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Petitioner: Prof. Engineer NAIB HUSSAIN VS Respondent: Engineer Prof. Dr. MUHAMMAD RIAZ MUGHALHonorable Justice Ch. Muhammad Ibrahim ZiaKhalid Rashid Chaudhry,Mian Sultan Mehmood
2013 P L C (C.S.) 816
[Supreme Court (AJ&K)]
Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ
Prof. Engineer NAIB HUSSAIN
Versus
Engineer Prof. Dr. MUHAMMAD RIAZ MUGHAL and 12 others
Civil Appeal No.125 of 2012, decided on 7th December, 2012.
(On appeal from the judgment of the High Court dated 26-11-2012 Writ Petition No.119 of 2011).
(a) Mirpur University of Science and Technology Ordinance (XI of 2008)---
----Ss. 2(y), 10, 11 & 41---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Appointment of Vice-Chancellor of University---Chancellor, for the transitory period, was vested with discretionary powers for appointing the first Vice-Chancellor while dispensing with the mode and procedure of appointment prescribed in Mirpur University of Science and Technology Ordinance, 2008---Said Ordinance had attached some personal qualifications with the Vice-Chancellor, and whenever the Vice-Chancellor, whether permanently or under transitory provision was appointed, no exemption was available with regard to the personal qualifications mentioned in S.10(1) of the Ordinance and without the said qualifications, no one could be appointed or given the status of Vice-Chancellor---While exercising the powers under the transitory provisions of S.41(2) of Mirpur University of Science and Technology Ordinance, 2008 Chancellor was vested with the discretionary powers without having regard to procedure and mechanism for regular appointment---Person, who on the establishment of the university had firstly been designated as Vice-Chancellor, he would be called as First Vice-Chancellor for the purpose of transitory provision of S.41(2) of Mirpur University of Science and Technology Ordinance, 2008---Under transitional statutory provisions, powers could not be exercised for an indefinite period or to defeat the purpose, a permanent provision of the statute---Once, the Chancellor had exercised his powers under transitory provision and appointed first Vice-Chancellor, the discretionary powers under transitory provision, would come to an end---Same could not be revived or reexercised by appointing another person in the office of Vice-Chancellor---Appellant's qualification being not up to the mark, to be labelled as an eminent academic or scholar of international repute, notification appointing him as Vice-Chancellor, was rightly quashed by High Court, in circumstances.
A.G. Varadarajulu and another v. State of Tamil Nadu and others AIR 1998 SC 1388 rel.
(b) Interpretation of statutes---
----Non obstante clause in statute---Scope---Not necessary that each and every non obstante clause in a statute would exclude application of all provisions of statutes---Scope of non obstante clause had to be determined.
(c) Words and phrases---
----'First'---Dictionary meaning and scope.
Chamber 20th Century Dictionary, New Edition, page 473; Chambers 21st Century Dictionary, page 494 and GEM Practical Combined Dictionary, Two in one, 21st Century, Edition, page 286 rel.
(d) Words and phrases---
----'Appointment'---Dictionary meaning and scope.
Black's Law Dictionary Sixth Edition, page 99 and Concise Oxford Dictionary of Current English, Fifth Edition, page 55 rel.
(e) Words and phrases---
----'Additional charge'---Meaning and scope.
Civil Establishment Code, Edition 2007-2008 rel.
(f) Interpretation of statutes---
----Transitional provision---Scope and status---Scope and status of such provision, was limited, and it would operate and remain in force till the main provision of statute would come in to operation---Under the transitional and statutory provisions, powers could not be exercised for an indefinite period or to defeat the purpose, intent and spirit of the permanent provision of the statute---Principles.
Interpretation of Statute by B.M. Gandhi, Edition 2006 page 83 and Principles of Statutory Interpretation by Justice G.P. Singh, 12th Edition 2010 rel.
Khalid Rashid Chaudhry, Advocate for Appellant.
Mian Sultan Mehmood, Advocate for Respondent No.1.
Sardar Muhammad Raziq Khan, Advocate for Respondents Nos.1-A and 13.
Raja Ghazanfar Ali, Advocate-General for Respondents Nos.2 and 12.
