SHAUKAT AZIZ SIDDIQUI, J. - Petitioner invoked the Constitutional Jurisdiction of this Court by way of filing instant Petition, with the following prayer:- "It is, therefore, respectfully prayed that this writ petition may kindly be accepted and respondent No. 3 may kindly be called upon that under what authority of law he is holding the office of President and Vice- President (Admin, Finance and Planning without any advertisement, recommendation of Selection Board, approved by the Board of Governors and prerequisite qualification and experience.
It is further prayed that the contract employment of the respondent No. 3 and all other such employees as well may kindly be declared as illegal, unfull and of no legal effect being against fundamental rights of the university employees and a direction may kindly be issued to the respondents for implementing the judgment of the august Supreme Court of Pakistan and the instructions issued by the Establishment Division in pursuance thereof, and by getting the posts occupied by the contract officer vacated in accordance with the observations of their Lordships in the judgments quoted above and the OM. Of the Establishment Division.
It is also prayed that the respondents may kindly be directed to decide the representation/application of the petitioner dated 05.09.2012 after giving the opportunity of personal hearing to the petitioner forthwith and that during the pendency of the writ petition, the respondent No. 3 may kindly be restrained from performing his duties or exercising any power of President and Vice-President in the best , retest of justice and Defendants may also be directed not to take any grudgeful/unlawful action against the Petitioners.
Any other relief, which this Honourable Court deems fit and appropriate may also be awarded." And presented the facts as under:-
2. Petitioner Association is a recognized Association by the Board of Governors, International Islamic University (IIU) Islamabad, and is registered with ICT Administration under Registration and Control Ordinance No. 1961 (XLVI) of 1961, representing about 2100 employees in BPS 1-16 of IIU.
Petitioners are aggrieved by the appointment of respondent No. 3 as Vice-President (Admn. & Finance), and Acting President of International Islamic University, Islamabad, who allegedly neither qualified for the same nor .Has single day experience required for the said post and is not capable to maintain the affairs of the respondent university, which is causing irreparable damage to the institution. Moreover, Dr. Masoom Yaseen Zai (respondent No. 1) has been given additional charge of Rector of IIU wt,<;.!i itself is barred by law. Petitioners approached respondent No. 1 for cancellation of appointment of Sahibzada Sajid-ur-Rehman (respondent No. 3) and others in violation of the decision of Hon'ble Supreme Court of Pakistan, vide application bearing No. IIU.USWA(1A)/2012, dated 05.09.2012, but in vain.
3. In response to process issued, respondents have put appearance and filed ' the report/para- wise comments by taking following preliminary objections:- "f. The petitioners are not true representatives of the USWA hence the writ petition is not maintainable having been filed by un-auihorized persons.
2. That the petitioners serving in position in grade-16 and below are neither aggrieved nor their promotion prospects are to be blocked as the office of Vice-President is a tenure post and does not fall in the cadre of promotion. The petitioners have no locus standi to i.e the petition.
3. That the petition has been filed with un-clean hands and motive to stop the respondents from proceeding against petitioner in disciplinary proceedings launched against them for causing blockade and keeping employees, virtually, under hostages in the university, till late evening."
On facts of the case, the respondents have submitted that:- The petitioner is a registered body but the petition has been filed by persons who have motive against the respondents and a large number of members of the Association have expressed their no confidence against them. A memorandum in this regard has also been addressed to the Rector of the University. Both Mr. Muhammad Nazir and Sardar Hussain are guilty of indiscipline and are being proceeded for causing blockade and making employees male, female with suckling child, Rector and President as hostage, till late evening. Moreover, Muhammad Nazir has personal grievance e as his wife is being repatriated on the expiry ol her deputation period to her parent department.
Respondent No. 3 is a Professor of High Standing who has devoted 36 years in teaching and research in Islamic Research Institute of the university. He remained acting President in the absence of permanent President of the University which post has now been filled.
President of Islamic Republic of Pakistan in his capacity as Chancellor of University appointed a scholar of repute namely Professor Dr. Muhammad Masoom Yasinzai, Vice-Chancellor Quaid-e- Azam University, Islamabad as Rector.
Respondent No. 3, as Acting President of University by his commitment to work and-zeal brought the University to top ranking position and his period as President was recognized by the faculty and the students as memorable. Moreover, "respondent No. 3 is not the first to be appointed as t Vice- President in terms of Section 14, whereas, in the past eight Vice-Chancellors of IIU had been appointed in terms of said Section without any advertisement.
4. Learned counsel for the petitioner submitted that on reaching the age of superannuation respondent No. 3 was appointed as Vice-President, IIU on contract of two years w.e.f. 13.10.2011 in a dubious and non-transparent manner. Learned counsel further submitted that appointment ^ of Vice-President of IIU is the domain of Board of Governors but in the instant matter the appointment of Vice-President has been made by the Rector without evolving any competitive process. Learned counsel added that even the , required qualification is not possessed by the respondent No. 3.
