' CH. SHAHID SAEED, J.--- The single judgment shall dispose of Writ Petitions Nos.23904 of 2011, 2457 of 2011 and 26605 of 2011 as common questions of law and fact are involved therein. Through 'the instant writ petition, the petitioners have challenged the vires of Notification No,GS(B)17-2/2003, dated 7-4-2003 whereby Malik Hussain Mubbashar was appointed as Vice-Chancellor of University of Health Sciences initially and also the vires of Notification No,S&GAD/7-10/ 96(Pt.II), dated 9-4-2011 whereby Malik Hussain Mubbashar has been re-appointed as Vice-Chancellor of University of Health Sciences' for the second term.
2. Succinctly stated the facts as given in these writ petitions are that respondent No,7 Malik Hussain Mubbashar was appointed as Vice-Chancellor vide letter dated '7-4-2003 in terms of section 12 of the University of Health Sciences Ordinance, 2002 without advertising the post or having sought applications from the candidates interested to compete. On 31-7-2005, respondent No,7, on attaining age of superannuation stood retired from his service as Professor but he was allowed to continue as Vice-Chancellor in violation of section 47 of UHS Ordinance. His term for four years ended on 11-4-2007, even then, he was allowed to remain in office of Vice-Chancellor illegally in.Violation of section 12 read with section 47 of UHS Ordinance. A writ of quo warranto bearing Writ Petition No,2457 of 2011, was filed against respondent No,7 wherein legal status of respondent No,7 to hold the office of Vice-Chancellor was questioned. Pending disposal of said writ petition, respondent No,7 tendered his resignation on 9-4-2011 and on the same day, he was re - appointed as Vice-Chancellor for another term of four years which has been challenged in the instant writ petitions.
3. Learned counsel for the petitioners inter alia contend that the first appointment of respondent No,7 as Vice-Chancellor was made without advertising the post or inviting applications from interested candidates, therefore, the same was illegal, void ab initio and of no legal effect as due procedure was not adopted. They further contend that after attaining age of superannuation on 31-7-2005, said respondent, under the law, is permanently barred to be a Professor in public sector and also not eligible for the post of Vice-Chancellor. According to them, the malice in re- appointment of respondent No,7 is apparent as respondent No,7 tendered his resignation on 9-4- 2011 and on the same day, he was reappointed as Vice-Chancellor. Learned counsel maintain that prior to amendment in section 12 of UHS Ordinance; the Vice-Chancellor was to hold the office till pleasure of the Chancellor or for a period not exceeding four years, whichever earlier. However, after amendment in section 12, respondent No,7 is not eligible to hold office as Vice-Chancellor from date of his retirement as under section 47 read with sections 12(1) and 12(5) of Ordinance ibid as he is no more qualified for the post as section 12(5) states that a person shall not be eligible for the post of Vice-Chancellor unless he is at least qualified to be a professor in a Medical College, Institute or University but respondent No,7 is no more professor in public sector after his retirement from service in 2005. Under the law, whenever post of Vice-Chancellor will fall vacant, a Pro-Vice- Chancellor will function, but no Pro-Vice-Chancellor has been appointed and respondent No,7 has been unlawfully managing affairs of the UHS. Further contends that 24 candidates including respondent No,7 had applied for the post of Vice-Chancellor and some of them, but not respondent No,7, were even holding Ph.D. Degree. Further, before completion of process of appointment, Hon'ble apex Court in Hajj Corruption Case PLD 2011 SC 205 (SMC 24/2010) had already held that retired employees are not eligible for re-appointment on contract basis. Learned counsel further submit that respondent No,7 had neither Ph.D. Degree nor better teaching experience as compared to other candidates and practically, respondent No,7, through re- appointment, was going to enjoy third term as he holds the office of Vice-Chancellor since 7-4- 2003. Even then, respondent No,7 has been re-appointed for 'another term of four years who is now aged about 67 yeaRs,