Date of hearing: 29th November, 2012.
JUDGMENT
CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal with the leave of the Court is addressed against the judgment of the High Court dated 26-11-2012 whereby, while accepting the writ petition filed by respondent No.1, the appellant's appointment notification dated 21-7-2011 has been quashed, declaring the office of Vice-Chancellor, Mirpur University of Science and Technology (hereinafter to be referred as MUST), vacant. The Chancellor has been directed to take immediate steps for appointment of Vice-Chancellor, strictly in accordance with the provisions of sections 10 and 11 of the Mirpur University of Science and Technology Ordinance (hereinafter to be referred as MUST Ordinance).
2. The controversy in hand relates to the appointment of Vice-Chancellor in MUST University. The President of Azad Jammu and Kashmir, for establishment of University in public sector, promulgated Ordinance No.XI of 2008 which is called Mirpur University of Sciences and Technology Ordinance, 2008 (hereinafter to be referred as MUST Ordinance). The MUST Ordinance since its promulgation is repeated in verbatim. On establishment of the University, the Chancellor, vide notification dated 27th March, 2009, under the provision of subsection (3) of section 8 of MUST Ordinance conferred upon Dr. Habib-ur-Rehman, Vice-Chancellor of Azad Jammu and Kashmir University, the additional duties of the MUST University. Later on, vide advertisement published in daily newspapers, including the daily "Jung" dated 8-11-2009 applications were invited for the vacant position of Vice-Chancellor MUST University. However, through another notification dated 21-7-2011, the Chancellor, in exercise of powers conferred upon him under subsection (2) of section 41 of MUST Ordinance, appointed the appellant as Vice-Chancellor of the MUST University for a period of three years. Respondent No.1, who in response to advertisement had submitted his application for the advertised position of Vice-Chancellor MUST University, felt aggrieved and challenged the appointment of the appellant through a writ petition in the High Court mainly on the ground that as the Chancellor, in exercise of the discretionary powers had appointed Dr. Habib-ur-Rehman as first Vice-Chancellor of the MUST University, therefore, subsequently, the Chancellor cannot exercise discretionary powers for appointment of Vice-Chancellor, except adopting the method prescribed by law, especially, under the provision of sections 11 and 15 of MUST Ordinance. It is further averred that for the office of Vice-Chancellor, Ph.D degree is a pre-requisite mandatory qualification, whereas the appellant is lacking this required qualification. The writ petition was resisted by the respondents, therein, however, finally, through the impugned judgment, the learned High Court accepted the same in the terms stated in para 1 hereinabove. The appellant feeling aggrieved, challenged the propriety of the judgment of the High Court through the petition for leave to appeal. While considering the matter as one of public importance, for expeditious disposal, leave was converted into appeal and requirement of filing concise statements was also dispensed with.
3. Mr. Khalid Rashid Chaudhry, Advocate, the learned counsel for the appellant, after brief narration of facts, mainly stressed his arguments on the following grounds;---
(i) that the appellant is the first Vice-Chancellor of the MUST University, who has been appointed by the Chancellor under the transitory provision of subsection (2) of section 41 of the MUST Ordinance;
(ii) that the appointment of Vice-Chancellor for transitory period is totally within the discretion of the Chancellor and none of the other conditions mentioned in the Ordinance are applicable;
(iii) That the tenure for the first Vice-Chancellor is three years;
(iv) That previously, no first Vice-Chancellor was appointed, only the additional charge of the post of Vice-Chancellor was entrusted to one Dr. Habib-ur-Rehman, who was actually the Vice-Chancellor of the Azad Jammu and Kashmir University, Muzaffarabad.
