writ petition 415/2011 - muhammad usman syed v. comsats & 2 others

BEFORE THE HON’BLE ISLAMABAD HIGH COURT

Writ Petition No.

of 2011

Muhammad Usman Syed s/o Mr. Ahmad Nadeem Syed, r/o House No. 81, Street No. 5, E-11/2, Medical Society, Islamabad

….Petitioner

versus

1.COMSATS Institute of Information Technology, Park Road, Chak Shahzad, Islamabad, through its Vice Chancellor

2.Higher Education Commission, Sector H-9, Islamabad, through its Chairperson

3.Federation of Pakistan, through the Secretary, Ministry of Education, Islamabad

……

Respondents

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973

INDEX

Sr.

No

Description of document Appendix Pages

1. Writ Petition with Affidavit

2. Respondent No.1’s Provisional Offer Letter dated July 07, 2010

A

3. Pay Order dated July 07, 2010 B

4. FAST University’s Offer of provisional admission dated July 19, 2010

C

5. Petitioner’s Father’s email dated July 29, 2010

D

6. Additional Registrar’s email dated July 31, 2009

E

7. Page 164 of Respondent No.1’s Prospectus

F

8. Legal Notice dated August 04, 2010

G

9. Notification issued by PMDC pursuant to its 116th meeting

H

10. Letter dated October 11, 2010 issued by FMH College of Medicine and Dentistry, Shadman Lahore

I

11. Refund policy of FAST University J

12. Refund policy of New York University - USA

K1

13. Refund policy of Middlesex University – Dubai

K2

14. Refund policy of Bond University – Australia

K3

15. Refund policy of University of Michigan – USA

K4

16. Refund policy of Bristol University – UK

K5

17. Refund policy of William Patterson University – USA

K6

18. Refund policy of University of Southampton – UK

K7

19. Refund policy of Kent State University – USA

K8

20. Refund policy of Butler University – USA

K9

21. Refund policy of Lincoln University – USA

K10

22. Refund policy of Quinnipiac University – USA

K11

23. Refund policy of San Jose State University – USA

K12

24. Refund policy of San Francisco State University – USA

K13

25. Refund policy of Monmouth University – USA

K14

26. Refund policy of University of Leeds – UK

K15

27. Relevant provisions of the National Education Policy, 2009 with its title page

L

28. Newspaper report of the President’s order as it appeared in the Dawn on June 01, 2010

M

29. C.M. for Dispensation with Affidavit

30. Vakalatnama

PETITIONER

through

Bilal Mirza Barrister Omer Farooq Advocate, High Court Advocate, High Court CC No. 3374 CC No.

3385

Farooq, Khan & Mirza, Advocates and Corporate Counsel274-A, Street 6, F-10/3, Islamabad

Ph. 2299083Dated: ___________


Writ Petition No.

of 2011


….Petitioner

versus

1.COMSATS Institute of Information Technology, Park Road, Chak Shahzad, Islamabad, through its Vice Chancellor

2.Higher Education Commission, Sector H-9, Islamabad, through its Chairperson


……

Respondents

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973

The Petitioner respectfully submits as under:

Parties:

1. The Petitioner, son of Mr. Ahmad Nadeem Syed, resident of

House No. 81, Street No. 5, E-11/2, Medical Society,

Islamabad, bearing CNIC No. 61101-9509331-1, is a student

currently studying BS – Computer Science at National

University of Computer and Emerging Sciences (“FAST

University”).

2. Respondent No. 1 is the COMSATS Institute of Information

Technology, a degree awarding institute established and

incorporated pursuant to the COMSATS Institute of

Information Technology Ordinance, 2000 (“COMSATS

Ordinance”).

3. Respondent No. 2 is the Higher Education Commission,

established pursuant to the Higher Education Commission

Ordinance, 2002 (“HEC Ordinance”) for evaluation,

improvement and promotion of higher education and

research and development in Pakistan.

4. Respondent No. 3 is the Government of Pakistan, acting

through the Secretary, Ministry of Education.

Facts:

5. That the Petitioner decided to pursue a Bachelors of Science

degree with majors in computer sciences (“BS Program”),

and to this end, applied to various universities and degree

awarding institutes, including Respondent No. 1, FAST

University, Air University, and Ghulam Ishaq Khan Institute

(FAST University, Air University and Ghulam Ishaq Khan

Institute are hereinafter collectively referred to as “Other

Universities”). Each year students apply to a number of

educational institutes in addition to their preferred

educational institute in order to secure a position in at least

one of them as there is cut-throat competition for admission

and students seeking higher education can ill afford to waste

an entire academic year due to failure to secure a position in

their preferred educational institute.

