Full Judgment Text & Judicial Ruling

2025 P L C (C.S.) 241 [Sindh High Court (Sukkur Bench)] Before Adnan-ul-Karim Memon and Mohammad Abdur Rahman, JJ Syed MUHAMMAD MUNEER SHAH and another Versus SHAH ABDUL LATIF UNIVERSITY KHAIRPUR MIRS through Vice-Chancellor and 26 others Constitution Petition No.D-1569 of 2023, decided on 2nd May, 2024. Constitution of Pakistan--- ----Arts. 199(1)(b)(ii), 199(1)(a)(ii) & 199(5)---Writ of quo warranto---Scope---Out of cadre appointments---Distribution of administrative posts amongst the teaching cadre on Additional/Acting/OPS---Legality---Types of writs---Distinguished---Petitioners challenged the appointments of the private respondents belonging to the teaching cadre of the university for having no qualification to hold the administrative/cadre posts for being appointed in violation of the Recruitment Rules of the subject posts and due to arbitrariness of the respondent-university in posting them---Validity---Shah Abdul Latif University, Khairpur, is a public sector statutory university established under the Shah Abdul Latif University Act, 1986 and performing functions in connection with the affairs of the Province under Art. 199 (1) (a) (ii) read with Art. 199(5) of the Constitution, thus, the constitutional petition was maintainable---For issuance of the writ of quo warranto any person can lay information to the court regarding a public office being illegally occupied---Person laying such information does not necessarily have to be aggrieved---There is much difference between the writ of quo warranto and mandamus---Mandamus also differs from writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed, for the performance of public duty and commands the person to whom it is addressed to perform some public or quasi-public legal duty, which he has refused to perform, and the performance of which cannot be enforced by any other adequate legal remedy and in that situation party should be an aggrieved party having no other adequate and efficacious remedy---Article 199(1)(b)(ii) of the Constitution shows that a person performing duties in connection with affairs of the Province could be required to show under what authority he is holding a particular public office and for that purpose, the petitioner therein may not be required to be an aggrieved person----In the present case direction sought by the petitioners was not merely confined to the issuance of writ of quo warranto rather the same included the issuance of directions like the writ of mandamus and prohibition against the private respondents requiring them to show their fitness to hold the administrative post without fulfilling the criteria as outlined in the recruitment rules---Administrative posts could only be filled as per recruitment rules and subject to eligibility and entitlement and not otherwise for the simple reason that the administrative cadre is different from the teaching cadre of respondent-university and recruitment rules for the subject post were already in the field---Private respondents were required to go back to their original position and work in their own cadre as the practice of transfer and posting out of the cadre based on purported Additional/Acting/OPS charges was not permissible under the University Act or Higher Education Commission---Constitutional petition was allowed, in circumstances. Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752; Ali Azhar Baloch and others v. Province of Sindh and others 2015 SCMR 456; C.P. No.D-4434, C.P. No.D-5842 of 2020; C.P. No.D-1459 of 2022; Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534; Muhammad Bachal Memon and others v. Syed Tanveer Hussain Shah and others 2014 SCMR 1539; 2017 SCMR 2051; Ajmal Hassan Khan and another v. Government of Sindh and others 2012 PLC (C.S.) 1153; Muhammad Yaseen v. Federation of Pakistan, PLD 2012 SC 132; Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159; Tariq Azizuddin: in re, 2010 SCMR 1301, Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195; Syed Mubashir Raza Jafri and others v. Employees Old-age Benefits Institution (EOBI) 2014 SCMR 949; The Province of Sindh through Chief Secretary and others v. Ghulam Shabbir and others 2023 SCMR 686; Province of Sindh and others v. Ghulam Fareed and others 2014 SCMR 1189 and Khan Muhammad v. Chief Secretary, Government of Balochistan Quetta and others 2018 SCMR 1411 rel. Ghulam Shabbir Shar for Petitioners. Nisar Ahmed Bhambhro for Respondents Nos.1 and 6 to 11 and 13 to 27. Asfandyar Kharal, Assistant A.G. Sindh. Date of hearing: 2nd May, 2024. JUDGMENT ADNAN-UL-KARIM MEMON, J.---Petitioners claim to be the employees of Shah Abdul Latif University, Khairpur Mir's (SALU) have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. 