' MUHAMMAD JEHANGIR ARSHAD, J.---Dr. Muhammad Shahid Naveed, the writ petitioner through the instant constitutional petition has sought the following relief from this Court:-- "(a) The purported Rules relating to contractual appointment/ assignments may be declared illegal, ultra vires and may kindly be quashed as provisions in this regard already exist in the statutes 1977 of Islamia University Bahawalpur Act and rules could not be made to over reach the statutes;
(b) office order No,834/Estt dated 23-2-2005 issued by the Registrar respondent No,4 on behalf of the Vice-Chancellor, respondent No,2 appointing respondent No,3 as Director Implementation and Monitoring of Projects may kindly be declared to be without lawful authority and of no legal effect as against the right of petitioner;
(c) the respondent No,2 may further be restrained from acting unilaterally in disregard of law and statutes;
(d) exercise of power by Vice-Chancellor in the garb of emergency under section 15(3) of Islamia University Act in no way permits him to violate the statutes and specially so when valuable rights of other more competent and suitable persons are involved;
(e) all such appointments, which are not in consonance of Islamia University Bahawalpur Act and Statues, may be ordered to be reviewed."
2. The facts forming back ground of this petition are that petitioner who after obtaining Master's Degree in Physics from Islamia University Bahawalpur/respondent No,1 in 1981 was appointed Lecturer firstly in the year 1982 on ad hoc basis and then on regular basis in 1983. The Islamia University Bahawalpur/respondent No,1 allowed him to avail the Scholarship offered by the Government of Pakistan and as such the petitioner proceeded to U.K from where he obtained Master's Degree in Computer Sciences in 1994 and then did his Doctorate (Ph.D) in 1997 from University of Dundee, United Kingdom and at present is working as Associate Professor in Islamia University Bahawalpur since May, 2004. Now, the petitioner is aggrieved of the appointment of Professor Dr. Muhammad Zafar Yab/respondent No,3 as Director Implementation and Monitoring of Projects on contractual basis at the pay of Rs,70,000 per month for a period of two years (extendable) in terms of the letter of appointment bearing No,834/Estt dated 23-2-2005.
3. The learned counsel for the petitioner has thrown challenge to the above appointment of respondent No,3 on the following grounds:-
(a) that the said appointment of respondent No,3 was made in a secret and clandestine manner without issuing any advertisement in at least two national dailies including one English published from Lahore within three weeks from the last date of receipt of applications in terms of Rule 2 of the Rules regulating the Selection Board of Islamia University Bahawalpur;
(b) that in terms of statute (5) of Islamia University Bahawalpur, Teachers (Appointment and Special Conditions of Service) Statutes, 1977 as amended on 29-3-1989 with the approval of the Chancellor of the University, short term appointment could only be made by the Syndicate for a period not exceeding one year but in the instant case the respondent No,3 has been appointed for two year;
(c) that the Rules called as Short term/part time contractual. Appointment/assignments Rules are liable to be stuck down being ultra vires of the abovementioned Statutes of Islamia University Bahawalpur; and lastly;
(d) that the appointment of respondent No,3 having been made in contravention of the law declared by the Hon'ble Supreme Court of Pakistan in the case of "Mushtaq Ahmad Mohal and others v. The Hon'ble Lahore High Court, Lahore and others" (1997 SCM R 1043), "Munawar Khan v.
Niaz Muhammad and seven others" (1993 SCM R 1287), "Obaidullah and another v. Habibullah and others" (PLD 1997 SC 825) and the case in Re: Abdul Jabbar Memon and other's case (1996 SCM R 1349) and also in violation of Articles 2-A, 18, 25 and .27 of the Constitution of Islamic Republic of Pakistan, 1973.
4. On the other hand, Mr. M.M. Bhatti, Advocate appearing on behalf of the respondents including the private respondent No,3 has vehemently contested the writ petition by contending:--
(a) that the petitioner has got alternate remedy by way of filing revision before the Chancellor of the University in view of section 11-A of the Islamia University Bahawalpur Act, 1975, hence the writ petition is not maintainable being barred by Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973. He has placed reliance on the case "Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others" (PLD 1996 SC 246);
(b) that the Rules and Regulations of Islamia University Bahawalpur being non-statutory, the employees of the University cannot file writ petition for redressal of their grievances as relations between the University and its employees is that of Master and Servant;
(c) that the appointment of respondent No,3 was made in the light of the rules mentioned above, to meet the immediate requirement of the University as other Universities of the country are offering handsome salaries and other fringe benefits to the persons of eminence in various fields of studies and to overcome the delay likely to be caused in following the procedure by way of advertisement, the instant appointment has been made on contract basis in anticipation of approval by the Syndicate in terms of section 15(3) of the Islamia University Bahawalpur Act, 1975 which empowers the Vice-Chancellor to cater such-like situations; and
(d) that since the abovementioned rules were framed by the Syndicate under section 33(2) of the Islamia University Bahawalpur Act, 1975 hence, Teachers (Appointment and Special Conditions of Service) Statutes, 1977 are not applicable to such appointments.
5. I have considered the arguments of learned counsel for the respective parties, gone through the relevant provisions cited by the learned counsel as well as the judgment referred to above.
