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Official Citation: 2012 PLJ 379
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2011
Decision Date: 2011-12-31
Parties: Rana AAMER RAZA ASHFAQ and another vs Dr. MINHAJ AHMAD KHAN and JUDGMENT
This judicial decision was delivered by the Supreme Court of Pakistan on 2011-12-31. The matter involves proceedings between Rana AAMER RAZA ASHFAQ and another and Dr. MINHAJ AHMAD KHAN and JUDGMENT, officially reported as 2012 PLJ 379. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLJ 2012 SC 379
Court Name: Supreme Court of Pakistan Judge(s): Asif Saeed Khan Khosa, M. A. Shahid Siddiqui, Tasaddaq Hussain Jillani Title:Rana AAMER RAZA ASHFAQ and another vs Dr. MINHAJ AHMAD KHAN and
JUDGMENT
Reported As: PLJ 2012 SC 379, 2012 SCMR 6 Result: Order accordingly Judgment JUDGMENT TASSADUQ HUSSAIN JILLANI, J.---"Good or bad fortune of a nation depends on three factors; its Constitution, the way the Constitution is made to work and the respect it inspires ." The Constitution of a country is a sacrosanct document which establishes various institutions, apparatus of the government, defines the relationship between the individuals and the State, between the Federation and its Federating Units/Provinces and various organizations of the State. The A judiciary is under oath to preserve and defend the Constitution under the rule of law. It does so by its power of judicial feview and in the case in hand, we have been called upon to exercise it in the following set of circumstances. {{FOOT NOTE}} George Bidault, a French intellectual and former Prime Minister. 2. Petitioner and respondent No,1 Dr. Minhaj Ahmad Khan applied for three posts of Assistant Professors in Computer Sciences in Bahauddin Zakariya University (hereinafter referred to as "the University") pursuant to advertisement made by it on 11-3-2010 through newspapers and its website. They were among the nine candidates shortlisted and called for the interview on 4-8-2010. Respondent No,1 appeared before the Selection Committee but was neither interviewed nor considered. However, the petitioners were selected after the interview. He challenged this selection through a Constitution petition. In the written statement filed by the respondent-University before the High Court, the fact that respondent was the only Ph.D among the nine shortlisted candidates and more experienced was not disputed but the reason given for not considering him for the posts was that he went to France on ex-Pakistan leave for post doctoral studies though with NOC but without the permission of the competent authority therefore, the Syndicate in its meeting dated 17-2-2010 had directed an enquiry against him under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006
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(PEEDA Act 2006) which was still pending. The Constitution petition was allowed by the Lahore High Court vide the impugned judgment dated 11-5-2011 on the ground that the pendency of an enquiry was no ground not to consider him. The recommendations of the Selection Board dated 8-8-2010 were declared illegal by the High Court and the respondent was directed to convene a meeting of the Selection Board and conduct interviews of the petitioner along with the shortlisted candidates afresh. 3. Seeking leave to appeal against the impugned judgment, learned counsel for the petitioners submitted that the High Court had no jurisdiction to interfere in the selection process as the employees of the University are not governed by statutory rules; that even otherwise relief could have been granted to respondent No,1 without interfering with the selection of the petitioners as there was still one post vacant; that petitioners had assumed the charge after having been selected and worked for eleven months and that their appointment has been set aside for reasons not sustainable in law. He further submitted that on account of the non-appointment of the Vice Chancellor of the University, the meeting of the Selection Board has not been convened for a de novo exercise for selection in, terms of the impugned judgment and not only the petitioners are suffering but the University is partially dysfunctional on account of this inactiq,n on the part of the Provincial Government. 4. The University has not challenged the impugned judgment. On 19-8-2011 during the course of hearing of this petition and on Court query, the Deputy Registrar of the University apprised the Court that meeting of the Selection Board to initiate the process of interviewing the shortlisted candidates afresh in terms of the impugned judgment has not been held because no Vice Chancellor has been appointed as yet; that the appointment is being delayed as the Chancellor of the University/ Governor Punjab has not passed any order in this regard despite the advice having been tendered by the Chief Minister Punjab in terms of section 11(8) of the Bahauddin Zakariya University Act, 1975 [hereinafter referred to as 'the Act']. 