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Petitioner: Mst. SHAZIA SARWAR VS Respondent: CHANCELLOR, UNIVERSITY OF THE PUNJAB, LAHOREHonorable Justice Muhammad Khalid Mehmood KhanPervaiz Inayat Malik,Muhammad Shahzad Shaukat
2013 P L C (C.S.) 234
[Lahore High Court]
Before Muhammad Khalid Mehmood Khan, J
Mst. SHAZIA SARWAR
Versus
CHANCELLOR, UNIVERSITY OF THE PUNJAB, LAHORE and 3 others
Writ Petition No.6604 of 2011, decided on 24th August, 2012.
(a) University of Punjab Act (IX of 1973)---
----Ss. 6(1), 11, 15(3) & 31(2)(iii)---Constitution of Pakistan, Arts.10-A, 105 & 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Lecturer in Geography Department---Termination of service after four years on basis of petitioner's unsatisfactory annual confidential reports---University's plea that petitioner was appointed temporarily against a vacant post of Assistant Professor and her services were terminable on one month's notice or pay in lieu thereof; and that constitutional petition was not maintainable due to absence of statutory service rules---Validity---Contract employee would be entitled to hearing, if his/her termination of service was on basis of any allegation---Petitioner's termination from service on such allegation was hit by S.24-A of General Clauses Act, 1897---According to advertisement, post of Lecturer was likely to become permanent with passage of time---Petitioner remained in service as Lecturer for four years without any break or extension---According to condition of probation contained in University statute applicable to employee appointed against permanent post, temporary post of lecturer after one year would become permanent, thus, petitioner would be deemed to be permanent lecturer by operation of law---Governor of Province while acting as Chancellor would be a statutory functionary due to insertion of subsection (8) in S.11 of University of Punjab Act, 1973 for being a referential legislation, thus, amendments brought about in Art.105 of the Constitution would be read therein for being fully applicable thereto---According to S.31(2)(iii) of University of Punjab Act, 1975, Chancellor had exclusive powers to make Efficiency and Discipline Rules pertaining to teachers etc.---Chancellor's powers qua framing of such rules were constitutional, thus, such rules framed by him would be deemed to be statutory rules---High Court declared impugned order to be without lawful authority and of no effect while directing reinstatement of petitioner in service without back-benefits to the extent of salary and she would be entitled to seniority after completion of probation period after her initial appointment as Lecturer.
Aurangzeb Shafi v. Province of Punjab PLD 2011 Lah. 1989; Al-Jehad Trust's case PLD 1996 SC 324; Dayyam Atta Tareen v. NUST and others 2011 CLC 211; Rana Aamer Raza Ashfaq and others v. Dr. Minhaj Ahmed Khan and others 2012 SCMR 6; Chairman State Life Insurance Corporation v. Hamayun Irfan and others 2010 PLC (C.S.) 1183; Pakistan Tele Communication Company v. Muhammad Zahid and others 2010 SCMR 253; Pakistan International Airlines Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676; Abdul Rashid Khan v. Registrar Bahauddin Zakaria University 2011 SCMR 944; Azad Jammu Kashmir University v. Major (Rtd.) Rafique Ahmed Daurrani 2005 PLC (C.S.) 1360; Muhammad Khalid Khan v. Quaid-e-Azam University Islamabad 1984 CLC 721; Munaza Habib v. The Vice-Chancellor 1996 SCMR 1790; Akhtar Ali Javed v. Principal Quaid-e-Azam Medical College Bahawalpur 1994 SCMR 532; Muhammad Shahid and others v. Vice-Chancellor Punjab University Lahore 1999 SCMR 2590 and State Bank of Pakistan v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.
Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 897; University of Punjab v. Ch. Sardar Ali 1992 SCMR 1093; Ijaz Husain Suleri v. The Registrar and others 1999 SCMR 2381; Executive Allama Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484; Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir PLD 2011 SC 132; Munaza Habib and others v. The Vice-Chancellor and others 1996 SCMR 1790; Muhammad Shahid and 6 others v. Vice Chancellor, Punjab University, Lahore and 15 others 1999 SCMR 2590 and Rana Aamer Raza Ashfaq's case 2012 SCMR 6 rel.
