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Petitioner: Punjab Higher Education Commission VS Respondent: Dr. Aurangzeb Alamgir, etc
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan, Syed Mansoor Ali Shah Title: Punjab Higher Education Commission vs Dr. Aurangzeb Alamgir, etc Case No.: Case No: I.C.A. No.1766/2016 Date of Judgment:2017-04-27 Reported As: 2017 LHC 1400 Result: Appeal allowed
Judgment Syed Mansoor Ali Shah, CJ:- The challenge: Private respondents no. 1 to 3 are associated with higher education and are desirous of being considered for the post of Vice Chancellor. They challenged Notifications dated 3.3.2015 and 7.4.2105 ("Notifications") issued by the Higher Education Department ("HED"), Government of the Punjab, before the learned Single Judge. The first notification constitutes a Search Committee, for a period of two years. Its mandate is to recommend to the Government, a panel of three suitable persons for the post of Vice Chancellor, in 11 public sector universities, {{FN1}}to be finally appointed by the Chancellor. The second notification provides for qualifications, experience, other requirements and criteria for the selection to the post of Vice Chancellor. 2. The private respondents challenged the constitutionality and legality of these Notifications on the ground that standards in institutions of higher education fell within the exclusive domain of the Federal Legislature under Entry 12 of Part-II of the Federal Legislative List of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), therefore, Provincial Legislature through section 14(2) and (4) of the University of the Punjab Act, 1973 ("Act") as substituted by the Public Sectors Universities (Amendment) Act, 2012 {{FN 2}}could not provide for standards i.e., qualifications, etc and criteria. They prayed that the said provisions of the Act be either read down or declared unconstitutional. They also agitated that the Notifications fell short of the statutory requirements and were ultra vires section 14 of the Act. {{FS1}} There are 31 public sector universities in Punjab, however, term of the existing Vice Chancellors had come to an end in 11 public sector universities when the said notification was issued. {{FE1}} {{FS2}} Identical amendments have been made in the laws relating to the other three Universities in connected petitions, however, for the purpose of this consolidated judgment, amendment in section 14, made in the University of the Punjab Act, 1973 will be considered.1 2 1 2
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{{FE2}} Impugned judgment 3. Impugned judgment dated 14.11.2016 struck down section 14 (2) & (4) of the University of the Punjab Act, 1973 and similar provisions in the law of 10 other public sector universities in Punjab (even though only four universities were before the Court). As a consequence, impugned Notifications issued by the Higher Education Department, were also struck down. 4. The impugned judgment held that till the appointment of the new Vice Chancellors in accordance with the judgment, Senior Professors in terms of length of service be appointed as Vice Chancellors in the under- mentioned four public sector universities before the Court. The impugned judgment was suspended vide order dated 19.12.2016 {{FN3}}by this Court, and as an interim measure, one of the recommended candidates from the proposed panel for the under-mentioned four universities was provisionally appointed to hold the post of Vice Chancellor. (i) University of the Punjab, Lahore. (ii) University of Sargodha, Sargodha. (iii) Lahore College for Women University, Lahore. (iv) Muhammed Nawaz Sharif University of Engineering & Technology, Multan. Facts 5. Through section 2 of The Public Sectors Universities (Amendment) Act, 2012 (LX of 2012) dated 14.11.2012, amendment was brought about in section 14 of the Act. Identical amendments were brought about in the statutes of other public sector universities in Punjab. Section 14 deals with appointment of Vice Chancellor and authorizes the Provincial Government to determine through a Notification the qualification, experience and {{FS3}} In I.C.A.no. 1767/2016. As modified by order dated 12.01.2017. {{FE3}} other relevant requirements for the post of Vice Chancellor, as well as, constitute a Search Committee of not less than three members and not more than five members for making recommendations for appointment of the Vice Chancellor. The Government is also to determine the procedure and criteria to be followed by the Search Committee, constituted to recommend a panel of three persons to be considered for the post of Vice Chancellor. 