4. Learned counsel for the petitioners next contend that notwithstanding other grounds, the Hon'ble Supreme Court of Pakistan in Haris Steel Industries (Pvt.) Ltd.'s case (PLO 2010 SC 1109) has held that where term in office starts with negative prefix, i,e, "non-extendable" or "not exceeding", it shall be clear bar on re-appointment or extension of term in office, whereas section 12(1) of. UHS Ordinance clearly provides that the Vice-Chancellor will be appointed for a term not exceeding 4 years, therefore, re-appointment of respondent No,7 is illegal, unlawful and unsustainable in the eye of law. Learned counsel assert that the service of respondent No,7 are not indispensable and if the post is advertised, a number of eligible and more qualified candidates will be available. They aver that re-appointment of respondent No,7 is not only a cause of frustration among the eligible candidates but also it is a clear example of discrimination. Learned counsel for the petitioners pray that office of respondents Nos.7 and 14 be declared vacant and their appointments be declared nullity in the eyes of law and void abs initio and respondents Nos 1 to 6 be directed to appoint qualified persons against the said posts. Learned counsel has also pointed out that King Edward University has been rendered dysfunctional on account of non-appointment of its Vice-Chancellor since 2008. They lastly argue that if one person is appointed against a post and he stands never retired therefrom, it means that all the prospective candidates of that post, who might be more competent, experienced and qualified, will be deprived from promotion or appointment to that post forever. They are of the view that the re-appointment policy aims at nepotism and favoritism and to deny all other candidates from their fundamental right of promotion and progress as envisaged in the Constitution of Islamic Republic' of Pakistan, 1973 and just to re-appoint respondent No,7, the age limit was illegally increased upto 70 yeaRs, Learned counsel for the petitioners pray that the services of Malik Hussain Mubbashar be terminated forthwith and Search Committee be directed to in fact 'search' a most competent individual for the post after adopting due course of law and without being influenced from any corner.
5. On the contrary, learned Additional Advocate-Generals and learned counsel for other respondents vehemently controvert the arguments advanced by learned counsel for the petitioners and support the impugned notifications/orders whereby Dr. Professor Malik Hussain Mubbashar has been appointed/reappointed as Vice-Chancellor. They argue that that Malik Hussain Mubbashar was appointed as Vice-Chancellor on 7-4-2003 for a period of four yeaRs, Thereafter, vide notification dated 3-4-2007 issued by the Chancellor, he was allowed to continue as Vice-Chancellor till the new incumbent takes charge of the post. They aver that such powers vest with the Chancellor who exercised his powers under the law. They maintain that re- appointment of Malik Hussain Mubbashar has been made after due process of law. The post was advertised seeking applications from all interested candidates and after observing all codal formalities, the Search Committee, constituted under section 12(8) of UHS (amendment)
Ordinance, 2009, keeping in view the academic qualifications, relevant experience and suitability for the position, recommended the name of Malik Hussain Mubbashar who was accordingly appointed vide notification dated 9-4-2011 by the competent authority. They also point out that Malik Hussain Mubbashar earlier resigned from the post of Vice-Chancellor and then he was reappointed. They aver that no illegality has been committed in the appointment or re- appointment of the individual.
6. The main contention of learned counsel for the respondents is that section 12(1) of UHS Ordinance, 2002 though provides that one term will not exceed the period of four years but it does not bar appointment for another term or even no number of terms have been given therein.
Learned counsel further argues that the statue does not provide any age limit for the candidate for the post of Vice-Chancellor. They further submit that respondent No,7 had retired from the post of Professor on 31-7-2005, as such, he, by virtue of his qualification and experience, is a qualified professor, so section 12(5) of UHS Ordinance, In any manner, does not render him ineligible for his appointment or reappointment as Vice-Chancellor. They further state that the post of Vice- Chancellor is not required to be filled in by mode of promotion, rather it has to be filled in directly on the recommendations of the Search Committee, therefore, no right of any individual is infringed if someone is re-appointed against the said post. Regarding King Edward Medical University, they state that post of Vice-Chancellor was advertised twice but meeting of Search Committee could not be convened due to various representations made by different applicants, nevertheless, the King Edward Medical University is fully functional where regularly appointed Pro-Vice-Chancellor is performing his duties. Learned counsel for the respondents point out that the judgments, referred by learned counsel for the petitioners, are regarding cadre posts provided under civil servants act, however, the post in question, i,e, Vice-Chancellor, is a tenure post and does not affect the seniority or promotion of any of the employees. They assert that the writ petition having no substance merits dismissal.
