1. Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 27.5.2003 passed by the Peshawar High Court, Peshawar, whereby the writ petition preferred on behalf of petitioners has been dismissed.
2. The vacant vacancies of Superintendent were advertised by means of notification dated 7.4.2001 and applications invited by the Deputy Registrar of the University of Peshawar and suitable candidates were appointed. The grievance of the petitioners is that the vacant vacancies of Superintendents should have been filled by way of promotion instead of initial recruitment/direct appointments by ignoring the prevalent practice attained the status of rule which could not have been changed. The prime contention of the learned counsel for petitioners is that the notification dated 7.4.2001 was issued without having the prior approval of the Chancellor hence no legal sanctity can be attached to it and all the subsequent actions including appointments are illegal and accordingly the said notification be declared as void and without any legal effect. In order to substantiate the said contention the provisions as enumerated in Section 27 of the University of Peshawar Act, 1974, hereinafter referred to as the Act, have been referred, which is reproduced herein below for ready reference:-- "27. (1) Subject to the provisions of this Act, Statutes may be made to regulate or prescribe all or any of the following matters:--
(a) The Constitution of pension, insurance, gratuity provident fund and benevolent fund for University employees;
(b) The scales of pay and other terms and conditions of service of officer, teachers, and other employees of the University;
(c) The maintenance of the register of registered graduates;
(d) Affiliation and disaffiliation of education institutions and related matters.
(e) Admission of educational institutions to the privileges of the University and the withdrawal of such privileges;
(f) The conduct of elections for membership of the Authorities of the University and related matters;
(g) The establishment or abolition of Faculties, Institutes, colleges and other Academic and Administration Division;
(h) The powers and duties of Officers and Teachers;
(i) Conditions under which the University may enter into arrangements with other institutions or with public bodies for purposes of research and advisory services;
(j) Conditions for appointment of Emeritus Professor and award of honorary degrees;
(k) Efficiency and discipline of University employees;
(l) The general scheme of studies including the duration of courses and the number of subjects and papers for an examination; and
(m) All other matters which by this Act are to be or may be prescribed or regulated by Statutes.
2. (2)The draft of Statutes shall be proposed by the Syndicate to the Senate which may approve it, or pass it with such modifications as the Senate may think fit, or may refer it back to the Syndicate for reconsideration, or may reject it.
3. Provided that the Syndicates shall not propose draft of Statutes affecting the Constitution or powers of any Authority of the University, until such Authority has been given an opportunity of expressing an opinion in writing upon the proposal: Provided further that the draft of Statutes concerning any of the matters mentioned in clauses (a) and (b) of sub-section (1), shall be forwarded to the Chancellor and shall not be effective until it has been or deemed to have been approved by the Chancellor".
3. We have carefully examined the provisions as contained in Section 27 of the Act which has been couched in a very plain and simple language and does not speak about fresh appointments but on the contrary apart from other matters relate to the Constitution of pension, insurance, gratuity, provident fund and benevolent fund for University of Peshawar and the scales of pay and other terms and conditions of service of officers, teachers and other employees of the University. It does not find mention that no appointment could be made in deviation of the prevalent practice and the approval of the Chancellor is must to that effect. The question of terms and conditions arises after appointments are made and besides that no terms and conditions have either been violated or formulated afresh, giving rise to any cause of grievance to the petitioners. It is to be kept in view that "prescribed qualification" for a particular post cannot be equated to that of "term and conditions" of service which was nothing to do with the fresh appointments.
4. As mentioned herein above the terms and conditions would only be relevant after the appointments are made. In this regard we are fortified by the dictum laid down in Province of West Pakistan vs. Muhammad Akhtar (PLD 1962 SC 428), Govt. of West Pakistan v. Fida Muhammad Khan (PLD 1960 SC [Pak.] 45), Govt. of West Pakistan v. Fatehullah Khan (PLD 1960 SC [Pak.] 105), Manzur Ahmad v. Province of West Pakistan (PLD 1961 SC 166).
