On 28.11.2001 tee petitioner namely Professor Dr. Aftab Ahmed Malik was appointed as Chairman of Computer Sciences and Information Technology Department in the University of Engineering and Technology, Lahore for a period of 3 years to be reckoned w,e,f, 6.9.2001. On 1.4.2004 Office Order No, 107 was issued by the University of Engineering and Technology, Lahore informing him that "The Syndicate in its 2/2004th meeting held on 1.4.2004 decided to relieve Prof. Dr. Aftab Ahmad Malik of his duties as Chairman, Computer Science and I.T. Department with immediate effect." By the same order, Prof. Dr. Javed Anwar Aziz, was assigned to look after the duties of the Department till further orders. Aggrieved of this order Professor Dr. Aftab Ahmed Malik has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to assail the same inter alia on the ground that he had been appointed as Chairman of the Department of Computer Sciences and Information Technology under Statute 3(2) of the First Statute to the University of Engineering & Technology Act, 1974, w,e,f, 6.9.2001, which term had to expire on 5.9.2004, therefore, he could not be removed before the expiry of his tenure of 3 years.
2. The petition has been contested by the University and its officials. Objecting to the competency of the petition it is pleaded that the discretionary jurisdiction of this Court could not be invoked by the petitioner and that he was removed by the competent authority in the matter i,e, the Syndicate, which was legal in all respects and that he could avail the remedy of review/revision before the Chancellor under Sections 41 and 10-A of the University of Engineering and Technology Act, 1974.
3. Recounting his academic achievements that the petitioner was highly qualified scientist who had acquired a degree of Ph.D (England) M. Phil, M.Sc. and LL.B and had experience of 33 years in teaching, research, administration and management and was Professor for the last 17 years and that he had rich experience of research at the University of Kent Canterbury, England and was author of numerous research publications articles and several books and that the Department of Computer Sciences and Information Technology was founded by him in the University and that he had been selected by Professor Dr. Ata-ur-Rehman, Chairman and Federal Minister Higher Education Commission in July, 2003 to supervise the students working for Ph.D Degree, the performance of the petitioner is being highlighted by his learned counsel in order to justify his appointment as Chairman of the Department and to continue as such in terms of appointment order dated 28.11.2001. The sum and substance of the contention of the learned counsel for the petitioner is that he was victim of adverse lobbying and campaign launched against him by his rivals. It is contended that action against him lacked bona fide and good faith and that he was victimized on vague allegations, which had no real foundation. It is contended that the functioning of the Department and the efficiency of the petitioner had even been recognized by the respondents as the Selection Board had recommended him for BS-21. It is also pointed out that he had been given 4 salaries as incentive, which speaks of the efficiency and performance of the petitioner as Chairman of the Department. It is contended that in the meeting of the Syndicate in which the purported decision to remove the petitioner was taken there was no such item on the agenda and that so far as complaint/probe against the petitioner (as mentioned in Item No, 4) was concerned, the decision of Syndicate was to drop the proceedings relating to the probe. It is thus, contended by Mr. Muhammad Saleem Sheikh, Advocate that there was no justification for any decision to relieve the petitioner from the Chairmanship of the Department under Item No, 5, which had altogether a different business to discuss. In support of his contention that fixed term tenure of the petitioner as Chairman of the Department could not be reduced or curtailed, reference has been made by him to Ala-ud-Din Akhtar v. Government of Punjab & another (PLJ 1978 Lahore 508), Khondkar Ali Afzal v. Pakistan and another (PLD 1959 (W.P.) Karachi 105) The Province of West Pakistan v. Ch. Nazir Hussain (PLD 1960 S.C. (Pak.) 130), Debesh Chandra Das v. Union of India and others (AIR 1970 S.C. 77) it is further contended that the averments made in the petition, which were in detail touching all aspects of the matter were supported by the affidavit of the petitioner, but have not been controverted or rebutted by filing any counter affidavit, which, therefore, have to be accepted as correct. Reference in this context has been made. to Muhammad Rashid v. Collector etc. (PLD 1978 Lahore 1370), Muhammad Gul Kakar v. Province of Baluchistan (1986 -PLC (C.S.) 560), Ghulam Muhammad v. Saeed Ahmad (1986 CLC 1048).