6. That having fulfilled all the preliminary pre-requisites for

admission at Respondent No. 1 in its BS Program, the

Petitioner was made a provisional offer by Respondent No.1

vide provisional offer letter dated July 07, 2010

(“Provisional Offer Letter”). The Petitioner was directed

pursuant to the Provisional Offer Letter to, inter alia, (i)

confirm his acceptance of a place at Respondent No.1 within

two days i.e. by July 09, 2010 (“Deadline”), and (ii) make

payment of an amount of Rupees sixty nine thousand (Rs.

69,000/-) (Rupees twenty two thousand (Rs. 22,000/-) being a

one-time charge and the remaining Rupees forty seven

thousand (Rs. 47,000/-) being the tuition fee for the first

semester) (“Fee”) in the form of a pay order or a bank draft

in the name of Respondent No. 1, by the Deadline. Further,

the Provisional Offer Letter stipulated that if after depositing

the Fee, the Petitioner decided to withdraw his acceptance of

a place at Respondent No.1, only an amount of Rupees five

thousand (Rs. 5,000/-) (“Caution Money”) would be

refunded to the Petitioner (“Refund Policy”).

(A copy of the Provisional Offer Letter is attached herewith as Annexure

“A”)

7. That although a place in the BS Program offered by

Respondent No.1 was not the first preference of the

Petitioner, he was compelled to accept the provisional offer

of Respondent No. 1 out of abundant caution, since the

Petitioner had not received an offer from the Other

Universities by the date on which he received the Provisional

Offer Letter from Respondent No. 1, and, consequently, he

could not run the risk of wasting an entire academic year in

the event that he did not receive an offer from the Other

Universities. Thus, in accordance with the stipulations

contained in the Provisional Offer Letter, the Petitioner

communicated his acceptance of a place at Respondent No.1

and duly deposited the Fee vide pay order No. 3131299, from

RBS Bank, F – 7 branch, Islamabad, dated July 07, 2009

(“Pay Order”).

(A copy of the Pay Order is attached herewith as Annexure “B”)

8. That on July 19, 2010, the Petitioner received an offer from

FAST University to join its BS Program by completing

admission formalities by July 29, 2010, which the Petitioner

accepted and deposited the dues amounting to Rs. 85,000/-

on July 28, 2010 as FAST University was the preferred choice

of the Petitioner from the outset.

(A copy of FAST University’s Offer of provisional admission is attached

herewith as Annexure “C”)

9. Having accepted a place at FAST University, the father of the

Petitioner, Mr. Ahmad Nadeem Syed (“Petitioner’s

Father”), on July 29, 2010, through an email addressed to

Mr. Nadeem Uddin Qureshi, the Additional Registrar of

Respondent No. 1 (“Additional Registrar”), (i)

communicated the Petitioner’s decision to withdraw his

acceptance of a place at Respondent No. 1, and (ii) sought

refund of the Fee within five (5) working days, pleading that

the Refund Policy of Respondent No. 1 was unfair, unjustified

and arbitrary as there were still over five (5) weeks to go

before commencement of classes, which was ample time for

Respondent No. 1 to offer the Petitioner’s seat to the next

student in the queue without incurring any financial loss.

(A copy of the Petitioner’s Father’s email dated July 29, 2010is attached herewith as Annexure “D”)

10.That the Additional Registrar responded to the email of the

Petitioner’s Father on July 31, 2010, stating that, in

accordance with the Refund Policy of Respondent No. 1

delineated on page 164 of the Undergraduate Prospectus of

Respondent No. 1 for the academic years 2010-2011

(“Prospectus”), in case of voluntary cancellation/withdrawal

of admission from Respondent No. 1 by a candidate, no

refund could be given to the said candidate except the

Caution Money. However, he pointed out that in the event an

applicant who received a provisional offer by Respondent No.

1 failed to obtain the mandatory percentage for admission at

Respondent No. 1, the entire dues deposited by such

applicant would be refunded. Nevertheless, it is noteworthy

that it is specifically stipulated on page 164 of the Prospectus

that “Candidates whose result was awaited and were allowed

provisional admission, on failing to meet the requisite criteria

upon the declaration of result, shall not be allowed any

refund of fee except the caution money.” Thus, the Additional

Registrar’s understanding of the Refund Policy of

Respondent No. 1 appears to be fallacious and misconceived.