7. Learned counsel for respondent No,7 in Writ Petition No,2457 of 2011 has only contended that in said Writ Petition, the first appointment of respondent No,7 in this writ petition (Malik Hussain Mubashar) was challenged; that since Malik Hussain Mubashar has completed his first term and now he has been re-appointed on the recommendations of Search Committee constituted under section 12(3) of UHS (Amendment) Ordinance, therefore, the matter of ' his first appointment is now old and past transaction, as such, they said writ petition having become infructuous is liable to be dismissed.
8. We have heard the arguments advanced from all corners and also perused the record made available before us.
9. The Government of the Punjab has established University of Health Sciences, Lahore through promulgation of University of Health Sciences, Lahore Ordinance, 2002 to provide for instructions and to make provision for research, advancement and dissemination of knowledge in medical and health sciences. The matter in hand relates to the appointment/re-appointment of Vice- Chancellor. Section 12 of UHS Ordinance, 2002 and section 12 of UHS (Amendment) Ordinance, 2009 deal with the appointment of Vice-Chancellor which are reproduced hereunder for ready reference: "Section 12 of UHS Ordinance, 2002
12. Vice-Chancellor.--- (I) The Vice-Chancellor shall be appointed by the Chancellor on such terms and conditions as the Chancellor may determine, and shall hold office during the pleasure of the Chancellor for a term not exceeding four yeaRs,
(2) At any time when the office of Vice-Chancellor is vacant, or he is absent or is unable to perform the functions of his 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."
Section 12 of UHS (Amendment) Ordinance, 2009
12. Vice-Chancellor.--- (1) The Chancellor shall, on the advice of the Chief Minister of the Punjab, appoint the Vice-Chancellor for a term not exceeding four yeaRs,
(2) The Chief Minister shall tender advice on the basis of recommendation of the Search Committee.
(3) The Search Committee shall recommend to the Chief Minister, in order of preference, a panel of three persons who are 'suitable for the appointment as Vice-Chancellor.
(4) The Search Committee shall follow the procedure, for search or selection of the panel of persons for the post of Vice-Chancellor, as may be determined by the Government.
(5) A person shall not be eligible for the post of Vice-Chancellor unless he is at least qualified to be a professor in a Medical College, Institute or University.
(6) The Chancellor shall, on the advice of the Chief Minister, determine the terms and conditions of service of the Vice-Chancellor.
(7) If the office of the Vice-Chancellor is vacant or the Vice-Chancellor is absent or is unable to perform the functions of his office due to illness or some other cause, the Pro-Vice-Chancellor shall perform the duties of the Vice-Chancellor.
(8) In this section, 'Search Committee' means a Search Committee notified by the Government and consisting of at least three persons out of which at least one person shall be from medical profession." #TBS A B #TBE
10. Admittedly, respondent No,7 was serving as Professor when he was appointed as Vice- Chancellor, University of Health Sciences, Lahore vide Notification dated 7-4-2003. There is no denial that the said appointment was made without seeking applications from interested candidates and respondent No,7 was straightaway appointed by the Chancellor without observing any codal formalities, whatsoever. It is the version the respondents that the Chancellor under section 12 of UHS , Ordinance, 2002 had all the powers to appoint respondent No,7 without advertising the post and there is no illegality therein, however, we are not in acquiescence with the argument advanced by learned counsel for the respondents as the law is very much clear on the point that the appointments of government functionaries should be made through adopting -due procedure transparently. The appointments, except of short term or contingent employment, should be made after advertising the posts by beating the drum and giving opportunity to compete in the test/interview so that best from the best could be chosen. Appointments made without adopting such procedure are not only illegal and unlawful but also against the public interest.