(b) Civil service---
----Contract employee---Termination of service on basis of an allegation---Scope---Such employee would be entitled to hearing before termination of his service.
(c) Maxim---
----Verba relata hoc maxime operantur per referentiam ut in eis inessee vindentur: Words to which reference is made in an instrument have the same effect and operation as if they were inserted in the clause referring to them.
(d) Interpretation of statutes---
----Referential legislation---Scope---Verba relata hoc maxime operantur per referentiam ut in eis inessee vindentur: words to which reference is made in an instrument have the same effect and operation as if they were inserted in the clause referring to them.
Pervaiz Inayat Malik for Petitioner.
Muhammad Shahzad Shaukat for Respondents.
Date of hearing: 9th July, 2012.
JUDGMENT
MUHAMMAD KHALID MEHMOOD KHAN, J.--- The petitioner in response to an advertisement published in daily Pakistan Times on 21-2-1995, applied for the post of Lecturer in Geography Department of the University of Punjab. On the recommendations of Selection Board, the Syndicate on 16-6-1996 appointed the petitioner as Lecturer of Geography, the petitioner continued to perform her duties without any complaint from any quarter. On 6-5-2000 the petitioner's services were dispensed with, without assigning any reason. The petitioner filed representation, but it remain un attended, the petitioner ultimately filed an appeal to respondent No.1. The respondent No.1 also issued directions to respondent No.3 for the disposal of petitioner's appeal, due to in-action on the part of respondent No.3, the petitioner was constrained to file Writ Petition No.7716 of 2010 and this honourable court on 5-11-2010 directed the respondent No.3 to decide the petitioner's appeal/ representation, after that the respondent No.3 decided the petitioner's appeal vide impugned order dated 6-1-2011, hence the constitutional petition.
2. The respondents Nos.2 to 4 filed written statement and controverted the petitioner's assertions, the respondents stated that petitioner was a temporary employee and her services were terminated by invoking clause No.1 of her appointment letter, further the petitioner was appointed temporary lecturer in Geography Department against the vacant post of Assistant Professor, as and when the regular appointee joined his services, the petitioner's services were dispensed with. The termination order is finally approved by the Syndicate and as such it attained finality. The very maintainability of petition is also challenged on the ground of laches and due to non- availability of statutory rules to the university Employees.
3. Learned Counsel for the petitioner contends that respondent No.3 can only exercise powers under section 15(3) of the University of Punjab Act, 1973 (hereinafter referred to as the Act of 1973) when there is an emergent situation, the termination of petitioner's services does not fall in the definition of emergency and as such the impugned order is void ab initio. Likewise the Syndicate has also failed to appreciate that act of respondent No.3 is illegal and without any lawful authority, and the act of respondent No.3 to pass order under section 15(3) of the Act of 1973 is the misuse of delegated powers, the delay of one year in approving the act of respondent No.3 by the Syndicate is sufficient to prove the mala fide of the respondent No.3. Learned counsel submits that respondents are claiming contradictory reasons for the termination of petitioner's services. In the first instance the respondents claimed that petitioner was the temporary employee and her services were terminated as per terms of the appointment letter, but while deciding the petitioner representation the respondents came with the stance that petitioner's annual confidential reports were not satisfactory. Learned counsel vehemently argued that if the petitioner's annual confidential reports were not satisfactory, the respondents were bound to provide opportunity to petitioner for explanation and as such the petitioner's guaranteed fundamental right under Article 10-A has been infringed and the impugned termination order is hit by section 24-A of the General Clauses Act, the impugned order thus is void ab initio. Learned counsel submits that during her four year service with the University of Punjab Geography Department, the petitioner never received any complaint from any quarter, the petitioners performance remain excellent. Learned Counsel adds that after the lapse of 1 year the petitioner become the permanent employee of the University and her services were wrongly terminated, assuming that she is the temporary employee. Learned Counsel has relied on PLD 2011 Lah. 1989 Aurangzeb Shaft v. Province of Punjab, PLD 2009 SC 897, Sindh High Court Bar Association v. Federation of Pakistan PLD 1996 SC 324, Al-Jehad Trust's case 2011 CLC 211 Dayyam Atta Tareen v. NUST and others 2012 SCMR 6 Rana AAmer Raza Ashfaq and others v. Dr. Minhaj Ahmed Khan and others 2010 PLC (C.S.) 1183 Chairman State Life Insurance Corporation v. Hamayun Irfan and others 2010 SCMR 253 Pakistan Telecommunication Company v. Muhammad Zahid and others.