Moreover, he participated in the meeting of Board of Governors as Secretary which accorded approval of the act of Rector.
5. Conversely, learned counsel for respondent Nos. 1 & 2 submits f that there is no requirement of evolving competitive process in appointment of Vice-President or President of the University. It is the discretion of the Rector s to pick any person who in his estimation fulfill the criteria of appointment and get approval of Board of Governors. Learned counsel submitted that caliber and eminence of > respondent No. 3 is known to everyone and -with his administrative skills he has brought peace to the university campus and affairs are being run orderly. Learned counsel for the respondent further submitted that action of the appointment of respondent No. 3 was taken in good faith Therefore, under Section 46 of International Islamic University Ordinance, 1985, jurisdictional bar appears for this Court. '
6. Learned counsel for respondent No. 3 adopted the arguments of learned counsel for respondents Nos. 1 & 2 and raise a technical point that no resolution in favour of petitioner is annexed with the petition.
7. I have heard the learned counsel for the parties, and perused the documents annexed with the petition.
8. In - order to narrow down the- controversy admitted facts surfaced through pleadings of the parties and arguments advanced at par, are mentioned hereunder:- Respondent No. 3 being Director, Dawah Academy, IIU attained the age of superannuation on 08.01.2011; Vide office order dated 09.12.2010, respondent No. 3 was allowed - encashment of leave preparatory to retirement for 180 days w.e.f. 12.07.2010 to 07.01.2011; A proposal regarding appointment of respondent No. 3 as Vice President (Admn, Finance and Planning) was initiated by Professor Dr. Mumtaz Ahmed, President, III) which was approved by the Rector on 13.10 2011. On the following day i.e. 14.10 2011 respondent No. 3 assumed the charge of his duties as Vice-President (Admn. ^ Finance & Planning) (BPS-21) on contract basis for a period of two years w.e.f. 13.10.2011; - Respondent No, 3 was already on contract appointment as Director General Dawah ; Academy w.e.f. 08.01.2011 and on appointment as Vice-President his earlier appointment discontinued w.e.f. 12.10.2011; Respondent No. 3 possess Academic qualification of Ph.D. In Islamic Studies with specialization in Search of Holy Prophet (PBUH) and no academic qualification of Adminstration, Finance and Planning is on his profile like MBA, MPA, M.A (Economics), M. Com., etc.; * No competitive process was evolved and respondent No. 3 was appointed on the proposal of President, approved by Rector. Even second or third option in form of panel was not presented; * The Board of Governors is the appointing authority but after completing entire process approval of Board of Governors was sought, which was accorded in 67th Meeting held on 10.12.2011, although, respondent No. 3 had already been appointed on 13.10.2011 and he assumed charge on 14.10,2011; * For the appointment of President, IIU, advertisement published in different newspapers including daily "Jang", Rawalpindi dated, -7.01.2012.
For convenience rules and provisions of IIU Ordinance, 1985 and IIU Statutes, 2006, are being reproduced here-in-below:- "Section 4. Establishment of the University.-
(1) On the commencement of this Ordinance, the Islamic University established under the Islamic University Ordinance, 1980 (LIU of 1980), shall be reconstituted and re-named as the International Islamic University with its principal seat at Islamabad.
(2) The University shall consist of:-
(i) the Chancellor, the Pro-Chancellor, the Rector, the President, the Directors- General, the Vice- Presidents, the Deans, and the Directors;
(ii) members of the Board of Trustees, the Board of Governors, the Academic Council and other Authorities;
(iii) Teachers; and
(iv) such other officers as may be prescribed.
(3) The University shall be a body corporate by the name of the International Islamic University having perpetual succession and a common seal and shall, by the said name, sue and be sued.
(4) The University shall be competent to acquire and hold property, both movable and immovable, and to lease, sell or otherwise transfer any movable and Immovable property which may have vested in it or acquired by it in and outside Pakistan. '
(5) The University shall be the custodian of the Faisal Mosque,. Islamabad, and the buildings attached to the Mosque and shall be responsible for its supervision, control, and maintenance.
Section 8. Officers of the University.- The following shall be the officers of the University, namely:-
(i) The Chancellor;
(ii) The Pro-Chancellor;
(iii) The Rector;
(iv) The President;
(v) The Directors-General of Academies;
(vi) The Vice-President(s);
(vii) The Deans;
(viii) The Directors; and
(lx) Such other parsons as may be prescribed by Regulations to be the officers.
Section 13(2).-- At any time when the office of the President is vacant or the President is absent or is unable to perform the functions of his office due to illness or some other cause, the Rector shall, so far as may be, in consultation with the President, appoint one of the Vice Presidents to perform the duties of the President.
Section 13(3)(c).-- He shall have the power to create and fill posts temporarily for a period not exceeding six months, and shall, with the approval of the Rector, secure the services of experts on the basis of contract for a period not exceeding two years and shall report all such cases to the Board of Governors.
