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Petitioner: MUHAMMAD JAWWAD ALI VS Respondent: VI-E-CHANCELLOR, ISLAMIA UNIVERSITY, BAHAWALPUR
1998 P L C (C
1998 P L C (C.S.) 549
[Lahore High Court]
Before Shaikh Abdur Razzaq, J
MUHAMMAD JAWWAD ALI
Versus
VICE-CHANCELLOR, ISLAMIA UNIVERSITY, BAHAWALPUR and 2 others
Writ Petition No. 1873-S of 1996/BWP, decided on 27th May, 1997.
Islamia University Bahawalpur Officers (Appointment) Statutes, 1977--
----Ss. 2 & 3---Islamia University of Bahawalpur Act (IV of 1975), S. 24-- Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Appointment of respondent to specified post was challenged to be repugnant to provisions of Islamia University Bahawalpur Officers (Appointment) Statutes, 1977---Petitioner's claim that appointment in question could only be made by Syndicate on recommendation of Selection Board and that appointment order of respondent having not been issued by said Authority was violative of statutory Rules and that the same being illegal, void and without lawful authority was liable to be set at naught and that petitioner being the only other candidate, his appointment against that post be ordered---Such claim of petitioner appeared to be established in terms of S.3, Islamia University Bahawalpur Officers (Appointment) Statutes, 1977, whereby appointment in question had to be made by Syndicate on recommendation of Selection Board---Appointment order of respondent having been passed by Vice-Chancellor on recommendation of Selection Committee, was, thus, violative of statutes, deliberate disregard of law and relevant Rules, therefore, same would attract power of judicial review vesting in High Court---Act of Authorities in appointing respondent to specified post being tainted with mala fides and prompted with malice, High Court would have inherent power to interfere and bar contained would not be applicable to facts of case---Appointment order of respondent was set aside and Authorities were directed to appoint petitioner in his place.
PLD 1985 Lah. 3394 and PLD 1997 SC 342 rel
Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Mazhar Hussain v. Province of Punjab PLD 1985 Lah. 394; Muhammad Akram v. Director, Schools Elementary Education and 2 others 1996 PLC (C.S.) 305; Rai Mazhar Iqbal, etc. v. University of Punjab 1992 CLC 1158; Jaffar and others v. V.C. and others 1993 MLD 1038; Khalid Hussain v. The Chancellor (Governor of Punjab) and others NLR 1995 CLJ 219; Dr. Barkat Ali v. Islamia University, Bahawalpur through its Vice Chancellor and 3 others 1995 PLC (C.S.) 703; University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353 and 1993 MLD 1038 ref.
Zafar Ali Hashmi for Petitioner.
M.M. Bhatti for Respondents.
Date of hearing: 5th May, 1997.
JUDGMENT
This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by the petitioner Muhammad Jawwad Ali challenging the appointment of Rana Dilbar Khan respondent No.3, as Assistant Librarian vide order dated 13-4-1996, being illegal, without lawful authority and discriminatory.
2. The facts which have emerged from the contentions raised by learned scounsel for the petitioner are, that applications were invited for the post of Assistant Librarian vide advertisement, dated 21-10-1995. The petitioner applied for the said post and was issued an interview call. However, declaring him unfit for the said post respondent No.3 was appointed vide Appointment Letter No.1346-50, dated 13-4-1996. His contention is that respondent No.3 was not eligible for the said post, as his requisite degrees of D.L.S. and M.L.S. were the result of fraud for reasons enumerated therein and Selection Committee had also no power to appoint him, as impugned order could only be passed by the Syndicate on the recommendation of Selection Board, as per Islamia University, Bahawalpur Officers (Appointment) Statutes, 1977. He relied upon Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others (PLD 1997 SC 342), Mrs. Shahida Zahir Abbasi and 4 others President of Pakistan and others (PLD 1996 SC 632), Mazhar Husain v. Province of Punjab (PLD 1985 Lahore 394), Muhammad Akram v. Director, Schools Elementary Education and 2 others 1996 PLC (C.S.) 305 and Rai Mazhar Iqbal, etc. v. University of Punjab (1992 CLC 1158).
3. Conversely, the stand of petitioner stands controverted, denied and repudiated by the respondents. It is asserted that both the petitioner and respondent No.3 applied for the said post, but respondent No.3 was selected and appointed due to his 15 years' past experience as well as his other academic qualifications. That the appointment was made by a duly and legally constituted Selection Committee. The contention of learned counsel for the petitioner regarding holding of questioned degrees of D.L.S. and M.L.S. was also controverted. It was also asserted that there was no violation of any rules, so the writ merits rejection.