4. The learned ASC on behalf of petitioners was pointedly asked that as to which new statute was enacted without having the consent of Chancellor, but no answer could be given, however, half heartedly it was contended that the then prevalent practice had attained the status of rule which could not have been violated without having the prior approval of Chancellor which in our view appears to be a misconceived notion of law and facts. Since no fresh statutes was framed, therefore, the question of approval of the Chancellor does not arise. The learned ASC has placed much reliance on "practice" and "rule". The pith and substance of the arguments of the learned ASC was that prevalent practice had attained the status of rules, violation whereof could not have been made by making direct appointment. We may mention here that "practice" and "rule" are neither interchangeable nor synonymous terms. A line of distinction has to be drawn between the two. We have examined in depth the question as to what actually "practice" is? We have all the most examined the entire law as well as the decisions given by various Courts and tribunals defining the words "practice" and rule".
5. The word "practice" means:-- "The word "practice" means action or deed". State v. Randall, Mo., 248 S.W. 2d 860, 863.
5. "Practice" ordinarily implies uniformity and continuity, and does not denote few isolated acts, and uniformity and university, general notoriety and acquiescence, must characterize actions at which practice is predicated. McClure v. E. a. Balckshere Co., D.C. Md., 231 F. Supp. 678, 682."
6. Word "practice" within provision of Packers and Stockyards Act prohibiting use of any unfair, unjustly discriminatory, or deceptive practice or device in relation to enumerated livestock activities ordinarily implies uniformity and continuity and does not denote a few isolated acts.
7. Guenther v. Morehead, D.Clowa, 272 F. Supp. 721, 727.
8. The word "practice" as used in statute which provided for prohibition, suppression, or regulation of all occupations and practices which were against good morals, necessarily implies an act often repeated by the same persons, or a succession of acts of a similar kind or in a like employment.
9. West v. Sun Cab Co; 1 154' A. 'I 100, 103, 160 Md. 476. "Practice" is an actual performance habitually and customarily engaged in. Me-Comb v. C.A Swanson & Sons, D.C. Neb., 77 F. Supp. 716, 734.
10. A "practice" is a custom or usage, something habitually and uniformly performed, and it implies uniformity and continuity. Phillips v. City of Bend, 234 P. 2d 572, 577,192 Or. 143.
11. "Practice" means to do, perform, carry on, act or exercise; now, except rarely, to do or perform often, customarily or habitually; to make a practice of; to exercise, follow or work at, as a profession, trade, art, etc. State ex rel. Laughlin v. Washington State Bar Ass'n, 176 P. 2d 301, 309, 26 Wash. 2d 914.
12. "Practice " when used as a verb is defined as "to do, perform, carry on, act or exercise". It also carries the meaning of customarily performing acts. State v. Blackwell, 13 S.E. 2d 433, 434, 196 S.C. 313.
13. The word "practice" as used in statute authorizing department of public service to fix the "practices", etc., to be followed by public utility companies connotes habit or custom, something done or left undone, with a degree or regularity, not occasionally or sporadically. State ex rel. Public Utility Dist.
14. No, 1 of Okanogan County v. Department of Public Service, 150 P. 2nd 709, 715, 21 Wash. 2d 201.
15. The word "practice" in issue was intended in the sense of "custom" and used in its popular sense, synonymous with "mode" or "course of action," frequently exercised. Missouri-Kansas-Taxas R. Co. of Taxas v. Ashlock, Tex. Civ. App., 136 S. W.2d 943, 944.
16. A "practice" is a custom or usage, something habitually and uniformity performed, and it implies uniformity and continuity, Wells Lamont Corp. v. Bowles, Em. App. 149 F. 2d 364, 366.
17. The word "practice" when used in connection with the word "daily," suggesting the idea of doing a thing regularly, and signifying a habit or regular conduct. Deatley v. Grand Fraternity, 78 A 874, 875, 2 Boyee, Del., 267.
18. The word "practice" within an instruction referring to the practice of a particular business, is a synonym for "usage" and "custom," though there is a distinction between a usage and a custom; the latter being a part of the common law, while a usage is the law of the particular case governing the parties. U.S. Shipping Board Emergency Fleet Corp. v. Levensaler, 290 F. 297, 300, 53 App. D.C.
19. 322.
