' SHAHID ANWAR BAJWA, J.---This Constitution Petition was disposed of vide judgment dated 31-10- 2011. The petitioner is an employee of the University of Karachi. He was employed as Security Officer and his service was terminated vide order dated 31-1-2011 on the ground of the same being no longer required. This petition was dismissed by holding that the University of Karachi did not have statutory rules. While concluding the learned Division Bench of this Court observed as under:-- "The narration of section 26 of the Ordinance is clear in its mandate that there is no requirement of seeking approval of government for framing of university ordinances nor is it required to be published in the Gazette. The University Ordinances are framed by the syndicate and on Chancellor's assent makes the University Ordinances effective and valid. This exercise in itself demonstrates that University of Karachi Employees (Efficiency and Discipline) University Ordinance, 1962 is made by the Syndicate of University itself to deal with the affairs of its employees internally.
The counsel for the petitioner has tried to portray University of Karachi Employees (Efficiency and Discipline) University Ordinance, 1962 as the Ordinance that is made by the President of Pakistan or by the Governor of Province under the Constitution, which is not so. The very manner of framing of the University Ordinance as noted in section 26 amply shows that it is not a statutory instrument nor can it be called statutory rules as the source of its origin is not the Government rather the Syndicate of the University assented by the Chancellor. Such being the state of law, there seems to be no escape from concluding that the service of petitioner was not governed by statutory rules of service and on that account petitioner cannot maintain this Constitutional Petition.
' The petition is, therefore, dismissed as not maintainable. Listed application is also disposed of. The petitioner may, however, seek remedy in accordance with law."
2. This is a review application. Learned counsel submitted that when the University of Karachi was reconstituted and re-organized, University of Karachi Ordinance, 1961 was issued by the President of Pakistan on 3-2-1962 (hereinafter called. Ordinance of 1962). With the Ordinance were enclosed the first University Ordinances of the University of Karachi. Section 45 of the Act, of 1962 provided as under:-- "45. First Statutes and University Ordinance.---' Notwithstanding anything to the contrary contained in the Ordinance.
(a) The Statutes and university Ordinance set out in the Schedules appended to this Ordinances shall on its commencement be deemed to be the Statutes and University Ordinances framed by the University under sections 23 and 25, respectively;
(b) Government or the Chancellor, as the case may be, may, within six months of the commencement of this Ordinance, add to, rescind or modify the Statutes and University Ordinances made under clause (a) or saved and continued under section 46.
' The University Ordinances in force at the time of commencement of this Ordnance shall continue to be in force in so far as they are not repugnant to this Ordinance and the Statutes."
3. With the Ordinance of 1962 in the Schedule first Ordinances of the University of Karachi were published and they were signed by Field Martial Muhammad Ayub Khan, the then President of Pakistan Ordinance of 1962 was repealed by University of Karachi Act, 1972 which received assent of Governor of Sindh on 28-12-1972. Section 48 of the University of Karachi Act, 1972 (hereinafter referred to as 1972 Act) provided as under:- "48. (1) The University of Karachi Ordinance, 1962 (Ordinance V of 1962), hereinafter referred to as the said Ordinance, is hereby repealed.
' Notwithstanding the repeal of the said Ordinance-- any Statutes, University Ordinances, Regulations or. Rules made or deemed to have been made under the said Ordnance, shall, if not inconsistent with the provisions of this Act, be deemed to be Statutes. Regulations or rules made under this Act, having regard to, the various matters which by this Act, have to be regulated or prescribed by Statutes, Regulations or rules respectively continue to be in force, until they are repealed, rescinded or modified in accordance with the provisions of this Act."
4. Learned counsel submitted that University of Karachi Employees (Efficiency and Discipline)
University Ordinance, 1962 was issued and employees are protected under section 48(2)(b) of the Act of 1972 and therefore they are statutory in nature and therefore this petition is maintainable.
Learned counsel submitted that this aspect has not been properly considered in the judgment of the Division Bench.
5. Mr. Moin Azhar submitted that the word used is "deem to be" and therefore rules are not statutory, more so because they were never approved by the government.
6. Mr. Adnan Karim, learned A.A.-G submitted that the rules are statutory. He went a step further and stated that there is no provision in .Act of 1972 requiring approval or conferring any power to approve rules framed by the University and therefore no statutory rules can be framed under the law.
7. We have considered the submissions made by the learned counsel and have also gone through the record.
8. Ordinance of 1962 in respect of framing of the statutes in its section 24 provided as under:- "24. Framing of Statutes.---Statutes may be made in the following manner:-
(a) The Syndicate may frame a Statute on any subject mentioned in section 23.
(b) When such Statute has been passed by the Syndicate it shall be submitted to Government for assent.
(c) Government may assent to such Statutes or withhold assent or refer it back to the syndicate for reconsideration.
(d) The Statute passed by the Syndicate shall not be valid until it has received the assent of Government.
(e) The procedure for amending and repealing the Statutes shall be the same as given above."