5. Notice was issued to the learned Attorney-General for Pakistan to address this Court, inter alia, on the following issues arising out of the petition:-- (i) Whether the Chancellor of the University/Governor of Punjab is bound by the advice tendered by the Chief Minister on reconsideration in view of section 11(8) of the Act read with proviso to Article 105 of the Constitution and the law declared by this Court [in the case of Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) and Sindh High Court Bar Association and another v. Federation of Pakistan and others (PLD 2009 SC 879)] and in Intra Court Appeals Nos. 243 and 245 of 2010, decided by the Lahore High Court Lahore, in which the Chancellor was a party ? (Emphasis is supplied). (ii) Whether the delay in appointment of the Vice Chancellor and the Pro Vice-Chancellor in the University has the effect of making the Institution dysfunctional to achieve its objectives under the law? (iii) Considering the Right to Education to be a Fundamental Right, whether the same is being violated on account of delay in appointment of the institutional head of the said University? (iv) Whether the delay in appointment of the Institutional Head has the effect of impinging on the Fundamental Rights enshrined in Articles 9, 14, 18 of the Constitution? 6. The learned Attorney-General for Pakistan submitted as follows:-- (i) that the Governor of Punjab while acting in his capacity as Chancellor under the Act as opposed to his Constitutional capacity as Governor is not bound by the advice of the Chief Minister. According to him the Governor is bound to act on the advice of the Chief Minister under Article 105 of the Constitution only if he is acting as Governor and not when he is seized of a matter as Chancellor of the University; (ii) that if Article 105 of the Constitution was made applicable to acts done and orders passed by the Governor under a Statute acting in a different capacity, it would deprive him of any discretionary and independent decision making power under the Act and make the relevant Statute redundant qua his role; (iii) that a distinction has to be made in the functions of the Governor when he acts under the Constitution in terms of its Article 105 and in cases when he acts under the Statute in different capacities i,e, Chancellor; (iv) that the powers of the President under Article 48(1) and (2) are comparable with that of the Governor in a Province in terms of latter's powers under Article 105(1). This Court in Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84 at 93 to 95) has dilated upon matters/Articles of the Constitution where the President is bound
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by the advice and where he can act in his discretion. This distinction has to be kept in view in the case of Governor as well; (v) that the advice of the Prime Minister is binding on President in some cases under the Constitution, whereas when the latter is acting under a Statute, he has discretionary powers to act. The afore-referred judgment does not lay down that President/ Governor while performing functions in different capacities under a Statute, will be bound by the mandate of Article 48(1) and Article 105 of the Constitution respectively; (vi) that section 11(8) of the Act inserted through an amendment has incorporated Article 105 of the Constitution into the Act and this inserted provision applies to the functions of the Chancellor in respect of those matters set out in section 11 only and not those set out in section 14 of the said Act; (vii) that while interpreting section 11(8) of the Act, this Court has to keep in view the decision taken by the Chancellors' Committee in its meeting held on 1 lth of May, 2006 under the chairmanship of President of Pakistan, para-7 of which unequivocally vests the power for appointment of Vice Chancellor in the Chancellor. The said para reads as follows:- "7. Vice Chancellors of all Provincial Public Universities should be appointed after advertisement through a search Committee process. The search Committee will be required to put up a panel of 3 names for approval of the Chancellor from whom the Vice Chancellor may be selected." (viii) that in the present case the above mentioned decision was followed. An advertisement was placed and the Search Committee recommended three names from which the Governor in his capacity as Chancellor, not Governor, selected one in his discretion and gave credible reasons for his selection. This is fully in line with the scheme envisaged by the Act under section 14 and the law on the exercise of discretion; (ix) that in any event section 11(8) is wholly out of place in the Act and is contrary to the scheme of the Act. It is entirely inappropriate to incorporate a Constitutional provision into an ordinary piece of legislation which is relatable to the functions of the Governor under the Constitution rather than a Statute: Its incorporation can therefore be regarded as redundant visa-visa the working of the Act; and (x) that it is notable that when the Chief Minister ignored the summary by not recommending the first of the three in order of merit on the Search Committee's list and interviewed only two of the three candidates, he gave no reasons as to why he preferred candidate No, 2 over candidate Nos. 1 or 3. On the other hand, the Chancellor/Governor interviewed all the three candidates selected by the Search Committee. After careful examination of their comparative merit, he considered Dr. Muhammad Zafar Ullah as the best of the lot which is not open to exception. 