' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- Petitioners seek leave to appeal against the judgments of Lahore High Court Rawalpindi Bench dated April 5, 2005 and July 13, 2004 passed in I.-C.A. No,177 of 2004 and Writ Petition No,45 of 2004, respectively, filed by the .Respondent.
2. Precisely stating facts of the case are that respondent applied for the post of Assistant Professor (BPS-18) in pursuance of advertisement dated August 8, 2002, published by Area Study Centre for Africa, North and South America Quaid-e-Azam University, Islamabad (hereinafter referred as Area Centre). According to the Centres of Excellence Employees (Service, Appointment, Promotion and Transfer) Rules, 1989 following qualification has been prescribed for the post:-- Assistant Professor13-18 (2710- 19.5-488030-35 years1 Class Master's degree or B.Sc. or equivalent and 6 years teaching/research experience in a recognized University or Professional experience in a national organization or Master's degree from a recognized foreign university or M. Phil from a national University plus 4 years experience in the relevant field in a national or international organization or Ph.D. with 2 years teaching/research experience in a recognized University or Professional experience in the relevant field in a national or international organization.
' In the column meant for complete service record/teaching experience (starting from present position) in the application form, respondent provided following information:--st Name of Institution Organizations/Department Post held PeriodPay scale FromTo 1.Quaid-e-Azam University, IslamabadVisiting FacultyAugust, 2001 - Present 2.University Jaume Premiere Castellon, SpainTeaching FacultyJan. 98-Jan, 2002 3.Harvard University, U.S.A.Research Faculty1997-1998 4.Kinnaired College LahoreVisiting Faculty1991-1994 5.Additional Teaching Experience at Foreign Service Academy IslamabadVisiting Faculty In pursuance of above experience it was her claim that she had total teaching experience of 8 years which is as follows:-- Total teaching experience8 years ... months
(a) at under-graduate level3 years
(b) at post-graduate level5 years fellowship
3. The scrutiny committee after having evaluated her application, recommended to the Selection Board for consideration along with the applications of other candidates. The Selection Board in its meeting dated October 29, 2002 recommended name of the respondent with its reservation concerning period of her experience. The order reads as under:-- "The Selection Board recommends Miss Farah Zahra for appointment as Assistant Professor (BPS- 18). However, the Board observed that there was a problem in the way years of experience of Miss Farah Zahra were calculated. It resolved that the case be placed before the Board of Governors for consideration. "
' The Board of Governors in its 32nd meeting held on January 2nd, 2003 vide item No,2 of the Agenda, constituted a Committee comprising Dr. Ijaz Hussain, Dean, Faculty of Social Sciences, Dr. Riaz Ahmad, Director, National Institution of Historical and Cultural Research, Islamabad and Dr. Allah Wadhayo Baloch, Joint Education Advisor to examine whether she possesses the requisite/teaching research experience as stipulated in the advertisement. The Committee further formed following opinion:- "The eligibility of Ms. Zahra was challenged on the ground that she did not possess the requisite teaching/research experience as stipulated in the advertisement. In concrete terms, she had claimed in her application a total of five years of teaching/ research experience at the post- graduate level ' as against four years required in the advertisement.
' Out of the five years, she claimed one year as a research fellow at the Harvard University, U.S.A., during 1997-98. The Committee had no difficulty in accepting it as valid. As to the remaining four years, she claimed to have worked as a faculty member in the Jaume Premiere University of Castellon, Spain. The Committee did not accept it as valid as she had counted 2 to 3 months of teaching she claimed to have undertaken in that University as full one year academic year. This is so because according to the Quaid-e-Azam University Rules, to claim full One academic years teaching, one must have actually done so.
' Besides, while claiming four years of teaching in Spain she was at the same time employed in Pakistan."
' Additionally, the Committee noted the existence of two contradictory letters from the Director Mr. Vincent Martinez Guzman of the Department of Philosophy and Sociology of the Jaume Premiere University. In one letter he stated that Ms. Zehra worked in the University in question for four years whereas hi the email message he maintained that she worked during 1999 only, (in addition he pointed out that Ms. Zehra also made a false claim of being a Ph.D. Student at the Harvard University, U.S.A.). The Committee would like the Quaid-eAzam University to write to Mr. Duzman to clarify his position in the matter. It would equally like the University to ask Ms. Zehra to provide a documentary, proof of her four years stay in Spain through photocopies of entries made in her passport."