2. The brief facts for the disposal of instant Constitutional Petition are that petitioners being office bearers as well as Officers of SALU Khairpur Mirs have raised their voice of concern that the key posts of the Administrative side in the SALU are being distributed amongst the Teaching Cadre Professors/teachers on additional charges, OPS, and are not being filled through competitive process i.e. Selection Board and the syndicate in violation of the orders passed by Supreme Court of Pakistan in the cases of Contempt Proceedings against Chief Secretary, Sindh, and others 2013 SCMR 1752 and Ali Azhar Baloch and others v. Province of Sindh and others 2015 SCMR 456. They further stated that such act of Additional charge(s), looking after the charge(e) in the Universities and Boards Department Government of Sindh has already been set at naught by this Court in C.P. No.D-4434, C.P. No.D-5842 of 2020 and C.P. No.D-1459 of 2022, but despite clear directions of this Court the respondent-university is not bothered to comply the direction. They being aggrieved by and dissatisfied with the aforesaid actions of the respondents Nos.1, 2, and 4 have filed this petition with the following prayer(s): a) To direct the Respondents to call the selection board for appointment of regular Registrar without failing. b) To direct the Respondents Nos.1 and 2 to implement upon the order dated 02.3.2023 passed by this Honorable Court in C.P. No.D-1459/2022, and Judgment of Honorable Supreme Court of Pakistan, passed in C.P. No.89/2011, and remove the Respondents Nos.6 to 27 forthwith from Additional Charges and (OPS). c) To direct the Respondents Nos.1 to 5 to implement upon the order of this Honorable Court vide 02.3.2023 passed in C.P. No.D-1459/2022, and make appointments on regular posts through 3rd Party in order to save the prestige and reputation and to bring reforms in education and provide better qualifications to the students of Shah Abdul Latif University Khairpur. d) To direct the Respondents to submit the record of those who has been awarded PhD degrees without the fulfilling the requirements of Ph.D qualification during last 10 years in Shah Abdul Latif University Khairpur. e) To grant interim injunction thereby restraining the Respondents Nos.6 to 27 from further holding additional charges in violation of the order dated 02.3.2023 passed by this Honorable Court in C.P. No.D-1459/2022, and Judgment of Honorable Supreme Court of Pakistan, passed in C.P. No.89/2011, until and unless permanent recruitments against those regular posts have not been made by the Respondents Nos.1 to 5, and till final disposal of the main Petition. f) That Honorable court may be pleased to declare additional charges, OPS, assigned work charge administrative charges experience of faculty may not be counted for the post of VC and PVC, only academic or administrative may be counted not both simultaneously. 3. Respondents Nos.1 and 2 have been served vide orders dated 7.11.2023 and 20.2.2024 and they have filed the para-wise comments, raising the question of maintainability of the captioned petition on various grounds, however, they have chosen to remain absent though intimation notice was given to the learned counsel representing the respondent-university, he is not bothered to appear and assist this Court, therefore in such a situation, this court vide order dated 23.4.2024 asked the learned counsel representing the private respondents to intimate the counsel for the respondent-university to appear, he just informed that he intimated for his appearance but today he is called absent thus the learned AAG is directed to assist on the subject issue. 4. Mr. Ghulam Shabbir Shar learned counsel for the petitioners has submitted that SALU has appointed respondent No.6 as Acting Registrar out of cadre, without the approval of the syndicate/selection Board; he added that the Registrar is an administrative position and head of the University's administration, he is responsible to frame academic policies being a secretary of the university's governing bodies and head of subsections of the administration as such this position cannot be left at the wish and will of Vice-chancellor of SALU, which needs to be filled on regular basis within the cadre. Learned counsel for the Petitioners, contended that the respondent university has failed and neglected to fill the administrative posts through the competitive process, however, the respondent- University in deviation of law started posting the teaching cadre officers on administrative posts of their own choice on Own Pay and Scale (OPS) and additional charges, which is apathy on the part of Vice Chancellor of SALU. He asserted that their abortive attempt to induct the teaching cadre officers on administrative posts through defective process was/is unconstitutional, illegal, without jurisdiction, mala fide, void abinitio, and of no legal effect. However the same is required to be made through the competitive process. He emphasized that all the appointments made by the respondent-university on administrative cadre posts as disclosed in the chart on page N.105 of the memo of petition, in the intervening period are required to be scrapped. He lastly prayed for allowing the instant petition as prayed. 