While elaborating these points, he stressed mainly on the interpretation of the word "appointment" and according to his version, the additional charge of an office assigned to a person does not amount to an appointment. He placed reliance upon the meanings of the word "appointment" as assigned in Black's Law Dictionary, Seventh Edition, at Page 96. He further submitted that in the MUST Ordinance, there is no scope of assigning the additional charge and the only mode is either the appointment of first Vice-Chancellor under the transitory provision of section 41(2) of the MUST Ordinance, or under the provision of sections 10 and 11, as permanent appointment. Thus, the High Court has fell in error of law and facts while holding that assignment of the additional charge to Dr. Habib-ur-Rehman as Vice-Chancellor, MUST University was the first appointment. While dealing with the question of requisite qualification of Ph.D for the office of Vice-Chancellor, he submitted that as the appointment was made under the transitory provision of the MUST Ordinance in which no such condition has been imposed, moreover, even this condition is also not required for permanent appointment. He further submitted that even otherwise, the appellant's appointment has not been made in furtherance of advertisement, therefore, question of required qualification i.e. Ph.D, has no relevance according to facts of this case. To differentiate between the appointment and additional charge, he also referred to the order of sanctioning the additional charge allowance in favour of Dr. Habib-ur-Rehman. He finally submitted that the writ petition is only competent when there is any violation of law or principle of law whereas in the instant case, neither any departure from principle of law has been made nor any provision of law has been violated, thus, the High Court has wrongly accepted the writ petition and the impugned judgment is not maintainable.
4. Raja Ghazanfar Ali, the learned Advocate-General, who represents the Government as well as Chancellor, at the very outset, frankly conceded that the appellant's appointment was not made in accordance with law that is why the Chancellor has implemented the judgment of the High Court and Engineer Dr. Muhammad Sarwar Ahmed, has been appointed as Acting Vice-Chancellor vide notification dated 28-11-2012. He fully supported the judgment of the High Court and submitted that it is quite in accordance with the spirit of law, therefore, the same be maintained.
5. Mian Sultan Mehmood, Advocate, the learned counsel for respondent No.1, strongly opposed the appeal on the ground that the appellant neither fulfills the requisite qualification for appointment as Vice-Chancellor nor it can be said that he has been appointed as first Vice-Chancellor under the transitory provision of MUST Ordinance because the first Vice-Chancellor appointed under the transitory provision was Dr. Habib-ur-Rehman. He submitted that after appointment of first Vice-Chancellor in the MUST University, the Chancellor advertised the post in which the requisite qualification for appointment as Vice-Chancellor is Ph.D degree. The appellant is lacking the requisite qualification. In response to this advertisement, the eligible candidates, Including respondent No.1 submitted applications and it was enjoined upon the Chancellor to proceed according to law and make selection on merit amongst eligible candidate for the office of Vice-Chancellor but the Chancellor has failed to act according to law, hence, respondent No.1 who was one of the candidates, fulfilling the requisite qualification, being legally aggrieved, knocked, the door of the High Court for redressal. He further submitted that there is no concept in the law to assign the additional charge of any position, without appointment. The assignment of additional charge of the post is in fact the appointment, therefore, the learned High Court has rightly issued the prayed writ and the impugned judgment is quite consistent with the principle of law and justice which does not call for any interference by this Court.
6. Sardar Muhammad Raziq Khan Advocate, the learned counsel representing the MUST University and Engineer Dr. Muhammad Sarwar Ahmed, incumbent Vice Chancellor, forcefully defended the impugned judgment on the ground that the appointing authority's counsel, the learned Advocate-General has conceded on the point that the appellant's appointment was made against law and fully supported the judgment of the High Court, thus, the appellant has no case and his appeal is not maintainable. He further submitted that the powers under the transitory provision of section 41(2) of MUST Ordinance can only be exercised for once. These powers cannot be exercised in such a manner to defeat the intent and spirit of law, therefore, the arguments on behalf of the appellant that his appointment is first one is totally fallacious, misconceived and misinterpretation of law which cannot be accepted.
7. We have paid our utmost attention to the arguments advanced at bar by the learned counsel for the parties and also gone through the record made available. Admittedly, MUST University is established under the provisions of Ordinance XI of 2008. According to peculiar legal and factual propositions involved in this case, the most relevant provisions of Ordinance, which can be taken into consideration are; the definition clause 'Y' of section 2 subsection (3) of section 8, sections 9, 11, 15 and transitory provision of subsection (2) of section 41 of MUST Ordinance.
