' With the consent of learned counsel for the parties this constitutional petition was finally heard and is being decided accordingly.
2. An advertisement for the position of Directors (BS-20/21) of various Centre of Excellence including Centre of Excellence in Marine Biology, University of Karachi was placed in the newspapers.
Following qualification and experience were stated in the advertisement:---
(iv) Centre of Excellence in Marine Biology, University of Karachi. (2)
(3) Applicants must possess the following QUALIFICATION/ EXPERIENCE:---
(I) Ph.D. In the relevant field at least 5 years teaching or research experience in a recognized university/center of research organization and at least eight (8) research publications in journals of international repute."
3. Petitioner as well as respondent No,5 as also three other persons was applicants. They were found eligible. There were other candidates also who were found not eligible. Matter was put before the Selection Committee which included Vice-Chancellor, Karachi University and after recommendation of Selection Committee with approval of Prime Minister Respondent No,5 was appointed as Director, Centre of Excellence, Marine Biology, and University of Karachi vide notification dated November 2, 2010. This petition has been filed to challenge such appointment of respondent No,5.
4. Learned counsel for petitioner referred to section 6 of the Centre of Excellence Act, 1974 and submitted that Director has to be appointed after consultation with Higher Education -Commission and Vice-Chancellor and no such consultation has taken place. Learned counsel next referred to Schedule to the Centre of Excellence Employees (Service, Appointment, Promotion and Transfer)
Rules, 1997 and contended that it is essential for Director to be a Professor and respondent No,5 has never been a professor and, therefore, did not qualify for appointment as Director of the Centre of Excellence. Learned counsel further submitted that University of Karachi in its comments has clearly stated that no consultation with Vice-Chancellor has taken place. He also referred to a letter written by Vice-Chancellor, University of Karachi to Secretary Education on November 5, 2010 in this regard. Learned counsel relied upon Shaikh Zayed Hospital and Post Graduate Medical Institutes through Chairman and Dean and another v. Dr. Muhammad Saeed and another (2010 PLC (C.S.) 967) to contend that discretion of public functionary must be within the framework of law.
5. Mr. Ansari Abdul Latif learned counsel for respondent No, 5 referred to Gazette Notification dated April 6, 2010 published in Part IV of the Gazette of Pakistan on April 28, 2010 and submitted that rules have been amended by this notification. Learned counsel further submitted that when the advertisement was placed petitioner did not object to the advertisement. Lastly, learned counsel submitted that competent authority on recommendation of Selection Committee has appointed respondent No,5 and, therefore, this Court should not substitute its discretion for the discretion of competent authority. Learned Deputy Attorney General supported the contention of Mr. Ansari. Mr. Moin Azhar Siddiqi learned counsel, for respondent No,3 vehemently argued that no consultation with Vice-Chancellor took place. However, he conceded that Vice-Chancellor was Member of the Selection Committee which selected respondent No,5 for the appointment.
6. We have considered submissions made by the learned counsel for the parties and have also gone through the record.
7. In respect of appointment of Director in Centre of Excellence Section 6 of the Centre Excellence Act, 1974 (hereinafter referred to as the Act) provides as under:- "6. Director.--- (1) The Director shall be appointed by the Federal Government after consultation with the Commission and the Vice-Chancellor of the University in which the Centre concerned is established on such remuneration and other terms and conditions of service as may be determined by the Federal Government."
8. Qualifications are prescribed in Schedule to the Centre of Excellence (Service, Appointment, Promotion and Transfer) Rules, 1997 (hereinafter referred to as the Rules of 1997) and these as follow:--- "Teaching BPS-21 To be appointed by the Federal Government in Staff accordance with section 6 of the Centre of Excellence Act, 1974 with eligibility criteria as
1. Director under:--- "Ph.D with 5 years' experience as Professor in B-20 with 8 research publications in journals of internationals repute, OR ' Ph.D with 20 years teaching and research experience in a recognized University/ Centre/ Research and/or educational organization including 3 years as a professor or Director (B-20) of the Centre and 8 research publications in journals of international repute. The mode of selection for appointment may be determined subsequently."
9. A perusal of section 6 indicates that appointment is to be made by the Federal Government but it can do so only after consultation with Higher Education Commission and with Vice-Chancellor of the University concerned. Rules in respect of Director prescribed 2 qualifications in the alternate. In both the cases he must be a holder of Ph.D degree. Admittedly, the respondent No,5 holds such degree. However, thereafter rules provide 5 years experience as Professor with 8 research publication or 20 years teaching and research experience in recognized university etc. Includes 3 years as Professor or Director and 8 research publication. What is common in both the alternate is that there must be 8 research publications. Learned counsel for petitioner though initially he contended that respondent No,5 did not have such publications but he did not pursue such line of arguments and rightly so because whether publications claimed by respondent No,5 meet the requirement is question which could not be (and should not) be decided by this Court. However, what is common in both alternates is that the person must be a Professor, in first eventuality for 5 years and in the alternate situation for the 3 years. In the alternate situation it is also provided that he may be a Director. It is admitted that respondent No,5 has never been Professor or a Director and, therefore, qualification as prescribed in the Schedule of the Rules of 1997 was not met by respondent No,5.