6. The Notifications were given effect to and as a consequence the Search Committee recommended a panel of three persons each, for the post of Vice Chancellor in 11 public sector universities. The Chancellor appointed Vice Chancellors in 7 out of the 11 public sector universities from the panel of persons recommended by the Search Committee to the Government. While the appointments process was afoot in the remaining four universities, the process of appointments was challenged through the instant litigation. Arguments 7. Mr. Shakeel-ur-Rehman, Advocate General Punjab, assisted by Mr. Anwaar Hussain, AAG, has argued that the matter of only four public sector universities was under challenge before the learned Single Judge but provisions of laws of as many as seven other universities which were not before the court, were also declared unconstitutional without impleading and affording an opportunity of hearing to the said universities. That the learned Single Judge failed to appreciate that the Province of Punjab followed the minimum guidelines prescribed by the Higher Education Commission and infact had improved upon them. He vehemently argued that impugned judgment fails to demonstrate as to how minimum guidelines prescribed by the HEC were violated by the Provincial Government. That there is no conflict between the provisions of Section 14 and the Higher Education Commission Ordinance, 2002. That both the laws can co-exist as long as minimum standards prescribed by the federal Higher Education Commission are not violated. He submitted that Higher Education Commission Ordinance, 2002 does not set any mandatory guidelines or standards for the office of Vice Chancellor, inspite of the same, the guidelines developed by the Higher Education Commission were followed by the Provincial Government. He submitted that "Education" as a subject falls within the unwritten residuary list, post 18 Constitutional Amendment and Higher Education is part of "Education," therefore, setting standards for institutions of higher education is a legislative power which overlaps and is shared between the3 3 th
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Federation and the Province. The Federation can only set minimum standards in institutions for higher education as they are national overarching standards and cater to all the public sector universities in the country, irrespective of the stage of development of the respective provinces. Learned Advocate General in addition to the above, argued that the private respondents had no locus standi to maintain the writ petition as they failed to establish any violation of their right under law; that the impugned judgment ignores the effect of section 10(1) (q) of the HEC Ordinance; that appointment of Vice Chancellor has no nexus with standards of higher education as he does pass for faculty under the HEC Ordinance. In the end it is contended that learned Judge in chambers has not relied on the latest case law on the subject including Kalyani Mathivanan v. K.V.Jeyaraj and others (2015 (6) SCC 363). Justifying the constitution of the Search Committee under section 14(3) of the Act, he submitted that the Members of the Search Committee are reputable and renowned educationists who have been selected after due deliberation. He submits that no one has objected to the calibre, integrity and competence of the said Members. As far as the criteria is concerned he submits that the minimum guidelines issued by HEC were duly followed by the Committee hence the process and criteria as envisaged under section 14 of the Act was strictly followed. 8. Mr. Amir Sohail, learned counsel for Provincial Higher Education Commission adopted the arguments of learned Advocate General, Punjab. Mr. Awais Khalid, learned counsel representing University of the Punjab while adopting the argument of the learned Advocate General Punjab added that the impugned judgment offends provincial autonomy in the post 18 amendment scenario and learned Single Judge has granted relief beyond the pleading of the parties. 9. Learned counsel representing the Federal Higher Education Commission submitted that HEC enjoys exclusive power to set standards for the institutions of higher education, research, scientific and technical institutions. In support of this contention learned counsel placed reliance on Haji Nasir Mehmood v. Mian Imran Masood and others (PLD 2010 SC 1089). Learned counsel further submitted that standards for institutions of higher education include minimum standards to be followed by the public sector universities. He adds that once Government of the Punjab has admittedly followed the said standards, the question whether such standards are mandatory or directory is not relevant. Commenting on the role and status of HEC post 18 Constitutional Amendment, he submitted that the matter is sub judice before the august Supreme Court of Pakistan in CP no. 33, 34 and 35 of 2011 wherein vide order dated 12-4-2011 the status of HEC has been kept intact for the time being. 