[Emphasis added]

(Copies of the Additional Registrar’s email dated July 31, 2009 and page 164 of

the Prospectus are attached herewith as Annexures “E” and “F”, respectively)

11.That despite the continuous pleas of the Petitioner and the

Petitioner’s Father for refund of the Fee, Respondent No. 1

unequivocally refused to reimburse the same, basing its

decision on the unfair, arbitrary, whimsical and capricious

Refund Policy of Respondent No. 1. Aggrieved by the

arbitrary, whimsical and inequitable Refund Policy of

Respondent No. 1, the Petitioner’s Father, on August 04,

2010, served a legal notice (“Legal Notice”) on Respondent

No. 1 demanding reimbursement of the Fee, and damages in

the amount of Rupees one million (Rs. 1,000,000/-) for the

immeasurable mental agony and distress caused to the

Petitioner and the Petitioner’s Father due to the obstinate,

unjust and malevolent conduct of Respondent No. 1. That

notwithstanding, Respondent No. 1 has thus far miserably

failed to pay heed to the repeated justified requests of the

Petitioner for refund of the Fee.

(A copy of the Legal Notice is attached herewith as Annexure “G”)

12.That the (i) Refund Policy of the Respondent No.1 and

various other unreasonable variants thereof utilized by other

educational institutes, and (ii) the practice of sending out

early provisional offer letters which contain unreasonable

terms and conditions with a short deadline to accept the

same just a few days/weeks before the most reputed

university in a given discipline, is part of a carefully weaved

out strategy employed by numerous universities and degree

awarding institutes of Pakistan to appropriate the hard

earned money of middle class citizens of Pakistan, and

amounts to pillaging of resources of the citizenry of Pakistan.

In consonance with the dictates of common sense and

fairness, educational institutions across the globe have

adopted a pro-rata refund policy (“Pro-Rata Refund

Policy”) whereby refunds for withdrawals from such

educational institutions are calculated using a pro-rata

refund schedule and are based on the withdrawal date and

length of the course. Thus, fees claimed from students are

directly proportional to the services rendered by the

concerned educational institution to such students.

Therefore, in the event a student withdraws before the

commencement of the semester/classes, the student is given

a full refund. Also, deadlines to accept the provisional offers

of admission in any given discipline are regulated thereby

allowing students to make informed decisions as to which

university to join after receiving intimation from all

universities to which applications have been made.

[Emphasis added].

13.That it is pertinent to note that in this regard, the Pakistan

Medical and Dental Council (“PMDC”), in pursuance of its

mandate to regulate all medical and dental institutions in

Pakistan, has vide a notification, recently taken a

commendable step in its 116th meeting and has laid down the

following conditions for admission in universities offering

MBBS/BDS courses in the country:

“If the student wishes to leave the institution and does not join classes then there shall be a 100% refund of all deposit fee except for the one time admission fee. If the student wishes to leave the institution within one month, there shall be 50% refund of all deposited fee and if the student wishes to leave the institution after one month of joining classes then there shall be a 25% refund.”

and further:

“No private college shall admit students before 31st October each year or the declaration of the Provincial central entry test whichever is earlier.”

In view of the above, all medical and dental universities in

Pakistan have accordingly adopted the notification and are

now adhering to the Pro-Rata Refund Policy and are also

aligning their dates of admission as is evident from the letter

dated October 11, 2010 issued by FMH College of Medicine

and Dentistry, Shadman Lahore.

(Copies of the notification issued by PMDC pursuant to its 116th meeting and letter dated 11/10/2010 issued by FMH College of Medicine and Dentistry, Shadman Lahore are annexed herewith as Annexures “H” & “I”, respectively)

14.That it is also noteworthy that a few Pakistani educational

institutes have also adopted the Pro-Rata Refund Policy on

their own accord in an effort to conform their admission rules

to internationally accepted norms and principles of natural

justice and fairness and the same has been without any

directive to such effect from any governing body. An example

of such pro-activeness is evident from the refund policy of

FAST University which has also adopted the Pro-Rata Refund

Policy and which states that in case of cancellation of

admission by a student, the tuition fee shall be refunded as

per the following rate:

(a) Before the beginning of a semester – 100%; (b) during the

first week of the semester – 75%; (c) during the second week

of the semester – 50%; (d) during the third week of the

semester – 25%; and (e) after the third week of classes – Nil.

(A copy of FAST University’s refund policy is annexed herewith as

Annexure “J”)

15.That the Pro-Rata Refund Policy is a prevalent and

established model for refund of tuition fees and is as such

employed by educational institutes across the world for the

reason that any other methodology of refund would lead to

misappropriation of funds and cause financial hardship and

inconvenience to both the students and institutes involved.

