MRS. AYESHA A. MALIK, J.---This writ petition impugns Order No, GS (Univ)3-12/2012-266 dated 6- 6-2012 (Impugned Order).
2. The brief facts of this case are that the petitioner is an Assistant Professor in the department of Social Work, University of the Punjab, New Campus, Lahore. He was appointed Teacher Incharge Department of Social Work w.e.f, 27-12-2011. Respondent No,5 was appointed as Associate Professor on 21-11-2007 w.e.f 30-10-2005 by the Vice-Chancellor of the University. His appointment was challenged in W.P No,319 of 2008. In terms of order in Writ Petition No, 319 dated 27-9-2011, the matter was taken up by the Syndicate of the University. On 27-12-2011 the Syndicate decided that the appointment of respondent No,5 was not in accordance with the law, hence the appointment order was withdrawn with immediate effect. The petitioner was appointed Teacher Incharge on 27- 12-2011 vide Order No, D/20912/Est-1.
3. Against the order of 27-12-2011, the respondent No,5 filed a departmental appeal. The appeal remained pending and the respondent No,5 filed a revision petition under section 11-A of the University of Punjab Act, 1973 (the Act). The respondent No,1 accepted the revision petition of the respondent No,5 by his order dated 6-6-2012. The respondent No,5 was restored to his original position with all back benefits.
4. The petitioner challenged the said order dated 6-6-2012 through instant petition. Learned counsel for the petitioner states that the case of the petitioner is that the respondent No,1 being the Governor of the Province of Punjab and the Chancellor of the University of Punjab is bound by section 11(8) of the Act, such that the respondent No,1 can only exercise powers upon the advice of the Chief Minister, in terms of Article 105 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). The petitioner has placed reliance on a case titled as "Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another" (2012 SCM R 6), wherein it has been held that the powers of Chancellor of the University have been defined under the Act. The judgment holds that section 11(8) of the Act incorporates a constitutional provision by reference. It explains that:-- "When construing such a piece of legislation, the Court has to examine and keep in mind three things, the statement of reasons and objects given therein, the statement of objects given in other laws in pari materia to the one under consideration and the mandate of the Constitutional provision which stands adopted by way of reference."
' To interpret section 11(8) of the Act the Supreme Court held that:- "Verba relata hoc maxime operantur per referentiam ut in eis inesse vindentur i.e, words to which reference is made in an instrument have the same effect and operation as if they were inserted in the clause referring to them."
' On the functions of the Chancellor under the Act the Supreme Court held that:-- "Except otherwise so provided under the Constitution, the President and Governor are bound by the advice tendered by the Prime Minister and the Chief Minister respectively and in the manner as provided in the afore-referred provisions of the Constitution. The Governor while acting as Chancellor is a statutory functionary. By specific mention of Article 105 of the Constitution in section 11(8) of the Act and in laying down that "in the performance of his functions under the Act, 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", the Legislature has blended the same value of supremacy of the Parliament/Provincial Assembly which underlie the adopted Constitutional provision."
' Essentially on the basis of the Supreme Court Judgment (supra), learned counsel for the petitioner has argued that the Governor of Punjab while acting as the Chancellor of the University is bound by the advice of the Chief Minister of the Province of Punjab. It was argued that the Chancellor cannot act other than on the advice of the Chief Minister and as such the Impugned Order violates Section 11 (8) of the Act as well as the spirit of Article 105 of the Constitution.
5. Learned counsel for the respondent No,5 took up the preliminary objection that the instant petition is a writ of certiorari, which can only be filed by an aggrieved person. He argued that the petitioner is not an aggrieved person, hence the instant petition is not maintainable. To advance this point, he argued that the petitioner has no vested right against the position of Teacher In charge. That his appointment was a stop gap arrangement. Therefore, he could not challenge the order of the Syndicate dated 27-12-2011. He further argued that the order of the Syndicate dated 27-12-2011, which cancelled the appointment of respondent No,5, was an illegal order as the Syndicate was bound to refer the matter to the Chancellor under the Act. He argued that in the event of a difference between the Selection Board and the Syndicate, the matter has to be referred to the Chancellor, whose decision is to be final. He argued that this is a statutory requirement and the Impugned Order corrected an illegality, hence the said order cannot be interfered in writ jurisdiction. He stated that when an order corrects an illegality, even if the said order is without jurisdiction, it should not be interfered with. He placed reliance on the cases titled "Messrs Norwich Union Fire Insurance Society Ltd. v. Muhammad Javed Iqbal and another" (1986 SCM R 1071) and "Dhani Khan v. M.Z. Khan (Member Board of Revenue, West Pakistan) and another" (PLD 1963 (W.P)
Lahore 583). He also argued that the petitioner did not qualify for the position, as he was not eligible as per the requirements of the University. Therefore, appointing him in the first case was in contravention to the rules of the University. Reliance is placed on an unreported judgment dated 6- 4-2011 passed in C.As. Nos. 987 to 988 of 2010.
