Full Judgment Text & Judicial Ruling

2020 P L C (C.S.) 1087 [Lahore High Court] Before Muhammad Sajid Mehmood Sethi, J Dr. IQRAR AHMAD KHAN Versus GOVERNMENT OF THE PUNJAB through Secretary Agricultural Department, Lahore and others Writ Petition No.34743 of 2019, decided on 4th February, 2020. (a) University of Agriculture Faisalabad Act (XII of 1973)--- ----Ss.11 & 14---University of Agriculture, Faisalabad Conduct of Business Rules of the Syndicate, 1976, R. 3---Appointment of Vice Chancellor of University---Recommendations of Search Committee---Lapse in holding the meetings of Syndicate---Effect---Search Committee awarded highest marks to the petitioner but he was not appointed as Vice Chancellor on the grounds that he had failed to hold required number of meetings of the Syndicate during his previous tenure and there were outstanding audit paras against him---Validity---Search Committee was not the appointing authority however, its recommendations were to be given due weight---Petitioner had secured highest marks in qualification and experience as well as in the interview---Competent authority had power to differ with the recommendations of Search Committee but said decision must be based on rules of fairness and cogent reasons---Appointing authority had no absolute power to appoint any person of its choice---No charge over the capacity and honesty of Search Committee had been levelled by the competent authority---Provision of R.3 of University of Agriculture, Faisalabad Conduct of Business Rules of the Syndicate, 1976, was not mandatory but it was directory in nature---Lapse in holding Syndicate meetings could not be considered as a cogent reason to disentitle the petitioner from appointment to the post in question---Nothing was on record that due to non-holding of required number of Syndicate meetings any important agenda item/work had suffered or even delayed---Unwillingness of authorities to appoint the candidate highest in merit was based on mala fide---Reasons given by the authorities for rejecting the petitioner highest in merit were not cogent---Impugned notification for appointment of respondent as Vice Chancellor of the University was declared to be illegal and without lawful authority---Competent authority was directed to notify the candidate highest in merit in accordance with law---Constitutional petition was allowed, accordingly.

Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186; Professor Dr. Razia Sultana and others v. Professor Dr. Ghazala Yasmeen Nizam and others 2016 SCMR 992 and Hassan Usmani, Sole Proprietor and another v. T.F. Pipes Limited through Managing Director 2003 YLR 1075 ref. Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others 2019 SCMR 124; Asif Hassan and others v. Sabir Hussain and others 2019 PLC (C.S.) 1375; 2019 PLC (C.S.) 660; Fazal Muhammad Chaudhari v. Ch. Khadim Hussain and 3 others 1997 SCMR 1368; Member Board of Revenue / Chief Settlement Commissioner, Punjab, Lahore v. Abdul Majeed and another PLD 2015 SC 166; Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others PLD 2017 Lah. 489 and Prof. Abdul Razzaque Shaikh v. Province of Sindh through Secretary Board of Universities and 3 others 2018 PLC (C.S.) Note 108 distinguished. Prof. Dr. Ijaz Ahmad and others v. Province of Punjab and others 2019 PLC (C.S.) 1487; Shama Khan Zafar v. District Coordination Officer, Lodhran and others 2014 PLC (C.S.) 948; Hassan Usmani, Sole Proprietor and another 2003 YLR 1075; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 6 rel. (b) Constitution of Pakistan--- ----Art. 199---Constitutional jurisdiction of High Court---Lawful exercise of discretion by Authority---Interference by High Court---Scope---Jurisdiction of High Court to interfere is restricted in a lawful exercise of discretion however, when discretion is exercised by an authority in an arbitrary manner, against the directions given by superior courts, and mala fide is floating on record, the jurisdiction of High Court to interfere under Art. 199 of the Constitution of Pakistan, 1973 is not barred. The State v. Zia-ur-Rahman and others PLD 1973 SC 49; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 rel. Bilal Hassan Minto and Barrister Muhammad Saram Israr for Petitioner. Barrister Zargham Lukhesar and Ameer Abbas Ali Khan, Assistant Advocate Generals. Malik Muhammad Awais Khalid (on behalf of Respondent-University). Hafiz Tariq Naseem, Advocate (on behalf of Respondent No.8). Date of hearing: 17th January, 2020. JUDGMENT MUHAMMAD SAJID MEHMOOD SETHI, J.----Through instant petition, petitioner has challenged notification dated 16.04.2019, issued by Government of the Punjab, Agriculture Department, regarding appointment of respondent No.8 as Vice Chancellor, University of Agriculture, Faisalabad and sought his appointment against said post in terms of evaluation of the Search Committee and judgments passed by this Court in W.P. No.188570 of 2018 and W.P. No.12857 of 2019. 2. Brief facts of the case are that petitioner was Vice Chancellor of respondent-university, however, his term ended in January, 2017. Respondent No.1 floated advertisement for appointment of Vice Chancellor in respondent-university and petitioner also applied. Later on, respondent No.3 assigned duties of Vice Chancellor to petitioner vide notification dated 27.01.2017. The said notification was challenged in W.P. No.54628 of 2017, and this Court vide order dated 09.08.2017 restrained petitioner from acting as Vice Chancellor. Resultantly, respondent No.7 was nominated as Pro-Vice Chancellor as stop gap arrangement. Process of appointment was challenged by filing different writ petitions and matter regarding Vice Chancellors of different universities was taken up by Hon'ble Supreme Court in HRC No.13865-P of 2018 and decided vide order dated 22.04.2018. Later on contempt petition was filed and pursuant to direction issued by this Court vide order dated 11.04.2019, respondent No.8 was appointed as Vice Chancellor through impugned notification dated 16.04.2019. 3. Learned counsel for petitioner submits that impugned notification has been issued in violation of law laid down by Hon'ble Apex Court in Human Rights Case No.13865-P of 2018 and directions issued by this Court in contempt petition. He adds that petitioner was awarded highest marks. Further submits that no objection with regard to alleged 'mismanagement' and 'poor financial controls' was raised by the Search Committee. He argues that Secretary Agriculture / respondent No.1, the Principal Accounting Officer and member of Search Committee also awarded highest marks to petitioner in management and financial controls. He contends that audit para in itself is not a proof of a person's financial mismanagement rather it is routine matter of every public sector institution. He further contends that when petitioner took over the charge as Vice Chancellor, there were 309 outstanding audit paras, which were reduced to 296 at the time when petitioner left the office. Later on, it was further reduced to 164 or 140 and at present only 77 audit paras are outstanding. He argues that sections 24 and 25 of the University of Agriculture, Faisalabad Act, 1973 ("the Act of 1973") do not specifically provide number of syndicate meetings, however, Senate meetings (2 in a year) have been provided in the Act ibid. He further submits that requirement of 4 syndicate meetings in a calendar