The overwhelming majority of all reputed educational

institutes in the world, including internationally acclaimed

universities based in the United States of America, Europe,

Australia and the Middle East follow the Pro-Rata Refund

Policy. The refund policies of a cross section of such

universities are annexed herewith for ease of reference.

(Copies of the refund policies of the (i) New York University - USA; (ii) Middlesex University – Dubai; (iii) Bond University – Australia; (iv) University of Michigan – USA; (v) Bristol University – UK; (vi) William Patterson University – USA; (vii) University of Southampton – UK (viii) Kent State University – USA; (ix) Butler University – USA; (x) Lincoln University – USA; (xi) Quinnipiac University – USA; (xii) San Jose State University – USA; (xiii) San Francisco State

University – USA; (xiv) Monmouth University – USA; and (xv) University of Leeds – UK are appended herewith as Annexures “K1” to “K15”, respectively)

16.That being the case, the inequitable Refund Policy of the

Respondent No.1, which is shared by innumerable

educational institutions of Pakistan, whereby hefty fees

deposited by students to educational institutions are retained

despite non-provision of any educational services as

consideration for such retention (i) is in gross violation of the

fundamental rights of the Petitioner and similarly placed

citizens of Pakistan, (ii) is repugnant to the principles of

natural justice and judicially enumerated principles of law,

and (iii) is in flagrant breach of national and international

best practices in relation to refund of fees to students opting

to withdraw from educational institutions.

17.That Respondent No. 2 is a statutory body corporate charged

with the responsibility of regulating and promoting higher

education, research and development in Pakistan. Section 10

of the HEC Ordinance, which enumerates the powers and

authorities of Respondent No. 2, states, inter alia, that for the

evaluation, improvement and promotion of higher education,

research and development, the Respondent No. 2 may (i)

formulate policies, guiding principles and priorities for

higher education institutions for promotion of socio-economic

development of the country, (ii) prescribe conditions under

which higher education institutions may be opened and

operated, (iii) guide higher education institutions in

designing curricula that provides a proper content of basic

sciences, social sciences, humanities, engineering and

technology in the curricula of each level and guide and

establish minimum standards for good governance and

management of higher education institutions and advise the

chancellor of any institution on its statutes and regulations,

and (iv) perform such other functions consistent with the

provisions of the HEC Ordinance as may be prescribed or as

may be incidental or consequential to the discharging of its

functions. Thus, Respondent No. 2 has the mandate and the

obligation to ensure that the best interests of students are

upheld and educational policies of higher education

institutions are not in derogation of the fundamental rights of

the citizens of Pakistan, principles of natural justice and

national and international best practices. It is noteworthy

that the Respondent No.2 is empowered by section 21 of the

HEC Ordinance to make rules for carrying out the purposes

of the Ordinance, however, no rules have been promulgated

to regulate the admission procedures and in particular the

refund policies of degree awarding institutes or universities.

18.That further, Respondent No. 3, being the Ministry

responsible for regulating and fostering education in

Pakistan, is under an obligation to safeguard the general

welfare of students obtaining education at the educational

institutions of Pakistan and to ensure that the rules,

regulations and policies of higher education institutions do

not contravene, but rather uphold the fundamental rights of

the citizens of Pakistan, principles of natural justice,

judicially enumerated principles and globally accepted

standards of education.

19.Respondent No.3 has enunciated its vision in the following

terms at paragraph 52 of the National Education Policy, 2009

(“National Education Policy”):

“Our education system must provide quality education to our children and youth to enable them to realize their individual

potential and contribute to development of society and nation, creating a sense of Pakistani nationhood, the concepts of tolerance, social justice, democracy, their regional and local culture and history based on the basic ideology enunciated in the Constitution of the Islamic Republic of Pakistan”

Respondent No.3 has also emphasized the importance of

merit oriented, equitable and reasonable dispensation of

higher education in the following terms at paragraph 133 of

the National Education Policy:

“Good quality, merit-oriented, equitable and efficient higher education is the most crucial instrument for translating the dream of a knowledge-based economy into reality. The tertiary sector contributes as well in the attainment of social goals of developing civic responsibility, social cohesion and a more tolerant society.” [Emphasis added]

Further, Respondent No.3 has stressed upon the requirement

of harmonization and uniformity amongst educational

institutes and adherence to certain minimum standards

which are universally conformed to in the following terms at

paragraph 16 and 20 respectively of the National Education

Policy:

