' IJAZ AHMAD, J.--- The petitioner boasts of a Ph.D degree in Physics in his credit from B.Z.U. Multan, He was initially appointed as a Lecturer. Thereafter he served as Assistant Professor and Associate Professor of Physics and later on, at the same post under Tenure Track System in the Department of Physics on monthly salary package of Rs,1,20,000 per month, vide order dated 2-6-2010. The respondent-university advertised three vacancies for the post of Professor in the Discipline of Physics prescribing the requisite qualifications. The petitioner, respondent No,5 and one Dr. Misbah- ul-Islam applied. The case of respondent No,5 only was put up before the Selection Board. The meeting of the S.B. was scheduled to be held on the 9th of September, 2012. Item No,2 of the Agenda relates to the consideration of the cases for higher posts. The Selection Board recommended the name of respondent No,5 for appointment as a Professor.
2. It is contended by the learned counsel for the petitioner that the petitioner though eligible and fit for being appointed as a Professor yet his name has not even been put before the Selection Board; that respondent No,5 though not eligible yet has illegally been recommended by the Selection Board for his appointment as a Professor; that though being a candidate for the post of a Professor in Physics, he has done Ph.D in engineering, yet does not qualify for the appointment; that as per the evaluation made by Dr. Hans D. Hochheimer, Professor and Chair Emeritus, Department of Physics, Colorado. State University and Shashi Satpahty, Curators' Distinguished Professor of Physics, University of Missouri, two of the three referees, respondent No,5 was not academically mature enough to be recommended for being appointed as a Professor; that he did not have, in his credit, the required number of independent research publications in H.E.C. recognized journals; that the evaluation of the referees is not sought as a formality but has to be properly valued and taken into consideration for allowing ingress into an academe; that according to Sub-paragraph No,(5) of Paragraph No,6, Chapter VII of Volume-I of the Calendar of the B.Z.U. Multan, in selecting candidates for the post of Professors, the Selection Board, shall co-opt or consult three experts for the subject concerned, the co-option and consultation have to be meaningful, effective and consequential; that in the Agenda prepared for the meeting of the S.B., there was no specific item relating to the appointment for the post of a Professor. This Agenda has to be circulated amongst the members, as is provided in Paragraph No,3 of Chapter VII of Volume I of the Calendar ibid, but has not been so done, thus the Members were not aware of their function regarding the selection of the candidates for the post in question; that the S.B. has given no reason for brushing aside the evaluation made by two of the referees; that the case of the petitioner has not been put before the Selection Board on the false pretext that he had not resigned from his post under the TTS. The resignation could be tendered even after the appointment in question had been made. This is not an incurable irregularity.
3. On the other hand, it is contended by the learned counsel appearing on behalf of respondent No,5 and the learned counsel for the respondent-university that the petitioner was declared ineligible, as an existing faculty member could not revert back to BPS on his own accord and as the petitioner had not resigned from his post, as required under TTS; that the petitioner was intimated, vide letter dated 26-3-2011 that the faculty members of TTS could not apply for the said post; that he has not challenged the said order; that, as it is clear from the minutes of the meeting of the S.B. held on 9-2-2012, the evaluation made by the two of the referees was not agreed to; that the third referee had recommended the appointment of respondent No,5; that the evaluation made by the referees is not binding upon the Selection Board. It only helps the Board to make the recommendations after considering the other facts as well, as is apparent from Chapter VII of the Calendar ibid relating to the functions of the S.B; that this petition is not maintainable, as the petitioner himself being not eligible for the post is not an aggrieved person; that the petitioner wants to have all the apples in his own basket, the appointment as a Professor without taking the risk of losing his post under T.T.S. against escalated remuneration; that this petition is not maintainable, as section 11-A of BZU Act, 1975 provides the remedy by way of making a constitutional petition against the order passed by an authority which the S.B is. It is lastly argued that this Court cannot substitute itself for the Selection Board. Relies on PLD 1994 SC 539 titled Muhammad Anis and others v. Abdul Haseeb and others.
4. I have heard the learned counsel for the parties and also gone through the record.
5. The petitioner was appointed as Associate Professor on ordinary terms of service and later on was taken as such under the tenure track system in the discipline of Physics. He was declared ineligible to apply as the University strongly discourages its faculty members working under TTS.
The clarification is as follows:--- 'An "existing faculty member" while on TTS cannot revert back to BPS on his/her own accord.
Moreover, if a faculty member on tenure track chooses to apply against an advehised YTS/BPS position (before completing his/her track/probation period) in the same university, he/she would be required to resign from the university service before applying for the higher positions.'
6. The letter dated 26-3-2011 addressed to the petitioner need be reproduced:--- 'As per HEC model Tenure Track Process Statutes and Minutes of the meeting at HEC held on July 15, 2009, the faculty members on Tenure Track on probation are not allowed to apply for an advertised post without completing the laid down 77'S procedures i.e, to secure tenure in their position. Dr. Amer Bashir Zia has not yet secured tenure as Associate Professors. Therefore, he is not eligible for this post.'
