Ch. Ijaz Ahmad, J.--The brief facts out of which the present petition arises are that respondent university had issued advertisement/public notice in Daily "The Dawn" dated 12.4.1999 for filling the posts of Professor BS-20 and Associate Professor of BS-19 with the following qualifications and experience:-- "STATUTORY REQUIREMENTS: PROFESSOR: Ph. D with fifteen years teaching/research experience in a recognized University, or Professional experience in the relevant field in a national or international organization. Eight research publications in journals of International repute. OR Master's degree with eighteen years teaching/research experience in a recognized University or professional experience in the relevant field in a national or international organization. Eight research publications in journals of international repute.
ASSOCIATE PROFESSOR: Ph. D with ten years teaching/research experience in a recognized University, or Professional experience in the relevant field in a national or international organization.
Five research publications in journals of International repute. OR Master's degree with thirteen years teaching/research experience in a recognized University or professional experience in the relevant field in a national or international organization. Five research publications in journals of international repute.
2. The petitioners in obedience of aforesaid advertisement submitted their applications before the respondents. The respondents had scrutinized their applications and found their applications in accordance with rules and regulations of the respondent. Respondent had is issue intimation/call notices to the petitioners for appearing before the selection board. The selection board had found them suitable and selection board recommended their name for appointment to the posts in question. The recommendations of the selection board were placed before the Syndicate in meeting held on 2nd December, 2000 and deferred the matter till next meeting of the Syndicate and sub-committee was also constituted to go through all the representations/included in the agenda of the present meeting pertaining to the minutes of the meeting of the selection board held on 26.8.2000 and submitted its findings for consideration of the Syndicate in its next meeting.
Syndicate had referred the matter back to the selection board vide its meeting held on 14 and 15 of January, 2002. The selection board had reversed its earlier decision and send its recommendations to the extent to the Syndicate that petitioners being non-Ph.D could not consider for appointment for the posts in question in view of the earlier decision of the Syndicate wherein the University had adopted the decisions of the Government of Pakistan and University Grants Commission regarding appointments and only Ph.D candidates are eligible for the posts of the Professor and Associate Professor and Syndicate had no authority to grant relaxation after 1996 due to adoption, the existing rules amended. Petitioners being aggrieved filed Constitutional petition in the High Court of Balochistan which was dismissed vide impugned judgment dated 29th March, 2004. Hence the present petition.
3. The learned counsel for the petitioners submits that action of the respondent is hit by Article 25 of the Constitution and this fact was not considered in its true perspective by the learned High Court in the impugned judgment. He further urges that selection board had recommended the case of the petitioners to the Syndicate and the Syndicate in its meeting held on 2nd December, 2000 approved the same and deferred the case for consideration of the Syndicate in its next meeting for issuing appointment letters to the petitioners as depicted from the affidavits attached by the petitioners alongwith the Constitutional petition and the learned High Court was not justified to ignore the affidavits of the members of the Syndicate. He further urges that selection board has no lawful authority to review its earlier decision. He further urges that Syndicate had referred the matter to the selection board under the dictate and dictation of the Higher Court Education Commission. Therefore, the action of the respondent was without lawful authority as the higher education commission had no lawful authority to issue directions to the respondents. In support of his contention he relied upon Fida Hussain's case (PLD 1995 SC 701). The Syndicate had already decided to give one time relaxation to the non-PhDs, therefore, sub committee was not competent to re-open the issue.
4. The learned counsel for the respondents submits that respondent had not appointed a single person after 2000 who had not possessed the Ph. D. degree qua the posts of Professor and Associate Professor. He further urges that Syndicate had not approved the recommendations of the selection board as evident from the minutes of the meeting itself. He further urges that learned High Court was justified to ignore the affidavits filed by the petitioners alongwith the Constitutional petition with cogent reasons. He further urges that petitioners have not vested right to be appointed in violation of the rules and regulations of the respondents.
5. We have given our -due consideration to the contentions of learned counsel of the parties and perused the record. It is deemed proper to reproduce the relevant provisions of University Grants Commission (Act XXIII) of 1974 and relevant provisions of Higher Education Commission Ordinance 2000 (LIII) to resolve the controversy between the parties:-- PREAMBLE OF UNIVERSITY GRANT S COMMISSION ACT (XXIII OF 1974)
An Act to provide for the establishment of a University Grants Commission.