8. The foremost point which requires consideration is the term "Vice-Chancellor". In the definition clause Y, of section 2, of the MUST Ordinance, the Vice-Chancellor has been defined as "Vice-Chancellor" means Vice-Chancellor of the University. Under subsection (1) of section 10 of Ordinance, the prescribed qualification of Vice-Chancellor is:---
"10(1) There shall be a Vice-Chancellor of the University who shall be an eminent academician/scholar of international repute and shall be appointed on such terms and conditions as may be prescribed.
(2) "
Whereas rest of the provisions of this section deal with the powers and duties of the Vice-Chancellor. The provisions of section 11, deal with the procedure of appointment and removal, tenure and terms and conditions of Vice-Chancellor, hence, there is no need to discuss in detail or interpret the provisions of section 11 of the Ordinance. Whereas the transitory provision of subsection (2) of section 41 deals with the appointment of first Vice-Chancellor, which reads as under:---
(2) Notwithstanding anything contained in the Ordinance, the first Vice-Chancellor shall be appointed by the Chancellor for a period of three years." (underlining is ours)
A bare reading of this statutory provision makes it clear that for the transitory period, the Chancellor is vested with the discretionary powers for appointing the first Vice-Chancellor while dispensing with the mode and procedure of appointment prescribed in the MUST Ordinance. Keeping in consideration the whole scheme and spirit of the MUST Ordinance, we have to determine the scope and extent of the phraseology of the non obstante clause i.e. "notwithstanding anything contained in this Ordinance". Whether this clause vests in the Chancellor, unfettered discretionary powers to appoint any person as first Vice-Chancellor or this discretion is limited and qualified. For determination of this legal proposition, the term "Vice-Chancellor" is of pivotal importance in this case. As we have referred hereinabove, the definition clause 'Y', which speaks that "Vice-Chancellor" means the Vice-Chancellor of the MUST University whereas subsection (1) of section 10 speaks of the personal qualification of the Vice-Chancellor. The analysis of these provisions clearly connotes that the MUST Ordinance has attached some personal qualifications with the Vice-Chancellor and whenever the Vice-Chancellor, whether permanently or under transitory provision is appointed, there is no exemption with regard to the personal qualifications mentioned in subsection (1) of section 10 of the MUST Ordinance. Without this qualification, no one can be appointed or given the status of Vice-Chancellor. While dealing with the scope and scheme of non obstante clause in the statute in a case titled A.G. Varadarajulu and another v. State of Tamil Nadu and others, reported as [AIR 1998 SC 1388], the Indian Supreme Court held as follows:---
"16. It is well-settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswani Kumar v. Arbinda Bose, AIR 1952 SC 369, Patanjali Sastri, J. observed: "The enacting part of a statute must, where it is clear, be taken to control the non-obstante clause where both cannot be read harmoniously". In Madhav Rao Scindia v. Union of India, (1971) 1 SCC 85 (at 139) : (AIR 1971 SC 530) Hidayatullah, CJ observed that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. "A search has, therefore, to be made with a view to determining which provision answers the description and which does not."
In the light of hereinabove principle of law enunciated by the Indian apex Court, it is not necessary that each and every non obstante clause in a statute excludes application of all provisions of statutes. Keeping in view the whole scheme of law, the scope of non obstante clause has to be determined. Thus, in the light of peculiar facts of this case, in our considered opinion, the phraseology of "notwithstanding anything contained" does not mean that the Chancellor can appoint any person without having regard to qualification mentioned in subsection (1) of section 10 of MUST Ordinance. The benefit of non obstante clause can be availed with regard to mode and process of regular appointment mentioned under the provision of section 11, the tenure for regularly appointed Vice-Chancellor is five years whereas under this transitory provision, the tenure is reduced to three years. Same like for appointment of regular Vice-Chancellor under section 11, a detailed comprehensive procedure, method and mechanism has been provided. While exercising the powers under the transitory provision of subsection (2) of section 41 of the MUST Ordinance, the Chancellor is vested with the discretionary powers without having regard to this procedure and mechanism for regular appointment.