6. So far as the contention of learned counsel for the respondents about non-maintainability of this petition without availing the remedy of revision before the Chancellor in terms of section 11-A of the Islamia University Bahawalpur Act, 1975, is concerned it has been argued by the learned counsel for the petitioner that under section 11-A of the Act revision in competent before the Chancellor against the order which has been passed by any authority under the Act and by referring to the definition of "Authority" as contained in section 21 of the said Act, the learned counsel contends that Vice-Chancellor no where figures in the said definition and as the order of appointment of respondent No,3 has been passed by the Vice-Chancellor hence the remedy of revision is neither available to the petitioner nor it was mandatory for the petitioner to have availed the same before filing this petition. Prima facie the argument of learned counsel for the petitioner does have some force but when section 21 is read in conjunction with provisions of section 22 of the said Act, the legal position becomes clear. It appears that the word "Senate" as defined under the definition of Authority in section 21, includes the Vice-Chancellor per force of section 22 of the said Act, meaning thereby that Vice-Chancellor when exercises the powers under section 15(3) of Islamia University Bahawalpur Act, 1975 he in fact acts as a Senate and his order unless set aside, modified or reversed by the Senate, shall be deemed as order of the Senate, hence amenable to the revisional jurisdiction of the Chancellor within meaning of section 11-A of the said Act. I therefore, agree with the contention of learned counsel for the respondent that against the impugned order of appointment of respondent No,3 the petitioner had an alternate remedy by way of filing revision to the Chancellor of the University (Governor of the Punjab) as provided by section 11 of the Act and objection raised by the learned counsel for the respondent about maintainability of this writ petition is sustainable.
7. However, there is no force in the contention of learned counsel for the respondent that as the rules and regulations of the Islamia University Bahawalpur being nor statutory, the employees of the University cannot file writ petition for redressal of their grievance as the relationship between the said University and its employees is that of Master and Servant. I do not agree with the said contention for the reason that said objection would arise only if the petitioner is seeking enforcement of terms and conditions of his employment but as the petitioner is only challenging the appointment of respondent No,3 contending that he did not possess the required qualification and that the method of his appointment was violative of the various provisions governing the affairs of the University and also on the touchtone of violation of Articles 2-A, 18, 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973 therefore, the objection raised by the learned counsel for the respondents about maintainability of this writ petition on the said ground is overruled. Reliance is placed on the case of Dr. Ahmad Sulman Waris, Assistant Professor Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382-D and Mushtaq Ahmad Mohal and others v. The Hon'ble Lahore High Court, Lahore and others 1997 SCM R 1043.
8. Before proceeding to dilate upon the remaining contentions of the learned counsel for both the parties, I would like to express my view that instead of approaching this Court directly it would have been better rather in the interest of the petitioner as well as the dignity of one of the renowned Universities of Pakistan and also being his alma mater that petitioner should have placed his grievance before the Chancellor who has also been conferred authority under section 11(2) of Islamia University Bahawalpur, Act 1975 to annual the order or proceedings which to his satisfaction are not in accordance with the provisions of the said Act, Statutes, Regulations or the Rules, as the case may be. This is in addition to the powers conferred on him under Section 11-A, meaning thereby that the Chancellor is the ultimate governing authority of the entire affairs of the University and if the petitioner had opted to approach him in terms of above mentioned provisions of the Islamia University Bahawalpur Act, 1975, the Chancellor would have definitely come to his rescue and redressed his grievance. For this reason also I feel that instead of approaching this Court directly the petitioner should have approached the Chancellor of the University and in case of his failure to obtain relief he could very well come to this Court by invoking constitutional jurisdiction which is always available to the aggrieved persons against either unlawful assumption of jurisdiction or refusal to assume lawful jurisdiction by any authority, and the Court has got ample powers to interfere and strike down any order passed either without jurisdiction or in excess of jurisdiction, etc as held by the apex Court in "Khiali Khan v. Haji Nazir and 4 others" (PLD 1997 SC 304).
9. As regards the contention of learned counsel for the petitioner that appointment of respondent No,3 was made without any publicity or advertisement in the newspaper, hence the same was without lawful authority and had no legal effect being violative of Articles 2-A, 18, 25 and 27 of the Constitution and the law declared by the Hon'ble Supreme Court of Pakistan in the cited judgment, in view of the ultimate direction which I propose to pass, I would refrain from making any comments on this contention as well as the other contentions of respective parties, as the same may prejudice the Authority to whom I propose to refer the matter for decision.
10. Although this writ petition can be thrown out on the simple ground of availability of alternate remedy in terms of sections 11 and 11-A of the Islamia University Bahawalpur Act, 1975 being barred by Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973 and also the law declared by the Hon'ble Supreme Court of Pakistan in "Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others" (PLD 1996 SC 246), but I would like to keep the matter open for decision by the authority with an open mind.
11. For what has been discussed above, by keeping the above contentions of the learned counsel for the parties open and undecided, I dispose of this Writ Petition with a direction to the Vice- Chancellor, Islamia University Bahawalpur to immediately requisition the meeting of the Syndicate preferably within one month from receipt of this order and place the matter of appointment of respondent No,3 before it. The Syndicate is expected to decide the same fairly impartially and in the best interest of the University uninfluenced by any bias or the question of prestige of any member of the Syndicate, keeping in view the respective contentions of the parties in the light of the law and the above mentioned judgment of the Hon'ble Supreme Court after affording opportunity of hearing to the parties. The Vice-Chancellor shall ensure that Hon'ble Mr. Justice Muhammad Akhtar Shabir, Judge of the Lahore High Court who is also the member of the Syndicate as a nominee of the Hon'ble Chief Justice, is also present in the said meeting, because the presence of Hon'ble Judge would not only provide guideline for the other members of the Syndicate but also would be helpful in arriving at a just, proper and judicious decision of the matter. Copy of this order be immediately sent to the Vice-Chancellor for compliance.