20. "Practice" means, in general, a method of conducting litigation involving rights and corresponding defenses. Cates v. Heffernon, 18 So. 2d 11, 14, 15, 154 Fla. 422.
21. The words "practice and "procedure" together include mode of proceeding by which legal right is enforced. King v. Schumacher, 89 P. 2d 466, 472, 32 C.A 2d 172. "Practice" means the method of conducting litigation involving rights and corresponding defences.
22. Skinner v. City of Eustis, 2 So. 2d 116, 117, 135 AL.R. 359, 147 Fla. 22.
23. "Practice" and "procedure" include the mode of proceeding and the formal steps by which a legal right is enforced. Bascom v. District Court of Cerro Gordo County, 1 N.W. 2d 220, 222, 231 Iowa 360.
24. "Practice" means those legal rules which direct the course of proceeding to bring parties into Court, and the course of the Court after they are brought in. People v. Clark, 119 N.E. 329, 331, 283 III. 221.
25. "Practice" in law means that which regulates the formal steps in a judicial proceedings; the legal rules which direct the course of proceeding to bring parties into the Court, and the course of the Court after they are brought in. Hoffman v. Paradis, 102 N.E. 253, 254, 259111. 111.
26. Bouvier defines the word "practice as "the form, manner, and order of conducting and carrying on suits or prosecutions in the Courts, through their various stages, according to the principles of law and the rules laid down by the respective Courts." Fleischman v. Walker, 91 111. 318, 321; According to this definition, the word "practice" means the rules adopted by every Court to facilitate the transaction of the business before it in a proper and orderly manner. Butler v. Young, C.C.Ohio, 4 Fed. Cas. 916, 917.
27. "Practice" in its larger sense, is defined in Anderson's Law Dictionary to be "the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or declares the right."
28. The word "practice as used in Rev. St. C. 45, 10, Smith-Hurd Stats, c. 45, 10, providing that the rules of pleading and practice in other actions shall apply to actions of ejectment so far as they are applicable and except as otherwise provided, means the rules of practice in other actions applicable to actions of ejectment, which are those legal rules which direct the course of proceeding in acquiring jurisdiction of parties, and the course adopted by the Courts whereby rights are effectuated by application of the proper remedies, and where it is not otherwise provided in actions of ejectment.
29. "Practice" in its larger sense like procedure, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives and defines the right. State of Seraikella v.
30. The Union of India, 1951 S.C.R. 474, 1951 S.C.J. 425.
31. "Practice", this term is sometimes applied, in an unfavourable sense, to signify fraud or bad practice-Tomlins.
32. "Practice" in its larger sense like procedure, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives and defines the right. (AIR 1951 SC 253).
33. "Practice" means the same thing as procedure. (AIR 1957 SC 444).
34. "Practice" according to Webster's New International Dictionary means "exercise of any profession or occupation." (AIR 1958 SC 72)."
6. We have also adverted to the question that what does the term "rule" means:-- "A 'rule' is not properly original process in a case, but is ancillary, and for the facilitating of jurisdiction already acquired, Schuettler v. Maurer, 46 A.2d 586, 588, 159 Pa. Super. 110.
35. A "rule" is not original process, but is auxiliary and for the purpose of facilitating jurisdiction already acquired, except where it is authorized by statute to be used as original process. Petition of Westmoreland County Com'rs, 38 A2d 709, 710, 155 Pa. Super. 138.
36. A "rule " is a definite regulation prescribed as a law of conduct. Watts v. Holland, 56 Tex. 54, 60.
37. "Rule" is that which is prescribed or laid down as a guide to conduct; that which is settled by authority or custom; a regulation; a, prescription; a minor law; a uniform course of things. South Florida R. Co. v. Rhodes, 5 So. 633, 635, 25 Fla. 40, 3 L.R.A 733, 23 Am. St. Rep. 506, citing Webster.
38. The word "rule" as used in common parlance has a double meaning. It may refer to an express formula of conduct, promulgated by some one having authority to prescribe or command, or to a course or practice pursued generally by one or more persons. Schaufele v. Central of Georgia R)& Co., 65 S.E. 708, 710, 6 Ga-App. 660.