Whereas, in the interest of educational planning and. laying down a uniform policy as also to secure coordination between the universities, it is expedient to provide for the establishment of a University Grants Commission and for matters connected herewith or incidental thereto; SECTION 8 OF UNIVERSITY GRANT S COMMISSION ACT XXIII of 1974.
Functions of the Commission.--For the promotion and co-ordination of University education, the determination and maintenance of standard of teaching, examination and research in Universities, the promotion of national unity and solidarity, the orientation of university programmes to national needs the commission may ......
(I) ..........
(h) "Supervise generally the academic programme and development of various institutions of higher learning and education in the country;
(i) recommend to the universities the necessary for the improvement of university education";
(j) Perform such other functions, not inconsistent with the provisions of this Act, as may be prescribed or as may be incidental or consequential to the discharge of the aforesaid functions; SECTION 9 OF UNIVERSITY GRANT S COMMISSION Additional functions of the Commission.--For ascertaining the financial needs of a university or its standard of teaching, examination and research, the Commission may--(a) after consultation with the Federal Government or as, the case may be a Provincial Government, and a university, cause a visitation of any department of the university to be made, in such manner as may be prescribed, by a person appointed by the Commission; and (b) after such visitation, communicate its views to the Federal Government or, as the case may be, Provincial Government and the university concerned, together with its recommendations, if any, regarding any action to be taken".
PREAMBLE OF HIGHER EDUCATION COMMISSION ORDINA NC E. 2002.
Whereas in the interest of improvement and promotion of higher education, research and development it is expedient to provide for the establishment of a 'Higher Education Commission and for matters connected the drew with or incidental thereto;-- RELEVANT PROVISION OF HIGHER EDUCATION COMMISSION.
SECTION 10. Power and functions of the Commission.--(1) For the evaluation, improvement, and promotion of higher education, research and development, the commission may--
(a) "Formulate policies, guiding principles and priorities for higher education institutions for promotion of socio-economic development of the country"
(b) Cause evaluation of the performance of Institutions;
(h) "Review and examine financial requirements of public sector institutions, approve and provide funds to these institutions on the basis of annual recurring needs as well as for development projects and research based on specific proposals and performance and while approving funds for a public sector institution the commission shall ensure that a significant proportion of the resources of the institution are allocated to research support and libraries"
(I) facilitate the introduction of educational programmes that meet the needs of the employment market and promote the study of basic and applied sciences in every field of national and international importance in the Institutions;
(m) "Advice institutions in ensuring a proper balance between teaching and research;
(p) Develop guidelines and facilitate. the implementation of a system of evaluation of performance of faculty member of institution".
(q) "Provide guidelines as regards minimum criteria and qualifications for appointment, promotion, salary structure in consultation with the Finance Division and other terms and conditions of service of faculty for adoption by individual institutions and review its implementation;
(v) "guide Institutions in designing curricula that provides a proper content of basic sciences, social sciences, humanities, engineering and technology in the curricula of each level and guide and establish minimum standards for good governance and management of Institutions and advise the Chancellor of any institution on its statutes and regulations; Section 20, Ordinance to override other laws.-The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in law for the time being in force.
Section 22. Repeal.--(1) The University Grants Commission Act, 1974 (XXIII of 1974) is hereby repealed.