4. Learned Counsel for respondents Nos.2 to 4 submits that two temporary posts of lecturers in Geography department were advertised, 43 applications including the petitioner were received, the Selection Board on 17-12-1995 recommended the petitioner for appointment as lecturer. The petitioner was appointed as lecturer on temporary basis and the said appointment was made against the vacant post of Assistant Professor in Geography Department. On permanent appointment of Assistant professor on 6-5-2000, the petitioner services were dispensed with, the petitioner was not stigmatized in any manner and respondent No.3 passed the termination order under section 15(3) of the University of Punjab Act, 1973, the Syndicate approved the action of respondent No.3 on 5-5-2001, the petitioner remain silent for 8 to 10 years, hence the petition suffer from laches. The relationship between the petitioner and respondent University is of master and servant, the constitutional petition thus is not maintainable. The petitioner was temporary employee hence no constitutional petition is maintainable for regularization or confirmation of the temporary employment. The respondent No.3 rightly exercised the powers under section 15(3) of the University Act, 1973 as the Syndicate was not in session, the act of respondent No.3 after approval by the Syndicate has attained finality and is a past and closed transaction.
5. Learned Counsel has relied on 1992 SCMR 1093 University of Punjab v. Ch. Sardar Ali, 1999 SCMR 2381 Ijaz Husain Suleri v. The Registrar and others, PLD 2010 SC 676, Pakistan International Airlines Corporation v. Tanveer-ur-Rehman, 2010 SCMR 1484 Executive Allama Iqbal Open University v. M. Tufail Hashmi, 2011 SCMR 944 Abdul Rashid Khan v. Registrar Bahauddin Zakaria University, PLD 2011 SC 132 Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir, 2005 PLC (C.S.) 1360 Azad Jammu Kashmir University v. Major (Rtd) Rafique Ahmed Daurrani, 1984 CLC 721 Muhammad Khalid Khan v. Quaid-e-Azam University Islamabad, 1996 SCMR 1790, Munaza Habib v. The Vice-Chancellor 1994 SCMR 532, Akhtar Ali Javed v. Principal Quaid-e-Azam Medical College Bahawalpur 1999 SCMR 2590, Muhammad Shahid and others v. Vice-Chancellor Punjab University Lahore and 2012 SCMR 280 State Bank of Pakistan v. Imtiaz Ali Khan and others.
6. Learned counsel for petitioner by exercising his right of rebuttal submits that petitioner filed representation immediately even without awaiting the approval of Syndicate, the petitioner representation remained pending and was finally decided by the orders of High Court, the petitioner than challenged the impugned order without any delay. As far as the maintainability of the petition is concerned, the University Statute for Efficiency and Discipline Rules of the employees of the University of Punjab is statutory and the writ petition is maintainable, further the University of Punjab is acting in the affairs of State and as such on this count alone the petition is maintainable.
7. Heard and Record perused.
8. It is an admitted fact that out of 43 applicants for the post of lecturer in Geography department, the petitioner was appointed as temporary lecturer on 16-6-1996 on the following terms and conditions as under;---
Reference your application dated 16-3-1995 the post of Temporary Lecture in Geography.
The Syndicate at its meeting held on 26 May, 1996 has approved the recommendations of the Selection Board made at its meeting held on 17-12-1995 to the effect that you be appointed as Temporary Lecturer in the Geography against the vacant post of Assistant Professor in the Department of Geography of this University at the initial stage of BS-17 (Rs.3880-290-7590) plus usual allowances admissible under the statutes with effect from the date you report yourself for duty.
The appointment is subject to the following terms and conditions:---
(i) The appointment is temporary and terminable on one month's notice or pay in lieu thereof from either side as the case may be,
(ii) ............................................................................
(iii) ............................................................................
9. The respondent University on 21-2-1995 invited applications for two posts of Lecturer of Geography through different News Papers along with one post of Assistant Professor of Geography, the educational qualification, experience and Basic Pay scale for both the posts were different. The post of Assistant Professor was permanent and the post of Lecturer was temporary but was likely to become permanent.
