' M. SOHAIL IQBAL BHATTI, --- Facts of the case are that the petitioner was appointed as Lecturer in department of Computer Engineering in University College of Engineering and Technology, Baha- ud-Din Zakariya University. Multan on contract basis for a period of one year through office order No, PF/CONT/22-29/Admin/5784. Dated 01.07.2008.
2. Through letter dated 22nd June, 2009 issued by Registrar, Baha-ud-Din Zakariya University, Multan, the petitioner was informed that he being holding a 2nd Division in B.Sc. Computer Engineering do not fulfill the HEC eligibility criteria and therefore his contract will not be renewed after expiry of his contract on 01.07.2009.
3. Upon receiving this letter, the petitioner submitted a certificate issued by Academic Officer: National University of Computer and Emerging Sciences, Peshawar Campus. It was confirmed that the petitioner has a CGPA of 2.28 which is equivalent to 65% marks (1st Division).
4. Upon receipt of this letter, the petitioner through office order dated 11.02.2010 was granted an extension in contract for a period of another year. It was provided in office order dated 11.02.2010 that all other terms and conditions as mentioned in office order dated 01.07.2008 (initial order of appointment) will remain unchanged
5. While the petitioner was serving with the respondent University on contract basis; through order dated 17.01.2011 the Vice Chancellor upon the recommendation of F & PC dated 08.06.2010 duly approved by the Syndicate in its meeting held on 26.06.2010 converted the contract of employment of five lecturers serving on contract basis in BPS-18 instead of consolidated salary package. The name of the petitioner was mentioned at serial No, 4 of the office order, dated 17.01.2011. Despite the office order dated 17.01.2011, the services of the petitioner were not regularized.
The petitioner made an application with the Registrar, Baha-ud-Din Zakariya University, Multan with the request to regularize the services of the petitioner in pursuance to the Notification issued by the syndicate, thereafter another application was filed on 03.12.2012; both the applications remained un-responded and, therefore, the petitioner having no other remedy was constrained to file W.P.
No, 16058/2012 which was withdrawn and thereafter third application was filed with the Vice Chancellor on 05.04.2013 which also remained un-responded, hence this writ petition.
6. The learned counsel for the petitioner through this writ petition has made the following prayer:- "Under these circumstances, it is humbly prayed that this writ petition may kindly be accepted and the respondents may kindly be directed to regularize the services of the petitioner in accordance with the decision of Syndicate notified on 12.08.2010 w,e,f, 10.02.2012 and make payment of the salaries of the petitioner from September, 2012 to till today-----"
7. The learned counsel for the petitioner submitted that the petitioner has a fundamental constitutional right to be regularized in service on the basis of the decision made by the syndicate which was duly notified. It has been further argued that in pursuance to the decision of the syndicate notified on 12.08.2010, services of different employees of .The University have been regularized but the petitioner has been meted out with discriminatory treatment which comes within the mischief of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. It has been further argued that the services of the petitioner have been wrongly not regularized on the basis of some decision of semester implementation committee.
8. On the other hand, the learned counsel appearing on behalf of respondent University has raised objection to the maintainability of the writ petition. It has been further argued that the petitioner being a contract employee cannot invoke the jurisdiction of this Court. The learned counsel for the respondent has drawn my attention to notification No, Acad/SIC-84 VOL.XVII 9830, dated 03.10.2012 while contending that the services of the petitioner could not be regularized on the basis of the decision made by semester implementation committee. It has been further argued that the services of the petitioner have been terminated on 10.08.2012.
9. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record.
10. It is an admitted position that the petitioner was appointed on 01.07.2008; before the expiry of his initial contract an objection had been raised that the petitioner did not fulfill HEC eligibility criteria for appointment of Lecturer, but upon submission of certificate issued by National University of Computer and Emerging Sciences, Peshawar Campus, the contract of the petitioner was renewed for another period of one year. It is also an admitted fact that in pursuance to the decision notified by the syndicate, the name' of the petitioner is mentioned in office order dated 17.01.2011 that his services be converted from contract appointment in BPS-18. The notification dated 12.08.2010 is also available on record which is reproduced below:--- ' BAHA-UD-DIN ZAKARIYA UNIVERSITY, MULTAN NOTIFICATION.
' No,Univ-597/Admin/8002. Dated 12.08.2010.
' The following decision of the Syndicate made in its 5/2010 meeting held on 17.07.2010 (under item No, 41) is hereby notified:--- TO CONSIDER THE REGULARIZATION OF SERVICES OF CONTRACT FACULTY MEMBERS WHO WERE APPOINTED THROUGH SELECTION BOARD AND COMPLETED 02 YEARS SERVICES SATISFACTORY.
"The matter was discussed in detail. After deliberations, the House resolved that services of contract faculty members who were appointed through Selection Board and have completed two years contract service (up-to cut off date i,e, 17.07.2010, the date of meeting of the Syndicate) satisfactory (blotless service record, no inquiry and satisfactory ACRs for the last two years) be regularized in their respective pay scales subject to availability of post in their respective department. In the remaining cases of teachers/officers, this rule will also apply as and when they will satisfactorily completes two years service on contract basis. However, the House resolved that in future, BZU will not appoint faculty members on contract basis in the University."
