I intend to decide the following Constitutional petitions by one consolidated order having similar facts and law:---
(1) W.P.No. 8457/2003
(2) W.P.No. 9317/2003.
(2) The brief facts out of which the aforesaid writ petitions arise are that the respondent/University invited the applications for the following posts through public notice:--- One regular in the discipline of Animal Nutrition.
One regular in discipline of Theriogenology (Animal Reproduction).
One temporary in the discipline of Veterinary Pathology.
One temporary in the discipline of Veterinary Parasitology.
One temporary in the discipline of Veterinary Medicine.
The petitioners and private respondents submitted their applications for the respective posts mentioned in their applications. The petitioner Dr. Ljaz Ahmad and Dr. Nasim Ahmad submitted their applications for the post of Professor in Theriogenology (Animal Reproduction) whereas Dr. Sultan Mahmood and respondents Dr. Mandoom Abdul Jabar and Anjum Khaleeq submitted their applications for the post of Associate Professor in Animal Nutrition. The applications of the applicants were scrutinized by the respondent/University and found them eligible. The respondent/University issued notices to the applicants to appear before the Selection Board on 22.04.2003. The Selection Board in its meeting held on 22.04.2003 changed the score/marks card, which is at page 17 as Annexure-B in W.P.No. 6457/2003. The petitioners were not selected by the Selection Board and recommended the name of the private respondent in the aforesaid writ petitions to the Syndicate. The Syndicate approved the same in its meeting held on 27.05.2003.
Thereafter the appointment letters were issued to the private respondents. The petitioners being aggrieved filed the aforesaid writ petitions.
4. The learned counsel of the petitioners submits that the petitioner Dr. Ljaz Ahmad is more qualified as compared to Dr. Nasim Ahmad and is the only person qualified to be appointed in terms of the advertisement and he has heavily relied upon the comparison chart prepared by him qua the qualifications of the petitioner Dr. Ljaz Ahmad and Dr. Nasim Ahmad, which is at page 19 as Annexure-D. He further submits that the respondent/University has no lawful authority to change the score/marks card at the nick of time and in fact the same is changed simply to help the private respondents on the date of interview; therefore, action of the respondents is without lawful authority. He further submits that the selection board has no lawful authority to change the score/marks card in terms of their functions as is highlighted in Schedule vide para. 7. He further submits that appointment of the private respondents is not in accordance with the rules 'and regulations of the respondent /University; therefore, action of the respondent/University is without lawful authority. In support of his contention, he relied upon the following judgments:--- Akthtar Hussain vs. Assistant Commissioner/Collector, Sub-Division, Kasur. (1996 PLC (C.S) 943)
Muhammad Din vs. Government of NWFP and 4 others (1997 PLC (C.S.) 1086) .
Ahmad Nawaz Shah vs. The Chairman (2002 PLC (C.S) 211)
Muhammad Ismail Solangi vs. D.I.G. (2002 PLC (C.S) 255)
Abdul Hafeez Abbasi Vs. Munaging Director, PIA Corporation, Karachi (2002 PLC (C.S) 1083)
Muhammad Akram Malik vs. Province of Sindh. (2002 PLC (C.S) 1037)
He further submits that it is duty and obligation of the public functionaries to appoint the persons for the posts inquestion in a transparent manner but the action of the respondent/University by changing the criteria with regard to score/marks card does not fall within the phase transparent action of the respondent/University, which is not in consonance with the fundamental rights as mentioned in Chapter 2 of the Constitution. In support of his contention, he relied upon Zuffiqar-ul- Hussain and 19 others vs. Oil and gas Development Corporation (2003 PLC (CS) 368). He further submits that Dr. Muhammad Yaqoob Bhatti, Member Chancellors' Committee, University of Veterinary Animal Sciences Lahore, has given his dissenting note that Dr. Naseem Ahmad is not eligible to be appointed for the post inquestion.
4. The legal advisor of the respondent/university submits that the constitutional petitions are not maintainable as the petitioners have alternative remedy to file a revision petition before the Chancellor under section .11 of the University of Veterinary and Animal Science, Lahore Ordinance, 2002. In support of his contention, he. Relied upon the following unreported judgments:- W.P.No. 1277/84, decided on 12.6.85 W.P,No. 9088/90, decided on 11.11.92 W.P.No. 6252/95, decided on 11.7.95 W.P.No. 8445/97, decided on 12.5.99 W.P.No. 11605/98, decided on 20.7.98 W.P.No. 20775/98, decided on 23.6.2000 W.P.No. 18388/99, decided on 14.12.99 W.P.No. 9370/98, decided on 25.9.2000 He further submits that the Selection Board has changed the score/marks card as the Selection Board is the 'authority of the University in view of Section 21 (d) read with section 31 of the University of Veterinary and Animal Science, Lahore Ordinance, 2002. He further submits that the change with regard to score/marks card falls within the sphere of internal affairs of the respondent/University and this Court has no jurisdiction to interfere in such affairs under Article 199 of the Constitution. In support of his contention, he relied upon ICA No. 756/1998. Decided on 23.10.2000.