9. The next aspect of the case which requires deliberation is that who can be the first Vice-Chancellor of the University. The word "first" has not been defined by the statute, therefore, while following the golden principle of interpretation of statute i.e. "the literal interpretation", we adopt the ordinary dictionary meanings of the word "first" which has been defined in the Chamber 20th Century Dictionary, New Edition, page 473 which reads as under:---
"first (furst), adj. foremost: in front of or before all others: most eminent: Chief; referring to the speaker or writer (gram) -n- one who or that which is first or of the first class: a place in the first class: first gear--adv. before anything or anyone else: for the first time."
In the Black's Law Dictionary, Sixth Edition, page 635, the definition of word 'first' is given as under:---
"First. Preceding all others; foremost; used as an ordinal one, as earliest in time or succession or foremost in position; in front of or in advance of all others."
In the Chambers 21st Century Dictionary, page 494 the word 'first' is defined as under:---
"first' /f3:st/ (often written Ist)-adj. 1 in counting: before all others; before the second and following ones. 2 earliest in time or order; the starting object of a series of objects, 3. (the first) a the first day of the month; b golf the first hole. 4 the most important; foremost in importance first prize 5. basic; fundamental first principles. 6 music a having the higher part the first violins; b. being the principal player the first clarinet adverb 1 before anything or anyone else; 2. foremost got in feet first. 3. before doing any thing. First make sure of the facts. 4. for the first time."
In the GEM Practical Combined Dictionary, Two in one, 21st Century, Edition, page 286, the word 'first' has been defined as under:---
"First' (ferst) adj. earliest in time or order; foremost; eminent or exalted."
The above referred dictionary meanings of the word "first" clearly conveys that a person who on the establishment of the university has firstly been designated as Vice-Chancellor, he will be called as first Vice-Chancellor for the purpose of transitory provision of subsection (2) of section 41 of the MUST Ordinance. According to the admitted facts, at the time of establishment of MUST, one Dr. Habib-ur-Rehman, Vice-Chancellor, Azad Jammu and Kashmir University Muzaffarabad was bestowed with the powers and status of Vice-Chancellor of the MUST University. According to the notification dated 27-3-2009, the Chancellor in exercise of powers, vested in him under the provision of subsection (3) of section 8 of the MUST Ordinance, entrusted him the additional charge of the Vice-Chancellor MUST University because he was holding the office of the Vice-Chancellor, Azad Jammu and Kashmir University, Muzaffarabad.
10. The most heated argument-advanced on both sides is relating to the term "appointment" and assignment of the "additional charge". According to the learned counsel for the appellant, the assignment of additional charge does not fall within the definition of appointment. Therefore, Dr. Habib-ur-Rehman cannot be treated as first Vice Chancellor of the MUST University, hence, the appellant who has been appointed under the transitory provision of subsection (2) of section 41 of the MUST Ordinance, is the first Vice-Chancellor. Whereas on the other hand, according to respondents' version, there is no concept of assignment of additional charge without appointment. The assignment of additional charge means the appointment, thus, while exercising the powers under the transitional provisions of subsection (2) of section 41 of the MUST Ordinance, the President/Chancellor has appointed Dr. Habib-ur-Rehman as the first Vice-Chancellor of MUST University. For interpretation of word "appointment" both sides have relied upon dictionary meanings. The word "appointment" has been defined in Black's Law Dictionary Sixth Edition, page 99 as under:---
"Appointment. The designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust.
The exercise of a right to designate the person or persons who are to take the use of real estate. The act of a person in directing the disposition of property, by limiting a use or by substituting a new use for a former one, in pursuance of a power granted to him for that purpose by a preceding deed, called a "power of appointment"; also the deed or other instrument by which he so conveys. Where the power embraces several permitted objects, and the appointment is made to one or more of them, excluding others, it is called "exclusive."
Appointment may signify an appropriation of money to a specific purpose. It may also mean the arranging of a meeting.
Office or public function. The selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. The term "appointment" is to be distinguished from "election". "Election" to office usually refers to vote of people, whereas "appointment" relates to designation by some individual or group." (underlining is ours)
In the Concise Oxford Dictionary of Current English, Fifth Edition, page 55, the appointment is defined as under:---
"appointment, n. Appointing; engagement, assignation; decree, ordinance; office assigned; (usu. PI)…
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