Section 14. Vice-President.-- (1) There may be one or more Vice-Presidents of the University.
(2) The Vice-President shall be appointed by the Board of Governors on the recommendation of the President on such terms and conditions as may be determined by the Board of Governors and exercise such powers as may be delegated to him by the President in consultation with the Rector.
(3) The Vice-President shall perform such duties and functions as assigned by the President from time to time.
Section 19. Board of Governors.- (1) The Board of Governors shall have the following members, namely:-
(i) Rector Chairman
(ii) President Vice-Chairman
(iii) Chief Justice of the federal Member Shariat Court of a judge of the said Chief Justice
(iv) Secretary, Ministry of Member Education Government of Pakistan
(v) Chairman, University Grants Member Commission or his nimee not below the rank of parmanent of the commission
(vi) One Vice-Chancellor of a Member Pakistani University to be nominated by the chancellor
(vii) Three scholars of international Member repute in the domain of Islamic to be nominated by the Pro- Chancellor in consultation with the Rector
(viii) Three nominee of the Board Member of Trustees
(ix) One Vice-President Member appointed by the Rector in conultation with the President
11. The members other than ex-officio members shall hold office for two years.
Section 26. The academic and administrative staff.-- The academic and administrative staff of the University shall be selected with view to achieve its stated objectives and the basic criteria for their selection shall be the highest standards of intellectual competence, integrity, efficiency and commitment to Islam.
Section 46. Bar of Jurisdiction.-- No Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to anything done in good faith or purported to have been done or into. I ted to be done under this Ordinance.
The IIU Statutes, 2006 8.1. Selection Board shall consider applications of 1 eligible candidates for teaching, research and 1 other posts in BPS-17 and above received in response to an advertisement in case of direct appointments and shall recommend to. Board of Governors the names of suitable candidates for appointment to such posts.
9. From the above admitted facts, this aspect surfaced clearly that for a substantive post like Vice- President no competitive process was evolved. The entire scheme of statutes and Rules of IIU, nowhere provide that president or Rector would be competent to pick and choose and oblige on the ground that in his estimation person being appointed is best and competent. On the contrary provisions referred in the instant judgment require regular appointment through competitor t process. BOG is not competent to accord sanction to any illegal act and compromise on the principles of transparency, merit, rule of law, credible process and openness of affairs. And,; if any discretion is Vested in the authority even then same has to be exorcised by fairness and not for favour.
10. The august Supreme Court through different authoritative enouncements provided guidelines on the issue, following are being relied:-
(i) Tariq Aziz-u-Din's case reported as 2010 SCMR1301.
(ii) Anita Turab case, reported as PLD 2013 SC 195.
(iii) Muhammad Yasin's case, reported as PLD 2012 S.C 132.
(iv) Sh. Riaz-ul-Haq, case in Constitutional Petition No. 53/2007 and Hajj Corruption reported as PLD 2011 S.C 963, and
(v) Hajj f imption reported as PLD 2011 S.C 963 Through the pronouncements mentioned above Hon'ble Supreme Court has held categorically that for appointments in the state owned Companies, Corporations, Establishments, Organizations, Statutory Bodies and Institutions process of appointment need to be competitive, credible, fair, transparent and on merits, instead of political affiliation, specific background and favouritism. This Court in the cases of May. Gen. (R.) Malik Muhammad Faruq v. Government of Pakistan (W.P. No. 1515/2013), Muhammad Ashraf Azeem v. Federation of Pakistan, etc. (W.P. No. 2503/2009), Dr. Altaf Hussain v. Federation of Pakistan (W.P. No. 615/2013) and Dr. Shahbaz Ahmad Qureshi v.
Government of Pakistan through Secretary, Establishment Division, etc. (W.P. No. 1999/2013) has also held that the appointments, made without competitive process as illegal and besides the dictums laid down by the ultimate Court of the country.
11. In the view of the matter, I am totally convinced that appointment of respondent No. 3 is result of colourable exercise of authority, without due process, non- transparency approach, against the principles of healthy competition, fairness, openness, merit, offensive to the Constitutional provisions and besides the dictums laid down by the Hon'ble Supreme Court of Pakistan. Under no stretch of imagination, re-appointment of respondent No. 3 can be termed as credible and in requirement of law applicable. As such office orders regarding appointment of respondent No. 3 bearing No. Estab.(IV)-3(122)2009-IIU-890, dated 13th October, 2011 and No. Estab.(IV)-3(122)2009- IIU-894, dated 14th October, 2011 are set aside. He shall cease to be Vice- President, III), forthwith. It is further directed that till the appointment of regular Vice-President, through competitive process, most senior regular employee of IIU having requisite qualification and experience to be appointed as Vice President, may be assigned task of Acting Vice- President, IIU. President, IIU is directed to evolve competitive process for appointment of Vice-President, which must commence with proper advertisement and be completed within three weeks but not later than 19th June, 2013.
The Writ Petition is allowed with above directions.