9. Perusal of the above indicates that essential power for framing of the Statutes was conferred on Syndicate of the University and when a Statute has been framed by the Syndicate it was 'required to be submitted to the Government for assent. Therefore, the Statutes would be statutory in nature and would have effect of the statutory rules. However, as far as, Ordinances of the University were concerned, section 26 provided for framing of the Ordinances and it provided as under:-- "26. Framing of University Ordinances.---The University Ordinances shall be made in the following manner:-
(a) The Syndicate may frame a University Ordinance on any subject mentioned in section 24. If the University Ordinance relates to any subject mentioned below, it shall be referred to the Academic Council for expression of opinion before it is taken up by the syndicate for final consideration:--
(1) Duties of the teachers of the University.
(2) Mode of appointment of teachers of the University.
(3.) Recognition of teachers of affiliated colleges as University Teachers.
(4) Creation and abolition of posts of teachers of University.
(5) Establishment of teaching departments and constituent colleges.
(b) When such University Ordinance has been passed by the Syndicate, it shall be submitted to the Chancellor.
(c) The Chancellor may assent to such University Ordinance or withhold assent or refer it back to the Syndicate for reconsideration.
(d) The University Ordinance passed by the Syndicate shall not be valid until it. Has received the assent of the Chancellor.
(e) The procedure for amending or repealing the University Ordinance shall be the same as given above."
10. Perusal of the above indicates that the power to frame Ordinances was, just like a Statute vested in the Syndicate and the Ordinances framed by the Syndicate did not require any approval by or assent of the Government. Thereafter Section 28 provided for framing of Regulations and is as under:-- "28. Framing of Regulations.---The Regulations shall be made in the following manner:-
(a) A Regulation shall be initiated by the Academic Council and the draft shall be submitted to the Syndicate. The Syndicate may allow it, disallow it or refer it back to the Academic council for reconsideration: ' Provided that the Syndicate on its own motion may also frame Regulations after first referring them to the Academic Council for expression of opinion.
(b) The procedure for amending or repealing a Regulation shall be the same as given above."
11. Perusal of the above indicates that the Regulations were to be initiated by Academic Council and are to be approved by the Syndicate. The Regulation also did not require any approval of the government and therefore, in accordance with the dicta laid down by the Supreme Court in the case of Muhammad Nawaz v. Civil Aviation Authority and others, 2011 SCMR 523, in the case of Chief Manager State Bank of Pakistan, Lahore and another v. Muhammad Shafi, 2010 PLC (C.S.) 1088 neither the regulations nor -the Ordinances framed by the Syndicate have statutory status.
12. Then comes section 45, which section has been quoted in para 2 above. It is provided in section 45 that -though they were enclosed as Schedule to the Ordinance of 1962 but they are "deemed to be" Statutes of the University and the Ordinances framed by the University under, sections 23 and
25. We have already held that what is required to be framed under sections 23 and 24 were Statutes and what is required or can be framed under sections 25 and 26 of the Ordinances are statutes of the University and they are not statutory in nature. The words "deemed to be" mean "as if'. The purposes of importing deeming clause is to create a fiction as to that would not otherwise prevail. It introduces a legal fiction and by fiction of law it is to be assumed, presumed and treated to be a situation in which Legislature puts it by saying that it is deemed to be. Therefore, the first Ordnances even if framed and approved by the President of Pakistan are deemed to be Ordinances in accordance with the provisions of Ordinance of 1962. The Ordinances are therefore not statutory in nature.
13. Learned counsel has relied upon the University of Karachi Employees (Efficiency and Discipline)
Ordinances, 1962. Contention of the learned counsel was that they are protected under section 48(2)(b) of the University of Karachi Act, 1972 (quoted in para. 3). Provisions of section 48(2)(b) of the Act of 1972 state that the Ordinances if not inconsistent to the provisions of the Act are to be deemed to be Statues, Regulations or rules, under the Act of 1972. The procedure for making Statutes is laid down in section 28(2) and for making Regulations the provision is made in section 29(2). Both these sections are reproduced as under:-- "28. (2) The draft of Statutes shall be proposed by the Syndicate to the Senate which may approve it or pass it with such modifications as the Senate may think fit, or may refer it back to the syndicate for reconsideration, or may reject it: ' Provided that Syndicate shall not propose draft of Statutes affecting the constitution or powers of any Authority of the University, until such authority has been given an opportunity of expressing an opinion in writing upon the proposal: ' Provided further that the draft of Statutes concerning any of the matters mentioned in clauses (a) and (b) of subsection (1), shall be forwarded to the Chancellor and shall not be effective until it has been approved by the Chancellor.
29. (2) The Regulations shall be prepared by the Academic Council and shall be submitted to the Syndicate which may approve them or withhold approval or refer them back to the Academic council for reconsideration. A Regulation prepared by the Academic Council shall not be valid, unless it receives the approval of the Syndicate."
14. A perusal of the above indicates that Statutes are proposed by the Syndicate and are required to be approved by the Senate. There is no provision for approval of the Statutes by the government.
As far as, the Regulations are concerned, the Regulations are prepared by the Academic Council and are approved by the Syndicate. Again there is no requirement of approval by the Government.
Therefore if the Rules, Regulations or Statutes are framed under the Act of 1972 they cannot A have status of statutory rules. Since in section 48(2)(b) it is provided that they are deemed to be Statutes, Regulations or Rules, under the Act of 1972 they cannot be treated or as having been conferred the status of, statutory rules.
15. Result of the above discussion is that we have come to the conclusion that the Rules and the Ordinances of University of Karachi are not statutory in nature. Consequently, this review application is dismissed.