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Official Citation: 2024 LHC 2817
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-06-07
Parties: Dr. Rehana Kausar vs Province of Punjab, etc.
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-06-07, officially reported as 2024 LHC 2817. In this matter between Dr. Rehana Kausar and Province of Punjab, etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC2817
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: Dr. Rehana Kausar vs Province of Punjab, etc. Case No.: W.P. No.57365/2023 Date of Judgment:2024-06-07 Reported As: 2024 LHC 2817, PLJ 2025 Lahore 132 Result: Petition Accepted
JUDGMENT
JUDGMENT Shujaat Ali Khan, J: - Through this single judgment, I intend to decide W.P. No.57365/2023 ("this petition") as well as Crl. Org. No.27444-W/2024 ("contempt petition") having commonality of law and facts. 2. Unnecessary details apart, the facts, as spelt out in this petition, are that pursuant to an advertisement got published by the Lahore College for Women University, Lahore (hereinafter to be referred as "the University") for recruitment against two posts of Professor of Urdu (BS-21), the petitioner, along with one Dr. Rubab Azmat, applied against the said post. The Selection Board in its 55th meeting, held on 21.03.2018, interviewed said two applicants but did not find any of them fit for appointment. As a result, the Selection Board recommended to re-advertise the subject post. In the light of decision of the Selection Board, the University again advertised two posts of Professor of Urdu (BS-21), on 23.09.2018. According to the internal evaluation and remarks of the Director Research, the petitioner, along with Dr. Azmat Rubab, were declared eligible for the said post. Resultantly, their cases were put up before the Sub-Committee of the Selection Board. The Sub- Committee suggested that the previous external evaluation of both the candidates, which was conducted pursuant to advertisement, dated 15.12.2017, be used. Later on, the Selection Board in its 57th meeting, conducted on 28.05.2019, interviewed the applicants and recommended the petitioner for appointment against the post of Professor of Urdu (BS-21). The recommendations of the Selection Board finalized in its 57th meeting, were placed before the Syndicate in its 71st meeting held on 06.08.2019. Before any decision in the matter by the Syndicate, the Higher Education Department imposed ban against appointments in the Universities where either the
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remaining tenure of the Vice Chancellor was less than six months or the Vice Chancellor was assigned look after charge. In the wake of the ban imposed by the Higher Education Department, the Syndicate decided to refer back the matter to the Selection Board for review of its recommendations. Being aggrieved of the decision of the Selection Board, recommending the name of the petitioner against the post of Professor of Urdu and promotion of the petitioner as Associate Professor from a retrospective date and letter issued by the Higher Education Department asking the Vice Chancellor to rectify the draft minutes of the 75th meeting of the Syndicate, Dr. Azmat Rubab (co-applicant) filed three Writ Petitions (bearing Nos.39468/2019, 22916/2020 and 22947/2020) before this Court. The Selection Board in its 58th meeting held on 05.011.2019 reviewed the case for appointment against the post of Professor of Urdu and recommended re-advertisement of the posts. The recommendations of the Selection Board, finalized in its 58th meeting, were placed before the Syndicate in its 75th meeting held on 29.01.2020. Since consensus could not be arrived at between the members of the Syndicate on 29.01.2020, the matter regarding appointment of Professor of Urdu in the University was again taken up in 76th meeting of the Syndicate but no decision could be taken due to pendency of writ petitions filed by and Dr. Azmat Rubab. After decision of the aforesaid writ petitions filed by Dr. Azmat Rubab, the issue relating to appointment of Professor of Urdu was taken up by the Syndicate in its 81st meeting held on 30.06.2021 and, while approving the name of the petitioner, referred the matter to the Chancellor for ultimate decision on the ground that the recommendations of the Selection Board and those of Syndicate were at variance. The Chancellor, through order, dated 17.01.2023, while concurring with the recommendations of the Selection Board, finalized in its 58th meeting, ordered for re-advertisement of the post of Professor of Urdu (BS-21). Pursuant to order passed by the Chancellor, the Syndicate in its 88th meeting held on 16.06.2023 referred the case to the Selection Board for recommendations against the post of Professor of Urdu. The said decision of the Syndicate was circulated through Notification, dated 04.07.2023, however, the Syndicate in its 90th meeting held on 15.08.2023 decided to get reevaluation of the cases of the petitioner and Dr. Azmat Rubab (co-applicant) to adjudge their suitability for appointment as Professor of Urdu (BS- 21), which decision was circulated through Notification, dated 04.09.2023. The petitioner being aggrieved of the decision of the Chancellor as well as Notifications, dated 04.07.2023 and 04.09.2023, has filed this petition. 