10. Mr. Saad Rasool, learned counsel representing the private respondents who had brought the challenge before the learned Single Judge submitted that on the constitutional plane the sole prerogative to set standards in institutions of higher education is of the federal legislature under Entry 12 of Part-II of the Federal Legislative List read with Higher Education Commission Ordinance, 2002. He submits that for this reasons, section 14 (2) and (4) of the Punjab University Act, 1973 offend Entry 12 of Part-II of the Federal Legislative List. It is also contended that impugned notification issued under section 14 did not meet the requirement of the law. That criteria notification should have been specifically tailored for the requirement of different distinct universities and the Government cannot arbitrarily determine the criteria for the qualification of the Vice Chancellor. The criteria notification must have been issued prior in time to the Committee Notification. Learned counsel further submitted that there is no mechanism or rational for selecting and appointing the committee members of the Search Committee. The criteria set by the Government is in violation of the HEC criteria. The interview process was neither deliberative nor diligent and the selection process was invalid in the light of dicta of the august Supreme Court of Pakistan laid down in Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132). 11. Mr. A.K. Dogar, learned counsel representing the applicant/respondent (C.M. No.198/2017 in ICA No.1777/2016) Dr. Uzma Qureshi, who had completed her four years as Vice Chancellor of Lahore College for Women University and vide notification dated 29-07-2015 was given a look after charge till regular appointment of the Vice Chancellor. Mr. Dogar raised a preliminary objection that the instant ICA cannot proceed as Dr Uzma Qureshi, being the incumbent Vice Chancellor, was not heard by the learned Single Judge, hence theth th
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impugned judgment be set aside on this score alone and the case be remanded and heard afresh. On merits, he went on to submit that Higher Education Commission Ordinance, 2002 is non-est after the 18 Constitutional Amendment, therefore, question of following any standards set by the HEC is unconstitutional. In support of this contention he placed reliance on Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416). He submitted that Search Committee is a recommending body and not the appointment authority. He adds that the Government is the appointing authority and is not bound by the recommendations of the Search Committee. Preliminary objection. 12. Addressing the preliminary objection raised by Mr. A.K. Dogar (above), it is an admitted position that Dr Umza Qureshi, had served her terms as a Vice Chancellor of Lahore College for Women University and is currently on a look after charge till the appointment of a regular Vice Chancellor. Dr Uzma Qureshi, therefore, has no right to the post and as a consequence no locus standi to challenge the appointment process or the selection made by the Search Committee. She was, therefore, not a necessary party and was not required to be heard by the learned Single Judge. The preliminary objection is misconceived and without any legal force. Therefore, her application (C.M. No.198/2017 in ICA No.1777/2016) is hereby dismissed. We, however, point out that Mr. A.K. Dogar also made submissions on the merits of the case, his submissions were considered and have been substantially addressed in this judgment. Opinion of the Court 13. The constitutional and legal questions that arise in this appeal are as follows: A. Whether the legislative power to set standards in institutions of higher education under Entry 12 of Part-II of the Federal Legislative List is exclusively within the domain of the Federation or whether, the subject of "education," falling in the unwritten Residuary List also empowers the Province to legislate on the subject ? Whether "education" includes "Higher Education"? Whether in the case of "education" there is an overlap of legislative power and as a consequence both Federation and the Province have the power to legislate ? Whether the principle of Federalism and its derivative i.e., co operative federalism, embedded in our Constitution, address the overlap of legislative competence ? B. The nature and scope of "standards in institutions of higher education" set under Higher Education Commission Ordinance, 2002 ? Whether minimum and directory ? C. Whether provincial law under section 14 (2) and (4) of the University of the Punjab Act, 1973 (and identical provisions in the statues of the other universities) setting standards, procedure and criteria in institutions of higher education is per se unconstitutional and illegal? D. Whether, impugned Notifications, without prejudice to the constitutional argument, comply with the statutory requirement of section 14 (2) and (4) of the Act, to the extent of providing a fair mechanism for the constitution of the Search Committee and an open and fair