M. Tabassum Aftab Alvi, J.--Thsupra titled writ petition has been addressed under Section 44 of the Azad jammu & Kashmir Interim Constitution Act, 1974, whereby vires of notification dated 21.07.2011, pertaining to appointment of private Respondent No, 1 as Vice-Chancellor, Mirpur University of Sciences and Technology, has been challenged for having been issued without lawful authority. A further direction has been solicited against the official respondents regarding appointment of petitioner against the disputed post of Vice-Chancellor.
2. Precise facts giving rise to the instant writ petition are that Ordinance No, XVIII of 2008, was promulgated by the President of Azad Jammu & Kashmir through which Mirpur University of Sciences and Technology Mirpur, was established. After its establishment an advertisement was published in daily Nawa-e-Waqat dated 13.06.2009 for first appointment of Vice-Chancellor of the above University Consequently, Prof. Dr. Habib-ur-Rehman was appointed as first Vice Chancellor of the University on the basis of approval of the Chancellor, vide notification dated 27.03.2009. After completing the tenure of Prof. Dr. Habib-ur-Rehman, the position of Vice-Chancellor was again advertised in daily Jang dated 08.11.2010 for making appointment on merit. It is further stated that through advertisement supra, applications were solicited from candidates preferably holding Ph.D.
Degree. The petitioner being qualified as Ph.D. applied for appointment as Vice-Chancellor. It is averred that respondent-Chancellor on political motivation and without recommendations of Senate and Search Committee, appointed Respondent No, 1 as Vice-Chancellor, who was simple M.Sc Engineering, hence, not qualified in light of conditions mentioned in the said advertisement, vide impugned notification dated 21.07.2011. Feeling aggrieved from the said appointment the petitioner has filed the instant ponstitution petition.
3. The writ petition has been resisted by Respondents 1; 3 and 10, through written statement, wherein it is stated that Respondent No, 1 was appointed as Vice-Chancellor of Mirpur University of Sciences and Technology under Section 41(2) of Mirpur University of Sciences and Technology Ordinance, 2011, (hereinafter referred as MUST Ordinance) which postulates that notwithstanding anything contained in the Ordinance, the first Vice-Chancellor shall be appointed by the , Chancellor for a period of 3 years, hence, in exercise of discretionary powers conferred on Chancellor, the appointment of Respondent No, 1 was made, against which, the instant writ petition is not maintainable. It is further stated that due to bar contained under Section 52(3) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, no legal process can be issued against the Chancellor/President for the acts done or purported to be done. It is averred that the appointment of Respondent No, 1 was made on the basis of his higher qualification in the field of Engineering (professional skills experience) while, the petitioner was not eligible for the said post, hence, not aggrieved in the eye of law. It is further averred that petitioner had already availed alternate remedy of departmental appeal which is subjudice before the Chancellor, therefore the instant writ petition merits dismissal. It is urged that Chancellor being competent authority firstly handed over additional charge of disputed post to Prof. Dr. Habib-ur-Rehman, who was Vice-Chancellor of Azad jammu & Kashmir University and thereafter appointed Respondent No, 1 as first Vice-Chancellor of Mirpur University of Sciences and Technology, vide notification dated 21.07.2011, which was sole discretion of President/Chancellor of University, hence, against the above appointment, writ petition is not maintainable. Respondents Nos. 2, 4 to 9 and 11 to 13 despite service failed to file written statement, hence, were proceeded ex-parte.
4. The learned counsel for petitioner, Mr. Tahir Aziz Khan, Advocate, vehemently argued that Respondent No, 1 was appointed by Respondent No, 2 in utter disregard of basic provisions of Sections 10 & 11 of MUST Ordinance therefore, appointment of the said respondent is liable to be quashed as such. The learned counsel pressed into service that disputed post of Vice-Chancellor was advertised by the Secretary Presidential Affairs, through Daily Jang, on 0811.2010, whereby, Ph.D. qualification preferably was solicited. The petitioner was holding Ph.D. degree with additional qualification of Doctorate Degree from abroad, whereas, the private respondent was simple M.Sc Engineering, however, by violating conditions of advertisement published by the official respondents the private respondent was appointed as Vice-Chancellor while exercising colourable exercise of powers. The learned counsel maintained that Vice-Chancellor could be appointed on the recommendations of Senate and Search Committee, while before issuing the impugned notification, recommendations were not obtained either from Senate or Search Committee, which again demonstrate that the appointment of Respondent No, 1 was made for mala fide reasons. The learned counsel further submitted that Respondents No, 2, 4 to 9 and 11 to 13 failed to file written statement, which implies that contents of writ petition have ben admitted by them. He argued that Chancellor was impleaded as Respondent No, 2 who being appointing authority failed to rebut the contents of writ petition, which again is an admission of the claim of the petitioner. The learned counsel for the petitioner in support of his contentions referred to and relied upon case law titled Rana Aamer Raza Ashfaq and another vs. Dr. Minhaj Ahmed Khan and another (2012 SCM R 6) and Hasnat Ahmed Khan vs. Institution Officer (2010 SCM R 354).