(MALIK MUNIR HUSSAIN)
Registrar.
11. In pursuance to this, the petitioner having been appointed and joined the services in University on 01 07.2008 and having completed his two years service moved the competent authority for his regularization through different applications The office order dated 17.01.2011 (attached as Annexure-E to the writ petition) shows that the name of the petitioner had been recommended for regularization.
12. In this background, the petitioner has prayed for his regularization which has been seriously resisted by the respondent University mainly on the plea that the constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable and secondly that in view of the changed criteria as was recommended by the semester implementation committee, the petitioner was not qualified to be considered for regularization. It has further been argued that petitioner has an alternate remedy of appeal and thereafter filing a revision petition before the Chancellor.
13. I am not in agreement with this argument of the learned counsel for the respondent University.
Rule that High Court will not entertain writ petition when other appropriate remedy is available is not a rule of law barring jurisdiction but .a rule by which Court regulates its jurisdiction. In my opinion where action of the statutory functionary is attacked on the ground that it is unjust, mala fide and oppressive, the High Court in its Constitutional jurisdiction has power to grant the requisite relief and where the inaction of the Vice Chancellor on ground of mala fide is under judicial review is involved; asking the petitioner to file an appeal would be exercise in futility. I am fortified in my view by the Honourable Supreme Court of Pakistan in a case titled the Murree Brewery Company Limited v. Pakistan through the Secretary to the Government of Pakistan, Works Division and two others (PLD 1972 SC page 279).
14. As far the remedy of revision is concerned, the Division Bench of this Court in a judgment titled Ghazi Federation International Limited, Gulberg-III, Lahore through Chief Executive v. Water and Power Development Authority, Lahore and three others (PLD 2000 Lahore 349) has held that failure to have recourse to the revisional remedy does not necessarily operate as a bar for invocation of constitutional jurisdiction. This. Court in a judgment reported in PLD 1996 Lahore 672 (Messrs Chenab Cement Product (Pvt) Ltd., and others v. Banking Tribunal, Lahore and others) has observed as under:--- "Even otherwise, if the right of appeal provided by statute is inadequate or is available under such conditions which has the effect of denying the right of appeal, the Constitutional jurisdiction is allowed to be invoked to afford relief to an aggrieved person in order to do justice,"
15. I cannot hold myself in observing that "due process of law" clause as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 provides that the authority/tribunal before which the rights of the petitioners are to be adjudicated should be so constituted so as to give reasonable assurance of its impartiality.
16 For what has been discussed above I hold that even if the remedy of appeal or revision is available to the petitioner, there is no bar to invoke the constitutional jurisdiction of High Court
17. As far the objection of the learned counsel regarding maintainability of the writ petition against the respondent University. The Honourable Supreme Court of Pakistan in a judgment reported in 2013 SCMR 1707 (Pakistan Defence Officers Housing Authority v Jawaid Ahmed) dismissed number of civil appeals filed by different statutory bodies holding that the statutory bodies, created under the statutes, were performing functions and some of which were functions of the federation/state and through the exercise of public power, said statutory bodies were therefore "persons" within the meaning of Article 199(1)(a)(ii) read with Article 199(5) of the Constitution. Actions or orders passed by statutory body in question which were violative of the statutes creating them could be interfered with by the High Court under Article 199 of the Constitution.
18. I would like to refer to a judgment titled Salah-ud-Din v. Frontier Sugar Mill and Distillery Limited (PLD 1975 SC page 244) where the August Supreme Court of Pakistan laid down the test to access whether a body or authority is a person within the meaning of Article 199 of the Constitution and observed:--- "The primary test must always be whether the function entrusted to the organization or person concerned are indeed functions of the state involving some exercise or sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of.
Government; and whether the bulk of fund is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate may indeed be regarded as a person performing function in connection with the affairs of the federation or a province; otherwise not."
19. The afore-referred view was further affirmed in Aitchison College, Lahore through Principal v.
Muhammad Zubair (PLD 2002 SC 326), and while not interfering with the judgment of Lahore High Court whereby the said college was held to be amenable to the jurisdiction of the High Court under Article 199 of the Constitution, the Honourable Supreme Court of Pakistan laid down as follows:- "Applying the above test on the facts of instant case, we feel no hesitation in drawing inference that the Board of Governors, Aitchison College, Lahore headed by the Governor of the Province as its President alongwith other officers i,e, Secretary Education, Finance and General Officer Commanding as well as unofficial are involved in providing education which is one of the responsibility of the state and by taking over its management and control, the Board, exercises sovereign powers as well as public power being a statutory functionary of Government who in order to provide it full legal/Constitutional protection had brought it into the folds of its education department by amending the provincial rules of business as back as in 1994 and even if for the sake of arguments, if it is presumed that no financial aid is being provided to the college from the provincial public exchequer even then the college remain in dominating control of the Provincial Government through Board of Governors. Therefore, the above test stands fully satisfied and we, are persuaded to hold that organization of Aitchison College, Lahore falls within the definition of a person".