“The imperative of uniformity in Pakistan’s educational system flows from the Constitution of Pakistan, which entrusts the State with the responsibility of organizing an equitable and effective education system, with an aim to enhance the overall well being of Pakistanis. The national educational systems in different countries have evolved with the State in such a way that they appear to flow from each other. That is the reason modern States have one educational system,

customarily called the ‘national educational system’. No other system in a State, except the national educational system, shares the ideals, objectives, and purposes of a State. The institution of Education in fact, acts as the repository of the trust that the citizens have in the State, mediating the achievements of the past with the aspirations of the future for all citizens of any given State. It is this correlation between the State and the Educational System, which bestows a singularity to the national educational system, making it a unified and unifying entity. To promote and protect this uniformity, national educational systems strive to establish a uniformity in structures and modes of education throughout the country.” [Emphasis added]

“The unity of objectives of our educational efforts – whether in the public or private sector – is spelt through the overarching principles of access, quality, affordability and relevance. The way the Pakistani educational system has developed over time, we can notice a certain dispersion of the objective of the unity manifesting itself in the form of parallel educational systems and their equivalence, and the issues of medium of instruction, and representation of minorities, etc. The Policy is guided by the principle of creating a minimum level of universal conformity in order to protect the uniformity of the Pakistan’s educational system as a tool of social progress and of all round development in an increasingly globalised and competitive world.” [Emphasis added]

(A copy of the relevant provisions of National Education Policy, 2009 with its title page is attached herewith as Annexure “L”)

20.That in a controversy arising from identical facts, the

President of Pakistan has recently upheld a finding of the

federal ombudsman and directed the National University of

Science and Technology (“NUST”) to refund admission fee to

a student as he had opted to join another educational

institution. The student had received admission calls from the

Army Medical College and the Aga Khan University, and he

opted to go to the latter. NUST, as the degree awarding

institution of the Army Medical College, turned down the

request of the student for refund on the grounds that it was

not permitted under its rules. The student thereafter filed a

petition with the Federal Ombudsman, who after hearing the

matter directed NUST to refund full amount of the admission

fee to the student. In his finding, the Federal Ombudsman

stated that the student was entitled to a refund in view of the

fact that NUST did not suffer any financial loss as it admitted

the next candidate on merit after the complainant opted to

join the Agha Khan University. As NUST was not going to

impart any education on the student, it could not legitimately

retain funds for a service it was not going to provide. It was

held in the findings that NUST’s refund policy was

“oppressive” and amounted to “maladministration.”

[Emphasis added]

(Newspaper report of the President’s order as it appeared in the Dawn on June 01, 2010 is appended herewith as Annexure “M”)

21.That if the Refund Policy is not declared as being repugnant

to the provisions of the Constitution of the Islamic Republic

of Pakistan, 1973 (“Constitution”), principles of natural

justice and judicially settled principles and Respondents No.

1, 2 and 3 are not directed to ensure alignment of the

injudicious Refund Policy with national and international best

practices in the interest of justice and fairness and

restricting the practice of sending out early offer letters with

short dates to accept the same, the Petitioner and countless

other students will continue to endure severe monetary,

psychological and emotional damage and the reign of social

injustice will thrive uninhibited.

Grounds:

A. The Refund Policy and the practice of sending out early

offer letters with short deadlines to accept the same is

tainted with mala fide, is exceedingly cumbersome upon

the Petitioner and thousands upon thousands of other

similarly placed students seeking higher education and is

patently against the dictates of natural justice and the

review thereof is therefore also a matter of utmost public

interest.

B. The Refund Policy is illegal and ultra vires of the law as it

promotes illegal appropriation of funds by a public

functionary for services not rendered thereby. It is

pertinent to mention that educational fees are not a tax ,

which is a compulsory exaction of money by a public

authority for public purposes enforceable by law. Such

educational charges are in the nature of a fee as the

consideration for the services rendered, which

interpretation necessitates that there should be an

element of quid pro quo, and in the absence of provision

of educational services to the Petitioner, retention of the

Fee amounts to an illegal and arbitrary exaction of the

Petitioner’s money. [Emphasis added]

C. The Refund Policy is illegal and ultra vires of the law and

liable to be struck down for it is a manifestation of

arbitrary exercise of authority by Respondent No. 1. The

exercise of authority by a public functionary is subject to

all the laws of Pakistan, including the statutory provisions

and rules, mandatory requirements of natural justice and

judicially enumerated principles of law, that regulate the

exercise of executive authority and discretion in Pakistan.

It is settled law that executive authority vested in public

authorities is a sacred trust, and such authority is to be

exercised as trustees in the public interest and in

accordance with provisions of law. No entity has the

power to exercise executive authority or discretion in a

manner that is unfair, arbitrary, whimsical or capricious.