3. Insofar as factual background of the contempt petition is concerned, suffice it to note that in the said petition the petitioner has agitated non-compliance of order, dated 25.04.2024, passed by this court in miscellaneous application (C.M.No.1/2024) filed in the main writ petition. 4. The submissions made by the learned counsel for the petitioner at bar and those presented in written form can be summed up in the words that once the name of the petitioner was recommended by the Selection Board for appointment against the post of Professor of Urdu, her case could not be sent back by the Syndicate to the Selection Board for review as the said exercise is alien to the provisions of Lahore College for Women University, Lahore Ordinance, 2002 ("the Ordinance 2002") and the service Statutes made thereunder; that it is a case of clear cut discrimination inasmuch out of 111 persons, recommended by the Selection Board, 110 persons have already been appointed whereas the petitioner's name was left out for the reasons best known to the University Authorities; that mala fide conduct of the University authorities is evinced from the fact that they tried to deprive the petitioner of appointment against the subject post on the basis of a letter issued by the Higher Education Department on 28.06.2019 conveying ban on recruitment in the Universities where either remaining tenure of Vice Chancellor was less than six months or Acting Vice Chancellor was assigned role to look after the charge despite the fact that name of the petitioner was recommended by the Selection Board for appointment against the post in question much prior to the issuance of the said letter by the Higher Education Department; that though
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letter, dated 28.06.2019, was withdrawn by the Higher Education Department through its subsequent letter, dated 06.09.2019, but University Authorities did not bother to issue formal appointment letter in favour of the petitioner just out of mala fide and callousness; that recommendations of the Selection Board apart, since the petitioner has been working as Head of the Department of Urdu, her suitability for appointment against the post of Professor of Urdu could not be doubted and that the Selection Board considered the earlier evaluation of the petitioner in the light of the fact that the subsequent advertisement was issued within one year from the first advertisement thus the same was as good as fresh evaluation, hence adverse opinion cannot be formed against the petitioner on the said ground. To fortify his contentions, learned counsel has relied upon the cases of Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Syed Sadiq Shah and others (2021 SCMR 747), Muhammad Tariq Javed v. The Agricultural and Research Department through Secretary and 2 others (2018 PLC (CS) 1052), Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others (PLD 2015 SC 6), Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 836), Muhammad Rasheed v. Government of Punjab and others (2006 SCMR 1082) and Mst. Sumaira Akram v. Secretary Education, Gilgit Baltistan and 6 others (2017 PLC (CS) 1321). 5. While opposing the submissions made by the learned counsel for the petitioner, learned counsel appearing on behalf of the respondent-University contends that since certain facts have not been clarified by the petitioner, he has put the record straight while filing reply to the contempt petition; that since pursuant to the advertisement, dated 15.12.2017, no candidate was found suitable for appointment against the post of Professor of Urdu, fresh advertisement was got issued by the University, on 23.09.2018, thus, evaluation of the applicants pursuant to advertisement, dated 15.12.2017, became redundant, hence no recommendations could be based thereon, thus, the petitioner could not claim herself fit for appointment against the subject post on the basis of recommendations of the Selection Board, dated 28.05.2019, which were based on external evaluation undertaken pursuant to advertisement, dated 15.12.2017; that bona fide of the University Authorities is established from the fact that though the Selection Board ordered for re- advertisement of the post but the Syndicate only recommended for re-evaluation of the applicants, including the petitioner, to adjudge their suitability for appointment against the subject post; that though there are certain procedural lapses on the part of the University Authorities while dealing with the case relating to appointment against the post of Professor of Urdu but the same cannot be used to nullify the bona fide act of the Syndicate for re-evaluation of the petitioner along with other applicant; that bona fide conduct of the University Authorities is discernable from the fact that though Chancellor has also