Through this Order it is proposed to decide Writ Petition No. 15425-2009 Writ Petitions No. 1411, 673 and 5356 of 2010 pertaining to the process of the appointment of a Vice-Chancellor of Government College University Faisalabad.
2. Brief facts necessary for the adjudication of the lis at hand are that one Dr.Arif Ali Zaidi, was appointed as the Vice-Chancellor of the said University vide notification dated 21.11.2006. The said doctor Zaidi resigned, as a consequence whereof, the office of the Vice-Chancellor of the University fell vacant. Whereafter, the Chancellor of the University who is the Governor of the Province of the Punjab vide order dated 5.3.2009 appointed Dr.Shahid Mehboob Rana as the Vice-Chancellor till further orders or till the appointment of a regular incumbent. Subsequently, the Chancellor in purported partial modification of his earlier order dated 5.3.2009, referred to above, appointed Dr.Rana as the Vice-Chancellor for the unexpired period of tenure of Dr.Zaidi. The said term of office was to expired on 22.11.2010.
3. That an advertisement was published in the national press on behalf of the Secretary Higher Education Department, Government of the Punjab soliciting applications for the office of the Vice- Chancellor of the University in question, the last date for submission of such applications was 8.8.2009. In the above context, the said Dr.Shahid Mehboob Rana filed a Writ Petition 15425-2009 and writ Petition No. 5356-2010 calling in question the process of the appointment of Vice- Chancellor of the Government College University 'Faisalabad. Dr. Zulifiqar Ali Chughtai who is apparently the Chairman of the Department of Political Science filed Writ Petition 1411-2010, agitating his grievances regarding the process of selection and appointment of the Vice- Chancellor of GCU Faisalabad.
4. It is contended on behalf of the petitioners that in view of the order/notification passed and issued by the Chancellor of the University dated 5.3.2009 as modified vide order/notification dated 4.5.2009 Dr.Shahid Mehboob Rana is the validly appointed Vice-Chancellor of the University till 22.11.2010 hence, there is no vacancy of the said office necessitating the appointment of the commencement of the process of a Vice-Chancellor. It is further contended in the alternative that the advertisement soliciting applications for the selection of the office of the Vice-Chancellor is illegal, flawed and smacked of mala fides inasmuch as, the eligibility criteria as mentioned in the advertisement, did not conform to the instructions issued in this behalf by the Higher Education Commission (HEC), more particularly, the quality assurance criteria. Furthermore, Pakistani qualified. Ph.Ds are being discriminated against. The learned counsel for the petitioner further contended that the legal infirmities and absence of bona fides have been pointed out to the Government of the Punjab by the Chancellor of the University through various formal communications, which are being ignored.
5. The learned Advocate General Punjab has controverted the contentions raised on behalf of the petitioners. It is contended that by virtue of Section 9 sub-section (7) of the GCU Faisalabad Ordinance, 2002, the Chancellor in the performance of his functions under the Ordinance is required to act and is bound tin the same manner as the Governor the Punjab acts and is bound under Article 105 of the Constitution of Islamic Republic of Pakistan, 1973, and therefore, the orders/notification for the appointment Of Dr.Rana for the unexpired term of the former Vice- Chancellor Dr.Zaidi could only have been passed on the advice of the Chief Minster of the Punjab, and no such advice was solicited by the Chancellor, nor given by the Chief Minister hence, orders of appointment of Dr.Rana are non est in the eye of law. Therefore, there is no legal impediment in the appointment of a regular Vice-Chancellor of the University for which purpose the process as envisaged by law has been undertaken. In the alternative, it is contended that on a fair and logical interpretation of the provisions of the Ordinance, 2002, the Chancellor could only pass orders for a stop gap arrangement till a regular incumbent to the office of the Vice-Chancellor is appointed, hence, even otherwise there is no legal restraint upon the respondents for the appointment of a Vice-Chancellor. The learned Advocate General has further contended that the process is transparent, fair and above board. No instructions, decisions or advice of the HEC has been violated. In fact, the >process is being conducted in accordance with the letter and spirit of the quality assurance criteria in question. It is specifically denied that locally qualified.Ph.Ds have been excluded from the process. Only preference is being given to foreign qualified persons in accordance with and in letter and spirit of the decisions of the HEC. In support of his contentions, learned Advocate General relies on PLD 1997 SC 84 AlJehad Trust through Raees-ul-Nujahidin Habib Al-Wahabul Khairi and another Vs Federation of Pakistan and others and PLD 2009 SC 879 Sindh High Court Bar Association through its Secretary and another Vs Federation of Pakistan through Secretary, Ministry of Law and Justice Islamabad and others.