20. The-Honourable Supreme Court of Pakistan in a case reported as Rana Aamir Raza ishfaq and another v. Dr Minhai Ahmad Khan and another (2012 SCMR 6) while dealing with the case of Baha- ud-Din Zakariya University which is also the respondent in the present case while dealing with the question of maintainability of the constitutional petition with regards to affairs of the University observed as under:- "Adverting to the validity of the judgment under challenge, the submission of petitioner's learned counsel qua the maintainability of petition before the High Court have been considered by us. However, we find that the impugned judgment even if having same element of jurisdictional detect has been passed in aid of justice and any interference would not be in accord with the canons of equity".
21. The Division Bench of this Court in case titled lslamia University, Bahawalpur through Vice Chancellor v. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141) while discussing the scope of Article 199 of the Constitution observed that the functionaries of the statutory University were required to act strictly within the defined spheres of their authorities under the law. In case of transgression of powers, abuse of power or colourful exercise of powers by such functionary, the exercise was open to correction in constitutional jurisdiction.
22. The perusal of Baha-ud-Din Zakariya University, Multan Act, 1975 makes it clear that in whole scheme of law dealing with the affairs of University, "semester implementation committee does not figure anywhere' within the Statutory Scheme of Baha-ud-Din Zakariya University, 1975. It is only syndicate, senate and in some emergent situation, the Vice Chancellor which is competent to take necessary steps (it is pointed out that any action taken by the Vice Chancellor under Section 16(3) of the Act, 1975 is subject to the approval of the concerned authority in whose name that action has been taken).
23. It. Is true.That the Vice Chancellor under Section 16 of the Act, 1975 is the Principle Executive Officer of the University, but Section 26 of the Act, 1975 which deals with the power's and duties of the syndicate provides that the syndicate shall be the executive body of the University. Meaning thereby that whatever executive authority Vice Chancellor is exercising is in pursuance to the decision made by the syndicate, when it has been decided by the syndicate to regularize the services of the contract employees through notification No, Univ-597/Admin/8002 dated 12.08.2010, the Vice Chancellor had no option but to implement the same
24. Although it has been observed by this Court that semester implementation committee does not figure anywhere even if for the sake of arguments, it is presumed that semester implementation committee does figure anywhere within the academic structure of the University. The decision made by semester implementation committee in the year 2012 cannot have a retrospective effect as the right to be regularized had accrued to the petitioner on 12.08.2010. Moreover, any subsequent change of policy by semester implementation committee cannot affect the rights of the petitioner accrued to him in the year 2010, and also it cannot have overriding effect over the decision of a statutory body, that is syndicate.
25. It is an established law that any notification or administrative decision cannot have a retrospective effect. The Honourable Supreme Court of Pakistan in a judgment reported in 1997 SCMR 503 (Taj Mahal Hotel Limited and others v. Karachi Water and Sewerage Board) has held that any administrative order or notification would not operate retrospectively to disadvantage of a person effected by it. The dictum laid down by the Honourable Supreme Court of Pakistan has been followed by this Court in a judgment reported in PLD 1999 Lahore page 207 titled Dr. Shahida Nasreen, Additional Medical Superintendent, Services Hospital, Lahore v. University of the Punjab through Vice Chancellor, Lahore and 2 others.
26, It is an admitted fact that all other employees in pursuance to the decision of the syndicate have already been regularized. The Honourable Supreme Court of Pakistan in a judgment reported in PLD 1993 SC 341 (Government of Baluchistan through Additional Chief Secretary v. Aziz Ullah Memon and 15 others) has held that any act taken in violation of principle contained in Article 25 of the Constitution is liable to be judicially reviewed; equal protection of law mean that all person equally placed be treated alike; the Honourable Supreme Court of Pakistan in the same judgment has observed that where the statutory functionary acts male fide or in a partial, unjust, oppressive or discriminatory manner, his action can be challenged for violation of equality clause of the Constitution.
27. I cannot hold myself from observing that the statutory authorities while making appointments or taking any action are under legal and moral duty to discharge their function as trustee, so that no person who is eligible to hold a certain post is depraved of his right of appointment.
28. Before parting with the judgment, it would not be out of place to mention here that in an identical case one Muhammad Yasir Anwar , who was working as Lecturer, University College of Engineering and Technology, Baha-ud-Din Zakariya University. Multan was granted the relief on the basis of Notification No, Univ-597-Admin/8002, dated 12.08.2010 in W.P. No, 4259-2013 and the University in compliance with The order passed by this Court has regularized the services of the petitioner.
29. For what has been discussed above, this writ petition is allowed. The respondents are directed to regularize the services of the petitioner with immediate effect, on the basis of notification of the syndicate dated 12.8.2010 and issue the appropriate orders within 15 days without being prejudiced by the fact that the services of the petitioner had been terminated on 10.8.2012 as a right to be reqularized had accrued in favour of the petitioner in light of notification dated 12.8.2010.