4. Mr. Sajjad Hussain, Advocate, the learned counsel for the respondents/University has highlighted the relevant provisions of the University of Engineering and Technology Act, 1974, regarding the powers and duties of Syndicate and the alternate remedy available to the petitioner. Reference has been made by him to Sections 24, 29, 30, 41 and 10-A of the Act to contend that the action against the petitioner was fully justified and in case he had any grievance he could avail the remedy as envisaged by Section 41 and Section 10-A of the Act. It is also contended that the conduct of the petitioner did not entitle him to invoke the jurisdiction of this Court who has suppressed material facts and taken false plea that charge was taken from him on the morning of 1.4.2004 i,e, the day of the meeting of the Syndicate. It is contended that a probe was conducted by a committee comprising Sardar Muhammad Iqbal Khan Mokal and Dr. Javed Anwar Aziz, which recorded its findings and recommendations that the Department was not smoothly working. It is contended that in view of provisions of Section 21 of the General Clauses Act, 1897 the power to appoint included the power to remove and terminate, therefore, the order impugned is legal in all respects as the Syndicate of the University had the general supervisory powers as were available to the Chief Settlement Commissioner and recognized by the Courts. Reference is made to Qazi Sharif Hussain v. Chief Settlement Commissioner and others (1984 CLC 1420) in this context. It is contended that the extended term could be lawfully reduced by the University in view of Hamidullah and another v. Rai Khurshid Ahmad Khan and others (PLD 1958 S.C. (Pak.) 516).
5, The undisputed position is that the petitioner was appointed on 28.11.2001 for a period of 3 years, which term. was effective from 6.9.2001. Such appointment had the backing of Statute 3(2) of the First Statutes appended to the University of Engineering and Technology Act, 1974. Reference for this purpose may be made to the relevant, Statute, which reads as follows: "3(2) The Chairman of a Teaching Department and the Director of an Institute shall be appointed by the Syndicate on the recommendation of the Vice-Chancellor from amongst the three senior most professors of the department for a period of three years and shall be eligible for re- appointment."
The Office Order No, 252 of his appointment reads like this: The Syndicate in its 2/2001 meeting held on 15.11.2001 under Statute 3(2) of the First Statutes appended to the University Act, 1974, has appointed the following Chairmen of Teaching Departments for a period of three years with effect from the dates mentioned against each: Sr.
No,Name of Teacher and DepartmentDate of Appointment as Chairman
1. Prof Dr. Aftab Ahmed Malik Computer Science Department 6.9.2001 Cumulative reading of both would leave no doubt that it was a statutory appointment with fixed term of tenure. One thing which is conspicuously noticeable is that neither the Statute nor the appointment order makes mention of any eventuality or situation in which the appointment could be cancelled or the term could be reduced or curtailed, therefore, the general principle governing such fixed term statutory appointments are to be kept in view.
6. It may be observed that the reliance of the learned counsel for the parties upon Hamidullah and another v. Rai Khurshid Ahmad Khan and others (PLD 1958 S.C. (Pak.) 516) and The Province of West Pakistan v. Ch. Nazir Hussain PLD 1960 S.C. (Pak.) 130) is inapt due to the distinguishing feature's of those cases. In the case of Hamidullah (Supra), it was observed that the power to appoint included a power of dismissal and removal. Whereas the correctness of such an observation can hardly be disputed, the same came to be made in totally different circumstances and context. So far as the case of Province of West Pakistan (Supra) is concerned, the same related to a contractual appointment, which appointment was governed by the terms of contract.
7. The learned counsel from both sides.have made reference to Alaud-Din Akhtar v. Government of Punjab & another (PLJ 1978 Lahore 508). That case concerned with the appointment of Chairman of Board of Intermediate & Secondary Education, Lahore, which appointment was for a fixed term of 4 years in view of term fixed for that office by Section 14 of the Board of Intermediate & Secondary Education, Lahore Ordinance, 1961. The question arose whether the said fixed term of appointment could be reduced or curtailed. By noting the relevant provisions, the tenor of order of appointment in that case and the principles of construction stated in Corpus Juris Secundum, it was held that the appointing authority was not free to interfere with the tenure fixed by the Statute. Such a view was taken by the Court despite the fact that the appointment of the petitioner was described as officiating and there was a power of termination in public interest. In Dr. Bashir Ahmad v. Province of Punjab and others (1992 PLC (C.S.) 30E (Lahore High Court) a learned Division Bench while interfering with the curtailment of the term of the post of Principal, King Edward Medica College, Lahore (5-years), declared the order impugned therein as without lawful authority. From the Indian jurisdiction the case of Debesh Chandra Das who was Secretary in the Government of India, viz. Debesh Chandhry Das v. Union of India and others (AIR 1970 S.C. 77) has been cited who has assailed his order of posting. He had failed in the High Court but succeeded in appeal before the Supreme Court of India when it was observed by M Hidayatullah, C.J. that: "Das held one of the tenure posts. His tenure ordinarily was five years in the post. He got his secretary-ship on July 30, 1964 and was expected to continue in that post for five years, that is, till 29th July, 1969. The short question in this case is whether his reversion to the Assam State before the expiry of the period of his tenure to a post carrying a smaller salary amounts to reduction in rank and involves a stigma upon him."
