BEFORE THE HONBLE ISLAMABAD HIGH COURT

Writ Petition No. 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

of

Institute of Information Technology, Park Road, Chak Shahzad, Islamabad, through its Vice Chancellor H-9, Islamabad, through its Chairperson

2. Higher Education Commission, Sector

3. Federation of Pakistan, through the

Secretary, Islamabad

Ministry

of

Education,

Respondents

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973 INDEX Sr. No 1. 2. 3. 4. 5. 6. 7. Description of document Writ Petition with Affidavit Respondent No.1s Provisional Offer Letter dated July 07, 2010 Pay Order dated July 07, 2010 FAST Universitys Offer of provisional admission dated July 19, 2010 Petitioners Fathers email dated July 29, 2010 Additional Registrars email dated July 31, 2009 Page 164 of Respondent No.1s Appendix Pages

A B C D E F

Prospectus 8. Legal Notice dated August 04, 2010 9. Notification issued by PMDC pursuant to its 116th meeting 10 Letter dated October 11, 2010 issued by FMH College of Medicine . and Dentistry, Shadman Lahore 11 Refund policy of FAST University . 12 Refund policy of New York University - USA . 13 Refund policy of Middlesex University Dubai . 14 Refund policy of Bond University Australia . 15 Refund policy of University of Michigan USA . 16 Refund policy of Bristol University UK . 17 Refund policy of William Patterson University USA . 18 Refund policy of University of Southampton UK . 19 Refund policy of Kent State University USA . 20 Refund policy of Butler University USA . 21 Refund policy of Lincoln University USA . 22 Refund policy of Quinnipiac University USA . 23 Refund policy of San Jose State University USA . 24 Refund policy of San Francisco State University USA . 25 Refund policy of Monmouth University USA . 26 Refund policy of University of Leeds UK . 27 Relevant provisions of the National Education Policy, 2009 with its title . page

G H I J K1 K2 K3 K4 K5 K6 K7 K8 K9 K10 K11 K12 K13 K14 K15 L

28 Newspaper report of the Presidents order as it appeared in the Dawn on . June 01, 2010 29 C.M. for Dispensation with Affidavit . 30 Vakalatnama .

PETITIONER through Bilal Barrister Omer Farooq Advocate, Advocate, High Court CC No. 3374 3385 Farooq, Khan & Mirza, Advocates and Corporate Counsel 274-A, Street 6, F-10/3, Islamabad Ph. 2299083 Dated: ___________ High Mirza Court CC No.

BEFORE THE HONBLE 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 H-9, Islamabad, through its Chairperson

2. Higher Education Commission, Sector

3. Federation of Pakistan, through the

Secretary, Islamabad

Ministry

of

Education,

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 Information Ordinance). pursuant Technology to the COMSATS 2000 Institute of Ordinance, (COMSATS

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 first preference of the

Respondent No.1 was not 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 Universitys 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 (Petitioners 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 Petitioners 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 Petitioners seat to the next student in the queue without incurring any financial loss.
(A copy of the Petitioners Fathers email dated July 29, 2010 is attached herewith as Annexure D)

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

Petitioners

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 Registrars understanding of the Refund Policy of Respondent No. 1 appears to be fallacious and misconceived. [Emphasis added]
(Copies of the Additional Registrars 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

Petitioners 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 Petitioners 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 Petitioners 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 Universitys 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 nonprovision 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 Pakistans 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 Pakistans 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 and that NUSTs to refund policy was oppressive amounted maladministration.

[Emphasis added]
(Newspaper report of the Presidents 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 interpretation for the services that rendered, should which be an necessitates there

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 Petitioners 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 students 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 nonrefundable 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 honble 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 honble 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 honble Court for grant relief as prayed. PRAYER: In view of aforesaid it is most humbly prayed that this Honble 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

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

Mirza Court

Farooq, Khan & Mirza, Advocates and Corporate Counsel 274-A, Street 6, F-10/3, Islamabad Ph. 2299083

List of Books:

1.
2. 3.

Constitution of the Islamic Republic of Pakistan, 1973; COMSATS Institute of Information Technology, 2000; Higher Education Commission Ordinance, 2002; The General Clauses Act, 1897; National Education Policy, 2009; and Undergraduate Prospectus of Respondent No. 1 for the academic years 2010-2011

4.
5.

6.

CERTIFICATE This is the first Writ Petition filed by the Petitioner in this Honble 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 HONBLE LAHORE HIGH COURT, RAWALPINDI BENCH, RAWALPINDI

Writ Petition No. 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 COMSATS Institute of Information Technology, Park Road, Chak Shahzad, Islamabad, through its Vice Chancellor
1. 2. Higher Education Commission, Sector

of

H-9/4, Islamabad, through its Chairperson

3. Federation of Pakistan, through the

Secretary, Islamabad

Ministry

of

Education,

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 HONBLE LAHORE ISLAMABAD HIGH COURT

C.M. No. __________/2011 in Writ Petition No. 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 COMSATS Institute of Information Technology, Park Road, Chak Shahzad, Islamabad, through its Vice Chancellor
1. 2. Higher Education Commission, Sector

of

H-9/4, Islamabad, through its Chairperson

3. Federation of Pakistan, through the

Secretary, Islamabad

Ministry

of

Education,

Respondents

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF 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 honble 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 Barrister Omer Farooq Advocate, Advocate, High Court High

Mirza Court

Farooq, Khan & Mirza, Advocates and Corporate Counsel 274-A, Street 6, F-10/3, Islamabad Ph. 2299083

BEFORE THE HONBLE ISLAMABAD HIGH COURT

C.M. No. __________/2010 in Writ Petition No. 2010 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 COMSATS Institute of Information Technology, Park Road, Chak Shahzad, Islamabad, through its Vice Chancellor & 2 Others Respondents WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF 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. of

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, 274A, Street 6, F-10/3, Islamabad

in Writ Petition No. _________ of 2011 titled:-

Muhammad Usman Syed COMSATS Institute of Information Technology & 2 Others

before the Honble 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.

versus

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