6. The learned counsel for the petitioners in rebuttal contends that the order passed by the Chancellor for temporary arrangements regarding the incidental vacancy in the office of the Vice- Chancellor are in view of Section 12(2) of the Ordinance ibid at the sole discretion of the Chancellor, and in this behalf, no advice was required from the Chief Minister or the Cabinet. Furthermore, there is no provision for soliciting or obtaining such advice under the Rules of Business applicable to the Province of Punjab. It is further contended that actions of the respondents more particularly the Government of the Punjab suffers from totally lack of credibility and bona fides, inasmuch as, Acting Vice-Chancellor are functioning in various other Universities in the Province of the Punjab without the Government making any arrangement or initiating any process for the recruitment and appointment of a regular Vice-Chancellor. In this behalf reference has been made to the state of affairs existing in KEMC University Lahore, and the University of Engineering & Technology Lahore. It is further added that the criteria as mentioned in the advertisement is not only mala fide but also discriminatory without any valid classification. In support of his contentions has placed reliance on the judgments reported as PLD 1989 SC 166 Federation of Pakistan and others Vs Haji Muhammad Saif Ullah Khan and others, 1999 SCMR 2189 Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad Vs Muhammad Tariq Pirzada and others, PLD 1989 Quetta 25 Muhammad Anwar Durrani Vs Province of Balochistan through Chief Secretary and 10 others, PLD 2005 SC 873 Reference # 2 of 2005 by the President of Pakistan and PLD 1992 SC 723 Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others Vs Aftab Ahmed Khan Sherpao and others.
7. Heard. Record perused. The University in question has been established under the GCU Faisalabad Ordinance, 2002. Section 8 of the said Ordinance enumerates the officers of the University which include inter alia the Chancellor and a Vice-Chancellor. By virtue of Section 9, the Governor of the Punjab is the Chancellor of the University. Section 12 of the Ordinance prescribes that the Vice-Chancellor shall be appointed by the Chancellor on such terms and conditions as the Chancellor may determines, and shall hold the office during the pleasure of the Chancellor.
Temporary or incidental vacancy in the office of the Vice-Chancelloris dealt with under sub- section (2) of Section 12 of the Ordinance, which reads as follows: Any time when the office of Vice-Chancellor is vacant, or he is absent or is unable to perform the functions of the office due to illness or some other cause, the Chancellor shall make such, arrangements for the performance of the duties of the Vice-Chancellor as he may deem fit."
8. In the instant case, upon the resignation of the then incumbent Vice-Chancellor Dr.Zaidi, the office of the Vice-Chancellor fell vacant, whereupon, the Chancellor vide order dated 5.3.2009, subsequently modified, on 4.5.2009 appointed Dr.Rana one of the present petitioners as a Vice- Chancellor purportedly for the remaining tenure of Dr.Zaidi. Such orders were passed in purported exercise of powers vested in him under Section 12(2) of the Ordinance reproduced above. This is not only self-evident from the record, but also is the common ground between the parties.
9. Section 9 of the Ordinance deals with the office of the Chancellor. After the promulgation of the Ordinance a subsequent amendment has been introduced in Section 9 by adding sub-section (7) thereto. Section 9 sub-section (7) reads as under: "In the performance of his functions under this Ordinance, the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of Islamic Republic of Pakistan."
10.There can be no escape from the fact that the notification/orders dated 5.3.2009 and 4.5.2009 appointing Dr.Rana as the Vice-Chancellor on account of the temporary vacancy in the said office was passed and issued by the Chancellor in purported performance of the functions of the Chancellor under Section 12(2) of the Ordinance, as a consequence whereof, the provisions of Section 9 sub-section (7) of the Ordinance were squarely applicable.
11.It is the case of the respondents as canvassed by the learned Advocate General that prior to passing of the order and issuance of the notification dated 5.3.2009 and 4.5.2009, no advice was solicited from the Chief Minster or the Cabinet, nor any such advice was given. It is not the case of the petitioners as stated in the Constitutional Petitions nor has it been urged at the Bar on their behalf that any such advice was solicited from or given by the Chief Minister or the Cabinet prior to the passing of the said orders or the issuance of the notification in question dated 5.3.2009 and 4.5.2009.
