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Petitioner: Dr. HASSAN AMIR SHAH VS Respondent: PROVINCE OF PUNJAB through Chief Secretary and 5 others
Court Name: Lahore High Court Judge(s): Nasir Saeed Sheikh Title:Dr. HASSAN AMIR SHAH vs PROVINCE OF PUNJAB through Chief Secretary
and 5 others Case No.: Writ Petitions Nos.7756, 8681, 6963, 7213 and 9121 of 2011, Date of Judgment:2011-06-24 Reported As: 2012 PLC (C.S.) 290 Result: Petitions dismissed Judgment ORDER ' NASIR SAEED SHEIKH, J.--- This judgment will dispose of Writ Petitions Nos.7756 8681, 6963, 7213 and 9121 all of 2011 which involve common questions of law and facts. 2. The Secretary Higher Education Department, Government of Punjab through a public notice published in the daily "Nawa-i-Waqt dated 19-1-2011 invited applications to fill the posts of Vice- Chancellors in the following six universities:--- (i) University of Education, Lahore. (ii) Lahore College for Women University, Lahore. (iii) Fatima Jinnah Women University, Rawalpindi. (iv) Bahauddin Zakriya University, Multan. (v) Government College University, Lahore. (vi) University of Sargodha, Sargodha. ' The eligibility criteria stated in the said publication for the prospective candidates was mentioned as follows:--- Eligibility Criteria ' Should have Ph.D degree in any subject from a reputed University. ' Should not be more than 65 years of age on 4-2-2011. ' Both male and female candidates are eligible to apply (for Lahore College for Women University, Lahore and Fatima Jinnah Women University, Rawalpindi, only female candidates are eligible). ' Should have vast experience in postgraduate teaching including experience in administrative and financial management.
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' Should have to his/her credit quality research publications in journals of international repute. ' In addition to the above the following attributes were also specified in the advertisement for consideration of the candidates:--- ' Possess distinguished reputation as a scholar and academician having close familiarity with academic functions both in classroom teaching and research. ' Experience in higher education management. ' Capability and experience of resource mobilization. Leadership squalities for policy making in relation to efficient and effective management of all affairs of Universities. ' Some 224 candidates applied in response to the said advertisement. Earlier a Search Committee comprising the following eminent educationists and scholars was reconstituted vide Notification No,SO(UNIV.)6-2(2000), dated 3-4-2009:- {{ TABLE }} Syed Babar Ali, Pro-Chancellor, Lahore University of Management Sciences (LUMS) Convener Mr. Sartaj Aziz, Vice-Chancellor, Beaconhouse National University, Lahore Member (ii) Lt. Gen. (R) Muhammad Akram Khan Vice-Chancellor, University of Engineering and Technology, Lahore Member Additional Chief Secretary, Government of the Punjab, Lahore Member Secretary, Government of the Punjab Higher Education Department. Ex-Officio/ Secretary of the Committee Syed Babar Ali, Pro-Chancellor, Lahore University of Management Sciences (LUMS)Convener Mr. Sartaj Aziz, Vice-Chancellor, Beaconhouse National University, LahoreMember Lt. Gen. (R) Muhammad Akram Khan Vice-Chancellor, University of Engineering and Technology, LahoreMember Additional Chief Secretary, Government of the Punjab, Lahore Member Secretary, Government of the Punjab Higher Education Department.Ex-Officio/ Secretary of the committee 3. The Search Committee on the basis of evaluation criteria short listed 89 candidates from amongst the 224 applicants for calling them for interview purposes in order to assess their eligibility. The petitioners were not included in the short listed 89 candidates and felt aggrieved of the above act of exclusion of their names from the short listed candidates and resultantly the present writ petitions were instituted against the act of the exclusion of their names from the short listed candidates. 4. Vide order dated 7-6-2011 notice in compliance with the provisions of Order XXVII-A of C.P.C. Was issued to the Advocate-General Government of Punjab to appear in this case and assist the Court on the questions raised in the writ petitions. 5. The respondents submitted parawise comments which have been made part of the record. 6. Mr. Anwar Kamal learned senior counsel mainly addressed the arguments in all the writ petitions and the learned counsel representing other petitioners in the connected writ petitions relied upon his arguments. The learned counsel representing the petitioner of Writ Petition No,5841 of 2011 only added one point that at the evaluation criteria assessment of the candidates the administrative experience of the petitioner Dr. Yousaf Hayat Khan of Writ Petition No,7213 of 2011, was not at all considered for preparing the table of marks of the said candidate which according to the said