5. Mr. Nisar Ahmed Bhanbhro, advocate for respondents Nos.1 and 6 to 9, 11, and 27 has raised the question of maintainability of the instant petition and argued that the subject petition is liable to be dismissed as there was transparency in the posting of the private respondents on the aforesaid posts purely on merit without any favoritism or otherwise, therefore no fundamental rights of the petitioners have been infringed. He has emphasized that there is one essential condition for invoking the jurisdiction of this Court under Article 199 of the Constitution, the condition is that the subject matter of the petition under this Article must relate to the enforcement of any of the Fundamental Rights conferred by Part II, Chapter 1 of the Constitution, and the burden of proof was/is upon the petitioner to demonstrate as to which of his fundamental rights had been infringed upon but he failed and neglected to point out an infraction of any of his fundamental rights. He asserted that under Article 199(1)(b)(ii) of the Constitution the petitioner(s) has to show that the private respondents are holding office in violation of the Constitution or the law and thereafter same can be asked from the private respondents that under what authority of law they are holding the public office. Learned counsel averred that private respondents have been posted by the competent authority of SALU, keeping in view their experience on the administrative/teaching side, and they have been posted within the parameters of law set out in the SALU code as the Vice-Chancellor has powers to post any of the teacher cadre to administrative cadre posting exigency of his / her service as such there is no illegality in posting them on any cadre post of university. Per learned counsel since there is no officer available for promotion and posting from amongst the officers of the administrative cadre, therefore, officers belonging to the teaching cadre could be posted on administrative posts, thus no illegality has been committed by the respondent department while posting the private respondents. He prayed for dismissal of the instant petition. 6. At the outset, Mr. Asfandyar Kharal, learned AAG has also opposed this Petition on the ground that a policy decision has been taken by the respondent university which cannot be interfered with by this Court; learned AAG has submitted that while deciding the writ of quo warranto, the conduct and the motive of the petitioner(s) could be seen to the extent that this practice of instituting proceedings by way of Quo Warranto with oblique considerations or motives of self-gain, has been deprecated by the Supreme Court. He further submitted that petition filed by an interested person(s) is not maintainable. He asserted that a writ of quo warranto only lies against a person who is holding some post for which he/she is otherwise not eligible or disqualified, whereas the private respondents belonging to Teaching Cadre if any are fully entitled to hold the subject posts due to exigency of service. He added that executive policy making is not the domain of this Court in the scheme of the Constitution and, is the prerogative of the executive to ascertain based on its need, requirement, available resources, and fiscal space, which posts it wishes to keep and which it wishes to abolish and which Civil/public Servant is to be transferred and posted in a particular place in exigency of service. He further averred that the petitioners have failed to substantiate the violation of any of their Fundamental Rights conferred by Chapter 1 Part II of the Constitution. He added that in the instant case, neither violation of any of the Fundamental Rights has been listed in the petition nor established during arguments. He further submitted that for a person to activate the jurisdiction of this Court as a public interest litigant, for the enforcement of the Fundamental Rights, he must show on the given facts that he/she is acting bona fide. He next submitted that the constitutional jurisdiction of this court is always discretionary and he/she who seeks equity must come with clean hands. At this stage, we reminded him that relief is not to be denied to the litigants on technical considerations. He admitted this legal proposition however averred that the service of the private respondents was requisitioned by the respondent-university and keeping in view the exigency of service they were posted, which is legal he prayed for dismissal of the petition. 7. We have heard learned counsel for the parties present in court at length and have also examined the material/comments of respondents Nos. 1 and 2, available on record. 8. The objection regarding the jurisdiction of this Court as raised is misconceived and is hereby discarded, for the reason that as per the profile of the Shah Abdul Latif University Khairpur, Mir's, which reveals that it is a Public Sector statutory university established under the Shah Abdul Latif University Act, 1986; and, performing functions in connection with the affairs of the Province under Article 199 (1)(a)(ii) read with Article 199(5) of the Constitution, therefore the instant petition is maintainable to be heard and decided on merits. Besides, the petitioners have mainly challenged the appointment of the private respondents regarding their qualification to hold the administrative/cadre posts having been belonging to the teaching cadre of the university, in violation of the Recruitment Rules of the subject posts, and arbitrariness of the respondent university in posting them as under:-