D. The practice of sending out early offer letters with short

dates to accept the same so as to impede a student’s

ability to make an informed decision regarding which

educational institute to join and thereby manipulating the

students to join such institutes and cajoling them into

paying hefty amounts of money stated to be non-

refundable under the garb of admission fee and/or tuition

fee is ultra vires of the law and liable to be struck down

for it is a manifestation of arbitrary exercise of authority

by Respondent No. 1. The exercise of authority by a

public functionary is subject to all the laws of Pakistan,

including the statutory provisions and rules, mandatory

requirements of natural justice and judicially enumerated

principles of law, that regulate the exercise of executive

authority and discretion in Pakistan. It is settled law that

executive authority vested in public authorities is a trust,

and such authority is to be exercised in the public interest

in accordance with provisions of law. No entity has the

power to exercise executive authority or discretion in a

manner that is unfair, arbitrary, whimsical or capricious

E. That Respondents No.2 has failed to discharge its

statutory duties in the manner required as its

malfeasance and nonfeasance has had an adverse effect

upon the improvement and promotion of higher education

in Pakistan as universities and degree awarding institutes

operating under its purview are openly employing unfair,

unreasonable and discriminatory practices like the

Refund Policy and the practice of sending out early offer

letters with short deadlines for acceptance and thereby

causing immeasurable damage to the interests of students

seeking higher education in Pakistan.

F. That the Refund Policy and the practice of sending out

early offer letters with short deadlines to accept the same

are an irregularity and unjustified as they are inconsistent

with the spirit and the objectives spelt out in the National

Education Policy, 2009 as promulgated by Respondent

No.3.

G. That the Refund Policy and the practice of sending out

early offer letters with short deadlines to accept the same

are illegal as they result in usurpation of the valuable

rights of the Petitioner and numerous other similarly

placed students.

H. The Refund Policy is illegal and ultra vires of the law and

liable to be struck down for it prejudices the rights of the

Petitioner and all other similarly placed students, and

flies in the face of the legitimate expectation of the

Petitioner to receive a refund of the Fee.

I. The Refund Policy is illegal and ultra vires of the law and

liable to be struck down for it prejudices the rights of the

Petitioner and all other similarly placed students, by

fostering illegal exaction of funds from students in grave

disregard of the principles of natural justice.

J. The Refund Policy is illegal and ultra vires of the law and

liable to be struck down for it contravenes Section 24-A of

the General Clauses Act, 1897 that requires public

functionaries to act justly, fairly, equitably, without any

element of discrimination and within the parameters of

law.

K. That the practice of sending out early offer letters with a

short deadline to accept the same is illegal and ultra vires

of the law and liable to be struck down for it contravenes

Section 24-A of the General Clauses Act, 1897 that

requires public functionaries to act justly, fairly and in

accordance with the law.

L. The Refund Policy is illegal and ultra vires of the

Constitution and liable to be struck down for being in

flagrant breach of Articles 4, 9, 24, 25, 37 and 38 of the

Constitution and trampling upon the fundamental rights

of the Petitioner and other similarly placed persons.

M. That the practice of sending out early offer letters with a

short deadline to accept the same is illegal and ultra vires

of the Constitution and liable to be struck down for being

in flagrant breach of Articles 4, 9, 24, 25, 37 and 38 of the

Constitution and trampling upon the fundamental rights

of the Petitioner and other similarly placed persons.

N. That even where the law confers a power on a

government functionary to impose a fee without providing

any guidelines for the imposition thereof, such power

ought to be exercised within reasonable limits; and any

excesses on the part of the government functionary in this

regard are liable to be struck down.

O. That it is a judicially recognized principle that unfettered

discretion has no meaning in public law and any such

arbitrary exercise of power is liable to be struck down in

the constitutional jurisdiction of this hon’ble Court.

P. That when legislative bodies delegate discretionary

power without meaningful standards, administrators are

required to develop standards at the earliest feasible

time, and then as circumstances permit, should further

confine their own discretion through principles and

rules. Movement from vague statements to definite

standards to broad principles to rules may be

accomplished by policy statements in any form by

adjudicatory opinion, or by exercise of rule-making

power. The superior Courts of Pakistan have supported

the employment of ‘structured discretion’ in this regard;

which entails regularizing it, organizing it, producing

order in it, so that decisions will achieve a higher

quality of justice. Seven instruments that are most

useful in the structuring of discretionary power are

open plans, open policy statements, open rules, open

findings, open reason, open precedents and fair informal

procedure. The Respondents have failed to take any

steps to structure the discretion bestowed upon them.