' There is yet another letter dated January 11, 2010 from H.E.C. with reference to the clause 1.4.2.1(2) read with Annexure-C of the TTS Statutes version 2.0. It reads:--- 'An Assistant Professor/Associate Professor on track/probation before being considered for promotion to the next cadre, must first secure Tenure in accordance with the prescribed Tenure Track Procedures. There is no provision where a faculty member can apply for an advertised higher position without completing the procedure laid down for T.T.S.'
7. The respondent University can regulate its affairs regarding eligibility and appointment of teachers. The petitioner cannot be declared eligible to apply and compete for the post in question.
The letter, dated 11-1-2010 written by HEC and letter dated 26-3-2011 addressed by Bahauddin Zakariya University to the petitioner need a due consideration. These letters have not been challenged by the petitioner. The University has a right to lay down the criteria regarding eligibility of the candidates. I cannot declare the petitioner eligible and entitled for the post.
8. The Bahauddin Zakariya University, Multan having been established in accordance with the (Bahauddin Zakariya) University Act, 1975 has the Governor of the Punjab its Chancellor and the Vice-Chancellor as its principal executive and academic officer. The Syndicate and the Selection Board are two of its eleven authorities. According to Sub-paragraph No,6 of Paragraph No,6, Chapter VII of Volume-I of the Calendar of B.Z.U, Multan, the selection board consist of:---
(i) the Vice-Chancellor (Chairman);
(ii) the Chairman or a member of the Public Service Commission to be nominated by the Chairman;
(iii) the Dean of the Faculty concerned;
(iv) the Chairman of the Teaching Department concerned; and
(v) one member of the Syndicate and two other men of eminence to be appointed by the Syndicate provided that none of them is an employee of the University.
' According to Sub-paragraph (5) of Paragraph No,6 of the Calendar of B.Z.U:--- "In selecting candidates for posts of Professors and Associate ' Professors, the Selection Board shall co-opt or consult three experts in the subject concerned and in selecting candidates for other teaching posts, two experts in the subject concerned, to be nominated by the Vice-Chancellor from the standing list of experts for each subject, approved by the Syndicate on the recommendation of the Selection Board and revised from time to time."
9. In the instant case, the selection Board consulted Dr. Hans D. Hochheimer, Professor and Chair Emeritus, Department of Physics, Colorado State University and Shashi Satpahty, Curators'
Distinguished Professor of Physics, University of Missouri and another for evaluation of case of respondent No,5.
' The extract from the report of Professor Dr. Hans D. Hochheimer, Professor and Chair Emeritus, Department of Physics, Colorado State University, the first expert, is as follows:-- "It is very difficult to make a recommendation for promotion in the case of Prof Dr. Javed Ahmad, because his contribution to the publications is not clear. There is no information about his effectiveness as a teacher. He worked successfully at an internationally renowned university in Japan and co-authored papers with interesting physical results. It is quite impressive that he has gained experience in quite a number of experimental techniques. His promotion to Full Professor would increase the reputation of the Physics Department of Bahauddin Zakariya University.
However, I recommend Dr. Ahmad to wait 2 more years and establish a strong funded research program which has produced Ph. Ds. There are strong indications that he can do it. He has passed 3 years at the post of Associate Professor. Two more years to smooth out concerns should not be too much to ask. During this time his contribution to the studies in Japan can be clarified satisfactory. He can prove that he can establish a well, funded research program, and can finish Ph. D. students. Then I would support N- promotion wholeheartedly without any doubt of future success."
' The extract from report of Prof. Shashi Satpahty, the 2nd expert is as follows:--- "All fifteen published articles are in collaboration with his Japanese colleagues except for two. Of the four submitted papers, two are with the Japanese collaborators and two others are entirely with Pakistani colleagues published in good journals. I find the research productivity of Dr. Ahmad to be strong. Dr. Ahmad satisfies the fifteen years teaching and research experience plus 15 research publication in HEC recognized journals just barely, else he would have only fourteen publications and would not qualify with minimum criteria. He has supervised one M. Sc. and nine M. Phil. student, He has not graduated any Ph.D. student. This 1 find to be somewhat inadequate for promotion to Professorship. I find that Dr. Ahmad's qualifications are not yet up to the mark for promotion to Professorship. Prior to his appointment as a Professor, he would need to: (a)
Successfully graduate at test one Ph. D. student (b) Needs to publish more papers in peer- reviewed journals, especially from Pakistan alone and without any collaboration from outside countries to demonstrate his research independence and (c) Demonstrate classroom teaching abilities for physics courses at graduate level.