6. Learned counsel for the respondent No,1 argued that respondent No,1 while exercising powers under section 11-A of the Act was not bound by the advice of the Chief Minister. His powers under section 11-A of the Act are of a judicial nature, which cannot be bound by the advice of the Chief Minister. This fact distinguishes, the instant case from the case cited at 2012 SCM R 6 (supra) as the said judgment is a case regarding the appointment of the Vice Chancellor of the University, where the advice of the Chief Minister was given but not followed. However, the instant case relates to the exercise of the statutory power to review by the respondent No,1, which power is not subject to the advice of the Chief Minister.
7. Learned Law Officer while supporting the arguments of learned counsel for the respondent No,1 further elaborated the distinction from the cited judgment with reference to the exercise of powers by the Chancellor of the University. While exercising executive powers, the Chancellor is bound by the advice of the Chief Minister, however, while exercising judicial powers, as contemplated under section 11-A of the Act, the Chancellor is not bound by the advice of the Chief Minister. He argued that the judicial power is not dependent of any advice. Under section 11-A of the Act, the Chancellor sits as an officer of the University, who has been granted the power of revision just as he has been granted the power of review under section 43 of the Act. Both these sections require the Chancellor to exercise a judicial function, which exercise of power cannot be made dependent on the advice of the Chief Minister. The same would render the entire exercise as redundant, as the spirit of judicial power lies in the exercise of independent authority. As such it would be an exercise in futility if the Chancellor were to seek the advice of the Chief Minister for deciding matters of the judicial sick It goes against the spirit of both the sections.
8. I have heard learned counsel for the parties and reviewed the record available on the file.
9. The main issue raised in this writ petition is with respect to the exercise of power by the Governor of the Province as Chancellor of the University of Punjab. The question is whether the Chancellor is bound by the advice of the Chief Minister of the Province while exercising his power to review under section 11-A of the Act. Although, the petitioner's counsel has placed absolute reliance on the Supreme Court judgment (supra), the counsel for the respondents have drawn a distinction with respect to executive functions and judicial functions exercised by the Chancellor of the University of the Punjab. They have argued that the judgment is with reference to the executive functions and not the judicial functions of the Chancellor. That when the Chancellor exercises his judicial authority he is not bound by the advice of the Chief Minister. Therefore I find that this point needs consideration from this Court.
10. The counsel for the respondent No.5 raised a preliminary objection with respect to the maintainability of this petition. I find that the objection has no merit. The petitioner is an aggrieved person for the purposes of this petition within the meaning of Article 199 of the Constitution. The petitioner is an employee of the University of Punjab, who was appointed as Teacher Incharge on 27-12-2011. His appointment was set aside by the Impugned Order issued by the respondent No, 1 .
He is directly and adversely affected by the. Impugned Order. A direct injury is caused to the petitioner as his appointment as Teacher Incharge was set aside. His interest has been prejudiced.
This prejudice and injury give rise to the right to question and challenge the authority exercised by the , respondent No,1 whilst setting aside the appointment of the petitioner. Reliance on the case titled "Dhani Khan v. M.Z. Khan (Member Board of Revenue, West Pakistan) and another" (PLD 1963 (W.P) Lahore 583) does not advance the case of the respondent No,5 as in that case the petitioner sought appointment to the position of lambardar. The Court found that he had no vested right to the position of lambardar hence it cannot be challenged in a writ of certiorari. The instant case is not one where an appointment is sought, but one where an appointment was made and thereafter set aside by virtue of the Impugned Order. The petitioner being the affected party can question the exercise of authority when issuing the Impugned Order. Hence, I find this petition is maintainable.