Q. That the acts of the Respondents No.1 are highly

oppressive and amount to grave maladministration, and

therefore, in addition to directing that the Fee be

refunded to the instant Petitioner, there is a dire need for

improvement and standardization of the overall scheme of

refund of admission fee and issuance of offer letters, and

in this regard it is imperative, in the interest of public and

advancement of fairness in society, that the Respondents

No.2 & 3 be directed to immediately take measures in

pursuance of their public duties to ensure that all

universities and degree awarding institutes of Pakistan,

under their purview, including Respondent No. 1, align

their refund policies with principles of natural justice and

national and international best practices by adopting the

Pro-Rata Refund Policy and further align their admission

dates and deadlines to accept offer letters so as to not

cause unreasonable hardship to students.

R. The Petitioner humbly seeks leave from this hon’ble Court

to urge additional grounds or pleas at the time of hearing

of this Petition and to supplement, add, delete or amend

the instant petition, submissions made herein or the

aforementioned grounds.

S. That in the circumstances the Petitioner has no

alternative efficacious remedy but to invoke the

Constitutional jurisdiction of this hon’ble Court for grant

relief as prayed.

PRAYER:

In view of aforesaid it is most humbly prayed that this Hon’ble

Court may graciously:

a.Direct Respondent No. 1 to immediately refund the Fee to

the Petitioner;

b.Declare the Refund Policy of Respondent No.1 null and

void for being repugnant to the Constitution, principles of

natural justice and global educational norms;

c. Direct Respondents No. 2 and 3 to immediately take

measures in pursuance of their public duties to ensure that

all universities and degree awarding institutes of Pakistan

under their purview, including Respondent No. 1, align

their refund policies with principles of natural justice and

national and international best practices by adopting the

Pro-Rata Refund Policy;

d.Direct Respondents No.2 and 3 to immediately take

measures in pursuance of their public duties to ensure that

all universities and degree awarding institutes of Pakistan

under their purview, including Respondent No.1, align

their admission dates and deadlines to accept offer letters

so as to not cause unreasonable hardship to students;

e.Grant the aforementioned relief in the terms that this

hon’ble Court in its absolute discretion deems just and

appropriate in the circumstances;

f. Grant any other relief that may be deemed just and

equitable in the circumstances; and

g.Grant costs of the case to the Petitioner.

PETITIONER

through

Bilal Mirza Barrister Omer Farooq Advocate, High Court Advocate, High Court CC No. 3374 CC No. 3385


Ph. 2299083

List of Books:

1. Constitution of the Islamic Republic of Pakistan, 1973;2. COMSATS Institute of Information Technology, 2000;3. Higher Education Commission Ordinance, 2002;4. The General Clauses Act, 1897; 5. National Education Policy, 2009; and6. Undergraduate Prospectus of Respondent No. 1 for the

academic years 2010-2011

CERTIFICATEThis is the first Writ Petition filed by the Petitioner in this Hon’ble Court on the foregoing subject-matter and that the Petitioner has not filed any Writ Petition on the subject matter previously and there is no other efficacious and adequate remedy available to the Petitioner in the circumstances and therefore this Writ Petition is being filed. It is further certified that no other petition on the subject is pending or decided by the August Supreme Court of Pakistan.

COUNSEL

BEFORE THE HON’BLE LAHORE HIGH COURT, RAWALPINDI BENCH, RAWALPINDI

Writ Petition No.

of 2011


….Petitioner

versus

1. COMSATS Institute of Information Technology, Park Road, Chak Shahzad, Islamabad, through its Vice Chancellor

2.Higher Education Commission, Sector H-9/4, Islamabad, through its Chairperson


……

Respondents

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF

PAKISTAN, 1973

AFFIDAVIT OF USMAN SYED, SON OF AHMAD NADEEM SYED, RESIDENT OF HOUSE NO. 81, STREET NO. 5, E-11/2, ISLAMABAD, BEARING CNIC NO. 61101-9509331-1

I, the above named Deponent, do hereby solemnly affirm and

declare that the contents of the accompanying writ petition are

correct to the best of my knowledge and nothing has been

concealed therein.

DEPONENT

Verification:

Verified on oath this _____ day of ______ 2011 that the contents of

the above affidavit are true and correct to the best of my

knowledge and belief and nothing has been concealed therein.