The order was quashed holding that: "We quash it and order the retention of Das in a post comparable to the post of a Secretary in emoluments till such time as his present tenure lasts or there is an inquiry against him as contemplated by the Constitution."
In Dr. L.P. Agarwal v. Union of India and others (AIR 1992 S.C. 1872) the case of L.P. Agarwal was that he had been appointed as Director, All India Institute of Medical Sciences for a period of 5 years w.e.f 18.2.1979 but was retired from service in public interest on 24.11.1980. The question arose as to the legality of such an order. Disagreeing with the view taken by the High Court, the Supreme Court adopted the view and laid down that the tenure of 5 years meant the term during which the office was to be held, which was condition of holding the office, it was held: "Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. The question of prematurely retiring him does not arise. The appointment order give a clear tenure to the appellant."
Allowing the appeal and the writ petition the order of his retirement was quashed. That is the legal position in regard to the fixed term/tenure posts. There may be exceptions for curtailing the tenure so fixed but in order to reduce or curtail the normal fixed term of the office there have to be strong and sound basis and justifiable grounds.
8. In the present case what has become evident from the material on the record is that a probe was conducted qua certain allegations against the petitioner by a team comprising Sardar Muhammad Iqbal Khan Mokal, Member Syndicate and Professor Dr. Javed Anwar Aziz, Dean Faculty of Civil Engineering and the recommendation of that Committee inter alia was that the Department of Computer Sciences and Information Technology was not "functioning smoothly."
When the findings/recommendations came before the Vice-Chancellor of the University, he ordered its placement before the Syndicate in its next meeting. The matter eventually came up for discussion before the Syndicate in its 2/2004 meeting dated 1.4.2004. It was Item No, 4 of the agenda. The decision thereabout was: "Professor Dr. Javaid Anwar Aziz, Dean Faculty of Civil Engineering, in his capacity as member of the Preliminary Inquiry Committee appeared before the Syndicate. He narrated the events that led to the complaints by the Employees of Computer Science and I.T. Department and the Chairman. He also answered the questions raised by the members of the Syndicate.
After thorough deliberation it was decided to drop the proceedings relating to this probe."
(underlined by me to supply emphasis due to its import).
There cannot possibly be any other opinion except that the proceedings relating to the probe against the petitioner were dropped by the Syndicate. The matter should have ended and clinched, but it is surprising to note that though there was no other specific item in the agenda about the petitioner yet under Item No, 5 relating to "Appointment of Chairman of Architecture and Electrical Engineering Department" after according approval to the proposed appointments, it was decided as follows: "In Addition, the Syndicate reviewed the functioning and efficiency of Computer Science & I.T.
Department with particular reference to the complaints by the Students against its Chairman. After thorough deliberation the Syndicate took the following decisions to improve the functioning of the department, to enhance its academic/administrative efficiency and to rehabilitate its image:--
(a) Prof. Dr. Aftab Ahmad Malik be relieved of his duties as Chairman of Computer Science and LT. Department with immediate effect."
Taking of the matter of the petitioner under Item No, 5 "In addition" is itself indicative of the manner in which the petitioner was treated and was ordered to be relieved of his duties as Chairman Computer Sciences and Information Technology Department with immediate effect. Leaving the allegation of mala fide, aside, it is not difficult to reach the conclusion that is was wholly an unwarranted and illegal action against the petitioner. The reason for such a conclusion is quite obvious that after having dropped the proceedings against him there was no reason or justifiable ground for and adverse action against the petitioner. Moreover the action was proposed and taken under Item No, 5 of the agenda impromptu without being part of the agenda. The order relieving the petitioner thus smacks of colourable exercise of power unwarranted by the facts and law.
9. The stress of the learned counsel for the respondents that the petitioner should have sought remedy under the Statute and. the petition should be dismissed for his alleged unclean conduct, has not impressed no inasmuch as, it has been found that the order impugned is patently illegal, 'without lawful authority and is liable to be struck down and quashed.
As a result of the above, the action and order dated 1.4.2004 relieving the petitioner from the post of Chairman, Computer Sciences and Information Technology Department is declared as without lawful authority and of no legal effect. The petition is accepted accordingly with no order as to costs.