11. Respondent No,7 retired from service as Professor on 31-7-2005 on attaining the age of superannuation. After his retirement as Professor, he was allowed by the Chancellor under section 12(2), UHS Ordinance, 2002 to continue as Vice-Chancellor. There was hue and cry about appointment and corruption of respondent No,7 in the media. Keeping in view thereof, the post of Vice-Chancellor was advertised in the newspapers seeking applications from the interested candidates. In response thereto, 24 candidates, including respondent No,7, submitted applications.
A Search Committee was constituted in terms of section 3 of UHS (Amendment) Ordinance, 2009.
To defeat the Writ Petition No,2457 of 2011, respondent No,7, just as eyewash, tendered his resignation which was accepted on 9-4-2011 and on the same day, perhaps at the same moment, he was re-appointed as Vice-Chancellor. Learned counsel for the respondents avers that the re- appointment has been made on the recommendations of the Search Committee constituted under section 12(3) of. UHS (Amendment) Ordinance, 2009 who after thoroughly considering qualifications and experience of the candidates and observing codal formalities had recommended the name of respondent No,7, therefore, he was re-appointed as Vice-Chancellor and no illegality or irregularity has been committed in this regard. However, the said argument loses force when admittedly respondent No,7 was himself monitoring whole the process being the Vice-Chancellor of the University; how it can be believed that he has not tried to influence the selection proceedings in his favour. Further, when there were more qualified candidates available to the Search Committee, why it persisted on the re-appointment of respondent No,7 who on attaining the age of superannuation had retired from service few years back and is now at about sixty-seven years of age. It is also worth mentioning that tendering resignation by respondent No,7 on 9-4-2011, acceptance of resignation on the same day and re-appointment of respondent No,7 also on the same day makes the whole process dubious showing well that there was some force behind the selection process, predetermined that respondent No,7 should continue. In our considered view, the Search Committee did not 'search' the candidate but did what it was asked to do and recommended the name of a person decided by someone beforehand.
12. It is worthy to state here that the legislators have clearly mentioned in section 12 (1) of UHS Ordinance, 2002 that the Vice-Chancellor shall be appointed for a term not exceeding four yeaRs, The Ordinance was reconsidered by the legislators and UHS (Amendment) Ordinance, 2009 was passed, notified on 16-11-2010. Even in the amended Ordinance, the intention of legislators regarding tenure of Vice-Chancellor is unambiguous and explicit as under section 12(1) of UHS (Amendment) Ordinance, 2009, it has again been emphasized that the tenure of Vice-Chancellor shall not "exceed four years". It means that the legislature is determined that term of Vice- Chancellor shall not exceed four years in any way. We are of the view that where the law provides an emphatic negative prefix such as "not exceeding" or "non-extendable", the intention of legislators is clear that the period of tenure should not exceed the period mentioned under relevant provision of the law and it shall be considered that a person once appointed for a term of four years is not entitled to keep on holding that particular office even for one day after expiry of his term. Respondent No,7 is holding the office of Vice-Chancellor since 7-4-2003 and today, when the judgment is being written is 16-2-2012 which reflects that respondent No,7 is holding the office of Vice-Chancellor for about nine years and in fact, the new term is not the second but third one as he has already spent for about eight years as Vice-Chancellor completing the period equivalent to two terms of four yeaRs,
13. None in this world is inevitable and there is none in the world without whom, the world cannot go ahead, as such, it cannot be said that without respondent No,7, the University of Health Science could not be run. It is pertinent to mention that when applications for the appointment of Vice- Chancellor were sought, some of the candidates, but not respondent No,7, were having even Ph.D degrees which confirms the view that persons having even more qualifications were available to Search Committee who were altogether ignored by the Search Committee.