10. Mr. Ansari Abdul Latif referred to Office Memorandum dated March 6, 2007 which reads as under:--- "MOST IMMEDIAT ' BY SPECIAL MESSENGE ' No,F.I 1-1/ 2004-P.C.
' GOVERNMENT OF PAKISTAN ' MINISTRY OF EDUCATION ' Islamabad- March 6, 200 OFFICE MEMORANDUM SUBJECT:- REVISION IN RULES OF CENTRES OF EXCELLENCE.
' The undersigned is direct to refer to this Ministry's O.M. No,P.7-1/ 2004-NI dated 14th December 2006 and to the discussion held between Education Secretary and Additional Secretary (Mr. Hifz- ur-Rehman) Establishment Division on telephone on 2-3-2007 on the above subject.
2. Qualification eligibility criteria for appointment of Directors, Centers of Excellence may be replaced with the following:- "Ph.D with at least 5 years teaching or research experience in a recognized university/centre or research organization and at least 8 research publications in journals of international repute".
3. Established Division is requested for approval of the above amendment in the required qualification for the appointment of Directors, Centres of Excellence.
4. This has the approval of Education Secretary/ Education Minister.
' Sd/- Habib Khan, Ph.D Joint Educational Avider (Training Wing) 9204167
11. Thereafter he referred to notification printed in the Gazette of Pakistan on April 28, 2010. Relevant part of the notification reads as under:--- "No, D.442/2010-DEA(IVI&LB).--- In partial modification of this Ministry's-Notification No,2-3/91-NI-II, dated 13th April, 2000 and No,F.11-1/2003-NI-II, dated 3rd August, 2006, it is notified that, henceforth, the posts of Directors of Centres of Excellence, Area Study Centres as well as the Centres and Sheikh Zayed Islamic Centre as well as the post of Professor, Quaid-i-Azam Chair, Quaid-i-Azam University, Islamabad, will be filled in as per following criteria and terms and Conditions:--
(i) Post of Director would continue to be in BS-20-21. However, once appointed as Director, he/she may apply for Tenure Track System to the relevant authority/ forum.
(ii) Upper-age limit: 55 years (relaxable by two years by the competent authority on recommendation of the Selection Board). iii) While advertising the post, it would clearly be mentioned that in the first instance, the candidates who fulfil the criteria laid down for the post of Professor by HEC would be considered and candidate selected from among them would be appointed as Director in BS-21 (Criteria for Professor would be made part of the advertisement)."
12. It was the contention of Mr. Ansari that rules stood amended by this notification. Provision regarding framing of rules is contained in section 10 of the Act of 1974 which is in the following words:--- "10. Power to Make Rules.--- The Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act, including rules to regulate the financial and administrative matters relating to a Centre."
13. Even a cursory look at section 10 indicates that rules can only be amended by the Federal Government and that can be done by notification in the Official Gazette. In Office Memorandum dated March 6, 2007 which records concurrence of two Ministries, there is no indication whatsoever whether after such concurrence the matter was placed before the Prime Minister for his approval for amendment in the Rules. Notification printed in the Gazette of Pakistan does not say that it amends statutory rules. Moreover, rules could not be amended by mere notification by any particular Ministry. Reference in this regard may be made to Rule 14 of the Rules of Business, 1973 where in sub-rules (1)(c) it is provided that Law, Justice and Human Rights Division shall be consulted before issue of or authorization of issue of an order, rule, regulation, by-law, notification etc. In exercise of statutory powers. Reference may also be made to sub-clauses (3) and (5) of Clause 21 of the Second Schedule of the Rules of Business. In sub-clause (3) it is provided for drafting scrutiny and examination of Bills, Ordinances, and all legal and other instruments and under sub-clause (5) it is provided that arrangements for the publication and translation of Federal Laws and other statutory rules and orders; is responsibility of Law, Justice and Human Rights Division. Nothing has been placed on record to establish that the notification by which it is claimed by the counsel for respondent No,5 that the statutory rules of 1997 stood amended has been duly processed through the Law, Justice and Human Rights Division or approved by the Prime Minister. Even otherwise, notification does not say that it amends statutory rules. It may also be pointed out that Rules 15(2) and 18 of the Rules, of Business laid down scope in terms of quality of summary to be placed before the competent authority and nothing has been submitted before us that any summary was placed before the Prime Minister for amending relevant rule contained in the Rules of 1997. Therefore, conclusion is inescapable: Rules of 1997 govern employment of Director and relevant provision has not been amended through any valid statutory instrument.