In case of Aamer Raza Ashfaq & another, supra, it was held by the apex Court of Pakistan at page 28 as under: The procedure adopted by the Chancellor/Governor of Punjab for purported appointment of Prof. Dr. Muhammad Zafarullah is not countenanced in Section 11(8) of the Act read with Article 105 (1) of the Constitution. The only option which the Chancellor had under the afore-referred provision is given in proviso to Article 105 of the Constitution which mandates, "provided that [within fifteen days] the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, whether generally or otherwise, and the Governor shall [within ten days] act in accordance with the advice tendered after such reconsideration" (emphasis is supplied).
The time-line given in Article 105 of the Constitution within which the Governor is to act, is intended to avoid deadlock and friction between the two Constitutional functionaries. The Chancellor's summary reflects a lack of understanding of both the legal and Constitutional provision which regulate the powers of the Chancellor of the University. The mandate of law cannot be frustrated.
We, therefore, hold that the summary sent by the Chancellor to appoint a person of his choice as Vice-Chancellor against the advice tendered by the Chief Minister (recommending Prof. Dr. Syed Khawaja Alqama as Vice-Chancellor of the University) be treated as a reference for reconsideration by the Chief Minister and the letter of the Chief Minister holding that the Chancellor's attempt to appoint a person of his choice was violative -of Section 11(8) of the Act read with Article 105(1) of the Constitution, reiterating the earlier advice for appointment of Prof. Dr. Syed Khawaja Alqama as Vice-Chancellor, shall be deemed to be the advice of the Chief Minister after reconsideration and shall be given effect to accordingly."
In case of Hasnat Ahmed Khan, at page 358 the Honorable Supreme Court of Pakistan held as follows:- "Thus, applying the well-recognized rule of interpretation of statute that no word used by lawmakers is either redundant or can be subtracted, substituted, added or read in a piece of legislation or a document, no valid presumption can be drawn that on expiry of 120 days, the Ordinance (V of 2003), automatically lapsed/expired as it should have been in the ordinary course.
Needless to observe that where some legislation is made and its language is couched in a particular/calculated manner to meet some extraordinary situation, as in the case of Article 270- AA, then it is to be read and interpreted in a more careful and pragmatic manner to ensure that its objective and intent is achieved."
5. The learned counsel for Respondents Nos. 1, 3 and 10, Ch Muhammad Latif, Advocate, while controverting arguments of the learned counsel for the petitioner submitted that as petitioner had already filed departmental appeal before the chancellor against the impugned notification dated 21.07.2011, therefore, the instant writ petition merits dismissal on this short ground. The learned counsel further submitted that as first Vice-Chancellor Prof. Dr. Habib-urRehman was given an additional charge of the post of Vice-Chancellor, vide notification dated 27.03.2009, therefore, the impugned appointment in fact is first appointment under Section 41(2) of MUST, Ordinance, which was sole discretion of Chancellor therefore, the instant writ petition is not maintainable. The learned counsel emphasized that there is no provision of Ph.D qualification in MUST Ordinance, hence the impugned appointment was made in accordance with law and craved for dismissal of writ petition.
6. After hearing the learned counsel for the parties at great length, we have perused the contents of writ petition, written statement and also examined the appended documents with our utmost care.
7. As the contesting respondents have raised a preliminary objection that against the impugned notification dated 21.07.2011, petitioner, before filing the instant writ petition, had filed a departmental appeal before the Chancellor-respondent, therefore, the instant writ petition merits dismissal on that short score, therefore, we would like to resolve this objection first. A perusal of the MUST Ordinance, reveals that there is no provision for filing departmental appeal/review against an order issued by the Chancellor. No other law was cited on behalf of contesting respondents that against order of Chancellor, a departmental remedy is available to an aggrieved person. It may be observed that according to Section 32 of MUST Ordinance, where an order passed punishing an officer, other than the Vice-Chancellor, a teacher or other employee of the University or altering or interpreting to the disadvantage the prescribed terms and conditions on his service he shall, where the order is passed by any officer or teacher of the University other than the Vice-Chancellor have the right to appeal to the Syndicate against the order and where the order is passed by the Vice- Chancellor, have the right to appeal to the Senate. However, against an order of Chancellor who is an apek Authority of the University, the Statute has snot provided right of appeal/review. As, MUST Ordinance, is a special law which has not provided any remedy against the order of Chancellor, therefore, we have no hesitation to hold that preliminary objection is baseless which is hereby turned down.