7. Learned Advocate-General Punjab, on the other hand, submitted as follows:-- (i) that refusal of Governor of Punjab to appoint Professor Dr. Syed Khawaja Alqama and instead appointing Prof. Dr. Muhammad Zafar Ullah is not tenable in law: first because in terms of section 11(8) of the Act read with Article 105 of the Constitution, the Chancellor can only refer the matter back to the Chief Minister once for re- consideration, but when the said advice is re-tendered by the Chief Minister, the Governor has no option but to act in accordance therewith within ten days (ii) that neither the Constitution nor the law permits him to sit in judgment over the advice of the Chief Minister and the law does not empower him to override the said advice; (iii) that the provisions of section 11(8) of the Act are based on the principle embodied in Article 105 of the Constitution and cannot be termed to be violative of Articles 9, 14, 18 and 25 as contended in the written statement filed by the Attorney-General; (iv) that the decision of the Second Chancellors' Committee meeting dated 11-5-2006 cannot in any manner override a statutory provision contained in section 11(8) of the Act; (v) that the argument that Governor in his capacity as Chancellor is not performing the Constitutional functions and therefore is not bound by the advice completely ignores that Article 105 of the Constitution was inserted in the Act by legislative reference to which no exception can be taken and the advice of the Chief Minister with reference to section 11(8) of the Act is binding in the same manner on the Chancellor as the advice of the Chief Minister on the Governor because Article 105 of the Constitution is in pair material to section 11(8) of the Act;
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(vi) that the Chief Minister was not bound to interview Dr. Muhammad Zafar Ullah though he was amongst the three recommended by the Search Committee for the slot of Vice Chancellor because first Dr. Muhammad Zafar Ullah was placed at No,3 in the list of candidates recommended by the Search Committee and, as such, it was the prerogative of the Chief Minister whether to call him for interview or not; and, second there was sufficient information available with the Chief Minister that the conduct of Dr. Muhammad Zafarullah had not been above board, and that he had been undergoing a number of inquiries during his previous tenure as the Vice-Chancellor of the University; and (vii) that the Vice-Chancellor is the academic head of the University and enjoys a pivotal position in various domains of the functioning of the University under the Statute. The delay in the appointment of Vice-Chancellor is adversely affecting the functioning of the University and may have a negative effect on the fundamental right of Right to Education of the students. According to him, the Vice-Chancellor of the University is head of the Senate which passes the annual statement of accounts and revised budgets; that he appoints members of the Syndicate; he convenes meeting of the Syndicate being its Chairman; he is head of the Academic Council; he in his capacity as Head of Board of Studies has to coordinate publication, research work, assigning subject to each faculty and convenes the meeting of the Selection Board which fills various posts in the University. 8. We have considered the submissions made and have gone through the precedent case-law to which reference has been made above. 9. The issues mentioned in Para-5 above have nexus and are being dilated upon together. 10. The role and functions of the Chancellor under the Act have been delineated in various provisions of the Act. In terms of its section 11(1), the Governor Punjab is the ex officio Chancellor of the University; under section 11(2), he or his nominee presides over the Convocation of the University and the meeting of Senate; he has the power to issue show cause to an Authority functioning under the Act for annulling any proceedings which are volatile of the Act, the Statute, the Regulations or the Rules framed under the Act [section 11(3)]; he confirms conferral of an honorary degree on any one [section 11(4)]; he issues assent to Statutes which are to be submitted to him by the Senate [section 11(5)]; and he has the power to remove any one from membership of any Authority under the Act for reasons given in subsection (6) of section 11. Subsection (8) of section11 mandates that "in performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of the Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan." (Emphasis is supplied). He has the revisional powers (section 11-A), powers of visitation and inspection (section 12), power to appoint Vice-Chancellor on such terms and conditions as he may determine, and he has the power to appoint Pro Vice-Chancellor (section 15). 