This Intra-Court Appeal No. 78/2010 "The Islamia University, etc. Vs. Dr. Abdul Quddus Sial, etc.", I.C.A.
No. 79/2010 "The Islamia University, etc. Vs. Muhammad Arshad Khakwani" and. I.C.A. No. 81/2010 "Professor Dr. Shams-ulBasher Vs. Islamia University, Bahawalpur, etc." have been directed to assail the order dated 18.5.2010 passed by learned Single Judge in chamber accepting W.P. Nos.
4213/2009 and 4836/2009, respectively.
2. During pendency of these I.C.As., Muhammad Arshad Khakwani filed a contempt petition Crl. Org. No. 212/2010 and also filed C.M. No. 3417/2010 in ICA No. 79/2010 under Order VII, Rule 11, CPC and similar C.M. No. 4372/2010 was brought in I.C.A. No. 81/2010. So Jar as application under Order VII, Rule 11, CPC are concerned, it has been asserted that the original impugned order dated 13.10.2009 against which writ petitions had been filed and then I.C.As. Were preferred, has subsequently been recalled vide another order dated 6.1.2010 passed by the University authorities. At this stage the learned counsel for the appellant contended that original order was not recalled during pendency of writ petitions, rather, it was withdrawn on 6.1.2010. In this view of the matter, we find no substance in these civil miscellaneous applications Nos. 3417 and 4372 of 2010 and both are dismissed, whereas, the main I.C.As. And other allied petitions are being decided by this single judgment.
3. The learned counsel for the respondent/applicant referred to Section 42 of the Islamia University of Bahawalpur Act and contended that a right of appeal against the order passed by the Vice- Chancellor is available, as the impugned order is covered by the word "disadvantage" to the prescribed terms and conditions of service in the light of para 3(1) and amended para 3(2) of 1st Schedule of the statute framed under Section 48 of the Act, ibid, as such I.C.As. Are not maintainable. Even after the decision of appeal by the Syndicate a right of review before the same forum i.e. Syndicate or right of review before the Chancellor under Section 11(3) and 11(a) of the Act is available, hence, I.C.As. Are liable to be dismissed on this score alone.
4. The learned counsel for appellant on the other hand argued that impugned order was passed under Section 15(4)(vi) of the Islamia University, Bahawalpur Act, 1975 and according to Section 42 of the said Act, the case of the appellant is not covered, as this section excludes Vice-Chancellor, Teacher as well as employees and moreover, as the impugned order was passed under special powers of the Vice-Chancellor under Section 15(4)(vi), therefore, the said order was not reviseable before the Chancellor. The learned counsel in this respect referred to Section 11, sub-section (3) and Section 11(a) of the said Act and contended that Vice-Chancellor alone does not fall within the definition of authority as defined in Section 21 ibid. The learned counsel further argued that Section 48 provides that statutes set out in the Schedule appended to the Act shall be deemed to be the Statutes framed under Section 48 of the Act to regulate and prescribe the provisions of Section 30 of the Act and any legislation under. Section 48 thereof is delegated legislation and has no overriding effect on the main statute, hence, it could not be said that the impugned order passed by the Vice-Chancellor is covered by the word "disadvantage" to the prescribed terms and conditions of service, hence, objection raised by learned counsel for the applicant has no force and is liable to be thrown out of consideration. The learned counsel further contended that although impugned order has been withdrawn by the University Authorities but as interpretation of statute is involved and it may materially affect the future prospects of the individuals, therefore for this reason also the I.C.As. Are required to be decided on merits.
5. The learned counsel for appellant in I.C.A. No. 81/2010 argued that writ petition was in the nature of quowarranto and petitioner has been condemned unheard, neither any notice was issued nor served upon him. The learned counsel took the stance that as the impugned order has been withdrawn by the University authorities, therefore, he would not assail the said order on merits, however, remarks recorded in the impugned order of learned Single Judge in chamber qua the present appellant may be hazardous to his future career, same according to the learned counsel even otherwise are not sustainable, as such, the same may be ordered to be expunged.
6. Heard. Record explored.
7. We have given our anxious consideration to the contentions of learned counsel for appellant in I.C.A. No. 81/2010 and have gone through the record, which shows that a notice was issued to Professor Dr. Shams-ul-Bashar appellant/respondent in the writ petition, despite that he did not appear before the Court. Under Section 26 of West Pakistan General Clauses Act, 1956, if a notice is issued and even if it is not returned un-served, after passage of reasonable time between date of issuance and date of hearing, it will be presumed that notice has been served.
Moreover, an important case was fixed before the Court in which University was defending the cause; it is not believable that appellant was not aware of such an important matter, which ultimately could even affect his on future prospects. Therefore, we find no force in his plea.