8. A contemplate perusal of record reveals that Mirpur University of Sciences and Technology was established in accordance with provisions of MUST, Ordinance, 2008. After establishment of the University disputed post of Vice-Chancellor was firstly advertised through daily Nawa-e-Waqt dated 13.06.2009. It appears that Chancellor while exercising powers as vested in him under Section 41(2) of MUST Ordinance, was pleased to grant an additional charge of the post in question to Prof. Dr. Habib-ur-Rehman, Vice-Chancellor of Azad Jammu & Kashmir University, vide notification dated 27.03.2009. The intention of law makers as expressed in Section 41(2) of MUST Ordinance, pertained to transitory period, which powers were already exercised by the Chancellor, while appointing/granting charge to Prof. Dr. Habib-ur-Rehman as Vice-Chancellor of Mirpur University of Sciences and Technology who remained as such for about 2 years and 4 months. We are conscious of the fact that Prof. Dr. Habib-ur-Rehman was given an additional charge of the position in question however, as needful was done after advertisement of the post in daily Nawa- e-Waqt dated 13.06.2009, therefore, we are of the considered view that same was done by the Chancellor while exercising powers vested in him under Section 41(2) of MUST Ordinance, hence, contention of the learned counsel for the contesting respondents that the impugned appointment was again made under Section 41(2) of Ordinance, ibid, is misconceived, which is hereby repelled.
9. After completion of transitory period of Prof. Dr. Habib-urRehman as Vice-Chancellor of Mirpur University of Sciences and Technology, position of Vice-Chancellor was advertised through daily Jang date 18.11.2010. It reflects from the advertisement that applications were solicited from candidates holding Ph.D degree preferably in Engineering from a reputed University plus sound academic background and to be well versed with modern trends in operation and management. It is an admitted fact that private respondents. Prof. Engineer Naib Hussain was simple M.Sc.
Engineering, therefore, on the basis of advertisement promulgated on behalf of Chancellor- respondent the petitioner who was holding Ph.D Degree with additional qualification of Doctorate Degree from UK was eligible and highly qualified candidate who was even not considered for appointment, therefore, we have no hesitation to hold that Respondent No, 1 was appointed as Vice-Chancellor by violating advertisement issued on behalf of competent authority itself.
10.The provisions of appointment of Vice-Chancellor are postulated under Section 11 of MUST Ordinance which are reproduced as under: "11. Appointment and removal of the Vice-Chancellor.-- (1)The Vice-Chancellor shall be appointed by the Chancellor on the basis of recommendations made by the Senate.
(2)A Search Committee for the recommendation of persons suitable for appointment as Vice- Chancellor shall be constituted by the Senate on the date and in the manner prescribed by the Statutes and shall consist of two eminent members of Society nominated by the Chancellor, of whom one shall be appointed the Convenor, two members of the Senate, two distinguished University Teachers who are not members of the Senate and one academician of eminence not employed by the University. The two distinguished University Teachers shall be selected by the Senate through a process, to be prescribed by the Statutes that provides for the recommendation of suitable names by the University Teachers in general. The Search Committee shall remain in existence till such time that the appointment of the next Vice-Chancellor has been made by the Chancellor.
(3)The person proposed by the Search Committee for appointment as Vice-Chancellor shall be considered by the Senate and of these a panel of three, in order of priority, shall be recommended by-the Senate to the Chancellor: Provided that the Chancellor may decline to appoint any of the three person recommended and seek recommendation of a fresh panel. In the event of a fresh recommendation being sought by the Chancellor the Search Committee shall make a proposal to the Senate in the prescribed manner.
(4)The Vice-Chancellor shall be appointed for a renewable tenure of five years on terms and conditions prescribed by Statute. The tenure of an incumbent Vice-Chancellor shall be renewed by the Chancellor on receipt of a resolution of the Senate in support of such renewal: Provided that the Chancellor may call upon the Senate to .reconsider such resolution once.