(b) Everything done, action taken, obligation or liabilities incurred, rights and assets acquired, persons appointed, or authorized jurisdiction or power conferred, endowment, bequests, funds, or trust created donations or grants made or issued under any provisions of the repealed Act, rules, applicable to the said UGC shall remain in force and be continued and, be deemed to have been respectively done, taken, incurred, acquired, appointed, authorized, conferred, created, made or issued under this Ordinance and reference in any document, to any provision of the said Act or rules made thereunder shall, so far as may be, be deemed to be reference to the corresponding provisions of this Ordinance or the rules made or deemed to have been made thereunder; and
(c) any rules made under the repealed Act shall, insofar as they are not inconsistent with the provisions of this Ordinance or the rules made thereunder having recourse to the various matters which by this Ordinance have to be regulated or prescribed by rules shall continue to be in force, until they are repealed, replaced, rescinded or modified in accordance with the provisions of this Ordinance; and
6. The University Grants Commission as well as High Education Commission had given directions in terms of their functions to all the universities of the country for the purpose of appointment of Professor and Associate Professors having qualifications of Ph. D. The pay scales for the university teachers were approved by the Federal Government in the year 1975 through Hand out dated 31.3.1975. According to para (E) of the said hand out are as follows:-- "The aforesaid provision was extended from time to time by the Vice Chancellors Committee. Lastly upto 13.2.1996 and thereafter the competent body did not extend the time. After the expiry of the said extended period, no university in the country was allowed to appoint non-Ph.D teachers to the posts in question. However, the respondent university' filled posts in violation of the mandatory provisions. The said violation was brought into the notice of the Chancellors of the Universities in the country. Resultantly, the Chancellor of respondent university had asked the vice chancellor of respondent university qua the aforesaid violation and directed to taken action against the officials/officers who were responsible for the same. In view of the aforesaid direction the competent body of the respondent university had taken decision to fill posts in question having requisite qualification of Ph.D only".
7. It is pertinent to mention here that respondent university had adopted the same, therefore, action of the respondent was in accordance with the law. It is an admitted fact that in the year 1975 the respondent university had promulgated the University of Balochistan Quetta teachers pay scale (pay revision) Rules 1975 and were made applicable to the teaching staff of the University of Balochistan with right of option to the teachers either to opt the national pay scale or the then existing pay scales. The learned High Court had re-reconciled said rules and the University Employees Rules 1978. It is a settled law that university employees rules 1978 are not statutory rules as the law laid down by this Court in following judgments:--
(i) Zia Ghafoor Paracha's case (2004 SCMR 35).
(ii) Asad Bashir's case (2006 PLC (CS) 110).
8. This Court while interpreting similar statute of Punjab University had laid the principle that relationship of the employees of the University fell under the pharse of master and servant as laid down by this Court in University of Punjab vs. Ch. Sardar Ali (1992 SCMR 1093). The University is very fair with the petitioners as the petitioners were provided chance to improve their qualifications as evident from letter dated 1.6.1980 (page 11 of paper book-II with regard to Petitioner No, 1). Similarly to the Petitioner No, 2 as depicted from letter dated 15.12.1990 (page 12 of the paper book-II) but the petitioners could not improve their qualifications. In view of the prevailing circumstances in the world, the competent authority framed University Grants Commission Act and thereafter by repealing the said Act, 1974 has promulgated the Higher Education Commission Ordinance 2002 to compete with the world for improving the standard of qualification. It is the knowledge and knowledge only to compete with the world now a days due to which the aforesaid laws promulgated to improve the standard of education. It is a settled principle of law that for the purpose of maintaining a Constitutional petition it is the duty and obligation of the petitioners to point out that action of the respondents was in violation of their rules and regulations which the petitioners had failed to point out, therefore, learned High Court was justified to dismiss the Constitutional petition as the law laid down by this Court in Ali Mir's case (1984 SCMR 433). The learned counsel of the petitioners had failed to bring the case within the parameters prescribed in Article 25 of the Constitution. It is a settled principle of law that recommendations of the selection board are not binding upon the syndicate as the law laid down by this court in Dr. Habibullah's case (PLD 1973 SC 144). The learned High Court was justified to hold that case of Fida Hussain supra did not support the case of the petitioners and infact it was supported the stand of the respondents. It is a settled principle of law that our Constitution is based on Trichotomy as the law laid down by this Court in Ziaur Rehman's case (PUB 1973 SC 49) and this Court has only jurisdiction to interpret the law. This Court has no jurisdiction to take the role of the policy maker in the garb of interpretation as the law laid down by this Court in Zamir Ahmad Khan's case (PLD 1975 SC 667) & in Zamir Ahmad Khan's case (1978 SCMR 327).
9. In view of what has been discussed above, the petitioner's counsel has failed to point out any infirmity or illegality whereas the impugned judgment is in consonance with the law laid down by this Court in ' Federation of Pakistan v. Muhammad Irfan Baig (1992 SCMR 2430), therefore, the petition being devoid of any merit is hereby dismissed. Leave to appeal is declined. It is pertinent to mention here that petitioner's counsel had not pressed the petition to the extent of Petitioners Nos, 3 and 4 in view of order dated 31.10.2005 passed by this Court due to subsequent events.