4. Both the learned counsel for the parties have been heard and record perused.
5. Reiterating his contentions, learned counsel for the petitioner submitted that appointment could only be made by the Syndicate on the recommendation of Selection Board, and admittedly the appointment order dated 13-4-1996 has not been issued by the said authority. He, thus, submitted that the impugned order violates the Statutory rules of appointment so the writ is maintainable and impugned order being illegal, void, and without lawful authority is liable to be set at naught and the petitioner's appointment against that post be ordered.
6. Controverting, repudiating and denying the assertions of learned counsel for the petitioner, it is argued that appointment of respondent No.3 is strictly in accordance with Rules and Regulations. It was vehemently argued that Selection Committee was a legally constituted body and had the powers to appoint or reject any candidate. That all allegations of the petitioner regarding academic qualifications of respondent are incorrect and based on mala fide. He argued that respondent No. 3 was debarred from appearing in the examination till 1st Annual 1992 vide order, dated 12-3-1991. However, on his appeal, the said period was reduced to two years i.e. up to 1990 as such he could appear in 1st Annual 1991 and consequently, he appeared and qualified. It was also argued that there is no violation of any statutory rules and if at all there is any violation of rules, it is of non-statutory rules, and in both cases, no writ is maintainable. He placed reliance upon Jaffar etc. v. V.-C. etc. (1993 MLD 1038), where it has been held that non-statutory rules cannot be enforced through Constitutional petition. Similarly he relied upon Khalid Hussain v. The Chancellor (Governor of Punjab) etc. (NLR 1995 CU 219); Dr. Barkat Ali v. Islamia University, Bahawalpur through its Vice-Chancellor and 3 others (1995 PLC (C.S.) 703) and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093).
7. The pivotal point which requires determination is, if the impugned order dated 13-4-1996 has been passed in accordance with the statutory rules governing said appointment. In order to appreciate this legal proposition, reference has to be made to the relevant provisions of the statutes governing such appointment.
8. According to Islamia University Bahawalpur Officers (Appointment) Statutes, 1977, appointment of Assistant Librarian is to be made by initial recruitment or by selection from amongst Library Assistant and classifiers cataloguers. Now the next question arises, as to who is competent to make such appointment In order to find out its reply, we have to refer to Islamia University Bahawalpur Officers (Appointment) Statutes, 1977, of which section 3 is relevant for our purpose and which reads as follows:
"Appointment of officers mentioned in column 2 of the Schedule shall be made by the Syndicate on the recommendation of the Selection Board:
Provided that the Syndicate shall have full powers to make short term appointment of officers for a period not exceeding 3 years, if and when necessary."
It is thus, clear that if the name of officer appears in column No. 2 of the Statutes, his appointment shall be made by the Syndicate on the recommendation of Selection Board. Now if we peruse the Schedule, the name of post of Librarian appears at Serial No.8. It is, thus, clear that appointment in question has to be made by the syndicate on the recommendation of Selection Board. Now the next question arises, as to what is the constitution of Syndicate and for this we have to refer to section 24 of Islamia University Bahawalpur, 1975, which reads as follows:
The Syndicate shall consist of--
"(i) The Vice- Chancellor (Chairman);
(ii) Two members of the Provincial Assembly of the Punjab to be elected by the Members of the Assembly from amongst themselves;.
(iii) Two Members of the Senate to be elected by the Senate;
(iv) One Dean to be nominated by the Vice-Chancellor;
(v) One Professor or Associate Professor to be elected by the teachers of the University from amongst themselves;
(vi) One Assistant Professor or Lecturer to be elected by the teachers of the University from amongst themselves;
(vii) Two nominees of the Chancellor;
(viii) The Chairman or a member of the Public Service Commission to be nominated by the Chairman;
(ix) Education -Secretary and Director Public Institution, Punjab, Lahore;
(x) One Principal and one Teacher of the Affiliated Colleges to be elected by the Principals and Teachers of such Colleges from amongst themselves; and
(xi) Two student representatives of the students Unions, that is one from the Presidents of the Unions of the Affiliated Colleges to be elected from among them selves and one from the University Students' Unions.
(2) Members of the Syndicate, other than ex officio members shall hold office for three years.
(3) The quorum for a meeting of the Syndicate shall be on behalf of the total number of members, a fraction being counted as one. "
Section 25 (ibid) relates to powers and duties of Syndicate and as sub-clauses) is only relevant for our purpose so the same is reproduced as follows:
"to appoint University Teachers and other Officers on the recommendation of the Selection Board for teaching and other posts in the initial pay of Rs.500 per mensem or above."