ordered for re-advertisement of the post of Professor of Urdu but they are all out to accommodate the petitioner and other applicant on account of their experience gained during their lengthy careers; that the minutes of meeting of the Syndicate, referred by the learned counsel for the petitioner, do not come to her rescue as her name was recommended by the Syndicate for the reasons enshrined therein and that since the petitioner did not challenge the recommendations of the Syndicate taken in its 76th meeting, no interference is called for by this Court. Relies on Federation of Pakistan through Secretary Establishment Division, Islamabad and another v. Misri Ladhani and others (2023 SCMR 915), Secretary Establishment Division, Government of Pakistan, Islamabad v. Aftab Ahmed Manika and others (2015 SCMR 1006), Syed Muhammad Arif and others v. University of Balochistan and others (PLD 2006 S.C. 564) and Dr. Habibur Rehman v. The West Pakistan Public Service Commis Sion, Lahore and 4 others (PLD 1975 SC 144). 6. Learned Law Officer, while supporting the learned counsel for the respondent-University, states that since valid reasons have been given in the order passed by the Chancellor, the same are immune from interference by this Court rather it is to be complied with in its letter and spirit; that
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this petition is not maintainable for the reason that earlier Dr. Azmat Rubab filed Writ Petition No.22619/2020 which was dismissed by this Court on the ground that the same was not maintainable on account of non-statutory nature of service rules governing the terms and conditions of employees of the University. 7. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that since name of the petitioner was recommended by the Syndicate in its 81st meeting, held on 30.06.2021, she was not supposed to challenge the recommendations of the Syndicate taken in its 76th meeting. Adds that this Court can look into any malfeasance on the part of the executive in relation to appointment against any post. 8. I have given anxious consideration to the arguments advanced by the learned counsel for the parties and have also gone through the documents appended with these petitions in addition to the case-law cited at the bar. 9. Firstly, taking up the objection raised by the learned Law Officer that since the rules/statutes governing the terms and conditions of the petitioner are non-statutory in nature this petition is not maintainable, I am of the view that if any issue relating to terms and conditions of her service has been challenged by the petitioner, the bar referred by the learned Law Officer, is very much attracted but when she has agitated her grievance relating to her appointment as Professor of Urdu as a result of fresh recruitment, the objection raised by the learned Law Officer holds little water. Reliance, in this regard can be placed on the case reported as Jawad Khan and others v. National Database and Registration Authority (NADRA) through Chairman at Islamabad and others (2022 PLC (C.S.) 94) wherein a learned Division Bench of Peshawar High Court, while responding to an objection relating to non-maintainability of constitutional petition in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 on account of non-statutory nature of the applicable service rules, has inter alia concluded as under:- "9. The other objection of respondents regarding the fact that the instant constitutional petitions have not been maintainable due to the reason that service rules of the petitioners have not yet been clothed with the attire of statutory rules. It is sufficient to say that grievances of the petitioners have been arising from unfair treatment meted to them at the time of their appointments. Their grievance has not arisen when the rules of NADRA authorities had become applicable to them. In other words, they have not been agitating any of the grievance of violation of un-statutory rules of NADRA............................................................. The above reproduced section clearly shows that NADRA has been performing governmental functions, directly under the authority of the Federal Government which is also evident from section 3 of the Ordinance and thus there has been no doubt that NADRA has been amenable to the constitutional jurisdiction of this Court. The question that writ petition of an employee in respect of violation of non-statutory rules of NADRA, is not maintainable is a different question altogether. If grievance of an employee arose out of any adverse order passed against him during his service, under the un-statutory rules, a writ petition before a High Court would no doubt be non-maintainable according to ratios of judgments in the case of "Chairman NADRA Islamabad through Chairman and another v. Muhammad Ali Shah and others" reported as 2017 SCMR 1979 as well as in the case of "Maj. (Retd.) Syed Muhammad Tanveer Abbas and another v. Federation of Pakistan through Secretary, Ministry of Interior and another" reported as 2019 SCMR 984, but as stated earlier grievances of the petitioners have not been arising out of violation of the un-statutory rules but their very appointments in NADRA........................................................................................ ............................................................................ Since grievances of the petitioners in the instant constitutional petitions have not been arising out of violation of any service rules of NADRA, but has been arising out of their first appointment in