14. Mr. Ansari laid to lot of emphasis on his contention that respondent No,5 has been selected by the Selection Committee and the competent authority has approved his appointment and this Court cannot substitute its judgment for judgment and opinion of the competent authority. There cannot be any cavil with the proposition that it is within the exclusive domain of the competent authority to select a particular person for a particular posting and a Court cannot substitute its opinion and cannot assume to itself role of departmental selection authority or competent authority. However, reliance placed by the learned counsel for petitioner on Dr. Muhammad Saeed's case (supra) is very relevant. In a writ petition petitioner Dr. Muhammad Saeed challenged appointment of another person as Chairman and Dean of Shaikh Zayed Hospital and Post Graduate Medical Institute on the ground that it was against the "policy and law". Writ petition was allowed by a Single Bench which directed that proper procedure be adopted in appointing Chairman and Dr. Muhammad Saeed be also considered in this regard. Matter was taken in High Court Appeal and the High Court observed as under:- "43. Appointment or selection without any guideline or criteria for selection is a recipe for disaster.
Recruitment process that is unguided and unstructured, can be easily highjacked by the influential and strong of the society thereby depriving the right person the opportunity to hold the post. Such a loose structure of selection process allows corruption, nepotism and jobbery to make its way into the system thereby crippling the foundation of the institution.
49. Structuring the exercise of discretion means that the decision arrived at by the public functionary and the competent authority is based on objective criteria. As the present case pertains to selection and appointment of the most "eminent person of scientific and medical repute" for the post, the requirement of an objective criteria for the exercise of discretion becomes fundamental. The objective criteria now-a-days is based on objectively quantifiable evaluation basis which is publically known and is rules based. Such an objective criteria has no margin for personal preferences, likes or dislikes and can easily guard against the curse of nepotism and jobbery. Final order of the appointing authority must speak for itself, clearly giving out the reasons why one candidate has been preferred over the others. Selection cannot be done behind closed doors based on discrete subjectivity and without comparative assessment of the candidates available in the talent pool."
15. Principles for exercise of discretion given to the executive authorities have hen elaborately laid down by the Supreme Court in Wallayat All Mir v. Pakistan International Airlines Corporation through its Chairman and another (1995 SCMR 650) in the following words:--- "No doubt the competent Authority has the discretion but it was not unfettered. While exercising discretion, the authority should not act arbitrarily, unreasonably and in complete disregard of the rules and regulations. The discretion to be exercised has to be judged and considered in the background of the facts and circumstances of each case."
"If an authority disregards the opinion of any Board constituted under any law, rules or regulations then it should give its reason or grounds for such disapproval. Mere writing the words "disapproved" or "rejected" will not suffice. Such decision expressed in these terms seems to be arbitrary, autocratic and has the character of being deleterious passed without considering the facts, circumstances, rules and regulations made to regulate such discretion. In de Smith's Judicial Review of Administrative Action (Fourth Edition), page 283, it has been observed that: "The relevant principles formulated the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion if must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion by validly exercised on the basis of an erroneous assumption about those facts."
16. It was further observed as follows:--- "Hitherto the Courts have held that they cannot go behind a statement by the competent Authority (in the absence of proof of bad faith) that it was satisfied that the statutory condition for the exercise of the power existed. But it is conceived that if prima facie grounds can be established for the proposition that the authority could not have been so satisfied, a Court will be entitled to hold the act or decision to be invalid unless the authority itself persuades the Court that it did in fact genuinely from the opinion which it claims to have held."
17. Above indicates that seminal rule is that where the law clothes departmental authority or functionary with discretion to decide a particular matter, it never intends to leave departmental authority or functionary with absolute liberty to act in violation of laid down rules and laws.
However, person with discretion should be allowed to move freely like waters of a river, he has to be circumscribed and guided by ' law, justice and equity it becomes a power akin to power of dictatorship. ' strong banks of law, justice and equity. If discretion is not controlled by In any case, in the present context the Legislature has itself, through conferring power of Subordinate Legislation and exercise of that power, laid down qualifications for appointment and in exercise of constitutional jurisdiction all that this Court can scrutinize is as to whether the person appointed possessed the prescribed qualification. We are not assessing suitability of a person. All that we are doing is to see whether the person possesses requisite qualification so as to take him through threshold into the vestibule where he has to be considered for appointment. This is not assessing suitability but merely scrutinizing existence of laid down qualification.
18. In view of the conclusion that we have reached that appointment to the position of Director of Centre of Excellence is governed by Rules of 1997 and the Gazette Notification relied upon by the learned counsel for respondent No,5 cannot have effect of amending statutory rules, we do not think it is necessary to go into the controversy whether Vice-Chancellor and the Higher Education Commission were consulted or not prior to appointment of respondent No,5.
19. Result of the above discussion is that this constitutional petition is allowed. Consequently, Notification dated November 2, 2010 by which notification respondent No,5 was appointed as Director, Centre of Excellence, and Marine Biology is set aside. Listed application is disposed of.