8. For ready reference the relevant sections of The Islamia University of Bahawalpur Act, 1975 are reproduced hereunder:- "Section 3(1) of Schedule to Section 48. - There shall be a teaching Department for each subject or a group of subjects, as may be prescribed by Regulations and each teaching department shall be headed by a Chairman."
"The Chairman of a Teaching Department and the Director of an Institute shall be appointed by the, Syndicate on the recommendation of the Vice-Chancellor from amongst the three senior most Professors of the Department for a. Period of three years and shall be eligible for re-appointment: Provided that in a Department where there are less than three Professors the appointment shall be made from amongst the three senior most Professors and Associate Professors of the Department: Provided further that in a Department, in which there is no Professor or Associate Professor, no such appointment shall be made and the Department shall be looked after by the Dean of the Faculty with the assistance of the senior most teacher of the Department."
Section 30 of the said Act, settles that subject to other provisions of the Act, statutes may be made to regular or prescribe all or any of the matters, specified thereunder.
"Section 48. -- Notwithstanding anything to the contrary contained in this Act, the Statutes set out in the Schedule appended to this Act shall be deemed to be the Statutes framed under Section 30 of this Act and shall continue to remain in force `until amended or repealed."
Now, Section 42 of The Islamia University of Bahawalpur Act, 1974 is reproduced, the interpretation of which is in fact the moot point in these Intra-Court Appeals, "Where an order is passed, punishing any officer, other than the Vice-Chancellor, teacher or other employee of the University or altering or interpreting to his disadvantage the prescribed terms or conditions of his service, he shall, where the order is passed by the Vice-Chancellor or any other officer or teacher of the University, have the right to appeal to the Syndicate against the order and where the order is made by the Syndicate have the right to apply to that Authority for review of that order. The appeal or applications for review shall be submitted to the Vice-Chancellor and he shall lay it before the -Syndicate with his views."
9. A bare reading of para 3(1) and 3(2) as amended in 1st Schedule prepared under Section 48 of the Islamia University of Bahawalpur Act, 1975 would make it clear that impugned order was covered by the word "disadvantage" to the prescribed terms and conditions of service to the respondent. In the light of case reported in 2003 M LD Lahore 507, it could not be said that 1st Schedule is delegated schedule and could not create any right. Use of commas in Section 42 ibid needs to be considered carefully for interpretation of this section. In Oxford Advanced Learner's Dictionary (7th edition), use of comma has been explained so as to separate phrases or clauses. A plain reading of Section 42 would show that after the 1st phrase when an order is passed", by inserting comma it has been separated from the entire remaining sentence and then comma has been used after the phrase "punishing any officer", thereafter the phrase "other than the Vice- Chancellor" has been used by inserting commas before and after this phrase. As such, the phrase "other than the Vice-Chancellor" begins after comma and ends with comma, making it clear that in this section the Vice-Chancellor had been excluded from the definition of officer for the purposes of filing of appeal before the Syndicate. After the phrase "other than Vice-Chancellor", there is comma and then phrase "teacher or other employees of the University" appears. If there was intention of the legislation to exclude the teacher or other employees of the University from filing an appeal any conjunctive words like "and" could be used between the two phrases in order to join the teachers or other employees of the University with Vice-Chancellor, but in this section after the Vice-Chancellor comma has been used, which separate it from teacher and other employees of the University. While interpreting statute the words should be read in their plain meaning and no word should be added or deleted to interpret it. Reliance in this respect is placed on the case reported in 2006 PTD 386, 2006 PTD 204 and 2006 PTD 515. In this section the language used is very much clear and declare the intention of the legislation, hence, the interpretation advanced by learned counsel for the appellant has no force. Moreover, if such an interpretation is adopted, it will be harmful for the employees/officers/teachers of the University, as they would be deprived of a remedy against the orders passed by the Vice-Chancellor under Section 15(4) of The Islamia University of Bahawalpur Act, 1975, whereas, there is consensus amongst the jurists that right of appeal must be provided so to and check and balance against the illegal orders or the actions taken in sheer abuse of jurisdiction by the concerned authorities sitting on the helm of affairs or for correct application of law. It is settled principle of interpretation of statutes "Interpretatio tolls in ambiguis simper fienda est ut evitetur inconveniens et absurdum" that in case of ambiguity, a construction should always be found such that what is unsuitable and absurd may be avoided and the law is the science of what is good and just; the words have to be taken so as to have effect and in all affairs indeed, especially in those that concern the administration of justice, equity should be regarded. Therefore, we are of the considered view that Section 42 ibid only excludes the Vice-Chancellor from the word "officer" and other officials, teachers and employees of the University, have a right of appeal before the Syndicate.
10. For what has been discussed above, all these