39. The word "rules" is synonymous with ordinances, regulations, and by-laws. State ex rel. Krebs v.
40. Hoctor, 120 N.W. 199, 200, 83 Neb. 690.
41. The meaning of the word "rule" is of wide and varied significance, depending upon the context; in a legal sense it is synonymous with "laws" City of Los Angeles v. Gager, 102 P. 17, 18, 10 Cal. App. 378.
42. While the words "rule" "regulation" and "order" are frequently used as synonyms, they do not always mean the same thing and are not interchangeable at will. In determining their exact meaning when used in a statute, much depends upon the context. Atlantic Coast Line R. Co. v. State, 74 So.
43. 595, 601, 73 Fla. 609.
44. A "rule" is a device in words and phrases for the control and direction of those who have something else given them to do. A regulation is a rule of law by which some right is to be exercised. They are words of a like import and import a partial restriction which does not wholly prohibit, and imply uniformity in operation, not discrimination. Borough of Belmar v. Prior, 79 A. 1032, 1033, 81 N.G.L., 254.
45. Rule. (1) A regulation, for the management or Government of a society and binding on the members, (2) a point of law settled by authority, (3) orders regulating the practice of Courts, (4) orders made between parties to a suit.
46. Rule.-Rule may be defined in several different ways; it can be a regulating principle for the ordering and control of a social group and imposing obligatory obedience upon the individuals of that group; it can be a legal dictum issued by a Court of law; it can be regulation governing Court habits.
47. Ordinarily the making and promulgation of a rule should be attended by certain formalities, e.g., publication in a Government Gazette. It is not enough that there is no express rule relating to a point to confer upon any existing office instruction that there may be, the status and validity of a statutory rule. Therefore a document which has not been published in official gazette cannot be treated as rules. (PLD 1962 Kar. 505).
48. "The Dictionary meanings of the word 'rule' are Principle to which action or procedure is intended to conform." Mir Muhammad Sharif v. AJ&K Govt. (PLD 1986 SC (AJ&K) 87). In terms of Civil Servants Act, 1973, the word rule is defined as meaning rules made or deemed to have been made under the Act. In the context of S. 17, Civil Servants Act, 1973, word "rule" has relevance to all such rules which deal with the fixation of pay of a Civil Servant. Civil Service Regulations and its Regln. 526, was one such rule as envisaged by S. 17, Civil Servants Act, 1973. Fed. of Pak. V. Major (Retd.) Wazir Ahmad, 1991 SCM R 2284".
7. The term "rule" was also examined in "Pakistan v. Abdul Hamid (PLD 1961 SC 105) and it was held that: "A statutory rule has certain visible characteristics which must be looked for and cannot be dispensed with, when the question arises of claiming upon the basis of such rule, a right in law. A rule requires to be expressed with precision and yet to possess generality so as to be capable of application to a large number of cases. If it leaves scope for discretion, that should be expressly provided for. Ordinarily, it is necessary also that the making and promulgation of a rule should be attended by certain formalities e.g., publication in a Government gazette. It is not enough that there is no express rule relating to a point to confer upon any existing office instruction that there may be the status and validity of a statutory rule."
8. After having scrutinized the above mentioned term of "practice" we are of the considered view that "practice" is combination of the following ingredients:-
(i) Uniformity.
(ii) Continuity.
(iii) Succession of acts of similar kind.
49. (iv)Customs or usage.
(v) Customarily performance of act.
50. (vi)Certain degree of regularity.
(vii) Course of action.
(viii) Mechanism for the enforcement of legal rights.
51. At the best "practice" can be considered as the mode of proceedings by which a legal right is enforced. The prevalent practice could render assistance to the case of petitioners subject to availability of legal right. There is no cavil with the proposition that appointment to a particular post is not a vested or legal right hence the question of its enforcement through "practice" does not arise.