10. Admittedly the petitioner was not having the qualification of Assistant professor and was not eligible to be appointed as the Assistant Professor but the appointment letter issued to the petitioner shows that petitioner was appointed temporary lecturer against the vacant post of Assistant Professor. There is no denial of the fact that petitioner never remain the contestant of the post of Assistant Professor and rightly so because she was not having the requisite qualification and experience, hence the argument of Learned Counsel for the respondents that petitioner was appointed temporarily against the post of Assistant professor and not the temporary lecturer in BS-17 is not sustainable for the following reasons;
(a) The advertisement clearly find mention that post of Assistant Professor is permanent, how an ineligible candidate could be appointed temporary lecturer against the permanent post.
(b) The petitioner was not having requisite qualification and experience for the post of Associate Professor so no question for even considering the petitioner for the said post arose.
(c) The language of appointment letter does not find mention the word temporarily and the word used is temporary.
11. It is not the case of the respondents that petitioner was appointed against the post of lecturer but was directed to perform duties against the post of Assistant professor temporarily, the respondent case is that petitioner was appointed temporary lecturer against the vacant post of Assistant Professor which is even otherwise not permissible under the University of Punjab Act of 1973 as 6 years' experience is the condition precedent for the post of Assistant Professor. In these circumstances it is an established fact on record that petitioner was appointed Lecturer of Geography in BS-17 post on temporary basis but with the assurance that it may become the permanent job as is evident from the fact that University paid her salary of lecturer till her impugned termination.
12. The second question is whether the post of lecturer remain temporary and was not made permanent till the petitioner's services were dispensed with?
13. The respondents are not claiming that two posts of lecturers of Geography department was not made permanent or were abandoned, their entire pleadings are silent on this issue, it was the basic term of advertisement that posts of the lecturers are temporary but it is likely that these two posts become permanent, thus there was an assurance to the candidates that post may be declared permanent with the passage of time.
14. It is an admitted fact that petitioner remain in service as lecturer for 4 years, and the respondents are not claiming that they continue to extend the petitioner's terms of appointment yearly, biannually or quarterly basis. In the absence of respondents claim that temporary post of lecturer was not made permanent, it has to be seen whether with the passage of time the temporary posts become permanent or not? Whether after expiry of reasonable period or period provided in law the petitioner become the permanent employee or her status remain of a temporary employee?.
15. The petitioner appointment letter is silent about the tenure of appointment, the respondents are not claiming that temporary post was not made permanent, the University Statute legislated under section 31 of the University of Punjab Act, 1973. Part V of the Calendar Volume-I, 2002 for UNIVERSITY EMPLOYEES III METHOD OF APPOINTMENT provides the qualification, method of appointment, tenure of probation and confirmation of university employee recruited against the permanent post as under;
(II) QUALIFICATIONS
(2) The qualifications and experience for appointment and recruitment to various cadres of University teachers shall be as below:---
(a) LECTURER
Ist class Master's degree in the Arts or Science/Ist Class B.Sc. (Engg.) (First Class B. Pharmacy) Ist. Class LL.B or equivalent qualifications.
(b) ASSISTANT PROFESSOR
Educational qualifications as in (a) above and 6 years teaching/ [research experience] in the recognized university or a post-graduate institution as lecturer or professional experience in a national or international Organization.
OR ............................................................................... OR ...............................................................................
(III) METHOD OF APPOINTMENTS
(1) The Syndicate shall have the power to appoint University teacher on the recommendation of the Selection Board.
(2) The Chancellor may fill any post in the University by appointing a person in the service of Government, or an officer, teacher or other employee of any other University or educational or research institution set up or established by Government or by a University in the Province of Punjab:
Provided that in the case of a teaching post in the University the appointment shall not be made without consulting the Selection Board of the University.
(V) PROBATION AND CONFIRMATION
[Unless otherwise decided by the Syndicate, the members of the Teaching Staff appointed to permanent vacancies shall ordinarily remain on probation for a period of [two years]', which may be extended by another year. The total period of probation shall not exceed three years. The period spent on leave, other than casual leave, may be excluded for reckoning the period of probation.