14. Statutory bodies are governed under Acts, rules, regulations and statutes which are meant for the purpose and no one is allowed to supersede the same. The Government functionaries are presumed to act under the law and no one can exceed from its domain, neither supersede nor deviate. If provisions of Act are not complied with, then institutions cannot run smoothly as is required under the law. Reliance is placed on the law laid down in case Muhammad Arshad Khakwani v. IUB and another (2011 M LD 322).
15. It is well-settled now that when something is not permitted by the law to be achieved directly, it could not be allowed to be achieved G indirectly. Furthermore, the appointment on contract basis is never commendable as, such appointee, being not a civil servant, is always governed in accordance with the terms and conditions of his appointment and cannot be deemed capable enough to effectively command and maintain discipline in the institution. The re-employment definitely blocks the way of others irrespective of the fact whether they are serving in that department/organization or not but interested to be appointed against the post of re-appointee. In this view of the matter, respondent No,7 after expiry of term of four years could not be allowed to remain in I office any further. Reliance is placed on the law laid down by the Hon'ble Supreme Court of Pakistan in case Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109) and Hajj Corruption's case (PLD 2011 SC 205).
16. another aspect of the matter is that there is already shortage of employment and millions of peoples in this country are jobless and political interference in recruitment of employees in government departments is no more secret. In such circumstances, if the persons who are appointed against the lucrative posts will not retire and hold the same permanently, how the new generation will come forward and prove its abilities. Furthermore, if the government or high-ups of our society intend to continue the appointment of their favourites after their retirement through re- appointment on contract or ad hoc basis, then why J the other people who have no political influence in the society, but have more capabilities, can be deprived from the same treatment as it would be a matter of discrimination to which the Constitution of Islamic Republic of Pakistan, 1973 as well as the injunctions of Islam do not permit in any manner. In our view, the courts can only allow such practice if all the employees of the government from bottom to top are treated and accommodated in the same way which, as a matter of fact, will not be possible for the government to do.
17. Learned counsel for the respondents have referred Article 44(1) and (2) of the Constitution of Islamic Republic of Pakistan, 1973 which provides that the President shall hold office for a term of five years, he shall continue to be in his office until his successors enters upon his office and a person holding office as President shall be eligible for reelection to that office but no person shall hold that office for more than two consecutive terms. Their emphasis was more on the point that the intention of legislature, where deemed necessary, was made clear that none can hold office after certain terms, but in the instant case of UHS Ordinance, neither re-appointment of Vice- Chancellor has been barred nor has number of terms been fixed. Suffice it to say that in Article 44 of the Constitution, no negative prefix has been used by the legislature which itself is reflective of the fact that the President can be re-elected. On the other hand, in the UHS Ordinance, the intention of legislators is very much clear from the words "not exceeding four years" that none would hold office after completing his tenure of four yeaRs, As such, we are not convinced with the argument advanced by learned counsel for the respondents.
18. The argument of learned counsel for respondent No,7 in Writ Petition No,2457 of 2011 that the said writ petition has become infructuous as Malik Hussain Mubashar (respondent No,7 in this writ petition) had already completed his tenure of first appointment which is now a past and closed transaction is misconceived as when initial appointment of respondent No,7 was not made in accordance with law and he has illegally and unlawfully held the office of Vice-Chancellor during his tenure, the writ petition cannot be said to have become infructuous.
18. So far as the matter of King Edward Medical University is concerned, according to parawise comments, the post of Vice-Chancellor has been advertised twice in 2005 and 2009 but the meeting of the Search Committee could not be convened due to various representations made by the applicants and the University is fully functional and being run by a Pro-Vice-Chancellor duly appointed by the Chancellor in accordance with law.
20. For what has been discussed above, the writ petitions in hand are allowed and the appointment of respondent No,7 as Vice-Chancellor, University of Health and Sciences, Lahore is declared illegal, unlawful and void ab initio. The Government of the Punjab is directed to appoint a Vice-Chancellor of the University of Health Sciences, Lahore after observing due process of law as early as practicable.