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learned counsel deprived the petitioner from being included in the list of selected candidates who were called upon for interviews. 7. The learned senior counsel for the petitioners has raised two basic objections about the process being evolved by the respondents for short listing the candidates:--- (i) That the Search Committee which was constituted by the respondents 1 and 6 has no legal basis (ii) That the evaluation criteria fixed for short listing the candidates was also illegal and arbitrary and has resulted into grave discrimination against the petitioners. ' While elaborating the point on Search Committee being allegedly lacking the legal basis, the learned counsel for the petitioners argued that the members of Search Committee have not been selected on the basis of any validly regulated procedure prescribed for the purpose. The learned counsel for the petitioners contended that none of the members of the Search Committee was himself the holder of a PhD. Degree and therefore all of them suffered from lack of inherent qualification in themselves to assess the eligibility and capability of the candidates for the posts of Vice-Chancellors all of whom admittedly were holders of PhD. Degrees either from the Pakistani Universities or from abroad. The learned counsel also argued that the working of Search Committee also lacked any credible mechanism which is the necessary condition for the purposes of transparent performance of a public functionary. 8. Elaborating the point about the objections of the petitioners upon the evaluation criteria the learned counsel for the petitioners pointed out that the evaluation criteria was fixed subsequent to completion of process of invitation of applications. The learned counsel submitted that by adding of five additional marks to the credit of those PhDs who got their qualifications from foreign universities has resulted into an automatic exclusion of the Ph.Ds. From the Pakistani universities. The learned counsel contended that this act has created an open discrimination for the Pakistani Ph.D. Degree holders. The learned counsel further pointed out that the evaluation criteria as set down by the Search Committee for short listing the candidates has completely overlooked the last item in the eligibility criteria stated in the newspaper advertisement dated 19-1-2011 which reads that a candidate should have to his/her credit quality research publications in journals of international repute. Thus the learned counsel contended that the evaluation criteria is violative of the eligibility criteria as published in the advertisements and is therefore arbitrary. The learned counsel also took exception to the allocation of 40 marks for interview purposes and also contended the same as well being arbitrary and without any legal basis. The learned counsel thus prayed that the entire process of selection of the candidates for the posts of Vice-Chancellors for the six universities listed in the advertisement be directed to be commenced de novo to be regulated by some rule-based evaluation criteria fixed earlier in time than the commencement of the selection process and that some specific statutory basis be also directed to be created for the purpose of functioning of the members of the Search Committee. The writ petitions were therefore prayed to be accepted. The learned counsel for the petitioners relied upon the judgments reported as DELHI TRANSPORT CORPORATION v. D.T.C. MAZDOOR CONGRESS AND OTHERS (AIR 1991 SC 101), SHAIKH ZAYED HOSPITAL AND POST GRAUDATE MEDICAL INSTITUTES THROUGH CHAIRMAN AND DEAN AND ANOTHER v. DR. MUHAMMAD SAEED AND ANOTHER (2010 PLC (C.S.) 967), MOHINDER SAIN GARG v. STATE OF PUNJAB AND OTHERS (1991) (1 SUPREME COURT CASES 662), VIKRAM SINGH AND ANOTHER v. SUBORDINATE SERVICES SELECTION BOARD, HARYANA AND OTHERS (1991) (1 SUPREME COURT CASES 686) and an unreported judgment passed by a learned single Judge of this Court in W.P.No,5841 of 2011 in support of his contentions. 9. The learned Additional Advocate-General assisted by the learned Assistant. Advocate-General has addressed arguments vehemently opposing the maintainability of the writ petitions. It was argued by them that the Search Committee comprised eminent educationists of the country three
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of whom are nominated by names whereas the two senior government officials have been made members of the Search Committee for its proper administrative functioning. The learned Additional Advocate General of Punjab pointed out that admittedly no mala fides are attributed to the members of the Search Committee by the petitioners and that keeping in view the long standing experience of the specifically nominated members 1, 2 and 3, in the relevant field the government has-reposed full confidence in them for selecting suitable candidates for the posts in question. It was pointed out by the learned Additional Advocate-General that this process of constituting the Search Committee was commenced first in the year 2005 through a notification dated 7-1-2005 which process was first commenced at the federal level and