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Petitioner: Dr. Aurangzeb Aalamgir & others VS Respondent: Province of Punjab & others
Court Name: Lahore High Court Judge(s): Shahid Karim Title: Dr. Aurangzeb Aalamgir & others vs Province of Punjab & others Case No.: W.P No.37411 of 2015 Date of Judgment:2016-12-01 Reported As: 2016 LHC 3361 Result: Petitions Allowed
Judgment Shahid Karim, J:- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (?the Constitution ?) seeks the following prayer: In view of the above submissions, it is most respectfully prayed that: a) That the Impugned Advertisement, the Criteria Notification and the Committee Notification, be declared discriminatory, illegal and unlawful, for being in violation of provisions of the Constitution, as well as established principles of our jurisprudence. b) That the Impugned Advertisement, the Criteria Notification and the Comm ittee Notification, be declared discriminatory , illegal and unlawful, having been issued without recourse to the process prescribed in section 14 of the Act. c) That the Criteria Notification and the Committee Notification be declared illegal for not having been specifically issued under section 14 of the Act, and instead having been issued in a generic manner, without recourse to the relevant provisions of law. d) That the Criteria Notification and the Committee Notification be declared to be against the letter and spirit of the law, for containing generic criteria and membership respectively, and thus not having been specifically tailored to the educational and administrative needs of any particular university. e) That the Criteria Notification and the Impugned Advertisement be declared unlawful and illegal being contradictory inter se, and thus against the established principles of transparency and natural justice. f) That the Criteria Notification be declared discriminatory , illegal and unlawful for having been issued through an arbitrary and whimsical exercise of execu tive authority , by Respondent No.2, without reference or consultation to the criteria laid down by Respondent No.4 & Respondent No.5. g) That issuance of Criteria Notification by Respondent No.2, be declared illegal and unlawful, being in grave abrogation of the statutory authority of respondent No.4 and respondent No.5.
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h) That the Impugned Advertisement, the Criteria Notification and the Committee Notification along with all executive actions being performed pursuant thereto, be suspended during the pendency of the instant writ petition, and the respondents be restrained from taking any actions prejudicial to the rights of the petitioner and the public at large; and i) That the respondents be directed to carry out the process for search, selection and appointment of the Vice Chancellor of the University of Punjab afresh in accordance with the mandate of Constitution, the Act, PHEC Act, the Ordinance as well as the rules and regulations made thereunder.? 2. The petition, it can be seen, makes polycentric prayers which will be dealt with during the course of this judgment which shall also decide conn ected petitions W.P No.37972 of 2015, W.P No.18610 of 2016, W.P No.18613 of 2016 and W.P No.32719 of 2016 . A common thread running through these petitions makes a challenge to the appointment of V ice Chancellors to the various public sector universities in Punjab. Introduction: 3. Since a common question of law permeates these petitions, it is not relevant to narrate the individual facts of each case. Suffice to say that the facts converge on the same challenge regarding the process of appointment being undertaken for the posts of Vice Chancellors to different public sector universities in Punjab. The petitioners submit that the appointment process suf fers from constitutional and legal infirmities and must be set at naught. 4. On 07.04.2015, a notification was issued by the Higher Education Department of the Government of the Punjab. By this notification, it was stated that the competent authority had been pleased to approve the qualifications, experience and other relevant requirements for the post of Vice Chancellor of public sector universities. The notification is reproduced as under:-- ?GOVERNMENT OF THE PUNJAB HIGHER EDUCATION DEPARTMENT NOTIFICATION 7 April, 2015 NO>SO(Univ .)5-3/09-P . The Competent Authority has been pleased to approve the following qualifications, experience and other relevant requirements for the post of V ice Chancellor of Public Sector Universities: Sr. No.CriteriaMaximum MarkScoring s 1. Ph.D 15Maximum Score 2. Ph. D from one of the top 500 Universities of the World (QS Ranking) will be given additional marks.05Maximum Score 3.Teaching & Research Experience (not less than 12 years) of teaching experience at an HEC recognized University with at least 15 Research Publications in HEC recognized Research Journals).20Maximum Score 4 Administrative Experience 20 Score Category Level ScoreLength of experience (Maximum 10 Marks) VC/Pro- VC/CEOO of local corporation10 2.5 marks for each year of experienceth