DEPONENT

BEFORE THE HON’BLE LAHORE ISLAMABAD HIGH COURT

C.M. No. __________/2011

in

Writ Petition No.

of 2011


….Petitioner

versus

1. COMSATS Institute of Information Technology, Park Road, Chak Shahzad, Islamabad, through its Vice Chancellor

2.Higher Education Commission, Sector H-9/4, Islamabad, through its Chairperson


……

Respondents


PAKISTAN, 1973

APPLICATION UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 FOR DISPENSATION TO FILE CERTIFIED COPIES Respectfully Sheweth:

1) That the captioned petition is fixed before this hon’ble Court.

2) That certified copies of some of the Annexures to the main

petition could not be obtained due to paucity of time and/or

non-availability at the moment nevertheless photocopies

thereof are being annexed with the captioned petition.

3) That Petitioner undertakes to provide certified copies of the

same as and when available.

PRAYER

In view of the above, it is humbly prayed that the production

of certified copies of the aforementioned Annexures may

kindly be dispensed with in the best interest of justice and the

captioned petition may kindly be proceeded with the on the

present record.

Any other relief deemed just and equitable in the

circumstances may also kindly be granted.

PETITIONER

through

Bilal Mirza Barrister Omer Farooq Advocate, High Court Advocate, High Court


Ph. 2299083


C.M. No. __________/2010

in

Writ Petition No.

of 2010


….Petitioner

versus

COMSATS Institute of Information Technology, Park Road, Chak Shahzad, Islamabad, through its Vice Chancellor & 2 Others

……

Respondents


PAKISTAN, 1973

APPLICATION UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 FOR DISPENSATION TO FILE CERTIFIED COPIES

AFFIDAVIT

AFFIDAVIT OF USMAN SYED, SON OF AHMAD NADEEM SYED, RESIDENT OF HOUSE NO. 81, STREET NO. 5, E-11/2, ISLAMABAD, BEARING CNIC NO. 61101-9509331-1

I, the above named Deponent, do hereby solemnly affirm and declare that the contents of the accompanying application are correct to the best of my knowledge and nothing has been concealed therein.

DEPONENT

Verification:

Verified on oath this _____ day of _______ 2010 that the contents of the above affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed herein.

DEPONENT

POWER OF ATTORNEY (VAKALATNAMA)

I, Muhammad Usman Syed s/o Mr. Ahmad Nadeem Syed, r/o House No. 81, Street No. 5, E-11/2, Medical Society, Islamabad, Empower: Bilal Mirza & Barrister Omer Farooq, Advocates of the High Court of Farooq Khan & Mirza, Advocates and Corporate Counsel, 274-A, Street 6, F-10/3, Islamabad

in Writ Petition No. _________ of 2011 titled:-

Muhammad Usman Syed

versusCOMSATS Institute of Information

Technology & 2 Others

before the Hon’ble Islamabad High Court

to perform all legal acts falling within the scope of authority of a general attorney-in-fact, including the right to appoint substitutes.

This power of attorney includes in particular the following rights: 1) To act, appear, defend and plead in the above-mentioned cause in this Court/Tribunal or any other Court/Tribunal in which the same be tried or heard in the fist instance or in appeal or review or revision or execution or in any other stage of its progress until its final decision; 2) To present pleadings, cross objections or petitions for execution, reviews, revisions, withdrawals, compromise or petitions or affidavits or other documents as shall be deemed necessary or advisable for the prosecution of the said cause in all its stages; 3) To withdraw or compromise the said cause or submit to arbitration any difference or dispute that shall arise touching or in any manner relating to the said cause; 4) To receive money and grant receipts thereof and to do all other acts and things which may be necessary to be done for the progress and the course of the prosecution of the said cause; 5) To execute judgments and settlements, to receive and deliver securities, payments or any other matter in dispute.

AND I hereby agree to ratify whatever the Advocate or his substitutes shall do in the premises.

AND I hereby agree not to hold the Advocate or his substitutes responsible for the result of the said cause in consequence of their absence from the Court when the said cause is called up for hearing.

AND I hereby agree that in the event of the whole or any part of the fee agreed by me to be paid to the Advocate remaining unpaid, he shall be entitled to withdraw from the prosecution of the said cause until the same is paid.

The attorney-in-fact is authorized to destroy the files without previous inquiry at the end of one year following the termination of this matter.

IN WITNESS WHEREOF I hereunto set my hand to these presents the contents of which have been explained to and understood by me this the ________ day of ______________, 2011.

Accepted by the Advocates:

Farooq, Khan & Mirza, Advocates & Corporate Counsel

PRINCIPAL

writ petition 415/2011 - muhammad usman syed v. comsats & 2 others

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