year was introduced in 2014 in the University of Agriculture, Faisalabad Conduct of Business Rules of the Syndicate, 1976. He submits that the Rule 3 of the Rules ibid, even otherwise, uses the word 'ordinarily', which means that the provision is directory and not mandatory in nature. In the end, he submits that petitioner secured highest marks in the area of qualification / experience as well as in the interview; therefore, he is entitled to be appointed against the post in question. He has placed reliance upon Khawaja Ahmad Hassan v. Government of Punjab and others (2005 SCMR 186), Professor Dr. Razia Sultana and others v. Professor Dr. Ghazala Yasmeen Nizam and others (2016 SCMR 992), The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others (2017 SCMR 1427) and Hassan Usmani, Sole Proprietor and another v. T.F. Pipes Limited through Managing Director (2003 YLR 1075). 4. Learned Assistant Advocate General submits that instant writ petition is not maintainable in the light of Article 105(2) of the Constitution of the Islamic Republic of Pakistan, 1973 and this Court cannot inquire into the advice tendered to the Governor by the Chief Minister except in extreme cases of mala fide. He further submits that this Court can neither perform functions of a competent authority nor substitute its decision unless the discretion has been exercised in an arbitrary, unreasonable or irrational manner. He further submits that audit paras are severe in nature and only this reason is sufficient to refuse appointment to petitioner. He argues that the competent authority has provided cogent reasons while appointing respondent No.8 and refusing appointment to petitioner. He has referred to Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others (2019 SCMR 124), Asif Hassan and others v. Sabir Hussain and others [2019 PLC (C.S.) 1375] and [2019 PLC (C.S.) 660]. 5. Learned counsel for respondent No.8 contends that impugned selection process was transparent and no illegality was committed. He adds that though Search Committee found petitioner at No.1 on merit but the competent authority has power to appoint according to his own wisdom after due deliberation and examining each and every aspect of the matter. He adds that sufficient evidence existed to disqualify petitioner and impugned notification has been issued in accordance with law. 6. Learned Legal Advisor for respondent-university submits that it is prerogative of the competent authority to check suitability of candidates for the post in question in the light of Section 14 and other relevant provisions of the Act of 1973, and the Search Committee is a recommending body and not the appointing authority. He further submits that post of Vice Chancellor is selection post and depends on fitness of the person after evaluating the suitability of the officer on the basis of seniority or eligibility. He adds that Paragraph 3(1) of the University of Agriculture, Faisalabad Conduct of Business Rules of the Syndicate, 1976, required meeting of the Syndicate once in a month, however, Syndicate in its meeting dated 28.06.2014, made amendment in the Rules, mandating to hold at least four meetings in a calendar year. He further submits that total 88 Syndicate meetings were required to be convened in the tenure of petitioner, however, he only arranged 36 meetings. He contends that impact of audit paras is worth billions of rupees, which caused huge loss to public exchequer during the tenure of petitioner as Vice Chancellor. He has relied upon Fazal Muhammad Chaudhari v. Ch. Khadim Hussain and 3 others (1997 SCMR 1368), Member Board of Revenue / Chief Settlement Commissioner, Punjab, Lahore v. Abdul Majeed and another (PLD 2015 Supreme Court 166), Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others (PLD 2017 Lahore 489) and Prof. Abdul Razzaque Shaikh v. Province of Sindh through Secretary Board of Universities and 3 others [2018 PLC (C.S.) Note 108]. 7. Arguments heard. Available record perused. 8. Perusal of record reveals that in identical matter regarding appointment of permanent Vice Chancellors of Universities, the Hon'ble Supreme Court of Pakistan, vide order dated 22.04.2018, passed in Human Rights Case No.13865-P of 2018, directed the Search Committees to complete their work within a period of three weeks and submit / recommend names of three persons in the order of merit to the Government, which shall proceed to notify the person of highest merit unless there are cogent reasons for not appointing him which shall be duly recorded in writing and shall be justiciable. The relevant portion of the aforesaid order is reproduced hereunder:- "4. We are mindful of the fact that public sector Universities cannot be left to operate without appointment of permanent Vice Chancellors. Therefore as an interim measure till such time that the permanent Vice Chancellors are appointed pursuant to recommendations submitted by the authorized Search Committees, acting Vice Chancellors will be appointed in the following manner:-

