requesting for supplying the copies of relevant record necessary for filing an appeal before the Syndicate and also deposited the requisite fee. As per the claim of petitioner he had attempted to submit the appeal, but the relevant officer refused to accept it, forcing him to submit the appeal via email. Accordingly, the petitioner sought a direction from the Court to the University to process and decide the appeal. On the contrary, the learned counsel for the University authorities refuted this claim, contending therein that the petitioner has not availed the alternate remedy as provided under Section 38 of the University of Azad Jammu and Kashmir Act, 1985.

6. A review of the record reveals that the petitioner was removed from service through notification dated 07.02.2023. Section 38 of the University of Azad Jammu and Kashmir Act, 1985 provides that:

"38. Appeal to and Review by the Syndicate: (1) Where an order is passed punishing any officer (other than the Vice chancellor) teacher or other employee of the University or altering or interpreting to his disadvantage the prescribed terms or conditions of his service, he shall, where the order is passed by the Vice Chancellor or any other officer or teacher of the University, have the right to appeal to the Syndicate, against the order, and where the order is made by the Syndicate, have the right to appeal to that authority for review of that order.

(2) The appeal or application for review shall be submitted to the Vice Chancellor who shall lay it before the Syndicate with his views.

(3) No order on an appeal or application for review shall be passed without affording to the appellant or applicant, as the case may be, an opportunity of being heard."

It is evident that an alternative remedy in the form of an appeal to the Syndicate was available to the petitioner. Instead of availing this option, the petitioner rushed to the High Court and filed a writ petition just six days after his removal order was issued. The story narrated by the petitioner before this Court regarding filing of appeal appears to be an afterthought, as there is no mentioning of it in the original writ petition. In the given circumstances, I am of the considered opinion that the learned High Court has not committed any illegality while passing the impugned judgment.

As a result, the petition being meritless is hereby dismissed. No order as to costs.

MQ/7/SC(AJ&K) Appeal dismissed.