9. In sequel to above mentioned discussion it could be inferred safely without incurring the risk of rebuttal that "practice" and "rule" are not interchangeable terms in view of the difference between their ingredients, components and characteristics. It is worth mentioning that even by efflux of time the "practice" cannot be attain the status of "rule". The "practice" in fact has no binding element being not static and subject to change having no consequences unless some mala fides is established for deviation. The rules on the other hand are framed by a Competent Authority in exercise of powers conferred under some statute, law, legislation or enactment having binding effect which cannot be violated/deviated unless otherwise provided.
10. The prevalent practice could have been changed in the interest of University and good governance determination whereof could only be made by the Competent Authority. It is not the case of the petitioners that the appointments have been made in violation of para-16 of the University of Peshawar Service Statutes 1977, herein after referred to as the University Statutes, which, inter alia, provides that "all appointments shall be made on the basis of efficiency and merit, through the appropriate Selection Boards, seniority being taken into consideration only when merit, in the opinion of the appointing authority, is equal". No bar whatsoever has been imposed upon the appointing authority qua appointment except that such appointments shall be made on the basis of efficiency and merit through the appropriate Selection Board. It was never argued that either the appointing authority or Selection Board has transgressed its authority by making the appointments in violation of para-16 of the University Statutes which is the only relevant section to be considered for the purpose in hand. It is worth mentioning that by virtue of para-5 of the University Statutes the terms and conditions of service of a University employee shall be as provided under these Statutes and such rules as may be made by the Syndicate. It is noteworthy that the factum of "practice" as pressed time and again by the learned ASC on behalf of petitioners does not find mention either in the Act or University Statutes or rules made thereunder but on the contrary "regular appointment" means an appointment made in accordance with the prescribed procedure (NOT PRACTICE) against a clear vacancy There is no ambiguity in para 4(f) of the University Statutes. It is to be noted that even "adhoc appointments" are to be made in accordance with the prescribed manner of recruitment and para-4(1) of the University Statutes does not find any place for "practice".
11. The legislation in its wisdom has assigned sufficient powers and authority to the Vice Chancellor enabling him to deal with all sorts of such eventualities to run the University in a befitting manner.
52. Section 13 of the Act is reproduced herein below to remove all sorts of doubts regarding the powers and duties of Vice Chancellor:-- "13. (1) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall ensure that the provisions of this Act, the Statutes the Regulations and the Rules are faithfully observed in order to promote 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 the Convocation of the University and the meetings of the Senate and shall, if present, preside at the meeting of the authorities of which he is the Chairman and be entitled to attend and preside at any meeting of any other authority or body of the University.
(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 to the officer, authority or other body which in the ordinary course, would have dealt with the matter.
(4) The Vice-Chanellor shall also have the powers--
(i) to create and fill temporary posts for a period not exceeding six months;
(ii) to sanction all expenditure provided for in the approved budget, and to re-appropriate funds within the same major head of expenditure; (iii)to sanction by re-appropriation an amount not exceeding five thousand rupees for an unforeseen item not provided for in the budget, and report it to the Syndicate at the next meeting; (iv)to appoint paper setters and examiners for all examinations of the University after receiving panels of names from the relevant authorities; (v)to make such arrangements for the scrutiny of papers, marks and results as he may consider necessary; (vi)to direct teachers, officers and other employees of the University to take up such assignments in connection with teaching, research, examination, administration and such other activities in the University as he may consider necessary for the purpose of the University;
(vii) to delegate, subject to such conditions, if any, as may be prescribed, any of his powers under this Act to an officer or officers of the University;
(viii) to exercise and perform such other powers and functions as (ix)to appoint employees in NPS-1 to 16."
12. Besides that the Vice-Chancellor has been empowered to designate the "Competent Authority" provided under para-4(a) of the University Statutes. If all the above discussed provisions are kept in view the accumulative effect thereof would be that Vice-Chancellor is fully competent to make such appointments. No fresh Statute was ever framed by the Vice Chancellor without having the prior approval of the Chancellor. The learned High Court has dilated upon and set the controversy at naught after having taken into consideration all the relevant laws, statutes and rules made thereunder. The conclusion as arrived at by the learned High Court being unexceptionable does not admit interference. The Competent Authority could abandon the previous practice by evolving a new method of selection in consonance with the provisions as laid down in the University Act and University Statutes. The petition being merit less is dismissed and leave declined.