i) For King Edward Medical University as well as Nishtar Medical University, the existing pro Vice Chancellors will hold the posts of acting Vice Chancellors for running day to day affairs of the Universities till the appointment of permanent Vice Chancellors. This is in line with the respective Statutes governing the two Medical Universities. ii) As far as University of Health Sciences, Rawalpindi Medical University, Fatima Jinnah Medical University and Faisalabad Medical University are concerned, their acting Vice Chancellors shall be appointed as follows:- a) The names of ten senior most Professors according to the seniority list maintained by the Department shall be placed before the Search Committees, which shall nominate / recommend one person to be notified as the acting Vice Chancellor. On receipt of such recommendations, the Government of the Punjab shall notify the said person as the Acting Vice Chancellor immediately. 5. The Search Committees shall complete their work within a period of three weeks and submit / recommend names of three persons in the order of merit to the Government which shall proceed to notify the person of highest merit unless there are cogent reasons for not appointing him which shall be duly recorded in writing and shall be justiciable. 6. The learned Advocate General, Punjab shall submit a comprehensive report regarding appointment of acting Vice Chancellors within one week and shall submit periodical reports regarding the progress being made towards appointment of permanent Vice Chancellors. Let the matter be relisted for hearing after two weeks." 9. Subsequently, this Court vide order dated 13.03.2019, passed in 2019 PLC (C.S.) 1487 titled Prof. Dr. Ijaz Ahmad and others v. Province of Punjab and others, dismissed the petition with cost, with the following observations:- "7. It is thus abundantly clear that no where in the above judgment this Court passed direction for re-initiation of the entire process as prayed by the writ petitioners therein and it was completely left at the discretion of the new Search Committee either to send pool of names tabulated by the earlier Search Committee through the new constituted committee or to re-initiate the process. According to the record the new Search Committee reviewed the whole process of the case in detail i.e. advertisement dated 23.08.2016, CVs of candidates, Guidelines / Procedure for Search Committee, complete process of interviews of candidates for the post of Vice Chancellor conducted by the previous Search Committee and unanimously endorsed the recommendations of the previous Search Committee. In no manner the act of new Search Committee can be termed in derogation of above reported judgment. It is, therefore, manifest that this writ petition is a classic example of abuse of process of law, as it is devoid of any merit or question of law which could be raised afresh before this Court. Resultantly, this petition being without any substance is dismissed with cost of Rs.50,000/- each to be paid by each of the petitioner in the national exchequer within fifteen days with a copy of the receipt to the Deputy Registrar (J) of this Court. 8. Before parting with this order, I may observe that the post of Vice Chancellor, University of Agriculture, Faisalabad is lying vacant since 23.01.2017. In the reported judgment whose violation is alleged in this writ petition, the Government of the Punjab was directed to expedite the remaining process of appointment of the Vice Chancellor at the earliest. In compliance with the said direction when the new Search Committee forwarded its recommendations one of the candidates namely Prof. Dr. Muhammad Sarwar challenged the process of appointment of Vice Chancellor inter alia on the same grounds as agitated in this writ petition by filing Writ Petition No.18857 of 2018 and thereby managed to prolong the matter for a considerable period of time. The said writ petition was finally dismissed vide judgment dated 20.12.2018 announced on 04.02.2019 with a specific direction to complete the process of appointment of the Vice Chancellor forthwith. After dismissal of the said writ petition, the present petitioners have emerged on the scene and filed the instant writ petition again challenging the process of appointment of the Vice Chancellor which apparently is also a calculated move to further prolong the matter. It is a matter of great concern that one of the largest Universities of Asia is functioning without a permanent Vice Chancellor for the last two years. According to the report and parawise comments of the respondents a summary for the appointment of Vice Chancellor, University of Agriculture, Faisalabad has been submitted to the Governor / Competent Authority vide Diary No.46-F dated 12.02.2019. It is, therefore, directed that the competent authority shall notify the person, highest in merit unless there are cogent reasons for not appointing him which shall be recorded in writing, within a period of fifteen days from the date of receipt of certified copy of this order under intimation to the Addl. Registrar (J) of this Court." 10. The Search Committee, constituted by the Government of the Punjab, for selection of Vice Chancellor, University of Agriculture, Faisalabad, made the recommendations and respondent No. 2 / Chief Minister, Punjab, advised the Governor / Chancellor to appoint Dr. Muhammad Ashraf / respondent No.8 as Vice Chancellor, University of Agriculture, Faisalabad for a period of four years in terms of Section 14(6) read with Section 11(8) of the University of Agriculture Faisalabad Act, 1973, for the following reasons:- a) Dr. Iqrar Ahmad who has obtained the highest marks has previously served as Vice Chancellor of the University of Agriculture. His period of appointment as Vice Chancellor was marked by poor financial controls and management as is evinced by 164 un-settled audit paras; b) Dr. Iqrar Ahmad was also unable to hold the required number of meetings of the Syndicate; c) Dr. Muhammad Ashraf, who is jointly placed second with Dr. Mumtaz Akhtar obtained 47 marks in Qualification / Experience by the Search Committee. Since experience to run a prestigious organization like University of Agriculture is more important, hence, it must be given more weightage. 11. Undeniably, the Search Committee is not the appointing authority, however, its recommendations are given due weight and the competent authority / appointing authority, if differs with the same, has to provide cogent reasons. In the instant case, first allegation against the petitioner is poor financial controls and management evinced by 164 unsettled audit paras, which has been presumed a ground to disqualify him for appointment against the post in question although he secured highest marks in qualification / experience as well as in the interview. Petitioner has disputed both the number of unsettled audit paras and their concern and connection with the petitioner. This Court is not inclined to go into factual position as to the number of unsettled audit paras in this case, however, legal impact and effect of unsettled audit paras on petitioner's appointment needs to be examined. 12. The stance of petitioner is that pendency of audit paras is routine matter of the departments and has no impact on the suitability of a candidate in the matter of employment. Counsel for the petitioner has relied on Shama Khan Zafar v. District Coordination Officer, Lodhran and others [2014 PLC (C.S.) 948] to argue that when an audit para against a candidate cannot be considered ground for not promoting a person to a higher grade then how it can be made basis for rejection from appointment to a post. He has provided a detail of pending audit paras of other public sector universities i.e. University of Engineering and Technology, Taxila (from 2005 to 2018), Government College University, Faisalabad (from 2005 to 2018), Islamia University, Bahawalpur (from 1995 to 2016) and Barani University, Rawalpindi (from 2003 to 2018) and Lahore College for Women University (from 2008 to 2018), which shows that number of pending audit paras of respondent-university is far less than above cited universities. It has not been denied by the respondents that audit paras exist in respect to the functioning of universities. Learned counsel for the petitioner has also apprised to the Court that recently Vice Chancellors in University of Punjab and Quaid-e-Azam University, Islamabad have been appointed, and these Vice Chancellors, in their previous tenures in UET, Taxila and GCU, Faisalabad respectively, had also left 476 and 373 unsettled audit paras respectively. Respondents have not denied that Vice Chancellors were appointed in certain universities even though they left unsettled audit paras in the universities they were running before as Vice Cancellors, which shows that mere pendency of a certain number of audit paras in previous tenure of a candidate as Vice Chancellor of a university is not a hurdle in his appointment or re-appointment to the post of Vice Chancellor. 13. There is nothing on record which depicts that respondent No. 2 / Chief Minister looked into the details of each and every unsettled audit para e.g. its nature, subject matter, duration of its pendency, and its connection with the petitioner to hold him responsible for its pendency. Learned counsel for the Respondents claim that details of audit paras, which he submitted to this Court, were also available to the Chief Minister before forming his opinion, but there is no document on record which supports this contention of the learned counsel. It appears from record that letter dated 01.03.2019 is the only document examined by the Chief Minister before giving his advice to the Chancellor, and the said letter does not contain any detail of pending audit paras. The other documents, containing details of unsettled audit paras, brought before this Court, appear to be prepared / issued after the date of issuance of impugned Notification i.e. 16.04.2019. 14. On the other hand, the Scorecard prepared by the Search Committee shows that petitioner obtained highest marks in the category of "Qualification / Experience":