11. On the legal question, with reference to the powers exercised by the respondent No.1, the Supreme Court Judgment (supra) finds that the Chancellor while exercising its functions under the Act is bound by the advice of the Chief Minister. The case pertains to the appointment of the Vice- Chancellor of the University. Learned counsel have drawn an inference to the fact that appointment is an executive function where as the power of revision under 11-A of the Act is a judicial function. Although the issue with respect to the interpretation of section 11(8) of the Act has been decided by the honorable Supreme Court, what needs to be seen is whether section 11(8) of the Act draws any distinction between the executive function and the judicial functions of the Chancellor of the University. The Chancellor is an officer of the University in terms of section 10(i) of the Act. Section 11(1) of the Act provides that the Governor of Punjab, shall be the Chancellor of the University. Section 11(2 through 6) provides for the functions of the Chancellor. Section 11(8) of the Act provides that:-- "In the performance of his functions under the Act 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 the Islamic Republic of Pakistan."
' Section 11-A of the Act provides that:- "The Chancellor may, of his own motion or otherwise, call for and examine the record of any proceedings in which an order has been passed by any authority for the purpose of satisfying himself as to the correctness, legality or propriety of any finding or order and may pass such orders as he may deem fit."
' The argument put forward by the learned counsel for the respondents and the learned Law Officer is that section 11(8) of the Act, will apply to executive functions but will not apply to the Chancellor's judicial functions, such as the power of revision under section 11-A of the Act or the power of review under section 43 of the Act. To my mind, this argument is fundamentally flawed. In the first case section 11(8) applies to all functions of the Chancellor under the Act. It does not distinguish between executive or judicial functions. The functions of the Chancellor are provided for in the Act and section 11(8) shall apply to all functions performed by the Chancellor. Furthermore there is also no legal basis upon which this distinction can be read into section 11(8) of the Act as such a reading would negate the objective of the section. A bare reading of section 11-A of the Act, reveals that the Chancellor may of his own motion or otherwise examine or call for the record of any proceeding where an order was passed by any authority, to satisfy himself on the legality of the findings or the order so passed and may pass such an order as he deems fit. The ability to exercise power of his own motion and to pass any order as he deems fit with respect to any matter pending before any authority of the University means that the Chancellor can exercise his discretion with respect to all such matters where he would otherwise be bound by the advice of the Chief Minister. This goes against the requirement of section 11(8) of the Act and negates its meaning and purpose. Section 11(8) of the Act categorically provides that the Chancellor of the University, while performing his functions under the Act is bound in the same manner as the Governor of the Province while performing his function under the Constitution. Article 105 of the Constitution provides that the Governor while performing his function shall act on and in accordance with the advice of the Chief Minister. Article 105 of the Constitution draws no distinction with reference to the functions of the Governor as contemplated by the Constitution. The Constitutional mandate in this regard has already been discussed in the Judgment (supra), and the Court has held that the Chancellor is bound by the advice of the Chief Minister just as the Governor is bound by the advice of the Chief Minister.
12. The Constitution provides the structure of authority with respect to the office of the Governor of the Province. The same structure has been imported into the Act by virtue of section 11(8). The powers and the functions of the Chancellor are subject to the advice of the Chief Minister as provided by the Constitution. The Constitution draws no distinction between the executive or judicial functions of the Governor. Hence no such distinction can be read into section 11(8) of the Act. To read the distinction drawn with reference to the functions of the Chancellor, in section 11(8) of the Act, would go against the mandate of Article 105 of the Constitution. Section 11(8) of the Act must be read to give effect to the same structural mandate as provided in Article 105 of the Constitution. Another reason for not accepting the distinction drawn by the respondents counsel with respect to the functions of the Chancellor i.e, judicial and executive power, is that by drawing this distinction, the Chancellor could, under the garb of judicial power, exercise discretion where advice is required. The whole concept of acting on the advice of the Chief Minister would disappear.
13. Therefore, the Chancellor is. Bound by the advice of the Chief Minister while exercising powers under section 11-A of the Act. The petition is allowed as the Impugned order is an illegal order passed without authority, hence set aside. There is no order as to costs.