5. Mr. Afzal Qureshi, Advocate of the private respondent adopted the arguments of the legal advisor of the University. In supplement to the arguments of the legal advisor of the respondent/University he submits that Dr. Muhammad Yaqoob Bhatti, one of the member of the Chancellors' Committee has given a dissenting note as his son also appeared before the selection board on 22.04.2003 qua one of the posts inquestion, who was not recommended by the Selection Board;_ therefore, this dissenting note is based on mala fide.
6. The learned counsel of the petitioners submits that the Constitutional petitions. Are maintainable even in presence of alternative remedy. In support of his contention, he relied upon the following judgments:--- Government of Punjab vs. Messrs Crescent Taxtile Mills Limited (PLD 2004 S.0 108)
Brig. Muhammad Bashir vs. Abdul Karim (PLD 2004 S.0 271)
Federation of Pakistan. Vs. Muhammad Haris Hassan (PLD 2004 Kar. 119)
Gulistan Textile Mills Ltd vs. Pakistan (1983 CLC 1474)
Islamia University, Bahawalpur vs. Dr. Muhammad Khan Malik. (PLD 1993 Lah. 141)
He further submits that the advertisement qua the posts inquestion appeared in the public notice issued by the respondent /University on 14.12.2002. The respondent/University directed the applicants to appear before the Selection Board on 22.04.2003. The Selection Board has changed the criteria in violation of the decision of the Chancellors' Committee dated 24.07.2002 according to which rules of the University of Agriculture Faisalabad are applicable and the Selection Board has no authority to change the criteria. The Selection Board has only power to consider the applications received in response to the advertisement and recommend to the Syndicate the names of suitable candidates for appointment to teaching or other posts, as is highlighted and mentioned in the schedule under the heading "Functions of the Selection Board" vide para. 7 of the Schedule attached with the aforesaid Punjab Ordinance (XXIX of 2002).
7. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
8. It is better and appropriate to reproduce the basic facts in chronological order, decision of the respondent/University and provisions of the Ordinance and paragraph of the Schedule attached with the Ordinance.
FACTS AND DECISIONS.
(i) The Chancellors' Committee in its meeting held on 24th July, 2002 adopted/followed the Rules, Regulations and Statutes etc. Of the University of Agriculture, Faisalabad till University of Veterinary & Animal Science, Lahore prescribes its own Rules, Regulations and Statutes etc. Approved by the Statutory Bodies. It is pertinent to mention here that the respondent /University has not framed the rules till date.
(ii) The Chancellors' Committee of the respondent/University in its meeting held on 24.07.2002 adopted the rules, regulations, statutes etc of the University of the Agriculture Faisalabad
(iii) Applications were invited to fill the posts inquestion mentioned in the narration of facts vide public notice dated 14.12.2002.
(iv) The last date for receipt of applications was fixed as 28.12.2002;
(v) The petitioners and private respondents submitted their applications within the prescribed period;
(vi) The petitioners and private respondents were found eligible; therefore, the Selection Board of the respondent/University issued notice to the petitioners and private respondents to appear before the Selection Board for interview on 22.04.2003.
(vii) The Selection Board changed the score/marks card in the following terms on 22.04.2003:--- Comparison of Evaluation Performa of Selection Roard for Professor & Associate Professor Parameters University of Agriculture University, of Veterinary and Animal Science Matriculation 8 8 Intermediate 8 8 Graduation 8 8 Masters 8 8 Ph. D. 8 Nil Length of Service 5 Nil ACRs etc. 5 Nil Expert Opinion (Experience)15 15 Sub. Total 65 47 Interview Marks Technical Knowledge/previous performance/reputation20 33 Islamic Studies 5 5 General Knowledge 5 5 Personality/teaching aptitude . & Res.
Publications.5 10 Sub. Total 35 53 Total 100 100 Note:- Interview marks (discretionary) are 35 in the University of Agriculture Fa'salabad whereas in the University of Veterinary & Animal Science are 53.
(viii) The Selection Board recommended the names of the private respondents qua the posts inquestion respectively for approval to the Syndicate for their appointment qua the posts inquestion on the basis of the interview held by the Selection Board on the basis of the change of score/marks card in its meeting held on 22.04.2003;
(ix) The Syndicate approved the same in its meeting held on 27.05.2003. Subsequently the University authority appointed the private respondents instead of the petitioners.