(5)The Senate may, pursuant to a resolution. in this behalf passed by three fourth of its membership, recommend to the Chancellor the removal of the Vice-Chancellor on the ground inefficiency, moral turpitude or physical or mental incapacity or gross misconduct, including misuse of position for personal advantage of any kind: Provided that the Chancellor may make a reference to the Senate stating the instances of inefficiency, moral turpitude or physical or mental incapacity or gross-misconduct on the part of the. Vice-Chancellor that have come to his notice. After consideration of the reference the Senate may pursuant to a resolution in this behalf passed by two thirds of its members, recommend to the Chancellor the removal of the Vice-Chancellor: Provided further that prior to a resolution for the removal of the Vice-Chancellor being, voted upon, the Vice-Chancellor shall-be given an opportunity of being heard.
(6)A resolution recommending the removal of the Vice-Chancellor shall be submitted to the Chancellor forthwith. The Chancellor may accept the recommendation and order removal of the Vice-Chancellor or return the recommendation to the Senate.
(7) At any time when 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 Senate shall make such arrangements for the performance of the duties of the Vice-Chancellor as it may deem fit."
11.A bare reading of Section 11(1) of MUST Ordinance, reveals that the Vice-Chancellor shall be appointed by the Chancellor on the basis of recommendations- made by the Senate. Section 11(2) further elaborate that a search committee shall also be appointed by the Senate for. suitable persons for appointment as Vice-Chancellor. The Committee shall consist of two eminent members of society nominated by the Chancellor, of ,whom one shall be appointed as Convenor two members of Senate, two distinguished University Teachers who are not members of senate and one academician of eminence not employed by the University, The two distinguished University. Teachers shall be selected by the Senate through a process to be prescribed by the Statutes that provides for the recommendation of suitable names by the University Teachers in general.
12. According to Section 8(3) of MUST Ordinance the members of the Senate as well as the Vice- Chancellor could be appointed by the Chancellor from the persons recommended by the representative committee set up for this purpose or search committee established for the purpose.
Section 10(1) of the Ordinance postulates that there shall be a Vice-Chancellor of the University, who shall be an eminent academician/Scholar of international repute. Nothing was brought on record by Respondent No, 1 that he was fulfilling criteria laid down in Section 10(1) of the above Ordinance. The impugned appointment of Prof. Engineer Naib Hussain was, therefore, made by violating Sections 8(3), 10(1) and 11(1) of the MUST Ordinance. The Universities are institutions of learning and centers of excellence. The Vice-Chancellor is its institutional head and enjoys a pivotal position. Being the executive and academic head of the University it is for him to ensure that the University's Statute, Regulations and Rules are faithfully observed. He presides over the meetings of various bodies of the University and affiliated Colleges, convenes meetings of the Senate and, the Syndicate. In matters of urgent nature he is the authority to takes remedial steps.
There is multi-dimensional role of the Vice-Chancellor which requires that the person who occupies this office should be imbued with values and character of integrity .of academic excellence, an eminent scholar of international repute, and administrative ability. It is because of this that for search of Vice-Chancellor a search committee comprises of eminent scholars having distinction in various disciplines has been framed by law-makers. Thus applying the well- recognized rule of interpretation of statute that no word used by law-makers is either redundant or can be subtracted, substituted or added and it is to be read and interpreted in a more careful manner to ensure that its objective and intent is achieved. We are, therefore, of considered view that allowing the impugned appointment as intact will frustrate the mandate of law. For perusal of recommendations of Senate and Search Committee, we sent for the relevant file from the concerned Department. We regret to observe that neither applications of the concerned candidates or recommendations of the Senate nor recommendations of Search Committee were found in the relevant record. It appears that position of Vice-Chancellor was although advertised on behalf of Chancellor so that the same may be filled in on the basis of merit and in accordance with provisions of Section 8(3) read with Sections 10 and 11 of MUST Ordinance, however, thereafter, appointment of the private respondent was made by brushing aside the above statutory law of the land.
13. The contention of the learned counsel for the contesting respondents that Ph.D qualification was not required for position of Vice-Chancellor in accordance with the provisions of MUST Ordinance, therefore, no illegality was committed by the Chancellor while appointing private respondent as Vice-Chancellor is misconceived. A perusal of advertisement reveals that Ph.D qualification preferably was solicited for position of Vice-Chancellor by the concerned official respondent which condition was also accepted by the private respondent Prof. Engineer Naib Hussain by preferring application on the basis of advertisement supra. As condition of Ph.D was categorically imposed that the impugned vacancy shall be filled in from amongst the applicants duly qualified preferably Ph.D and private respondent also accepted and acted upon the above-condition, therefore, now the contesting respondents cannot turn round and take a different stand on the basis of estoppel and acquiescence. The terms principle of estoppel and acquiescence were considered by the apex Court of Azad Jammu and Kashmir in case titled Abdul Qadir vs. Abdul Karim and 4 others (2000 SCR 97) wherein at page 105 it was observed as follows:-- "We may add that acquiescence and stoppel are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favour of a litigant with objectionable conduct."