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Dean/Director General/Head of Govt./Semi Govt. /Private Organization09 2 marks for each year of experience Head of Department of a University / Director / Principal of a University/ College / Institute081.67 marks for each year of experience
Professor with experience of being Member on the two important Committees Of a University071.25 marks for each year of experience
5 Interview40
In case of overlapping Administrative experience, the highest score in any category will be counted towards determining merit of the candidate. (Note: Only full-time Teaching and Administrative experience will be considered. For the same period, both Teaching and Administrative experience cannot be counted). a) Qualification (15+5+20+20) =60 Candidate with 75% of the 60 marks will be short-listed b) Interview = 40 2. The aforesaid Criteria shall be applicable to the extent of the following Public Sector Universities: I. Fatima Jinnah Women University Rawalpindi. II. Lahore College for Women University, Lahore. III. Government College University, Lahore. IV. University of Education, Lahore. V. University of Sargodha VI. Bahauddin Zakariya University, Multan VII. University of the Punjab, Lahore VIII. The Ghazi University, Dera Ghazi Khan IX. Government Sadiq College Women University, Bahawalpur X. Muhammad Nawaz Sharif University of Engineering & T echnology , Multan XI. Khawaja Fareed University of Engineering & Information Technology, Rahim Yar Khan SECRETARY HIGHER EDUCATION DEPARTMENT? 5. It can be seen that the appointment process encompassed eleven public sector universities for which a common criteria was laid down. This was followed by an advertisement in the newspapers issued by the Government of the Punjab, Higher Education Department seeking the services of high class professionals for appointment as Vice Chancellors in different universities. The applications were invited from the candidates interested in the post of Vice Chancellor and the process was set into motion. While the process was underway , these petitions were brought in
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which challenge was laid to the process on different grounds which will be discussed and dilated upon in the latter part of this judgment. The advertisement was published in the =Daily Jang' and other national Dailies on 04.11.2015. In the meantime, on 03.03.2015, another notification had been issued by which a Search Committee was constituted for the purposes of making recommendations for appointment of Vice Chancellors to the public sector universities. The criteria set down by the notification dated 07.04.2015 as also the constitution of the Search Committee, have been called in question in these petitions on the ground that these have been issued outwith the authority of the Provincial Higher Education Department. Structure of the Law : 6. Any discussion must begin with the Public Sector Universities (Amendment) Act, 2012 ("the Act, 2012?) promulgated on 14.11.2012. By the Act, 2012, amendments were made in different Statutes. It will suffice to reproduce the amendment in the University of the Punjab Act, 1973, brought about by the Act, 2012. It is not necessary to reproduce the amendments in the other Statutes as the nature of the amendments is similar and in pari materia with the one which was brought about in the Act, 1973. "2. Amendments in Act IX of 1973. - In the University of the Punjab Act 1973 (IX of 1973) - (1) for section 14, the following shall be substituted:- "14. Vice Chancellor .-(1) A person who is eligible and who is not more that sixty five years of age on the last date fixed for submission of applications for the post of the V ice Chancellor may apply for the post. (2) The Government shall determine, by notification in the official Gazette, the qualifications, experience and other relevant requirements for the post of the V ice Chancellor . (3) The Government shall constitute, for a term of two years, a Search Committee consisting of not less than three and not more than five members for making recommendations for appointment of the Vice Chancellor. (4) The Search Committee shall follow such procedure and criteria for selection of the panel for the post of the Vice Chancellor , as the Government may by notification, determine. (5) The Search Committee shall recommend to the Government, in alphabetical order without any preference, a panel of three persons who, in its opinion, are suitable for appointment as the Vice Chancellor. (6) The Chancellor shall appoint the Vice Chancellor for each term of four years but he shall serve during the pleasure of the Chancellor . (7) The Government shall determine the terms and conditions of service of the Vice Chancellor. (8) The incumbent Vice Chancellor shall not be allowed any extension in his tenure but subject to eligibility he may again compete for the post of the Vice Chancellor in accordance with the procedure prescribed by or under this section. (9) If the office of the Vice Chancellor is vacant or the Vice Chancellor is absent or is unable to perform the functions of the Vice Chancellor owing to any cause, the Pro-Vice Chancellor shall perform the functions of the Vice Chancellor but, if at any time the office of the Pro-Vice Chancellor is also vacant or the Pro-Vice Chancellor is absent or is unable to perform the functions of the Vice Chancellor owing to any cause, the Chancellor shall make such temporary arrangements for the performance of the duties of the Vice Chancellor as he may deem fit. (2) in section 15- (a) for subsection (3), the following shall be substituted:- ?