9. As appointment in question is to be made by the Syndicate on the recommendation of Selection Board, so we have to see what Selection Board means and this we find in sub-clause (vii) of section 2 of Islamic University Bahawalpur Officers (Appointment) Statutes, 1977, which reads as follows:
"'Selection Board' means the Selection Board constituted under Statute 6 of the Schedule appended to the Islamia University of Bahawalpur Act, 1975."
10. Now the question arises, if the impugned order of appointment has been made by Syndicate on the recommendation of Selection Board, as required by law governing such appointment. A perusal of appointment order of respondent No.3 dated 13-4-1996 reveals that the said order has been passed by Vice-Chancellor on the recommendation of Selection Committee. Thus, the very appointment order has not been passed in accordance with statutory Rules.
11. The stand of learned counsel for the respondent is that it is long standing practice of Islamia University, Bahawalpur that such appointments are made by the Vice-Chancellor on the recommendation of Selection Committee and he produced a list of about 34 such appointments. He submitted that this practice of making such appointment by Vice-Chancellor on the recommendation of Selection Committee is being followed, since long and its deviation is also not permissible. In support of his contention, he relied upon Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453), in which it has been held:
"Where the departmental practice has followed a course in the implementation of the relevant rule whether right or wrong; it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by a long and consistent course by the practice. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the department. 'As regards Departmental construction', that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules Crawford, thus, observes: 'Where the executive construction has been followed for a long time an element of estoppel seems to be involved: Naturally placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities."
This very authority has been relied upon Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 353), wherein the question involved related to interpretation of certain expression for the purpose of assessing customs duty. Both the authorities relied upon by the learned counsel are not applicable to the facts in hand, as the question involved is very simple and does not involve the question of interpretation, but it involves the question of implementation. He next argued that even if it is assumed that appointment order has been issued in violation of procedure laid down for appointment, it involves violation of non-statutory rules, which cannot be enforced through Constitutional petition and has placed reliance on 1993 MLD 1038. In the instant writ, violation of statutory rules is involved and not that of non-statutory rules, as such, the said authority is also not applicable to facts in hand.
12. It is also pertinent to point out that a Notification No. 618/M & R, dated 11-7-1994 has been produced by the learned counsel for the respondents, whereby Syndicate has delegated its powers of appointment of employees in BS-1 to 16 to the Vice-Chancellor and Registrar. He has also brought on record photo copies of letters pertaining to University of Agriculture, Faisalabad, University of Engineering and Technology, Lahore, University of the Punjab and Bahauddin Zakaryya University, Multan to prove that power of appointment of employees in BPS-1 to 16 is being exercised by the Vice-Chancellors of respective Universities. If the stand of respondents is accepted as correct that such powers vest with Vice Chancellor, then why appointments shown at Serial Nos. 31 to 34, dated 25-4-1996 have been made by Vice-Chancellor on the recommendation of Selection Committee. Thus, it is clear that power of appointment of employees of BPS-1 to BPS-16 still vests with Syndicate, who is to act on the advice/recommendation of Selection Board. A flagrant violation and a deliberate disregard of law and relevant Rules would attract power of judicial review vesting in Superior Courts. I am fortified in this respect by illuminating observation made in PLD 1985 Lahore 394, which is as under:
"Under Article 9 of the Provisional Constitution Order, 1981 as also under Article 4 of the Constitution of Pakistan, 1973, every act of the Government is required to be exercised lawfully and every individual has to be dealt with in accordance with law, as to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen."
13. As discussed above, act of respondents Nos. 1 and 2 in appointing respondent No. 3 is tainted with mala fide and is prompted with malice/mala fide, as such, this Court has inherent power to interfere and the bar contained is not applicable to the facts of this case.
14. Articles, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 provide equality of citizens before law. While dealing with this aspect of equality of citizens before law, it has been propounded in an illuminating judgment, reported in PLD 1997 SC 342, as follows:
"We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concept of fair play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise. Wile discharging official functions, efforts should be made to ensure than no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. "
15. For what has been stated above, I accept this writ petition, set aside the impugned order dated 13-4-1996 about the appointment of Rana Dilbar Khan respondent No. 3 as Assistant Librarian and direct that Muhammad Jawwad Ali petitioner shall be appointed as Assistant Librarian forthwith. This order shall be executed within a period of 15 days by respondents Nos. l and 2 under intimation to the Additional Registrar of this Court. It means that Rana Dilber Khan is no more Assistant Librarian from tomorrow (28-5-1997) on the basis of impugned order dated 13-4-1996, which has been set aside. It is, however, made clear that benefits of Assistant Librarian shall be available to Muhammad Jawwad Ali petitioner from the date of his appointment, as such, on the basis of this judgment and it is further clarified that this judgment hall not affect other appointments.
A.A./M-570/L Petition accepted.