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NADRA, facts of these cases would therefore be distinguishable from facts of cases of the private parties in the judgments reported as 2017 SCMR 1979 and 2019 SCMR 984." If the objection, under discussion, is considered in the light of afore-quoted judgment the same is not worth consideration and is thus spurned. 10. While pressing the objection against maintainability of this petition, learned Law Officer placed reliance on the order of this court whereby writ petition, filed by Dr. Azmat Rubab against the recommendations of the Selection Board in favour of the petitioner, was dismissed. Perhaps, the learned Law Officer has referred to said decision in oblivion of the fact that this Court can take care of any act of the executive in relation to recruitment against a particular post when the same is not covered under the relevant law or rules. If any case-law is required, reference is made to the decision of the Hon'ble Supreme Court reported as Rashid Ali Channa and others v. Muhammad Junaid Farooqui and others (2017 PLC (C.S) 1187). 11. Now taking up the plea raised by the learned counsel for the respondent-University that since nobody was recommended by the Selection Board pursuant to advertisement, dated 15.12.2017, the evaluation made by the external evaluators under the said advertisement became redundant, I am of the view that perhaps learned counsel for the respondent-University has raised said plea in oblivion of the Office Note (Annexure-E) which for convenience is imaged below:- From above, it is crystal clear that Vice Chancellor himself decided that previous evaluation of the candidates was sufficient for determination of their suitability against the post under fresh advertisement then as to how University Authorities can raise any objection against the reliance of the Selection Board on the previous evaluation of the petitioner and co-applicant which was conducted pursuant to advertisement, dated 15.12.2017. 12. It is important to mention over here that order of the Vice Chancellor that previous evaluation of the petitioner and other applicant was sufficient to determine their suitability for appointment against the said post, was endorsed by the Sub-Committee of Selection Board in its meeting held on 09.05.2019 by inter-alia recommending as under:- "The members of the Committee discussed the agenda regarding external evaluation for the post of Professor Urdu (BPS-21) advertised on 23 Sep, 2018. The Member of the committee unanimously agreed to use the previous evaluation for the post of Professor Urdu (BPS-21) advertised on 7th Dec, 2017 as there is less than 1 year time difference between both advertisements." From above quoted portion from the minutes of meeting of the Sub-Committee of the Selection Board, it is more than clear that Sub-Committee proceeded to rely upon the previous evaluation of the applicants on the ground that difference between two advertisements was less than a year. In this scenario, it does not lie in the mouth of the University Authorities to raise objection against the eligibility of the petitioner for appointment against the post of Professor of Urdu on the ground that her fresh evaluation was not got conducted pursuant to second advertisement. 13. Learned counsel for the respondent-University put much emphasis on the fact that since the recommendations of the Selection Board in favour of the petitioner suffered from serious procedural flaws, the same could not be used to appoint the petitioner against the subject post but has not been able to convince this Court that under which provision of the Ordinance, 2002 or the service Statutes of the University, the Syndicate was empowered to refer the matter back to the Selection Board for review of its earlier recommendations. Section 21 of the Ordinance, 2002 deals with the powers and duties of the Syndicate. According to clause (xvii) of sub-section 2 of Section 21 of the Ordinance, the Syndicate has to appoint University teachers and other officers on the recommendations of the Selection Board. Further according to Statute 7 of the Schedule relating to the First Statute, the Selection Board has to recommend the names of the persons against various posts. Moreover, as per service Statute 7(2), in the event of unresolved difference of opinion between the Selection Board and the Syndicate, the matter is to be referred to the Chancellor for