Sr. No.

Name

Original department

Grade

Actual position

1.

Dr. Minhoon Khan Leghari

Institute of Business Administration

21

Professor

2.

Dr. Noor Ahmed Shaikh

Institute of Computer

21

Professor

3.

Dr. Iram Rani Shaikh

Institute of Business Administration

21

Professor

4.

Dr. Naveed Hussain Shaikh

Institute of Business Administration

21

Professor

5.

Dr. Samina Rajper.

Institute of Computer Science.

21

Professor

6.

Dr. Agha Nadia Pathan

Professor Department of Sociology

21

Professor

7.

Dr. Muhammad Saleh Memon

Institute of Business Administration

21

Professor

8.

Dr. Taj Muhammad Lashari.

Institute of International Relations.

21

Professor

9.

Dr. Mushtaque Jakhrani

Institute of Chemistry

21

Professor

10

Dr. Khalida Parveen Mahar

Institute of Chemistry

21

Professor

11

Dr. Masiullah Jatoi.

Institute of Business Administration

21

Professor

12

Dr. Liaqat Ali Chandio

Institute of International Relations.

21

Professor

13

Dr. Hisamudin Shaikh

Department of Mathematics department.

21

Professor

14

Dr. Tasleem Abro

Department of Archaelogy

21

Professor

15

Dr. Rahim Bux Soomro

Institute of Business Administration

21

Professor

16

Ali Nawaz Soomro

Department of Political Science

19

Assistant Professor

17

Dr. Anwar Phulpoto

Institute of Microbiology

19

Assistant Professor

18

Ghulam Ali Keerio

Department of Teachers Education

19

Assistant Professor

19

Sikandar Ali Janwri

Computer Technical Post

17

Senior data processing officer

20

Muhammad Hassan Halepoto

Administration

20

Inspector Colleges

21

Gulzar Ahmed Khemtiyo

Computer Technical post

17

Senior data processing officer

22

Zuhaib Memon

Administration

16

Office Assistant

23

Dr. Ameer Ahmed Mirbahar

Department of Botany

20

Associate Professor

24

Dr. Riaz Ahmed Shaikh

Institute of Computer Science

21

Professor

Presently Additional charge/OPS/Acting charge/assigned

Grade

Remarks

Registrar (BPS-20)

BPS-20

Holding two Additional charges

Director, Planning and Development and Incharge IT Centre

BPS-20 BPS-18

Holding two Additional charges OPS

Director, (QEC)

Addl. Charges

Additional charges

Director, PGS

Addl. Charges

Additional charges

Director (ORIC) BPS-20

BPS-20

Additional charges

Director, Gender Studies

-

Additional Charges of other Department

Focal person/ Incharge Dean, Faculty of Education

Addl. Charge instead of Dean

Additional Charges of another faculty Dean

Dean, Faculty of Social Science and Director Media and Public Relations.

-

02 Additional charges

Director, Institute of Chemical and Chairman Colony and Allotment Committee

-

02 Additional Charges

Provost Girls Hostel

-

Additional charges

Director, students affairs (BPS-19)

19

Additional charges (OPS)

Provost Hostels boys.

-

Additional charges

Chairman Beutification

21

02 Additional Charges

Director, Archaelogy and anthropology Museum and Chairperson, Archaelogy

-

Additional Charges

Director, Business Centre

-

Additional Charge

Deputy Director, GPS

-

Additional Charges

Student Advisor

18

Additional Charges OPS

i. Inchrage Special Education, ii. Incharge Institute of Education, Main campus

-

02 Additional charges OPS

Assistant Registrar teach

17

Charge allowed to work

Director, admissions (BPS-19)

19

Charge OPS

Assistant Controller Examinations

17

Additional Charges allowed other charges

Additional Charge OPS, Secretary to VC

17

Additional Charge OPS

Additional Charge OPS, Director, Date Palm

21

Additional Charge, OPS

Deputy Director, QEC.