4. The Board of Governors vide minutes recorded in 33rd meeting dated June 10, 2003 concluded that Miss Farah Zehra (respondent) is not eligible for the post of Assistant Professor (B-18).
5. Being aggrieved from the order of the Board of Governors, she instituted a Writ Petition No,45 of 2004 before the Lahore High Court, Rawalpindi Bench which has been allowed on July 13, 2004.
Relevant para. Therefrom for convenience is reproduced hereinbelow:-- "Keeping in view the above interpretation of the work "or", it reveals that the experience of four years in National or International Organization is the requirement of law. There is no cavil to the fact that the petitioner had experience of one year at Harvard University as a Research Fellow from August, 1997 to September, 1998. She has also worked in Foreign Service Academy for two years as Course Director. In Quaid-e-Azam University, Islamabad as visiting Faculty from August, 2001 to onward and in Kinnaired College, Lahore as Visiting Faculty from 1991 to 1994 and thus, she has total experience of 8 years from three years at undergraduate level and five years at postgraduate level.
Her total experience by calculating the total experience of the petitioner in National/International Orgnisation is more than four years. If the experience of the petitioner at University of Jaume 1, Castellon Spain is excluded, even then she has more than four years experience in the relevant field, National/ International Organisation. In this view of the matter she cannot be discredited from appointment against the post of Assistant Professor."
' Petitioners challenged above order in I.-C.A., 177 of 2004 before the Lahore High Court, Rawalpindi Bench which was dismissed on 1st September, 2004 being barred by time. This order, however, was set aside on November 5, 2004 by this Court, as a result whereof case was remanded to the I.-C.A.
Bench, Lahore High Court for decision afresh. In the meantime a Criminal Original No,185/W of 2004 and Writ Petition No, 45 of 2004 were filed by respondent for enforcement of the judgment dated 13th July, 2004. Mr. Justice Sardar Aslam, a learned Judge of the Lahore High Court on 27-8-2004 directed the petitioner to issue appointment letter, positively, to the respondent by following day, therefore, in pursuance of such direction appointment letter was issued. On remand of the case I.- C.A. Filed by the petitioner was dismissed on 5th April, 2005. Against aforesaid two judgments of the High Court namely July 13, 2004 and April 5, 2005 passed by a Single Judge and I.-C.A. Bench respectively, instant petition for leave to appeal has been filed.
6. Learned counsel for the petitioners contended, whether decision of the Selection Board could have been interfered in a writ jurisdiction, if so the High Court in its corrective jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan could have rendered a substitute decision on merits. Learned counsel stated that a writ of mandamus cannot be issued, directing the petitioner to make the appointment of the respondent as Assistant Professor in view of the judgments in the cases of:--
(i) State of Uttar Pradesh and others v. Dr. Vijay Anand Maharaj AIR 1963 946; (ii) Ramesh and another v. Gendalal Motilal Patni and others AIR 1966 SC 1445; (iii) Udai Bhan Singh and others v.
The Board of Revenue, U. P. Allahabad and others AIR 1974 All. 202; (iv) Bishambhar and another v.
IIIrd Additional District Judge, Azamgarh and others AIR 1992 All.
178.
' He further stated that this Court is required to examine as to whether a writ of Mandamus for appointment of the respondent could have lawfully been issued by the High Court to displace the jurisdiction of appointing authority in view of the judgment reported as:--
(i) Ghulam Jillani v. Government of the Punjab and another 2001 PLC (C.S.) 157 (ii) Wazir Khan v.
Government of N.-W.F.P. Through Secretary Irrigation, Peshawar and 4 others 2002 PLC (C.S.) 876.