(3) Subject to such conditions as may be prescribed, the Vice Chancellor may, in an emergency , take an action which is not otherwise in the competence of the Vice Chancellor but is in the competence of any other Authority . (3a) The Vice Chancellor shall, within seven days of taking an action under sub-section (3), submit a report of the action taken to the Pro-Chancellor and to the members of the Syndicate; and, the Syndicate shall, within forty five days of such an action of the V ice Chancellor , pass such orders-as the Syndicate deems appropriate ?; (b) in subsection (4), clause (i) shall be deleted; (3) for section 16, the following shall be substituted; ?16. Pro-V ice Chancellor .- (1) the Chance llor shall nominate ProV ice Chancellor of the University , from amongst three senior most Professors of the University , for a term of three years.
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(2) The Pro-V ice Chancellor shall perfo rm such functions as may be assigned to him under this Act, statutes or regulations; (3) The Syndicate or the Vice Chancellor may assign any other functions to the Pro-V ice Chancellor in addition to his duties as Professor .?; and (4) in section 42, after the words ?an officer?, the words and comma ?other than the Chancellor, Pro- Chancellor and Vice Chancellor" shall be inserted.? 7. The petitioners in some of the petitions invited this Court to read down sub-section (2) of section 14 of the Act, 1973 in such a manner that the criteria set down by the Federal Higher Education Commission (HEC) ought to be followed while in the others, a prayer has been made for these provisions to be held ultra vires the Constitution and liable to be struck down. This has been contended on the basis of the constitutional and statutory scheme which forms the nub of the arguments of the petitioners. At the other end of the spectrum is the Higher Education Commission (HEC) set up under the HEC Ordinance, 2002. The petitioners stated that it is the exclusive domain and remit of the HEC to prescribe the criteria for appointment of Vice Chancellor to public sector universities in Punjab and the Search Committee set up for the purpose under the relevant statutes ought to follow that criteria and none else. 8. As a historical background of the constitutional framework, it may be stated that education as a subject was part of the concurrent Legislative List and was contained in Item No.38 and Item No.39 of that List. It was under these circumstances that the Parliament promulgated the HEC Ordinance creating the Federal HEC, which acted as a regulator for higher education across Pakistan. By way of Constitution (18 Amendment) Act, 2010, wide range amendments were made in the Constitutional enterprise and the process of devolution of powers to the Provinces was triggered. By the said amendment, education was devolved as a provincial subject. The concurrent list was abolished and the Federal Legislative List was retained in the fourth schedule which included Item No.12 as an entry in Part II of the Federal Legislative List, which is to the following ef fect: ?Item No.12: Standards in institutions for higher education and research, scientific and technical institutions ?. 9. It clearly follows that while primary and secondary education was devolved as a provincial subject, standards of higher education were exclusively retained as a federal subject. This issue is at the heart of these petitions and while extensive arguments were addressed by all sides, the controversy is confined to whether the criteria for appointment of Vice Chancellors is comprised in the concept of standards in institutions for higher education and research. 10. The Province of Punjab (?Punjab ?) constituted its own Punjab Higher Education Commission (PHEC ) through the Punjab Higher Education Commission Act, 2015. Interestingly , the specific mandate of PHEC is to develop guidelines and facilitate the implementation of a system of quality assurance of institutions, based on the standards developed by the Higher Education Commission (Federal). Submissions of Counsels : 11. The petitioners led by Mr. Saad Rasool and Mr. Azhar Siddique, Advocates divided their challenges to a petitioners state that the criteria notification and the committee notification had to be issued separately and individually in respect of each law relating to a public sector university. It was thus ultra vires to have set up a common Search Committee or to have laid down a common criteria for appointment of Vice Chancellors to all public sector universities. In a word, the criteria must specifically be tailored for the requirement of each distinct university. Likewise, the Search Committee must also tailor its constitution to the specific need of each university and by taking into consideration the fact that out of the eleven universities there were at least three women-only universities and two were specialized engineering universities. It was thus imperative that the expertise of the Committee members should be such that the members are able to evaluate the candidates applying for specialized universities in contrast to universities of a general academic nature. The petitioners take cavil to the arbitrary manner in which the criteria has been set down by the HEC Department on behalf of the Government of the Punjab. In any case, the criteria must conform to the criteria laid down by the HEC.th