process and criteria for the selection to the post of Vice Chancellor of a public sector University? E. The Role and importance of Council of Common Interest ("CCI") under article 154 of the Constitution over matters falling in Part-II of the Federal Legislative List especially "standards in institutions of higher education..." and whether in the present case CCI has played its constitutional role ? We now deal with the above questions in detail. A. Whether the legislative power to set standards in institutions of higher education under Entry 12 of Part-II of the Federal Legislative List is exclusively within the domain of the Federation or whether, the subject of "education," falling in the unwritten Residuary List also empowers the Province to legislate on the subject ? Whether "education" includes "Higher Education"? Whether in the case of "education" there is an overlap of legislative power and as a consequence both Federation and the Province have the power to legislate ? Whether the principle of Federalism and its derivative i.e., co - operative federalism, embedded in our Constitution, address the overlap of legislative competence ? 14. Lets begin by mapping "education" as a legislative subject. Under Government of India Act, 1935 "education" fell within the exclusive domain of the Province. {{FN4}}While the subject dealing with "federalth 4
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agencies and institutes for the purposes of research, professional or technical training or for the promotion of special studies" fell within the federal domain. {{FN5}}Entry 20 of the Provincial List, of the 1956 Constitution, vested exclusive power in the provincial legislature regarding "education," including universities, {{FS4}} Entry 17 of the Provincial Legisaltive List. Section 103(3) of the Government of India Act, 1935{{FE4}} {{FS5}} Entry 12{{FE5}} technical education and professional training.{{FN6}} While Entry 21 of the Federal List, of the 1956 Constitution, dealt with "federal agencies and federal institutions for the promotion of special studies and special research; libraries and museums financed by the Federation." Similar was the position under the 1962 Constitution where article 132 provided that Provincial Legislature shall have power to make laws for the Province with respect to any matter other than enumerated in the Third Schedule. Education as a subject did not fall in the Third Schedule, while entry 30 of the Third Schedule provided for "central agencies and central institutions for the promotion of special studies and special research." Under the 1973 Constitution (pre- 18 constitutional amendment), "education" fell under entries 38 and 39 of the Concurrent List in the following manner: 38. Curriculum, syllabus, planning, policy, centers of excellence and standards of education. 39. Islamic Education While the Federal Legislative List under entries 16 and 17 covered the following: 16. Federal agencies and institutes for the following purposes, that is to say, for research, for professional or technical training, or for the promotion of special studies. 17. Education as respects Pakistani students in foreign countries and foreign students in Pakistan. Post 18 constitutional amendment, the Concurrent Legislative List was abolished and "education" became part of the invisible and unwritten, Residuary List, falling within the exclusive domain of the Provincial Legislature, under article 142(c) of the Constitution. Standards of higher education now fall under Entry {{FS6}} see article 106 of the 1956 Constitution. {{FE6}} 12 of Part-II of the Federal Legislative List in the following manner:- 12. Standards in institutions for higher education and research, scientific and technical institutions. 15. What do we mean by "Education" ? It is defined as the process of teaching and learning, usually at school, college, or university. {{FN7}}Education, therefore, is an expansive and wide-ranging legislative subject, including all tiers of education in a Province including higher education. It is axiomatic that =education' includes standards in education at all levels. Therefore, while "standards in institutions of higher education" is a federal legislative subject, it also, indubitably, falls within the larger provincial legislative subject of "education." There is, therefore, an overlap of legislative competence in the area of "education" and "standards of higher education" between the federation and the provinces. 