An employee who proceeds abroad for higher studies during the period of his probation shall be considered for confirmation only after he has completed the remaining part of the prescribed period of his probation after return from abroad. Notwithstanding anything herein before contained, the period of probation in such cases would be deemed to have been extended proportionately:
Provided that officiating service in a corresponding or higher post may be reckoned as the period spent on probation in the post to which he was so appointed.]2 "
16. The definition of University teacher is provided in section 3(xxiii) of the University of Punjab Act, 1973 as under:---
(3) (xxiii) TEACHERS, mean Professors, Associate Professors, Assistant Professors and Lecturer engaged whole-time by the University or by a College for teaching degree, honours or post- graduate classes and such other persons as may be declares as Teachers by Regulations;
17. The Selection Board is defined in section 6 (1) of the University Punjab Act, 1973 and every appointment of University teacher is through the Selection Board.
18. The petitioner at the relevant time was fulfilling the educational requirements of a lecturer the Selection Board selected her out of 43 candidates, the post of lecturer was carrying only one condition that it is temporary but likely to become permanent. In the absence of respondents claim that post of Lecturer was not made permanent, it can safely be presumed that after the expiry of one year, the temporary post becomes permanent and the petitioner will be deemed to be the permanent employee/lecturer by operation of law as per the condition of probation applicable to the employee appointed against the permanent post, especially when it is not the case of the respondents that they were extending the petitioner's services on yearly, biannually, or quarterly basis. The reason for treating the temporary post as permanent further find strength from the following undisputed facts, that the petitioner was continuously working on the post of lecturer and was drawing salary from the approved budget of University, the petitioner's service continued against the post of lecturer without any break or extension and as such in the above mentioned facts, it is proven fact that two temporary posts of lecturers become permanent with the efflux of time.
19. The other aspect of the case is that respondents in their written statement specially have claimed that petitioner's services were dispensed with as per term of her appointment letter but impugned order dated 11-1-2011 shows an allegation that petitioner's annual confidential reports were not satisfactory. It is now settled law that even the contract employee is entitled for hearing if termination of his/her contract of service is on the basis of any allegation and as such the petitioner termination from service is hit by section 24-A of the General Clauses Act and is bound to succeeds on this count alone.
20. The respondents second attack is against the maintainability of the petition, on the ground that petitioner's services was not governed under the statutory rules and as such the relationship between the parties is of master and servant, the remedy if available to the petitioner against her termination is a suit for damages and not the constitutional petition.
21. Mr. Shahzad Shaukat Advocate learned counsel for respondents contends that no doubt the Governor is the Chancellor of the University of Punjab, but the rule making powers are only available to the Senate and Syndicate, the Governor has no role to play in the rules making powers hence the service rules framed by the Senate and Syndicate could not be termed as the statutory rules, further the powers of Governor under the Act of 1973 are statutory and not constitutional and even section 11(8) of the Act of 1973 ibid is not helpful to petitioner. Learned counsel has relied on 1992 SCMR 1093 Sardar Ali's case supra.
22. The honourable Supreme Court of Pakistan while interpreting section 11(8) of the University of Punjab Act, 1973 (hereinafter referred to as the Act of 1973) has held as under:---
"By invoking this subsection (8) of section 11 of the Act, the contention of the respondent is that the appointment of the teachers and the control under the Efficiency and Discipline Rules of the Chancellor becomes that of the Governor and hence statutory. This contention suffers from three defects.
Firstly, the scheme of the Act otherwise does not show that the Rules of Efficiency and Discipline or the conditions of service of the respondent are governed by the statutory rules. In the absence of it, subsection (8) of section 11 which relates to the manner in which the Chancellor shall act in the discharge of his duties, does not make the conditions of service of the employees statutory. All that subsection (8) of section 11 provides is that the Governor shall be bound by the advice of the Chief Minister as he is bound in discharge of his functions under Article 105 of the Constitution of the Islamic Republic of Pakistan.
Secondly, such an incorporation by reference on the strength of a statutory provision of a constitutional provision does not raise the status of the statutory provision to that of a constitutional provision. It has been so held by this Court in Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445 and the Lahore Central Cooperative Bank Ltd. v. Pir Saifullah Shah PLD 1959 SC 210.
Thirdly, the difference between the position of the Governor as the Chief Executive of the Province and as the Chancellor of a University has been well brought out in an Indian decision…
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