later on for the purpose of the selection of candidates against the posts of Vice-Chancellors of six public sector universities enumerated in the advertisement the present Search Committee was also reconstituted through notification dated 3-4-2009 by the Higher Education Commission at the provincial level. The learned Additional Advocate-General pointed out that Higher Education Commission also provided guidelines for selection of the Rectors/Vice-Chancellors to the Search Committee and the photocopies of the relevant notifications as well of the guidelines were produced before the Court and the copies of the same were handed over to the learned counsel for the petitioners for their perusal on 7-6-2011. The learned Additional Advocate-General further argued that the guidelines provided by the Higher Education Commission to the members of the Search Committee duly constitutes the instructions of the government and have the force of law. The learned Additional Advocate General relied upon the judgments reported as (1) THE PROVINCE OF WEST PAKISTAN" THROUGH THE SECRETARY, SOCIAL WELFARE AND LOCAL GOVERNMENT DEPARTMENT AND (2) THE REGISTRAR, CO-OPERATIVE SOCIETIES, WEST PAKISTAN, LAHORE v. CH. DIN MUHAMMAD AND OTHERS AND (1) THE PROVINCE OF WEST PAKISTAN THROUGH THE SECRETARY SOCIAL WELFARE AND LOCAL GOVERNMENT DEPARTMENT AND (2) THE REGISTRAR, CO-OPERATIVE SOCIETIES, WEST PAKISTAN, LAHORE v. ZAFAR ALI SHAH AND OTHERS (PLD 1964 SC 21), KHAN FAIZULLAH KHAN V. GOVERNMENT OF PAKISTAN (PLD 1974 SC 291), MUHAMMAD SIDDIQUE v. SECRETARY TO GOVERNMENT OF PAKISTAN MINISTRY OF EDUCATION AND 2 OTHERS (PLD 1996 SC 197) SECRETARY TO THE GOVERNMENT OF THE PUNJAB IRRIGATION AND POWER DEPARTMENT, IRRIGATION SECRETARIAT LAHORE v. ABDUL HAMID ARIF AND OTHERS (1991 SCMR 628), MUHAMMAD UMAR KHAN v. YOUSAF ARAB AND OTHERS, MUHAMMAD UMAR KHAN v. THE STATE (1973 SCMR 134) and MUHAMMAD ISHAQUE AND OTHERS v. GOVERNMENT OF PUNJAB THROUGH CHIEF SECRETARY AND OTHERS (2005 SCMR 980) and the learned Additional Advocate General also referred to an unreported judgment by a Division Bench of this Court passed in Writ Petition No,245 of 2010, in support of his contentions. 10. The learned Additional Advocate-General as well as the learned Assistant Advocate-General concluded that a transparent process for selection of the candidates has been undertaken by the members of the Search Committee who were eminent educationists. The learned Additional Advocate General further submitted that the awarding of 5 additional marks to the holders of Ph.Ds. From foreign universities does not amount to any discriminatory act but constitutes giving due recognition to better qualified persons who get their education from well known high ranking universities from. Abroad. The learned Additional Advocate-General also contended that in the present case the allocation of 40 marks for the candidates who have been called for interview are not only made to give more transparency to the selection process by the Search Committee but is also not violative of any provision of law. The learned Additional Advocate-General pointed out that the petitioners do not have any locus standi to raise any objection to the allocation of 40 marks for interview purposes as the present petitioners have not reached the stage of the interview and therefore they cannot be said to be aggrieved of the said allocation of marks. The learned Additional Advocate-General contended that in respect of contentions raised by the learned counsel for the petitioner of Writ Petition No,7213 of 2011, the Higher Education Department officials
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called him to appear before them and give documentary proof of his claimed experience but the said petitioner could not do the needful that is why he was not given any marks for the experience section of the evaluation criteria. Thus the learned Additional Advocate General as well as the learned Assistant Advocate-General vehemently prayed for the dismissal of the writ petitions. 11. It is also pointed that the petitioners moved C.M. No,2022 of 2011 on 8-6-2011 for impleading the Governor in his capacity as Chancellor, as the respondent in the writ petition, C.M. No,2029 of 2011 on 8-6-2011 seeking amendment of the Writ Petition No,7756 of 2011 by adding the prayer that the Search Committee be graciously restrained from proceeding further in the matter and C.M.No,2038 of 2011 on 9-6-2011 for impleading all the 89 candidates who have been selected for interview purposes All the three C.Ms. Detailed above have been opposed by the learned Additional Advocate-General as not being entertain able at this stage of the proceedings. 12. I have considered the arguments of the learned counsel for the parties and have perused the record with their able assistance. 