12.The aforesaid state of affairs needs. to be examined in the context of Article 105 of the Constitution of Islamic Republic of Pakistan 1973 as interpreted and applied by this Court, and the Honorable Supreme Court of Pakistan in the case reported as PLD 2009 SC 879 Sindh High Court Bar Association through its Secretary and others. v. Federation of Pakistan through Secretary Ministry of Law and Justice Islamabad and others conclusively settled the issue, whereby it has been held in unequivocal terms that where the provisions of Article 105 of the Constitution of Islamic Republic of are attracted, the absence of advice of the Chief Minster and his Cabinet would denude the action of the Governor of the validity and legality. In view of the above, this Court has no hesitation in holding that the notification/orders dated 5.3.2009 and 4.5.2009 pertaining to the appointment of Dr.Rana as the Vice-Chancellor having been passed and issued by the Chancellor in performance of his functions ,under Section 12(2) of the Ordinance in the absence of advice of the Chief Minster is without any legal effect or consequence on account of Section 9 sub-section
(7) of the Ordinance, hence, cannot in law operate as an impediment for the appointment of a regular Vice-Chancellor in accordance with law.
13.Adverting now to the contentions of the learned counsel for the petitioners that the advertisement soliciting applications for the appointment of Vice-Chancellor of the University in question is not in consonance with the instructions and the criteria laid down by the HEC with reference to the appointment of Vice-Chancellor in public sector University. It is common ground between the parties that guidelines for the selection of Vice-Chancellor of public sector university has been issued by the HEC a copy whereof has been placed on record. The relevant guidelines which are the bone of contentions inter se the parties are reproduced as under: 1 "Should preferably have earned doctor's degree in an academic discipline and an outstanding academician of international stature.
2. Should have attained a distinguished leadership preferably in education and academic administration and financial management with proven track record of extensive experience and skills in initiating and managing change, strategic planning and overseeing the implementation of plans through to outcome."
14.The eligibility criteria as mentioned in the advertisement in dispute reads as follows: Should have Ph.D degree preferably in management sciences from a reputed foreign university Should not be more than 65 years of age on 19.1.2010. Both male and female candidates are eligible to apply Should have vast experience in postgraduate reaching including experience in administrative and financial management Should have to his/her credit quality research publications in journals of international repute."
15.The eligibility criteria as mentioned in the disputed advertisement needs to be examined in juxtaposition with the guidelines issued by the HEC, both of which have reproduced hereinabove.
Close examination thereof would reveal that the local Ph.Ds have not been excluded from consideration by way of the advertisement in dispute. Only a preference has been shown to those holding'such a degree from a reputable foreign university. Such preference appears to be in accordance with the letter and spirit of guidelines issued by the HEC. The learned counsel for the petitioner has been unable to point out any contradiction between the eligibility criteria as motioned in the advertisement and the guidelines issued by the HEC. Grammatical and idiomatic differences are not necessarily contradictions or deviations. In these circumstances this Court is not persuaded that the eligibility as advertised is in violation of the guidelines of the HEC.
16.The learned Advocate General Punjab has stated that the process for the appointment of the Vice-Chancellor is more or less complete and has been conducted strictly in accordance with the law, the provisions of the Ordinance of 2002 and the guidelines of the HEC in a transparent and a bona fide manner. The learned counsel ' for the petitioners has expressed his reservations in this behalf. The person selected has not been disclosed nor the details of the entire process and ri supporting documents, if any, in this behalf are before this Court, therefore, it would not be safe for this Court to express any opinion in this behalf especially as the actual process of selection is not really the lis before this Court.
17.The upshot of the above is that the notifications/orders dated 5.3.2009 and 4.5.2009 are not a legal impediment in the process of the selection of a permanent Vice-Chancellor for the GCU Faisalabad, nor is the advertisement issued by the respondents per se in violation of any law or any binding guidelines of the HEC. When a formal selection is made for the Vice-Chancellor any person aggrieved thereby, may raise any objections thereto, the same shall be adjudicated upon, if and when the occasion arises.
18.In view of above this petition along with the connected Writ Petitions are dismissed accordingly.