11. Subsection (8) of section 11 of the Act referred to above was inserted along with certain other amendments by the Multan University (Amendment) Act, 1975 (Punjab Act No, XIX of 1975, section 2). The declared object and reasons for this amendment were as follows:- "it is also imperative that in order to preserve the academic atmosphere of the Universities, there should be effective machinery to regulate the conduct and behaviour of all people engaged in the instruction of the youth of the country." 12. A perusal of the Statutes relating to some other Universities in Punjab indicate that similar amendments were brought about in following Universities:-- S.No.Description Amendment Reasons and Objects 1. The University of the Punjab (Second Amendment) Bill,1975
In section 11 after sub- section (7), subsection (8) was added. (8) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is hound under Article 105 of theIt is necessary that principles of good Government as enunciated in the Constitution should be made applicable as widely as possible.It is,
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Constitution of the Islamic Republic of Pakistan (Emphasis is supplied)therefore,necessary to amend the law on the subject. 2. The University of Agriculture Lyallpur (Second Amendment) Bill, 1975In section 11 after sub- section (7), subsection (8) was added. (8) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is hound under Article 105 of the Constitution of the Islamic Republic of Pakistan (Emphasis is supplied)It is necessary that principles of good Government as enunciated in the Constitution should be made applicable as widely as possible.It is, therefore,necessary to amend the law on the subject. 3. The Islamia University of Bhawalpur Amendment) Bill, 1975In section 11 after sub- section (7), subsection (8) was added. (8) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is hound under Article 105 of the Constitution of the Islamic Republic of Pakistan (Emphasis is supplied)It is necessary that principles of good Government as enunciated in the Constitution should be made applicable as widely as possible.It is, therefore,necessary to amend the law on the subject. 4. The Government College University Lahore. (Amendment) Bill, 2003In section 9 after sub- section (6), subsection (7) was added. (7) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is hound under Article 105 of the Constitution of the Islamic Republic of Pakistan (Emphasis is supplied)As the Chief Minister the executive head of the Province, the Governor in his capacity as ChanceIlor of the University shall a on his advice. The Minister for Education, Punjab should act as Pro- Chancellor of the University and in order i create academic freedom for the University and help it function smooth representation of the Members of the Provincial Assembly the Syndicate should be made. Therefore, the
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Government of Punjab has decided to amend the Government College University Lahore Ordinance, 2002 (XLVIII of 2002). 5. The University of Education, Lahore (Amendment) Bill, 2003In section 10, after sub- section (6), subsection (7) was added. (7) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is hound under Article 105 of the Constitution of the Islamic Republic of Pakistan (Emphasis is supplied)As the Chief Minister the executive head of the Province, the Governor in his capacity as ChanceIlor of the University shall a on his advice. The Minister for Education, Punjab should act as Pro- Chancellor of the University and in order i create academic freedom for the University and help it function smooth representation of the Members of the Provincial Assembly the Syndicate should be made. Therefore, the Government of Punjab has decided to amend the University of Education Lahore Ordinance, 2002 (L of 2002). 6. The University of Sargodha (Amendment) Bill, 2003In section 10, after sub- section (6), subsection (7) was added. (7) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is hound under Article 105 of the Constitution of the Islamic Republic of Pakistan (Emphasis is supplied)As the Chief Minister the executive head of the Province, the Governor in his capacity as ChanceIlor of the University shall a on his advice. The Minister for Education, Punjab should act as Pro- Chancellor of the