The aforesaid principle was reiterated in case tilted Muhammad Saleem vs. Azad Govt. & others (2006 SCR 88). At page 89 it was held as under:-- "Against the aforesaid order, the petitioner has filed this petition for leave to appeal on various grounds which were pressed by the learned counsel for the petitioner during the course of his arguments. He was confronted that before the High Court when the petitioner himself had given his consent in favour of impugned order then in these circumstances whether he was justified to challenge the legality or impugned order on any ground and if he had not given any consent whether this question has been pleaded and supported by personal affidavit by the petitioner; he learned counsel could not satisfy the Court that the consent attributed to the petitioner was not given by him before the High Court and he has taken a specific ground in this regard in his petition for leave to appeal and has filed personal affidavit to support such ground. The impugned order has been passed by the learned Judge in the High Court in exercise of his writ jurisdiction. As we all known writ petition is not analogous to appeal which is the continuation of suit. The D.P.I. Colleges appeared in the High Court on its direction and suggested that at that time ad-hoc appointment of the petitioner was possible and if the petitioner agreed he could be appointed as ad-hoc Lecturer. The petitioner agreed to this suggestion. Therefore, the Court passed the order under challenge as is apparent from the language applied in the same. The petitioner is now estopped by his conduct to resile from his statement which he made before the High Court particularly when he has not denied the same through specific ground and supported the same by an affidavit to that effect. It is said that principle of estoppel is applicable in the light of past conduct, therefore, it shouts the mouth of party. Under this principle a party cannot be allowed to blow both hot and cold in the same breath."
The same point was elaborated by the Supreme Court of India in case title Bhim Singh and others vs. State of Haryana and others (1983 PSC 42). At page 43 of the report it was held as follows:-- "By virtue of Ex.P-1, the State (respondent) held out certain specific promises as inducement for the appellants to move into a New Department (Agriculture Department). After they had gone over to the Agriculture Department, the State, by virtue of its Ex. P-3, sought to go back upon the earlier promise made in Ex. P-1. The appellants having believed the representation made by the State and having further acted thereon cannot now be defeated of their hopes which have crystallized into rights, thinks to the application of the doctrine of promissory estoppel. Therefore, it is not open to the State according to the law laid down by this Court, to backtrack. We, therefore, direct the State to implement Ex.P-1 and confer such rights and benefits as are promised thereunder in entity."
14.It has also been argued on behalf of the contesting respondents that petitioner is not an aggrieved person within the meaning of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, therefore, the instant writ petition is not maintainable. It is proved form the record that petitioner was holding Ph.D Degree in, Electrical Engineering with additional qualification degree of post Doctorate from University of Bedford Shire UK. A perusal of record also reveals that petitioner participated in 68 research activities, out of which 39 publications, 14 presentations and 15 participations in international- and national seminars/transactions who was also member of various international relevant bodies. As the petitioner was holding Ph.D Degree in Engineering from a reputed University with sound academic background and to be well-versed with modern trends in operation and management, hence, in view of above, we have no hesitation to hold that petitioner being higher qualified candidate was not considered for position of Vice- Chancellor, who is defined an aggrieved party within the meaning of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, therefore, contention of the learned counsel is hereby over-ruled.
15.A perusal of prayer clause of the writ petition reveals that petitioner has also solicited direction in the nature of mandamus for issuance of his appointment notification against the position of Vice-Chancellor of MUST University. As observed earlier in the judgment, and it is also case of petitioner as well, that no recommendations of Senate and Search Committee were solicited by the Chancellor in accordance with the provisions of Sections 10 and 11 of MUST Ordinance, therefore, we are not inclined to issue direction pertaining to appointment of petitioner as the Vice- Chancellor.
16.The crux of above discussion is that the impugned notification dated 21.07.2011 is hereby quashed as being without lawful authority. The office of Vice-Chancellor of Mirpur University of Sciences and Technology, Mirpur, is declared vacant. The Chancellor respondent is hereby directed to take immediate steps for appointment against the position of Vice-Chancellor strictly in accordance with provision of Sections 10 and 11 of MUST Ordinance.
The writ petition is accepted with costs.