' In summary, Dr. Ahmad is on a good trajectory towards becoming a solid scientist and I commend him on his scholarly efforts and accomplishments to date, which he has achieved against many odds. But at the moment, in my opinion, he is not ready for promotion to a Professor Physics at a Ph. D. granting institution. 1 expect that he will be a good candidate for promotion to Professorship in a few years, if he continues his research efforts and productivity."
10. The evaluation report of the third referee is not before me. The presumption would be that he has gone all out in favour of respondent No,5. The board of studies in its meeting, held on 9-2-2012 did not agree to the evaluation made by two of the referees and recommended the appointment of respondent No,5 as a Professor.
11. While discussing agenda No,2 relating to the appointment of Professor of Physics the Selection Board observed as follows:--- "Besides facts and observations of foreign referees mentioned above, the Dean of the Faculty and Chairman concerned reiterated that Dr. Javed is suitable candidate and fulfills prescribed qualifications for the post of Professor on permanent basis.
' After detailed discussion, the Selection Board did not agree with the recommendations of the referees and found Dr. Javed Ahmad suitable for the post and accordingly recommended him for appointment as Professor Physics (BS-21) in the Department of Physics against a permanent post on one year probation. His pay will be fixed/protected as per rules."
12. In my view, the Selection Board has not given reasons for disagreeing to the report of referees.
Mere assertion that the Dean of Faculty and Chairman concerned re-iterated that the respondent No,5 is suitable candidate and fulfills the conditions does not suffice to brush aside the opinions of two experts, who were nominated by the V.C. from the standing list of the experts, approved by the Syndicate on the recommendation of S.B. and revised from time to time. A fine and multilayer sieve has already been used to ensure that no inflaxible expert could infiltrate into the list.
13. The scope, nature and import of 'Consultation' has to be dilated upon.
' According to the Black's Law Dictionary, consultation is an act of asking the advice or opinion of someone. It is defined as an effective, meaningful purposive, consensus-oriented and deliberation leaving no room for complaint of arbitrariness or unfair play. This has also been so held in the case of 'Benazir Bhutto v. President of Pakistan' (PLD 1998 SC 388).
' The import and nature of consultation prior to recognition of a qualification, in view of the provisions of Medical Council Ordinance (XXXII of 1962) came under discussion in the case of 'Pakistan Medical and Dental Council v. Ziauddin Medical University and others' (PLD 2007 Supreme Court 323). It was held by their Lordships in the August Supreme Court of Pakistan that the consultation has to be purposive and meaningful and that the opinion or advice rendered by the Council during consultative process may not be binding but the Federal Government has to consider and give it a due weight. If it chooses to disagree or bypass the advice rendered, it has to give reasons in writing. It is not a type of consultation by a senior with his junior or with a consultant of choice. It is consultation under a statute to achieve certain objectives which in the instant case is to man the department with the best brains that will help the B.Z.U. to produce the scholars for future.
14. In the instant case, the reason that the Dean of the Faculty and Chairman reiterated that respondent No,5 is a suitable candidate does not qualify the reasoning for disagreeing to the evaluation report submitted by the referees. It has been mentioned emphasized in Al-Jehad Trust case reported as 'Al-Jehad Trust through Raeesul Mujahideen Habib-ul Wahabb-ul-Khairi and others v. Federation of Pakistan and others' (PLD 1996 Supreme Court 324) that the consultation has to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play.
15. In order to make the consultation, the University has its Selection Board dominated by its own officers. Only two men of eminence, none of them a university employee has been taken in the Selection Board. They are a negligible minority in the house of seven members. The referees mentioned in Sub-para 5 of Paragraph No,6 have to be given the weight due. Otherwise, the consultation in the case of appointment of a teacher in the university can be thwarted in many manners:--- ' By taking pre-cautions that no expert having a tendency to give an independent report is included in the list of the experts.
(ii) If such an expert creaps in, the list shall be cleansed from time to time.
(iii) Any opinion or evaluation given by him be up under the carpet and be treated as non- existing.
(iv) It is put before the Selection Board but without an intention to take care of it.
(v) It is considered but is disagreed without assigning any reason.
' The last method has been adopted in the instant case. The evaluation has been disagreed simply because the Dean and Chairman of the department insisted that respondent No,5 shall be taken as Professor. If such practice is allowed to go on, no referee will take pains- to evaluate the publications, the research papers, the Ph.Ds supervised by him and research reports regarding the candidate. The institution adopting such procedure will lose its credit. The students passing out from such institution will not find a room in the academes of the foreign countries.
16. For what has been discussed above, this petition is partly accepted. The minutes of the meeting dated 9-2-2012 of the Board of Studies, of item No,2 of the agenda is set aside. The recommendation made in favour of respondent No,5 is set at naught. Any steps taken by the Syndicate post to the recommendation made by the Selection Board are also declared ineffective and are also set aside. This will however not affect the power of the B.Z.U. authorities to reconsider the matter of the appointment to the post in question including the case of respondent No . 5 .