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12. The criteria challenge envisages that there are contradictions between criteria notified in the criteria notification and the advertisement published in the newspapers. Exception has also been taken to the mandatory requirement for Phd. and fifteen publicati ons on the ground that it is discriminatory and works as such against the petitioners and similarly situated candidates. But the constitutional basis of the challenge still remains on the ground that the criteria must comply with the criteria laid down by the HEC and cannot deviate therefrom. It is on this basis that the petitioners seek reading down of the procedure in the statutes by which the Government of the Punjab has been empowered to lay down the criteria. 13. The petitioners submit that the HEC has already notified a selection criteria for the appointment of Vice Chancellors of public sector universities. A copy of that criteria titled ?Selection Criteria for the Vice Chancellor/Rector ? of public universities is attached with the instant petition at page 94. 14. A flanking rather than frontal attack was made on the ground that a power of regulator cannot be curtailed through amendments of the law of regulatee. By this, the petitioners intended that since the regulator was the HEC, the amendments to the Statutes setting up and regulating the public sector universities in Punjab cannot override the overarching regulatory powers of HEC. 15. The Punjab was represented by the Advocate General, Punjab who argued that the HEC had issued guidelines and no criteria was laid down by HEC. He submitted that the Vice Chancellor was not part of the faculty and, therefore, the HEC Ordinance of 2002 and its provisions do not relate to the subject of appointment of a Vice Chancellor and merely confines to the criteria for appointment of faculty which is distinct and separate from appointment of a Vice Chancellor . In any case, Punjab, without equivocation, contended that the PHEC was not bound to follow the guidelines prescribed by HEC and thus it would be otiose to contend that the guidelines laid down by HEC were mandatorily to be complied with by Punjab. The A.G Punjab on instructions submitted a document bringing forth the clear stance of the Punjab in this regard. 16. HEC produced a statement of the Chairman HEC to the following effect: ?Respectfully submitted that HEC has been impleaded as respondent No.5 in the instant writ petition pending adjudication before this Hon'ble Court. Vide order dated 24.03.2016, this Hon'ble Court directed the Chairman/Commission to file statement in the court as to whether the Guidelines and the criteria laid down by the HEC with regard to the appointment of Vice Chancellor has mandatorily to be followed by the provincial public university as well as private universities or not. In this respect, the HEC has already filed the stance of the HEC in parawise comm ents followed by filing of CM in the said writ petition under section 151 of CPC. As per direction of the Hon'ble Lahore High Court, Lahore on the issue, I being Chairman of the Commission tendered the following statement: I. The criteria, policies, conditions and guiding principles formulated and prescribed by the Higher Education Commission are mandatory and therefore, binding upon all the Public and Private Sector Universities and Degree Awarding Institutions in the country . II. The HEC has not prescribed any criteria for appointment of Vice Chancellors/Rectors. Instead, it has laid down Guidelines for Selection of Vice Chancellors/Rectors which identify crucial aspects that need to be valued and applied by the Search Committee while processing selection of a Rector or Vice Chancellor . These guidelines are equally applicable and binding in selection of Vice Chancellors/Rectors of all Public and Private Sector Universities and Degree Awarding Institutions having Provincial as well as Federal Charters. ? 17. A reading of the statement submitted by the Chairman HEC above would bring forth ineluctably that the criteria policies, conditions and guiding principles formulated and prescribed by the HEC were mandatory in nature and binding upon all private and public sector universities and degree awarding institutions of the country. It has also been brought forth that the HEC had not prescribed any criteria for the appointment of Vice Chancellors/ Rectors and has merely laid down guidelines for selection of Vice Chancellors/ Rectors and which need to be employed by the search committees while processing the selection of Vice Chancellor. These guidelines are equally applicable to the public sector universities and degree awarding institutions having provincial as well as federal charters. No clearer expression of the stance of the HEC could be envisaged.