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final decision. In this backdrop, if the Syndicate was not in agreement with the recommendation of the Selection Board finalized in its 57th meeting, the proper course was to send the matter to the Chancellor for final decision but under no provision of the Ordinance 2002 or any service Statute the Syndicate could refer the matter to the Selection Board for review of its earlier recommendations. 14. It is well established by now that power of review can only be exercised by a forum or authority under relevant law or rules and when the applicable law/rules do not provide for remedy of review against any order, the same cannot be assumed by an authority or a forum suo-moto. Reliance in this regard is placed on the cases reported as Mian Ghulam Mustafa and another v. Chief Conservator of Forest Punjab and others (2004 PLC CS 1527) and Khalid Rashid Sheikh and others v. Judicial Officer, Punjab Cooperative Board for Liquidation and others (2018 CLC 1955). In the former judgment, the Hon'ble Supreme Court of Pakistan, while taking note of the exercise power of review by the Punjab Service Tribunal, in absence of any explicit provision in the relevant law, has inter-alia concluded as under:- "5.***** it is to be noted that power of review cannot be exercised by way of discretion unless conferred upon a forum by some law or statute. No such power is conferred upon the Service Tribunal. It was not the question of rectification simplicitor because order dated 14.11.2000 could not be rectified without reviewing the same and no such review could have been made by the Service Tribunal as no such provision is available in the relevant law " If the fate of the order passed by the Syndicate referring the matter back to the Selection Board for review of its recommendations, without backing of the relevant law and subsequent recommendations of Selection Board in its 58th meeting, are seen in the light of the afore-referred judgment of the Hon'ble Supreme Court, there leaves no ambiguity that when the Selection Board was not clothed with the power of review, the Syndicate could not send the matter to it for review of its earlier recommendations rather if the Syndicate did not endorse the recommendations of the Selection Board, the proper course was to refer the matter to the Chancellor for final decision but having not done so the University authorities violated the provisions of the Ordinance 2002 as well as service Statutes. 15. There is no cavil with the fact that the Syndicate of the University is at higher pedestal as compared to the Selection Board but it does not mean that the Selection Board is bound to act upon the orders of the Syndicate which are not supported by the relevant law. Insofar as the case in hand is concerned, it is admitted position that the Selection Board does not enjoy the power to review its own recommendations but the Selection Board instead of desisting against the order of the Syndicate asking for review of its recommendations, proceeded to recommend re- advertisement of the posts in its 58th meeting. It is classical example of misuse of authority by a body which did not enjoy the power to do an act. It is well settled by now that what cannot be achieved directly cannot be allowed to be attained indirectly. Reference in this regard can be made to the cases reported as Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 SC 979) wherein the proposition, under discussion, has been responded in the following manner:- "Apart from the above if the plea of the petitioners is accepted, it would amount to frustrating the age-old established principle that a person cannot get indirectly what he has failed to get directly. The petitioners started litigation in the year 1952 claiming title to the disputed property, The trial Court after scanning the entire evidence rejected their claim. Said determinations were maintained by the learned First Appellate Court the learned Single Judge of the Lahore High Court. The petitioners have failed in getting the above determinations set aside by all the Courts below and now simply by withdrawing their appeal before this Court or for that matter withdrawing the suit would not frustrate/wash away the well-reasoned determinations of all the Courts. The decree
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passed in this case by the Court below is binding on all the parties. The aggrieved party can only seek remedy against it by having a decree set aside on merits. A five lines order allowing withdrawal of the suit cannot be termed as a decision on merits or a judgment so as of nullify the judicial pronouncements of competent Courts. This Court while allowing withdrawal of suit had not at all dilated upon the determinations of the Courts below on merits. At the cost of repetition, it may be stated that the age-old principle is that what is not permitted to be done directly cannot be achieved through circumvention of law by indirect means. After losing the case right up to the level of the High Court the petitioners cannot be allowed to say that the effect of decided cases against…
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