UNIVERSITY OF PESHAWAR Versus ZULQARNAIN
This civil appeal arises from a judgment of the Peshawar High Court regarding the reversion of a civil engineer and the termination of another's services by the University of Peshawar following an adverse inquiry report regarding construction work. The core legal question concerns the maintainability of a constitutional writ petition in the presence of an adequate alternate remedy by way of an appeal. The Supreme Court allowed the appeal, holding that an alternate remedy by way of an appeal was competent under the statute. The key principle laid down is that where an alternate statutory remedy of appeal is available, a constitutional petition under the relevant constitutional jurisdiction is ordinarily not maintainable unless special circumstances are made out, though parties may be granted liberty to pursue the alternate remedy.
- Is an appeal competent under section 39 of the University of Peshawar Act 1974 against an order of the University Syndicate?
- Does the availability of an alternate remedy under the statute bar the entertaining of a writ petition?
- Section 39, University of Peshawar Act 1974
1. NASIM HASSAN SHAH, J. ‑This appeal has been heard alongwith Civil Appeal No. 102 of 1978 because the same questions that arise in the afore mentioned appeal also arise herein.
2. The respondents are the Civil Engineers, respondent No. 1 Zulqarnain held the post of Overseer in a substantive capacity in the Works Department of Peshawar University. He was promoted on work charged basis as S. D. O. on 21‑10‑1976. Mian Abdul Samad, respondent No. 2, was similarly appointed as S. D. O. but his services were subsequently terminated on 4‑1‑1977 while working as work charged S. D. Os. in the Works Depart ment of the University they were engaged in the construction of two hostals for boys and girls from tribal areas. After the construction of the said two hostals, an Inspection Team of the Government, N.W. F. P., inspected the works but was dissatisfied with the work done. An inquiry was conducted by Mr. Attaur Rehman, Secretary to Government N. W. F. P. (Local Bodies arid Social Welfare Department), who, in due course, submitted a report to the Syndicate wherein their work was criticised. In consequence, the Syndicate in its mating held on 18‑11‑1976 decided to revert Zulqarnain, respondent No. 1, to his substantive post of Overseer and to terminate the services of Mian Abdul Samad, respondent No. 1. Being aggrieved by this action, the respondents filed a joint writ petition (W. P. No. 338/76) in the Peshawar High Court which was allowed on the same ground as in the connected cavil appeal (C. A. 102/78) namely, that the impugned order amounted to a penalty which could not have been imposed without having recourse to the prescribed procedure therefore, the impugned order was not aside but the University authorities were allowed to take action against the respondents, if they so desired, by following the prescribed procedure.
3. This appeal must also be allowed on the same ground on which w have allowed the connected appeal (C. A. 102/78) namely, that an appeal was competent, against the order impugned in the writ petition under section 39 of the University of Peshawar Act 1974.
4. The learned counsel for the respondents informed us that the respondent have not filed any appeal against the said order to the appellate authority. However, the learned counsel for the appellants gave us an assurance the even if the respondents file an appeal even now the same will be entertained and disposed of on the merits.
5. We may further note that respondent No. 2 no longer appears to be interested in the University service having left the said service. Be that as it may there is not bar to his filing any appeal also which shall be heard on merits alongwith the appeal of respondent No. 1.
6. This appeal is, therefore, allowed in the above terms leaving the parties to bear their own costs.
7. Appeal allowed.