' He vehemently contended that the Board of Governors constituted a three Members Committee to ascertain as to whether respondent possesses four years experience to make herself eligible for the appointment in view of the appointment Rules. The Committee, being expert on the subject, did not consider her experience equal to four years, therefore, learned High Court in exercise of the writ jurisdiction had no expertise to substitute such findings, as it has been held by Supreme Court of India in Dalpat Abasaheb Solunke and others v. B.S. Mahajan and others Civil Appeal No,3507-10 of 1989 for ready reference. Relevant para. From the judgment, relied by him, is reproduced hereinbelow:- "It will thus, appear that apart from the fact that the High Court has rolled the cases of the two appointees in one though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasis that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant Statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."
' He has also referred to another judgment reported as Berhampur University and another v. Dr. Sailabala Padi AIR 1997 SC 2257. In this case the learned Supreme Court dismissed the order passed by the High Court, directing the appointment of a candidate noting that "Expert Body has not selected her, we cannot give any positive direction for her continuance till the selection for selection for the post of Professor in Environmental Science is made. He emphasized that Board of Governors had appointed three members of the Board to ascertain whether she possesses experience of four years of teaching or not. Expert opinion rendered by them was accepted by the other members of the Board, therefore, High Court may have not interfered in such findings. It was further contended by him that although in Article 199 of the Constitution the nature of writs i,e, writ of prohibition, writ of mandamus, writ of certiorari, writ of habeas corpus and writ of qowaranto have not been mentioned like Article 226 of the Indian Constitution but from language, implied therein, it can be inferred that writs of these categories can be issued by the High Court.
6-A. Mr. Waseem Sajjad, learned counsel for the respondent argued that scrutiny committee had evaluated the application form of petitioner containing eight years experience and recommended her name to Selection Board for consideration. The Selection Board had also approved her name for appointment, however, expressing a problem which was required to be sorted out in the meeting of the Board, but surprisingly the Board constituted another sub-committee contrary to the provisions of Appointment Rules of 1989 as well as contents of the Centres of Excellence Act
(XXIV) of 1974. He stressed that head of the Committee, Dr. Ijaz Hussain, Dean Faculty of Social Sciences was biased against respondent on account of her future prospects due to academic qualification, possessed by her, therefore, he manoeuvred an adverse report against her. Report so compiled by the Committee dated 23rd February, 2003 was defended by the same persons as they are,also the members of the Board of Governors. Thus, according to him, Board had not examined the report of Committee by applying its independent mind and it was mala fide on the part of the petitioners to deny her selection as Assistant Professor for one or, the other reasons. Learned counsel urged that there are precedents in the judicial hierarchy of this country whereby directions had been made to the Government for making appointment of a particular person against an available vacancy. Reference was made by him in the case of Malik Asad Ali and others v.
Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 and Government of Sindh through Secretary, Home Department and others v. Abdul Jabbar and others 2004 SCMR 639. He also questioned the maintainability of the petition on the ground that for the last about two years meeting of the Board of Governors had not been convened but the petition has been filed in view of the authorization, granted by the Board of Governors to the Director, while filing Civil Petition for Leave to Appeal No,2196 of 2004 and as no fresh authorization has been given for filing of the instant petition, therefore, the same is liable to be rejected by this Court as well. He was also of the opinion that as far as the academic qualification of the petitioner is concerned she has fulfilled the requirement and no objection that she had no teaching experience of four years, is available in view of the finding of the High Court vide judgment, dated July. 13, 2004, therefore, respondent being only candidate deserves to be appointed as Assistant Professor and for such reasons no interference is called in the impugned judgment. He also contended that the arguments being raised by the learned counsel for the petitioners are not available to whom for another reason namely they were not raised either before Single Judge or I.-C.A. Bench, therefore, permission cannot be accorded to the petitioner to argue this point for the first time in view of the judgment reported in Government of Punjab through Secretary, (Services), Services General Administration and Information Department and another v.
Muhammad Saleem PLD 1995 SC 396.