The relevant provisions of University of Veterinary and Animal Science, Lahore Ordinance, 2002.
Ordinance (XXIX of 2002); Section 11: Revisional powers of the Chancellor: The Chancellor may, of his own motion or otherwise, call for and examine the record of any proceedings in which an order has been passed by any Authority for the purposes of satisfying himself as to the correctness, legality or propriety of any finding or order and may pass such orders as he may deem fit.
Section 21 Authorities:--- The following shall be the Authorities of the University:---
(a) the Syndicate;
(b) the Academic Council;
(c) the Board of Faculties;
(d) the Selection Board;
(e) the Advanced Studies and Research Board;
(f) the Finance and Planning Committee;
(g) the Affiliation Committee;
(h) the Discipline Committee; and
(i) such other Authorities as may be prescribed by Statutes.
Sec. 22 Syndicate:---(1)The Syndicate shall consist of--
(I) the Vice-Chancellor, who shall be its Chairman;
(ii) two senior scientists/academicians of related disciplines of the University to be nominated by the Chancellor;
(iii) the Secretary to Government of the Punjab, Livestock and Dairy Development or his nominee not below the rank of Additional Secretary;
(iv) one nominee of the University Grants Commission.
Sec.
23. Powers and duties of ,the Syndicate:---(1)The Syndicate shall be the executive body of the University and shall, subject to the provisions of this Ordinance and the Statutes, take effective measures to raise the standard of teaching, research and publication and other academic pursuits and exercise general supervision over the affairs and management of the property of the University.
Sec.
28. Statutes:---Subject to the provisions of his Ordinance, Statutes may be made to regulate or prescribe all or any of the following matters:--- (a)......... (b)......... (C)........ (d).....
(e)......... (g).......... (h).......... (i).......... (j) conditions for appointment of Professors Emeritus and award of honorary degrees.
Sec.
31. Rules:---(1) The Authorities and the other Bodies of the University may make Rules consistent with this Ordinance, the Statutes and the Regulations, to regulate the conduct of their business and place of meetings and related matters.
Relevant provisions of Schedule:-
6. Selection Board:---(1)The Selection Board shall consist of-
(i) the Vice-Chancellor (Chairman);
(ii) the Chairman or a member of the Punjab Public Service Commission to be nominated by the Chairman;
7. Functions of the Selection Board.---(1). The Selection Board for teaching and other posts shall consider the applications received in response to advertisement and recommend to the Syndicate the names of suitable candidates for appointment to teaching or other posts, as the case may be.
It is admitted fact that the petitioners have alternative remedy against the impugned order of the respondent/University under the provisions of the aforesaid Ordinance in view of Section 11 of the said Ordinance; therefore, Constitutional petitions are not maintainable. My learned brother the then Ehsan-ul-Haq Chaudhry, J. Has considered this proposition qua maintainability of Constitutional petition in the presence of alternative remedy in W.P.No. 4174/1998 and laid down the following principle:- "There is recent tendency to file Constitution petitions without exhausting the remedies under the Statute.
This recent trend is dangerous. Honourable Supreme Court clearly held in the cases reported as "Pir Sabir Shah. Vs. Shad Muhammad Khan, NWFP and another" (PLD 1995 S.C. 66), "The Collector Customs Karachi vs. M/s. New Electronics (Pvt) Ltd and 59 others" (PLD 1994 S.C. 363) and "Riffat Askari vs. The State" (PLD 1997 Lahore 285)."
It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, as per law laid down by the Honourable Supreme Court in Trustees of Port of Karachi vs. Muhammad Saleem (1994 S.C.M.R. 2213). The judgments cited by the learned counsel of the petitioners qua maintainability of the present writ petitions in the presence of alternative remedy, are distinguished on facts and law. I have taken aforesaid view in different Constitutional petitions; therefore, I am no in a position to deviate from my own view on the well- known principle of consistency, as per law laid down by the Honourable Supreme Court in Muhammad Muzaffar Khan. Vs. Yousaf Khan (PLD 1959 S.C. 9).
However, in the interest of justice and fairplay, keeping in view the peculiar circumstances of these cases, let copies of the writ petitions be sent to the Secretary to the Chancellor, who shall place the same before the Chancellor. The competent authority shall consider these Constitutional petitions as revision petitions filed by petitioners before the competent authority under section 11 of the said Ordinance. The competent authority shall decide the same in accordance with law as expeditiously as possible within reasonable time without being influenced by the observations of this Court.