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18. Mr. Khurram Saeed, Advocate representing the University of Punjab addressed arguments on the different aspects of the matter and the issues which have been broached in these petitions . He reiterated in most part the stance taken by Punjab, in that, the guidelines by HEC were not mandatory and in fact the guidelines/ criteria issued by the PHEC improves upon the guidelines issued by HEC and thus no exception can be taken to it. The University of Punjab requested this Cour t to restrain from determining the constitutionality issues which was not required on the honored principle that a resort to constitutional issues should not be had if other legal issues could determine the lis before the court. 19. Mr. Ali Zafar , Advocate represe nted one of the candidates and the incumbent Vice Chancellor of the University of Punjab, Mr. Kamran Mujahid. The precise submission was that HEC Ordinance, 2002 was a valid law and PHEC Act, 2014 was a mere support ing law. He contended that the faculty did not include the Vice Chancellor , however , Mr. Ali Zafar conceded that the guidelines for the Vice Chancellor can also be given by the HEC and section 10 (q) of the HEC Ordinance, 2002 would include criteria with regard to the Vice Chancellor as well. Once the guidelines were issued by the HEC, the individual university may proceed for the appointment of a Vice Chancellor in terms of the guidelines given by the HEC. The learned counsel furthe r acceded to the proposition that HEC guidelines had necessarily to be followed and must be read into the notification of the Search Committee. Determination : 20. As adumbrated, there are two questions which will engage this Court while determining the issues involved. Firstly, the issue regarding Item No.12 in Part II of the Fourth Schedule which is the Federal Legislative List. The precise question is whether the entry No.12 encompasses within it the criteria standards for appointment of Vice Chancellors in institutions for higher education and research, scientific and technical institutions. Secondly, whether in terms of sub-section (3) of section 14 of the Act, 1973, (and similar provisions in the Statutes of other universities) would mean a search committee to be constituted for each public sector university separately in compliance with the statute which governs that public sector university. Any determination must begin with the guidelines for selection of Vice Chancellor/Rector laid down by the HEC and which read as under: ?Guidelines for Selection of the Rector/V ice Chancellor Introduction: Rector or Vice Chancellor is fundamentally a leadership position that largely determines destiny of University or a Degree Awarding Institute. Conceiving a vision and a mission statement and, then leading university functions of achieving excellence and international compatibilities in academic learning, research, technology applications, social harmony and development and transparent governor through guiding, motivating and inspiring faculty and admin istration are a few of the core tasks associated with the position of a Rector or a Vice Chancellor . The Guidelines for Selection of the Rector/ Vice Chancellor are aimed at identifying crucial aspects that need to be valued by the Research Committee while processing selection of a Rector or a V ice Chancellor . Research Committee is encouraged to invite and or nominate potential cand idates for the position of Vice Chancellor/ Rector , in writing, explaining the basis of recommendation and having been availed willingness of the nominee to assume the responsibility and honor of governing a public sector university . Should preferably have earned doctorate degree in an academic discipline and an outstanding academician of international stature. Should have attained a distinguished leadership preferably in education and acade mic administration and financial management with proven track record of extensive experience and skills in initiating and managing change strategic planning and everseeing the implementation of plans through to outcomes. In-depth knowledge of the major issue s affecting learning and…
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