8. Learned Attorney-General for Pakistan appeared on Court notice. His view point was that in Article 199 of the Constitution, categories of writs, i,e, writ of mandamus etc. Have not been mentioned. He, on tracing the history, stated that in Constitution of 1956 and 1962, categories of writ were mentioned and same is the position of Article 226 of the Constitution of India, therefore, relief to an individual cannot be denied for technical reasons namely that the High Court cannot issue writ of mandamus, directing the petitioner to appoint respondent as Assistant Professor. He emphasized that in judicial review a Court, in exercise of its powers either under a statute or under common law, is empowered to issue writ of mandamus. In this behalf he referred to "A Judicial Review" by Micheal Supperstone QC and James Goudie QC. Relevant para. Therefrom is reproduced hereinbelow:--- "In 1980 Lord Diplock suggested that mandamus co'uld be awarded against Cabinet Ministers, requiring them to advise the Crown to perform its duty. The modern position concerning the amendability of the Crown to coercive orders is discussed in Chapter 10 above. In the light of Lord Woolf's speech in M v. Home Office it would seem that all justifiable activities by those who act on behalf of the Crown are subject to mandamus, whether those activities are conducted pursuant to statute, or whether they are conducted under the royal prerogative, by delegation pursuant to order in Council or otherwise."
' To further substantiate his contention he also placed reliance upon Judicial Remedies in Public Law by Clive Lewis and read the following para.:-- "There is also old authority that mandatory orders will not lie to undo acts already done. Providing the factual situation is suitable for the grant of a mandatory order, there is no longer any reason to regard this as a restriction. As the other remedies would be available in the context of judicial review, there would seem no valid reason for resurrecting ancient technicalities where mandatory orders are otherwise appropriate. Similarly, ancient case-law suggesting that mandatory orders will not lie to minor officials can be consigned to history."
' In this very context reference was also made by him from Administrative Law by Sir William Wade which reads as under:- "It is inherent in the nature of the prerogative remedies that, since they emanate from the Crown, they cannot lie\ against the Crown itself.
' That there can be no mandamus to the Soverign, there can be no doubt, both because there would be an incongruity in the Queen commanding herself to do an act, and also because disobedience to the writ of mandamus is to be enforced by attachment."
' Learned Attorney-General was also of the opinion that keeping in view the education and experience of respondent the Board of Governors may have not rejected her request for appointment as Assistant Professor and as there was an error in the judgment of the Board of Governors to calculate the period of experience of the respondent and now it has been ratified hy the High Court by giving judgment in her favour therefore, on account of technical reason respondent cannot be deprived from her legitimate right of appointment as Assistant Professor in the Centres of Excellence of Quaid-e-Azam University.
9. We have heard both the parties at length. From the arguments so put forwarded on behalf of the parties following questions emerge for consideration:--
(a) As to whether the High Court in exercise of jurisdiction under Article 199 of the Constitution can issue the writ of mandamus directing the petitioner to appoint respondent as Assistant Professor?
(b) As to whether High Court in exercise of writ jurisdiction can substitute the finding of the Board of Governors holding that respondent had no 4 years experience in the relevant field in National or International Organization?
(c) What should have been the mode to determine whether the experience possessed by the respondent can be equated to the experience of four years or above, to make her eligible for the appointment against the post of Assistant Professor?
(d) Whether the High Court had an obligation in writ jurisdiction to decide factual controversy between the parties with regard to four years experience of the respondent in the relevant field in National or International Organization?
(e) Whether relief in a writ jurisdiction could have been denied to respondent for technical reasons?
(f) Whether petition has been filed without authorization of Board of Governors?
(g) Whether the Higher Education Commission in exercise of the powers under section 10(1)(o) cannot calculate the experience of four years of the respondent in National or International Organization to make her qualified for appointment against the post of Assistant Professor?
10. Leave to appeal is granted, inter alia, to examine above questions. Before parting with the order it deems appropriate to note that the respondent is already working as Assistant Professor but her grievance is that no course is being offered to her and if she would apply for higher studies, her request would be turned down due to present litigation. It is to be observed that petitioners be not treated differently and she be granted legitimate rights in accordance with law, so long she was in service.
11. At the request of learned counsel for the petitioner appeal arising out of this petition is ordered to be fixed in the month of December, 2005.