Sr. No.

Name of the candida-te

Qualif-ication / Exp. Marks out of 50

Interview marks out of 50

Total Marks obtained out of 100

Syed Babar Ali (Convener)

Muhammad Mahmood (Member / Secretary)

Dr. Zafar Iqbal Qureshi (Member)

Dr. Akmal Hussain (Member)

Dr. Ali Cheema (Member)

Average marks of interview awarded by the Search Committee

1

Dr. M. Ashraf

47

33

31

31

33

37

33

80

2

Dr. Iqrar Ahmed

48

46

45

47

46

47

46.2

94.2

3

Dr. Mumtaz Akhtar

35

46

43

46

45

45

45

80

It is also noted that the members of Selection Committee collectively and individually awarded highest marks to the petitioner in interview conducted by them. Learned counsel for the respondents argued that Search Committee did not have any information regarding the audit paras as the same is only available with the monitoring department i.e. Department of Agriculture, that conducts the audit of the respondent university on yearly basis. Suffice it to say that respondent No. 1 / Secretary Agriculture is also a member of Search Committee, therefore it cannot be said that Search Committee was unaware of the pendency of audit paras. Even otherwise, if the criteria on the basis of which the candidates were shortlisted by the Search Committee and the criteria on which a candidate was to be eventually appointed or rejected by the Chief Minister are different, then the entire exercise of Search Committee would be useless and sheer wastage of time and resources of public exchequer. It is also noticeable that respondent No. 1 / Secretary Agriculture, who is also the Principal Accounting Officer / Drawing Officer (DDO) of the Department of Agriculture, under which the finances of the respondent university are managed, has awarded 10 out of 10 marks to the petitioner in the category of "Administrative, Planning and Financial Experience". 15. Needless to observe here that…

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

Related Legal Research & Directories

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