16. This legislative overlaps brings us to the concept of Federalism under our Constitution. "The commonly accepted features of a federal constitution are: (i) existence of two levels of government; a general government for the whole country and two or more regional governments for different regions within that country; (ii) distribution of competence or power - legislature, executive, judicial, and financial - between the general and the regional governments; (iii) supremacy of the constitution - that is, the foregoing arrangements are not only incorporated in the constitution but they are also beyond the reach of either governments to the extent that neither of them can unilaterally change nor breach them; (iv) dispute resolution mechanism for determining the competence of the two governments for exercising {{FS7}} Longman dictionary of contemporary English, 6 Edition, Third Printing, 2015 by Pearson Education Limited, at page. 568, The Chambers Dictionary, 12 Edition, 2011 by Chambers Harrap Publishers Ltd, at page 490 and Oxford Dictionary of English{{FE7}} any power or for performing any function". {{FN8}}?Federalism may be broadly described as a device by which a system of double government is made to operate in one and the same State. It envisages a scheme of securing division of power between the National Government, on the one hand, and the Regional Governments, on the other, in such a way that, both of them discharge their law-making and executive functions strictly within the sphere of their allotted jurisdiction. It is one of the important characteristics of the federal constitutions that5 4 5 6 th th 6 7 7 th th 8
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they invariably contain a well defined procedure for resolving conflicts and clashes of authority, between the two governments thus established within the framework of one and the same State. The two governments accommodated within the framework of a federal polity are of coordinate authority and work independently of each other in the sphere marked out to them.... in a Federal Constitution there are really two governments working side by side, and the operation of each one of them, within the limits defined by the Constitution, is independent of the control by the other. They are coordinate, independent organs of sovereign power, each being a master in the sphere of its own allotted jurisdiction."{{FN9}} Federalism is in fact the basis of the division of powers...The principle of Federalism is a central organizational theme of the constitution and represents a political and legal response to underlying social and political realities... A federal system of government allows different provinces to pursue specific policies tailored to the particular concerns and interests of residents in that province. The Principle of Federalism also enables provinces to enact specific statues to pursue specific collective goals, and may promote different cultures and linguistic minorities within a specific province or areas. At the same time federalism allows citizens to {{FS8}} The Oxford Handbook of Indian Constitution. edited by Sujit Choudhry Madhav Khosla & Pratap Bhanu Mehta. Oxford University Press 2016 Federal Scheme- Chapter 25. {{FE8}} {{FS9}} A K Brohi- Fundamental Law of Pakistan -1958. p 56-58. {{FE9}} construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction. Consequently, federalism is key to enable citizens to participate in different collectivities and to pursue objectives at local, provincial and national levels.{{FN10}} 17. Federalism as a political system is primarily concerned with the ideas of developing a manageable system of governance thus establishing an orderly arrangement among different tiers of government in a nation. Establishing a manageable and accommodating system is the real test for federalism which should ensure that the general and regional governments coordinate with each other while remaining independent. {{FN11}} Federalism is a process through which authority is distributed and redistributed, structured by a set of institutions. It seeks cooperation from the sub-units such as provinces and states to create and implement decisions and activities.{{FN12}} 18. Under our Constitution, the preamble provides that Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed. The distribution of legislative power is provided under article 142 of the Constitution in the following manner: Article 142. Subject to the Constitution-- (a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List; (b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence; {{FS10}} Guy Regimbald & Dwight Newman- The Law of the Canadian Constitution (Lexis Nexis) p.97-98{{FE10}} {{FS11}} Zubair Faisal Abbasi- Federalism, Provincial Autonomy and Conflicts. Centre for Peace and Development Initiatives. Friedrich Naumann Stiftung. 2010. p.2{{FE11}} {{FS12}} ibid p.3{{FE12}} (c) Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List; (d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province.9 8 9 10 11 12 10 11 12
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19. Article 142 supports the Federal principle. The two governments have exclusive power to legislate in their own delineated spheres. Under article 142(a), Parliament has exclusive power…
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