13. I would like first of all to dispose of the three C.Ms. Moved by the petitioners at the fag end of the proceedings of the instant writ petitions. In so far as the prayer with regard to the implement of the Governor of Punjab/Chancellor of the universities is concerned, the Province of Punjab has been impleaded in the writ petitions and it sufficiently covers the office of the Governor who js ex-officio Chancellor of the universities of the Punjab whose Vice-Chancellors are to be appointed. The writ petitions have been finally heard and at this stage I do not think that the formal and separate implement of the Governor of the Punjab/Chancellor of the Universities would be necessary therefore this request is declined. The prayer for implement of the 89 short listed candidates for interviews by the Search Committee is also without any legal basis. Since the writ petitions have not been admitted to regular hearing therefore in view of the orders to be passed for the disposal of the instant writ petitions by me, there is no necessity to implead 89 short listed candidates selected for interview purposes. Through the third C.M. a request has been made for adding the prayer for interim relief in the prayer clause. This amendment is also without any legal necessity. Moreover in view of the main judgment to be passed by me I do not think it appropriate to allow this prayer as well. This C.M. Is also accordingly dismissed. 14. All the six universities in which the posts of Vice-Chancellors have fallen vacant and are intended to be filled, have been statutory bodies and their respective affairs are being run and managed under separate statutes, the detail of which is reflected as follows:--- 1.The University of Education, Lahore Ordinance, 2002 (Punjab Ordinance L of 2002) 2The Lahore College for Women University Lahore Ordinance, 2002 (Punjab Ordinance XLIX of 2002) 3The Fatima Jinnah Women University, Rawalpindi Ordinance, 1999 (Punjab Ordinance XLIII of 1999). 4The Baha-ud-Din Zakariya University Act, 1975 (Punjab Act . III of 1975) 5The Government College University, Lahore Ordinance, 2002 (Punjab Ordinance XLVIII of 2002). ' All the above statutes recognize the posts of the Vice-Chancellors as one of the four components of the university, the other three being the Chancellor, Syndicate and the Academic Council. In all the statutes of the respective universities the Vice-Chancellor is also one of the officers of the university. In all the above statutes the relevant provisions through a specific section have been made providing for the appointment of the Vice-Chancellor by the Chancellor on such terms and conditions as the Chancellor may determine. The statues of all the above universities further specifically contain separate sections with common factors dealing with the powers and duties of the Vice-Chancellor. One of the statutes is the University of the Education, Lahore Ordinance, 2002 and it deals with this aspect in its section 14 and is reproduced below:---
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Power and duties of the Vice-Chancellor.--- (1) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall ensure that the provisions of this Ordinance, the Statutes, the Regulations and the Rules are faithfully observed in order to promote teaching, research, publication, administration and the general efficiency and good order of the University. He shall have all powers necessary for this purpose including administrative control over all officers, teachers and other employees of the University. (2) The Vice-Chancellor shall, in the absence of the Chancellor, preside at a convocation of the University. He shall have all powers necessary for this purpose including administrative control over all officers, teachers and other employees of the University and shall preside at the meetings of the Authorities and other bodies of the University, Divisions and constituent Colleges of which he may or may not be the head. (3) The Vice-Chancellor may, in an emergency which in his opinion requires immediate action, take such action as he may consider necessary and shall, as soon thereafter as possible, report his action for approval to the officer, authority or other body which in ordinary course would have dealt with the matter. (4) The Vice-Chancellor shall also have the powers to:--- (a) Create and fill temporary posts for a period not exceeding six months. (b) Sanction all expenditure provided for in the approved budget and to re-appropriate funds within the same major head of expenditure. (c) Sanction by re-appropriation an amount not exceeding one hundred and fifty thousand rupees for an unforeseen item not provided for in the budget and report is to the Syndicate at the next meeting. (d) Appoint paper setters and examiners for all examinations or the University after receiving panels of names from the relevant Authorities. (e) Make such arrangements for the scrutiny of papers, marks and results as he may consider necessary. (f) Direct teachers, officers and other employees of the University to take up such assignments in connection with teaching, research, examinations, administration and such other activities in the University as he may consider necessary for the purpose of the University. (g) Delegate, subject to such conditions, if any, as may be prescribed, any of his powers under this Ordinance, to an officer or officers of the University. (h) Exercise general control and supervision over the system of examination of the University. (i) Exercise and perform such other power and functions as may be prescribed. (j) Appoint visiting professors in various disciplines for a period not more than one academic year on the terms and conditions as prescribed; and (k) Appoint employees below the rank of lecturer or any equivalent officer. ' Similar statutory provisions have been added in the statutes of the other universities with a difference of serial number of the section only. The perusal of the powers and duties of the Vice- Chancellor therefore highlights that the Vice-Chancellor of each such university is the Principal Executive and Academic Officer of the university who shall ensure the enforcement of the provisions of the Ordinance, statutes, the regulations and rules and shall promote general functioning and good orders of the university and has been conferred upon all the powers for the above mentioned purposes and is thus entrusted with the administrative control over all the officers, teachers, students and employees of the university. Thus the post of a Vice-Chancellor is combination of multidimensional academic as well as of personal qualities touching the matters of the administration as well as the working of the university. The matter of appointment of the Vice-Chancellor of the university has thus been entrusted to the Chancellor of the university which office is ex-officio combined with that of the Governor of the province. The terms and conditions for
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the appointment of Vice-Chancellor therefore in all the statutes governing six universities have to be determined by the Chancellor of the university. 15. The learned Additional Advocate General has in this respect placed on record an earlier notification dated 7-1-2005 issued by the Governor/Chancellor which notification is reproduced below:--- ' GOVERNMENT OF THE PUNJAB EDUCATION DEPARTMENT (Higher Education Wing) ' 7th January, 2005 NOTIFICATION ' No,S.0,(Univ.)6-2/2000.--- In supersession of this department notification of even No, dated 10th August, 2004. The Governor/Chancellor has been pleased to constitute the following Standing Search Committee for selection of suitable persons for appointment as Vice-Chancellor of Universities as and when required:--- (i) Syed Babar Ali, Pro-Chancellor, Lahore University of Management Sciences(LUMS)Convener (ii) Mr. Sartaj Aziz, Vice-Chancellor, Beaconhouse National University, LahoreMember (iii)Lt. Gen. (R) Muhammad Akram Khan, Vice-Chancellor, University of Engineering and Technology LahoreMember (iv) Mr. Khushnood Akhtar Lashari, Additional Chief Secretary, Government of the Punjab, LahoreMember (v) Secretary, Higher EducationDepartment Government of the PunjabEx-Officio/ Secretary of the Committee ' By Order of the Governor/Chancellor SHAHID RASHID SECRETARY EDUCATION ' A copy of the minutes of the 2nd Chancellor's Committee meeting held on 11-5-2006 at the office of the then President's Secretariat (Camp office) Rawalpindi under the auspicious of federal government has also been placed on the record in which paragraph No,7 of the instruction is relevant and is reproduced below:--- "Vice-Chancellors of all Provincial Public Universities should be appointed after advertisement through a Search Committee process. The Search Committee will be required to put up a panel of 3 names for approval of the Chancellor from whom the Vice-Chancellor may be selected." ' The guidelines for selection of Vice-Chancellors have also been put into black and white which guidelines have been laid down by the Higher Education Commission and which guidelines are reproduced below:--- "Higher Education Commission A & C Division ' Guidelines for Selection of the Rector/Vice-Chancellor Introduction. Rector or Vice-Chancellor is fundamentally a leadership position that largely determines destiny of University or a Degree Awarding Institute. Conceiving a vision and a mission statement and, then leading University functions of achieving excellence and international compatibilities in academic learning, research, technological applications, social harmony and development and transparent governance through guiding, motivating and inspiring faculty and administration are a few of the core tasks associated with the position of a Rector or Vice-Chancellor. The Guidelines for Selection of the Rector/Vice-Chancellor are aimed at identifying crucial aspects that need to be valued by the Search Committee while processing selection of a Rector or Vice-Chancellor. ' The Search Committee is encouraged to invite and or nominate potential candidates for the position of Vice-Chancellor/Rector, in writing, explaining the basis of recommendation and having been availed willingness of the nominee to assume the responsibility and…
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