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University and in order i create academic freedom for the University and help it function smooth representation of the Members of the Provincial Assembly the Syndicate should be made. Therefore, the Government of Punjab has decided to amend the University of Sargodha Ordinance, 2002 (LXXX of 2002). 7. The University of Engineering & Technology , Taxila (Amendment) Bill, 2003In section 9, after sub- section (5), subsection (6) was added. (6) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is hound under Article 105 of the Constitution of the Islamic Republic of Pakistan (Emphasis is supplied)As the Chief Minister the executive head of the Province, the Governor in his capacity as ChanceIlor of the University shall a on his advice. Government of Punjab has Therefore, decided to amend the University of Engineering and Technology,Taxila Act, 1994 (XII of 1994). 8. The Fatima Jinnah Women University, Rawalpindi (Amendment) Bill,2003In section 8, after sub- section (6), subsection (7) was added. (7) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is hound under Article 105 of the Constitution of the Islamic Republic of Pakistan (Emphasis is supplied)As the Chief Minister the executive head of the Province, the Governor in his capacity as ChanceIlor of the University shall a on his advice. Government of Punjab has therefore, decided to amend the Fatima Jinnah Women University,Rawalpindi Ordinance, 1999 (XLIII of 1999). 13. There is no cavil to the proposition as canvassed by the learned Attorney-General for Pakistan, Moulvi Anwarul Haq that there are matters/Articles where the President or the Governor, subject to Constitution, may
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act in their discretion. But those matters are not an issue before this Court and the attempt to extend the discretionary domain to the issue in hand has not been found by us to be backed by law. Here we are seized of giving effect to a Stats which incorporates a Constitutional provision by reference. In construing such a piece of Legislation, the Court has to examine and keep in mind three things: (i) the Statement of Reasons and Objects given therein; (ii) the statement of objects given in other laws in pari materia to the one under consideration; and (iii) the mandate of the Constitutional provision which stands adopted by way of reference. 14. A bare perusal of the statement of objects of the similar amending provisions in various Universities of Punjab, a detail of which has been given in the table above, reflects that the legislative intent was that "the principles of good government as enunciated in the Constitution should be made applicable" (The University of the Punjab Second Amendment Bill, 1975) or "as the Chief Minister is the executive head of the Province, the Governor in his capacity as Chancellor of the University 'shall act on his advice" [The Government College University, Lahore (Amendment) Bill 2G03]. These amendments insert in the Statutes an important principle of Parliamentary Democracy enshrined in Article 105 of the Constitution which inter alia mandates that (at the Provincial level) "subject to Constitution, in the performance of his functions, Governor shall act [on and] in accordance with the advice of the Cabinet [or the Chief Minister]." 15. The Constitutional intent and mandate of Article 48 and Article 105 are one of the foundational values of our Constitutional scheme. The Constitution of Islamic Republic of Pakistan underpins a system of Federal Parliamentary Democracy. The Governor of a Province under the Constitution enjoys an exalted position-he is a nominee of the President and a symbol of Federation in the Province, whereas the Chief C Minister is the Chief Executive of the Province and is elected by the Provincial Assembly. Except otherwise so provided under the Constitution, the President and Governor are bound by the advice tendered by the Prime Minister and the Chief Minister respectively and in the manner as provided in the afore-referred provisions of the Constitution. The Governor while acting as Chancellor is a statutory functionary. By specific mention of Article 105 of the Constitution in section 11(8) of the Act and in laying down that, "in the performance of his functions under the Act, the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of Islamic Republic of Pakistan", the Legislature has blended the same value of supremacy of the Parliament/Provincial Assembly which underlie the adopted Constitutional provision. 16. The insertion of subsection (8) in section 11 of the Act and similar provisions in Statutes of other Universities are instances of referential legislation which is a common device to incorporate earlier statutory provisions by reference rather than setting out similar provisions in totality. Such a legislation is as old as the Latin…
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