-

Additional Charge

9. Secondly, so far as fitness to hold the subject Posts is concerned, the same can be filled on merits within the cadre the officer fit in all respects can be appointed; and in such circumstances, for issuance of the Writ of Quo Warranto, it is established law that any person can lay information to the court regarding a public office being illegally occupied. The person laying such information shall not necessarily be aggrieved. However, at the same time, we are cognizant of the fact that there is much difference between the Writ of Quo Warranto and Mandamus. Mandamus also differs from writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed, for the performance of public duty and commands the person to whom it is addressed to perform some public or quasi-public legal duty, which he has refused to perform, and the performance of which cannot be enforced by any other adequate legal remedy. In such a situation party should be an aggrieved party having no other adequate and efficacious remedy. On the aforesaid proposition, we are guided by the decision of the Supreme Court in the case of Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534. 10. Having dilated upon the maintainability of the Petition, and to appreciate whether such a direction sought by the petitioners could be issued while exercising powers of Writ of Quo Warranto or mandamus/prohibition, it would be important to refer to Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The perusal of Article 199(b)(ii) of the Constitution shows that a person performing duties in connection with affairs of the Province could be required to show under what authority he is holding a particular public office and for that purpose, the petitioner therein may not be required to be an aggrieved person, however, in the instant matter the directions sought by the petitioners were not merely confined to the afore-referred aspect of the matter rather the same include the issuance of directions like the Writ of Mandamus and prohibition against the private respondents requiring them to show their fitness to hold the administrative post in BS- 18 to 21 in SALU without fulfilling the criteria as outlined in the recruitment rules. 11. Dilating on the subject issue, primarily, the term "Cadre" this term has been defined in rule 9(4) of Fundamental Rules, 1922. The said Rule defines "cadre" to mean "the strength of the service or a part of the service sanctioned as a separate unit. The terms "department" and "cadre" are not defined in the code and the term "cadre" given in the Fundamental Rules is not inconsistent with any of the provisions of the law of the SALU. The same, therefore, will apply to the service laws of the public sector universities of the province. What is of significance is that the cadre to which a civil/public servant belongs and the terms and conditions of his/her service or even the matter of transfer, posting, seniority, and promotion within his/her cadre can only be made by or under laws which are traced to and sourced in Article 240 of the Constitution. On the aforesaid proposition, reliance is placed on the cases of Muhammad Bachal Memon and others v. Syed Tanveer Hussain Shah and others 2014 SCMR 1539, 2017 SCMR 2051, Contempt proceedings against the Chief Secretary Sindh and others 2013 SCMR 1752, Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456), and Ajmal Hassan Khan and another v. Government of Sindh and others 2012 PLC (C.S.) 1153.

12. We are of the considered view that the administrative posts could only be filled as per Recruitment Rules and subject to eligibility and entitlement, and not otherwise for the simple reason that the administrative cadre is different from the teaching cadre of respondent-university; and, Recruitment Rules for the subject post are already in the field. Besides that, the post of Registrar of respondent university is a cadre post and the administrative cadre officers of respondent university are eligible to be posted under the university Code and this was the reason this Court vide order dated 2.3.2023 passed in C.P. No. D-1459 of 2023 directed as follows:- "With regard to appointment of teaching associates, it has come on record that around go teaching associates were appointed without advertisement and getting 15000 salaries per month, they are providing lectures to the students of different categories as substitutes of Lecturer, Associate Professors and Professors as a stop-gap arrangement. Admittedly, this practice is not permissible under the University Act or Higher Education Commission even syndicate is competent to approve this practice, hence learned Vice-Chancellor, Shah Abdul Latif University, Khairpur, shall ensure that all vacant posts are fulfilled through advertisement in a transparent manner. In Initial, screening test shall be outsourced by any Independent 3rd party testing agency having reputation and gradually reduce the number of teaching associates from the University. This exercise shall be completed within three months" 13. Unfortunately, the aforesaid decision was ignored by the respondent university and continued to perpetuate the illegalities and favored the private respondents to hold the administrative posts, though the private respondents were well aware of the fact that they were/are not fit to hold the administrative posts as they belong to different cadres and both cadres are different in their hierarchy. It is now well settled that the appointment in the Public Sector…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Sindh High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant