' MUHAMMAD ALI MAZHAR, J.--- This consolidated judgment will dispose of the following constitution petitions. The factual matrix of each petition is mentioned separately as under:- Brief Facts
(1) C.P.No,D-6945 of 2015 ' The petitioners have sought the declaration that under section 12(1) of the Dow University of Health Sciences Act, 2004 (as amended) and under Article 105 of the Constitution of the Islamic Republic of Pakistan, 1973, the respondent No,1 (Chancellor, Dow University of Health Sciences) has no discretion to substitute his own choice. The Chief Minister forwarded a summary with the advice to appoint the petitioner No,2 as Vice-Chancellor but the respondent No,1 issued Notification on 26.10.2015 to appoint respondent No,3 as Vice-Chancellor, Dow University of Health Sciences (DUHS). Directions have also been sought against the respondent No,1 to act upon the advice of respondent No,2.
(2) C.P.No,D-7383 of 2015 ' The petitioner Pakistan Medical Association (Centre) filed this petition to challenge the Notification dated 10.11.2015 issued by the respondent No,1 (Chancellor, DUHS), through which the respondent No,3 has been appointed to hold the additional charge of the post of Vice-Chancellor, DUHS in addition to his own duties. The petitioner has also sought the directions against the respondent No,1 to appoint Dr. Muhammad Saeed Quraishy as Vice-Chancellor, DUHS.
(3) C.P.No,D-6341 of 2015 ' The petitioner avows that she is highly qualified person and former Professor of Medicine of DMC and DUHS with teaching experience of 28 years. She was awarded "Tamgha-e-Imtiaz" by the President of Pakistan in the year 2012. In response to the application invited to fill the post of Vice- Chancellor she had also applied and attended interview call but she was not given deserving marks. The petitioner has also sought directions against the respondent Nos.1 and 2 to constitute a new Search Committee.
(4) C.P. No,D-7064 of 2015 ' The petitioner avers that he was not given marks consistent with his educational antecedents and experience. He has sought the directions against the respondents Nos.2 and 3 to disclose the complete process through which the nomination of Vice-Chancellor was advised. Further directions have sought against the respondent No,2 to constitute fresh Search Committee.
(5) C.P.No,D-7660 of 2015 ' The petitioner alleges that he is highly qualified who had applied for the post of Vice-Chancellor, DUHS but he was not considered despite having matching qualification. He has also questioned the pro-forma yardstick prescribed for awarding marks to suitable candidates and simultaneously asserted that he was not awarded marks even according to the pro-forma yardstick.
[Note. All learned counsel agreed that the aforesaid petitions may be heard and decided at katcha peshi stage and they argued the case extensively]
2. Mr. Haider Waheed, learned counsel for the petitioners in C.Ps.Nos.D-6945 and 7383 of 2015 argued that the petitioner No,1 in both the petitions is a Society registered under the provisions of the Societies Registration Act, 1860. The aims and object of the Society inter alia to promote the medical and allied sciences; to maintain and honour and dignity of medical profession and to protect interest and privileges of its members. The petitioner No,2 in C.P.No,D-6945/2015 is also member of the petitioner No,l. Section 12 (1) of Dow University of Health Sciences Act, 2004 provides that a person having medical background shall be appointed as Vice-Chancellor by the Chancellor on the advice of Government for a period of four years which may be extendable for one more term on such terms conditions as may determine. In order to search capable and competent person, the Chief Minister Sindh constituted a Search Committee. The task of Search Committee was to select competent persons and make recommendations of three most suitable candidates for approval of the Chief Minister Sindh one from the most suitable candidates. He further argued that earlier on 23.10.2013 Search Committee was constituted but due to non- availability of its one of the members Dr. Asim Hussain, it was reconstituted on 8.9.2015 and Mr. Fazalur Rehman, former Chief Secretary Sindh was inducted as member of the Search Committee.
In pursuance of advertisements published in the newspapers on 16th and 17th July, 2015, twelve applications were received and after shortlisting of six candidates the Search Committee awarded the marks and as a result of this process the petitioner No,2 was found successful, who obtained 46.25 marks. In order to provide guidance to the Search Committee the Chief Minister's. Secretariat also communicated a pro-forma yardstick for the evaluation and assessment of applications on the pattern adopted by Higher Education Department, Punjab. On 1.10.2015, a summary was moved by the Chief Minister's Secretariat Sindh. Paragraph (5) of the summary reads as under:- The search committee has recommended that the Honourable Chief Minister, Sindh, under Section 11(1) of Dow University of Health Sciences Act, 2004, as amended by Sindh Universities and Institutes Laws (Amendment), 2014 may recommend to the Chancellor/Governor Sindh candidate, on merit number one, Dr.Saeed Quraishy, to be appointed as Vice-Chancellor, Dow University of Health Sciences, Karachi, for a period of four years."
' When this summary was placed before the Chief Minister Sindh, he recommended aforesaid paragraph No,5. Despite clear advice by the Chief Minister, Sindh, the respondent No,1 issued a Notification on 2.10.2015 for the appointment of respondent No,3 (Dr.Noshad A. Shaikh) as Vice- Chancellor who was in fact at Sr.No,2. The petitioners filed a C.P.No,D-6268/2015 to challenge the appointment and the matter was fixed in this court on 8.10.2015 for orders on injunction application.
While issuing notices to the respondents, this court suspended the operation of the Notification dated 2.10.2015. However when the matter was fixed on 13.10.2015, a copy of Notification dated 12.10.2015 was placed to show that the respondent No,1 has withdrawn the Notification dated 2.10.2015 and due to this reason the petitioners did not press the petition. After withdrawal of the Notification, the respondent No,1 returned the summary back to the Chief Minister with the observation that while sending the earlier names the Search Committee failed to adhere to principles laid down for selection in the Notification dated 8.9.2015 according to which the Search Committee was responsible to recommend three most suitable candidates.
3. He further argued that in fact the Search Committee referred to three names i,e, Dr.Saeed Quraishy who obtained 46.25 marks, Dr.Noshad Shaikh obtained 43.25 marks and Dr.Umer Farooq obtained 43 marks but in the note of Secretary (Universities and Boards), it was further mentioned that besides Dr.Umer Farooq, two more candidates obtained equal marks, so this was the reason that the names of Dr. Saeed Quraishy and Dr.Noshad Shaikh were communicated with their marks.
The Chief Minister on 25.10.2015 again forwarded a summary to the respondent No,1 and in paragraph 19 of the said summary it was clearly communicated that Dr.Saeed Quraishy, and Dr.Noshad Shaikh stood at Sr.Nos.1 and 2 in securing marks. However, in paragraph 20 it was further mentioned that Dr. Noshad Shaikh has sufficient experience as he is already working as Vice- Chancellor in LUMS for the 2nd term. On the basis of this summary, the respondent No,1 on 26.10.2015 issued the Notification for, the appointment of Dr.Noshad Shaikh as Vice-Chancellor. It was further averred that the appointment of respondent No,3 is in contravention of Section 12(1) of the Dow University of Health Sciences Act, 2004. Section 12(1) of the aforesaid Act does not allow any discretion to the respondent No,1 to act contrary to the advice of the Government/respondent No,2 or to substitute his own choice. Under Article 105 of the Constitution of Islamic Republic of Pakistan, 1973 Governor has to act as per advice of the Chief Minister. It is evident that paragraphs 19 and 20 of the summary cannot be construed as advice, therefore, the impugned Notification appointing the respondent No,3 was issued without any lawful authority. The respondent No,2 was also bound to give clear advice, but the advice given by the Chief Minister was not only vague and ambiguous but also against the recommendations made by the Search Committee. Since some of the petitioners questioned the credibility of Search Committee so in this regard, he argued that all such candidates applied by their own freewill and joined the process but when they were declared unsuccessful by the Search Committee, they have come up to challenge the process when the entire process is over in a transparent manner. So far as the C.P. No,D-7383/2015 is concerned the petitioners have challenged the Notification dated 10.11.2015 whereby Professor Masood Hameed (respondent No,3) has been given the additional charge to act as Vice-Chancellor, DUHS, Karachi in addition to his own duties with immediate effect. It was further contended that this additional charge is against the dictum laid down by the Hon'ble Supreme Court as well as it is also against the provisions of Section 12 of the Dow University of Health Sciences Act, 2004. In support of his arguments the learned counsel referred to the following precedents:-
(1) 2012 SCMR 6 (Rana Aamer Raza Ashfaq and another v. Dr.Minhaj Ahmad Khan and another).
(1) University. Role of University and Vice-Chancellor. Universities are seats of learning and centres of excellence. University not only enables future generations to equip themselves with degrees/practical tools to earn livelihood but also enriches Them with learning, with wisdom and with visions for practical lives. To achieve its objects, University functions besides the Chancellor and Vice-Chancellor through its various institutions i,e,, the Faculty, the Senate, the Syndicate and Board of Studies. Vice-Chancellor is a University's institutional head and enjoys a pivotal position.
Being the executive and academic head of a University, it is for Vice-Chancellor to ensure that University's Statute, Regulations and Rules are faithfully observed. Vice-Chancellor presides over meetings of various bodies of University and affiliated colleges and in matters of urgent nature, it is the Vice-Chancellor who takes remedial steps; it is he who creates temporary posts when urgency requires; he sanctions expenditures provided for in approved budget, re-appropriates amounts not exceeding a certain amount; he convenes meetings of the Senate and the Syndicate. Vice- Chancellor is a bridge between executive and academic wings of University. Such multi- dimensional role of Vice-Chancellor requires that person who occupies this office should be imbued with values and character traits of integrity, of academic excellence and administrative ability.
' Constitution of Pakistan, Art.
105. Appointment of Vice-Chancellor. Advice of Chief Minister. Scope. Governor while acting as Chancellor is a statutory functionary in terms of Section 11(1) of Baha-ud-Din Zakariya University Act, 1975; in the performance of his functions under the Act, the Governor is to act and is bound by the advice tendered by Chief Minister in the manner provided in Section 11(8) of the Baha-ud-Din Zakariya University Act, 1975, read with Art. 105 of the Constitution. Chancellor/Governor is bound by timeline given in proviso to Art. 105 of the Constitution, which stands incorporated in Baha-ud-Din Zakariya University Act, 1975, by legislative reference.
' 2012 PLC (C.S.) 1190 (Sher Dil Kamran v. Bahauddin Zakariya University, Multan through Vice- Chancellor and 8 others). As regards the objection of the petitioner that the composition of the Selection Board was not in accordance with law, the petitioner himself acknowledged the said Board to be competent and he appeared before the said Board for interview. If he was selected by, the Selection Board, he would have no objection to the formation of the said Board. Since he has not been selected, so he opted to find fault with the constitution thereof. The petitioner is estopped by his own conduct to challenge the constitution of the Selection Board.
(3) PLD 2011 Karachi 357 (Abdul Saboor v. Vice-Chancellor, Karachi University and another).
Constitution of Pakistan, Article 199. Petitioner had filed constitutional petition just after announcement of result of entry test, wherein he appeared, but failed. Petitioner had availed opportunity of entry test without objecting thereto at relevant time. High Court dismissed constitutional petition for being misconceived and afterthought.
4. Mr. Usman Tufail Shaikh, learned counsel for the petitioner in C.P.No,D-6341/2015 argued that in pursuance of advertisements, the petitioner also applied. The petitioner appeared for interview on 26.8.2015 when only three search committee members were present. In duration of three minutes interview only one question was asked by each committee member. He argued that the entire process of interview of 12 candidates hardly took an hour.
5. It was further argued that the Search Committee members failed to follow the pro-forma yardstick even one of the members of the Search Committee Professor Mazhar-ul-Haq Siddiqui was not present in the interview process while Mr. Fazal-ur-Rehman another member of the Search Committee is closed family friend of respondent No,3 (Dr.Muhammad Saeed Quraishy). It was further contended that Search Committee members were biased against the petitioner. The Search Committee accommodated the respondent No,3 and awarded highest marks despite the fact that in the C.V. Of the respondent No,3 (Dr. Saeed Quraishy), he mentioned the name of Mr.Fazal-ur-Rehman as referee who was one of the members of the Search Committee. He further argued that directions may be issued to the respondents Nos.1 and 2 to constitute a new Search Committee. The Learned counsel also referred to the extract of the approved minutes of the 22nd meeting of the Higher Education Commission to show that Commission forwarded the recommendation that the core aim of instituting the Search Committee process is to provide for the selection of most eminent and proficient leadership for institutions of Higher Education, and this end could not be accomplished if the composition as well as memberships of the Search Committee are not drawn while keeping in view the principles of merit, integrity and proven professional eminence.
6. Mr.Jamshid Malik, learned counsel for the petitioner in C.P.No,D-7064/2015 argued that in pursuance of the publication made in newspapers the petitioner also applied. He also criticized the Search Committee and argued that the Search Committee conducted two rounds of interviews while the first round was completed in the absence of member/representative of the Higher Education Commission Sindh due to the fact that Dr.Asim Hussain was apprehended by the law enforcement agencies. According to first round the Search Committee shortlisted 06 candidates out of 12. The respondent No,2 on the basis of unknown criteria forwarded the name of Dr. Saeed Quraishy for the appointment as Vice-Chancellor, Dow University of Health Sciences. He further argued that the marks granted to the petitioner were not up to the mark for the reasons that the committee failed to award the marks to the petitioner against the post doctorate qualification, while the petitioner was entitled to get full marks in this category being F.R.C.S (Fellow of Royal College of Surgeons of Edinburg) in general surgery as well as for neurosurgery. The petitioner has dual fellowship which is considered by Pakistan Medical and Dental Council as qualification level 4, equivalent to post doctorate degree on academic side. The petitioner has experience of more than 39 years and he has also contributed 30 publications but no marks were given to the petitioner by the Search Committee on this achievement. No criteria for awarding marks were notified. Even one member was absent during the interview. He also referred to the recommendations made by the Higher Education Commission for the composition of Search Committee with the emphasis that core aim of the Search Committee is to provide for the selection of most eminent and proficient leadership. The learned counsel referred to 2010 SCMR 1301 (Tariq Aziz-Ud-Din and others in re).
Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009.
7. Mr.Hasin Ahmed, learned counsel for the petitioner in C.P.No,D-7660/2015 argued that the respondent No,2 had issued inapt yardstick for evaluation and assessment of candidates applied for the post of Vice-Chancellor. Learned counsel further argued that in order to make the process transparent it is expedient that direction be issued to the respondent No,2 to formulate meaningful yardstick for the evaluation and assessment of all the applicants who applied for the post of Vice- Chancellor and the fresh process should be initiated for proper selection.
8. Mr.Abdul Salam Memon, learned counsel for the respondent No,3 in C.P,No,D-6945/2015, for respondent No,4 in C.P.No,7660/2015 and for respondent No,5 in C.P.No,D-7064/2015 argued that since one member was not present in the interview, therefore, only three members gave interview marks out of 30 only. Initially the Search Committee recommended the name of Dr.Saeed Quraishy but the summary was returned back. He further argued that after return of advice by the Chancellor the Chief Minister Sindh forwarded fresh advice on 25.10.2015 for the appointment of.
Vice-Chancellor in which he clearly mentioned that Dr.Saeed Quraishy and Dr.Noshad Shaikh stood at Sr.Nos.1 and 2 but Dr.Noshad Shaikh has sufficient experience as he is already working as Vice- Chancellor in LUMS for the second term. In view of this advice, the Chancellor issued the Notification for the appointment of Dr. Noshad Shaikh. He further referred to the counter affidavit filed by the respondent No,2 in which they supported the Notification dated 26.10.2015 being intra vires of Section 12 (1) of the Dow University of Health Sciences Act, 2004 and Article 105 of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel did not allege any bias against the Search Committee except that Dr.Saeed Quraishy in his C.V. Given the name of Mr.Fazalur-Rehman as referee in column 12, therefore, in all fairness Mr.Fazalur-Rehman should not have joined the selection process.
9. Mr.Mukesh Kumar Karara, learned AAG argued that after expiry of the tenure of earlier Vice- Chancellor, the Government of Sindh advertised the post in the newspapers and in order to make selection of deserving person. The Chief Minister Sindh constituted a Search Committee, however, the Search Committee was reconstituted on 8.9.2015 due to non-availability of Dr.Asim Hussain who is facing prosecution, therefore, in his place former Chief Secretary, Mr.Fazal-urRehman was appointed. He further argued that all members of the search committee are well educated and qualified. Their credibility and reputation is beyond any suspicion or doubts, therefore any aspersion against them is totally unjustified. The Government of Sindh adopted yardstick for evaluation and assessm ent of the applicants in a similar manner as being done in the Province of Punjab and KPK by PMDC and HEC. Out of 60 marks 20 marks were to be given for post doctorate/Ph.D., 20 marks for research and publications and 20 marks for teaching and administrative experience while 40 marks were reserved for interview. Since no candidate had post doctorate/Ph.D qualification, therefore, all six candidates obtained nil marks against this category, however, Dr.Saeed Quraishy and Dr.Junaid Ashraf claim to have post doctorate qualification for which consultation was made with the Higher Education Commission. He referred to a letter dated 16.9.2015 in which Higher Education Commission stated that FRCS degree is not equivalent to Ph.D.
Degree, rather professionals with FRCS qualification can be considered as eligible to get admission directly in Ph.D, in Pakistani universities. Further, Post Doc Program is an advanced level research opportunity for faculty/researchers having Ph.D. Degree to work in well-equipped universities research laboratories in order to update their knowledge and skills by interacting with the researchers of the advanced countries.
10. The learned A.A.G admitted that Dr.Saeed Quraishy in his CV gave the reference of Mr.Fazal-ur- Rehman, however, when the Search Committee was reconstituted and Mr. Fazal-ur-Rehman was inducted in the Search Committee, Dr.Saeed Quraishy withdrawn his as his referee in writing. So far as the research publications are concerned much weightage was given to the publications in which the applicants were lead author (First Author) and the administrative experience was also considered properly without any bias or partiality. After completing the process, the Search Committee recommended the name of Dr.Saeed Quraishy and Dr.Noshad Shaikh and Dr.Umer Farooq but against the name of Dr.Umer Farooq it was further mentioned that the candidates at Sr.Nos.4 and 5 are also on the same position. The Chief Minister advised for the appointment of Dr.Saeed Quraishy but the Chancellor issued Notification of Dr.Noshad Shaikh which was challenged but during pendency of the petition the Chancellor withdrew the Notification and returned back the summary to the Chief Minister thereafter, the Chief Minister again forwarded advice on which Dr.Noshad Shaikh was appointed. So far as the additional charge of V.C. Given to Dr.Masood Hameed Khan is concerned, the learned AAG argued in clear terms that it is merely a stopgap arrangement and as soon as the V.C. On regular basis is appointed, this additional charge will automatically come to an end. It was further pointed out that Vice-Chancellor is the most important functionary in any university not only on the administrative side but also for securing the right atmosphere for the teachers and the students to do their work effectively. He relied on AIR 2015 SC 1875 in which the Supreme Court of India referred to the reports of different commissions and committees in which the role and responsibilities of Vice-Chancellor have been discussed who is symbol of maintaining the quality and relevance of universities.
11. Heard the arguments. The bone of contention in all the petitions is selection and appointment of Vice-Chancellor. The Vice-Chancellor is the principal academic and administrative officer of the University. His errand includes leadership, academic and administrative responsibilities and assignments so he should have possessed the intrinsic worth and virtues of distinguished leadership in education, academic administration and management with proven track record with in-depth knowledge of issues affecting learning and teaching in higher education with commitment to equal opportunity principles and transparent governance. The apex court in the case of Rana Aamer Raza Ashfaq (supra) expatiated and expounded the role of University and Vice-Chancellor and reckoned that Universities are seats of learning and centres of excellence. To achieve, its objects, University functions besides the A Chancellor and Vice-Chancellor through its various institutions, Vice-Chancellor is a University's institutional head and enjoys a pivotal position.
Vice-Chancellor is a bridge between executive and academic wings of University. Such multi- dimensional role of Vice-Chancellor requires that person who occupies this office should be imbued with values and character traits of integrity, of academic excellence and administrative ability.
12. In the Supreme Court of India, some appeals were filed against a common judgment of Madras High Court, Madurai Bench through which writ of quo warranto was allowed against the appointment of Vice-Chancellor of Madurai Kamaraj University. The High Court held that the incumbent Vice-Chancellor did not satisfy the eligibility criteria for the appointment of Vice- Chancellor stipulated by the University Grants Commission Regulations of Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (UGC Regulations, 2010). Though the Supreme Court of India upheld the appointment of the Vice-Chancellor and set-aside the common judgment passed by the Madras High Court but in the same judgment reported in AIR 2015 SC 1875 (Kalyani Mathivanan v. K. V. Jeyaraj and others), the court also referred to Regulation 1 for the office of VC (Statutes and Ordinances of Cambridge University, June 2002:655) and held that VC is of a stature and his/her presence commensurate to lead a distinguished academic institution. The stated mission of the University is to contribute to society through the pursuit of education, learning, and research at the highest international levels of excellence. The VC must be of exceptional caliber with academic credibility, clear strategic vision, and outstanding leadership qualities. He/she should have strong management skills and senior level experience gained in a complex institution and the ability to- bring them to bear in a democratic, self-governing University. The ability to promote the University in a regional, national and international context, and to increase the financial resources available to the University, should be key, particularly in order to realize the full potential of the University. The court in its judgment also conversed and ruminated the reports of the Radhakrishnan Commission (1948 : 422-23), Kothari Commission (1964-1966: 333-35), Gnanam Committee (1990: 27-30) and Randal Parujg Committee (1993: 15-17) alluded to in the High Court judgment which virtually reckoned that the Vice-Chancellors have an important role in maintaining the quality and relevance of universities. The highlights of Committees Reports are as follows:- "45. This paper indicates that as per the Generally the Vice-Chancellor should be a distinguished educationist or eminent scholar in any of the disciplines or professions, with a high standing in his/her field and adequate administrative experience. We are not generally in favour of appointment of persons who have retired from other fields. An exception to this general recommendation should be made only in the case of very outstanding persons whose association with the universities would be desirable from every point of view and should not be made an excuse for accommodating' or 'rewarding individuals who do not fulfill the conditions laid down. A Vice-Chancellor is one who stands for the commitment of the University to scholarship and pursuit of truth. (Kothari Commission 1964-66:334).
' A Vice-Chancellor should be a person with vision and (have) qualities of academic leadership with ability for administration. He should command high respect among all sections of the society.
The Vice-Chancellor should be a distinguished academic...(who) has commitment to the values for which the Universities stand....He must have the ability to provide leadership to the University by his academic worth, administrative competence and moral stature,. (Kothari Commission 1964- 66:334).
' Parikh Committee was not in favour of appointing Government officials as VCs. Quoting the Kothari Commission Report, the Parikh Committee mentions that the Vice-Chancellor is the most important functionary in a University not only on the administrative side but is also charged with the responsibility of creating the right atmosphere for teachers and students.
' The Universities need distinguished and dignified persons as VCs and it is necessary to ensure that they are treated with dignity and regard, which the office merits. (Ramlal Parikh Committee 1993:15).
' The Vice-Chancellor is the most important functionary in a University, not only on the administrative side but also for securing the right atmosphere for the teachers and the students to do their work effectively and in the right spirit. (Report of the Committee on Model Act for Universities 1964:11).
' The Vice-Chancellor being the principal executive and academic officer of the University, should exercise general supervision and control over the affairs of the University and give effect to the decision of all its authorities. He shall be the ex-officio Chairman of the Court, Executive Council, Academic Council, Finance Committee and Selection Committees and shall, in the absence of the Chancellor preside at any convocation of the University for conferring degrees. It shall be the duty of the Vice- Chancellor to see that the provisions of the Act, Statutes and Ordinances and Regulations are fully observed and he should have the power necessary for the discharge of this duty. (Gajendragadkar Committee on the Governance of the University, 1971:60).
' In accordance with Regulation 1 for the office of VC (Statutes and Ordinances of Cambridge University, June 2002:655)...VC is of a stature and his/her presence commensurate to lead a distinguished academic institution. The stated mission of the University is to contribute to society through the pursuit of education, learning, and research at the highest international levels of excellence. The VC must be of exceptional caliber with academic credibility, clear strategic vision, and outstanding leadership qualities. He/she should have strong management skills and senior level experience gained in a complex institution and the ability to bring them to bear in a democratic, self-governing University. The ability to promote the University in a regional, national and international context, and to increase the financial resources available to the University, should be key, particularly in order to realise the full potential of the University."
13. Likewise, the aforesaid judgment also allude to an Article referred to in the Madras High Court judgment, titled "Why Socrates should be in the Boardroom in Research Universities", published in 2010 as under:-- "47. In an interesting Article, titled Why Socrates should be in the Boardroom in Research Universities, published in 2010 by Amanda H. Goodall, Leverhulme Fellow, Warwick Business School, the author points out two contrasting events that happened in 2003 and 2004. It is common knowledge that Cambridge University came into existence in 1209 and almost about 800 years later, a distinguished Anthropologist, by name Alison Richard, was appointed as the 344th President or Vice-Chancellor of Cambridge. She was an acclaimed academician. In contrast to what happened at Cambridge in 2003, Oxford University appointed in 2004, a person by name John Hood, who was not an academic but was only a businessman. He became the first head of Oxford University, ever since the year 1230, to be elected to the Vice-Chancellorship from outside the University's current academic body. The paper authored by Amanda Goodall considered the question as to why Cambridge and Oxford chose such different individuals to lead their ancient and reputed institutions. The central theme of the paper was as to whether there was a relationship between University performance and leadership by an accomplished researcher. Eventually, after analyzing the statistics from about 100 Universities throughout the world, the author came to the conclusion, supported by evidence that Research Universities should be led by top scholars. The conclusions reached by the author could be summarized as follows:
(i) That the best Universities in the world are led by more established scholars;
(ii) That scholar-leaders are considered to be more credible leaders in Universities, commanding greater respect from their academic peers.
(iii) That setting an organisation's academic standards is a significant part of the function of the Vice-Chancellor and hence one should expect the standard bearer to first year that standard.
(iv) That a leader, who is an established scholar, signals the institution's priorities, internally to its faculties and externally to potential new academic recruits, students, alumni, donors and the media.
(v) That since scholarship cannot be viewed as a proxy for either management experience or leadership skills, an expert leader must also have expertise in areas other than scholarship."
14. By virtue of Sindh Universities and Institutes Laws (Amendment) Act, 2014, notified on 6.1.2015, subsection (1) of Section 12 of Dow University of Health Sciences Act, 2004 was substituted as under:- "(1) A person having medical background shall be appointed as Vice-Chancellor by the Chancellor on the advice of Government for a period of four years, which may be extended for one more term, on such terms and conditions as Government may determine."
15. If we look into Subsection (3) of Section 12 of Dow University of Health Sciences Act, 2004, it provides that the Vice-Chancellor shall be the principal executive and academic officer of the University; and shall ensure that the provisions of this Act, the Statutes, the Regulations and the Rules are faithfully observed in order to promote the general efficiency and good order of the University. He shall have all the powers necessary for this purpose including administrative control over all officers, teachers and other employees of the University. The minutiae and niceties attached to the office of Vice-Chancellor have been discussed in detail by our own Supreme Court.
The Supreme Court of India has also given much significance and weightage to the virtues and attributes which one should possess as Vice-Chancellor.
16. With the aim of selecting competent and eligible person who may hold the post of Vice- Chancellor in pursuance of enactments germane to the Public Sector Universities in Sindh, the Government of Sindh constituted a Search Committee vide Notification dated 23.10.2013, comprising three members with the condition that the Secretary to Chief Minister Sindh on Universities and Boards shall act as Secretary of the Search Committee. However, the Search Committee was reconstituted on 8.9.2015 and Dr.Asim Hussain was replaced with new member Mr. Fazal-ur-Rehman, former Chief Secretary Sindh. The present composition of Search Committee is as under:-
1. Dr. Azra Pechuho, Chancellor, SZABIST.
2. Mr.Fazal-ur-Rehman, former Chief Secretary Sindh.
3. Professor Mazharul Haq Siddiqui, former Vice-Chancellor, University of Sindh and Rtd. Federal Secretary.
4. Secretary to Chief Minister Sindh for Universities and Boards.
5 Co-opted member.
17. Much dismay has been put on view against the appointment of search committee members and their personal qualifications to which learned A.A.G, addressed that antecedents of each member mentioned in the Notification for reconstituting the Search Committee makes it clear beyond any shadow of doubt that all members are well qualified. Nobody controverted or raised any objection that resume and or profile describing the qualification or competence of search committee members is incorrect. This is not the case of the petitioners that they objected the selection of the search committee members by the Government of Sindh before submitting their applications but not only they submitted their applications, joined the process and also appeared before the same committee members for interview but when they are not declared successful, objections have been raised against the search committee members worthiness. Had they any reservation or remonstration, they should have raised it instantaneously rather than joining the process and trying their providence so in our view this objection at this stage is disingenuous and deceptive.
18. On 24.8.2015, Chief Minister's Secretariat communicated an approved pro-forma yardstick to the members of the Search Committee for evaluation and assessment of applications for the appointment of Vice-Chancellor, Dow University of Health Sciences, Karachi. The pro-forma yardstick was issued in the pattern prescribed by Higher Education Department Punjab which covers almost all relevant facets and component warrants consideration for his key situation. The specimen of approved pro-forma yardstick issued by the Government of Sindh to the Search Committee is reproduced as under:- {{TABLE}} EVALUATION OF APPLICATION/MARKING Sr. No, Name of Candidate Total (out Ph.D/ Additional Teaching Research Administrative of Post Doctorate Marks for Ph.D. Experi- ence Publication Experience 60) from top universi- ties of the world (QS Inter- national 01 Local .75 Mark V.C./ Pro- V.C. Head of Administrative Unit.
Ranking) Mark for each each 1.50 for each Head of Department of a University
1. (Maxi- mum Head of Unit e.g. 03 M.S. Marks)
Dean Principal of Medical College Registrar of a University I - Director of an institution.
2. Professor working on important administrative committees.
1 marks each (Maximum 07 marks)
Maxim- Maximum Maxim- Maximum Marks Maximum Marks 10 UM Marks 05 um 20 Marks 15 Marks 10 {{TABLE}}
19. Some of the learned counsel argued that no marks were reserved for interview but the Search Committee assumed 40 marks for interview by their own whims. This argument is again misconstrued for the reasons that in the covering letter issuing the yardstick it was clearly mentioned that it was issued on the basis of Higher Education Department Punjab. It is otherwise irrational to comprehend that members of the search committee would be in session to search and select a person for the appointment to an important position but they could not award any marks to the candidates against the interview which would more or less tantamount to embark on a futile exercise. To cut a long story short, after shortlisting of 06 candidates based on interview scoring grid and benchmark, Mr.Saeed Quraishy obtained 46.25, while Mr.Noshad Shaikh obtained 43.75 marks and three other candidates such as Mr.Umer Farooq, Mr.Amjad Siraj Memon and Mr.Junaid A shraf obtained 43 marks in equal and last candidate Mr. Muhammad Masroor obtained 38.75 marks only. The Search Committee recommended the name of Dr.Saeed Quraishy for appointment. Consequently, the Chief Minister Sindh recommended the name of Dr.Saeed Qaraishy and the summary was moved to the Governor of Sindh on 1.10.2015. When this summary was placed before the Governor of Sindh, he appointed Dr.Noshad Shaikh with the observation that there is hardly any difference. The Chancellor further remarked that Dr.Noshad Shaikh has vast administrative experience and serving as Vice-Chancellor and in his credit the only Public Sector University of country has attained ISO Certification. The Notification of Dr.Noshad Shaikh was challenged in this court and the operation of the Notification was suspended, however, vide Notification dated 12.10.2015 another Notification was issued through which the Notification dated 2.10.2015 was withdrawn with immediate effect. The Governor Sindh returned back the summary on 12.10.2015 with the observation that the Search Committee was responsible to select competent and qualified person and make recommendations of 03 most suitable candidates for approval of the Chief Minister. On returned of summary, the query was answered that the third suitable candidate was not pointed out for the reasons that three candidates obtained 43 equal marks.
With this clarification again the summary was put up to the Chief Minister for his recommendation and advice to appoint candidate on merits. On 25.10.2015 the Chief Minister Sindh advised the Chancellor for the appointment as under:- "19. In the light of recommendations of Search Committee as at para 16, the names of Dr.Saeed Qurcshi and Dr.Noshad Sheikh stood at Sr.Nos.1 and 2 respectively in securing the marks.
20. Dr. Noshad Sheikh has sufficient experience, as he is already working as Vice-Chancellor in LUMS for the 2nd term."
20. On the basis of aforesaid advice, the Governor Sindh/Chancellor vide Notification dated 26.10.2015 appointed Dr.Noshad Shaikh as Vice-Chancellor, Dow University of Health Sciences for a period of four years with immediate effect. In the case of Rana Aamer Raza Ashfaq (supra) the apex court held that constitutional intent and mandate of the Articles 48 and 105 of the Constitution are one of the foundational values of the constitutional scheme. The Governor of a Province under the Constitution enjoys an exalted position, as he is a nominee of the President and a symbol of Federation in the Province, whereas Chief Minister is Chief Executive of the Province and is elected by Provincial Assembly. Except otherwise so provided under the Constitution, President and Governor are bound by the advice tendered by Prime Minister and Chief Minister respectively and in the manner as provided in the Constitution. For the ease of reference, Article 105 of the Constitution of Islamic Republic of Pakistan is reproduced as under: - "105. Governor to act on advice, etc. (1) Subject to the Constitution, in the performance of his functions, the Governor shall act [on and] in accordance with the advice of the Cabinet [or the Chief Minister]: [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.]
(2) The question whether any, and if so, what advice was tendered to the Governor by the Chief Minister [or the Cabinet] shall not be inquired into in, or by, any court, tribunal or other authority.
[(3) ..........................................................................................
(a) ..........................................................................................
(b) .........................................................................................."
21. The backdrop unequivocally divulges that in the first summary the name of Dr. Saeed Quraishy was recommended but the Chancellor appointed Dr.Noshad Shaikh. If we delve into the facts in continuation, it is deciphered that earlier the Chief Minister put forward straightforward advice which was not acted upon, but after withdrawal of an earlier Notification of Dr.Noshad Shaikh, the Chancellor returned the summary back. At this juncture, we are of the well-founded persuasion that nothing was novel state of affairs rather the summary and other documents were the same on the basis of which earlier Dr.Noshad Shaikh was appointed despite advice to appoint Dr.Saeed Quraishy, however, on return of summary with some queries, the second advice rendered by the Chief Minister gave rise to some ambiguity in which instead of eloquent advice for the appointment of a particular person after reconsideration, he communicated that Dr. Saeed Quraishy and Dr.Noshad Shaikh stood at Sr.Nos.1 and 2 with further explanation that Dr.Noshad Shaikh has sufficient experience and he has already worked as Vice-Chancellor in LUMS for the second term. Under the mandate of Article 105 of the Constitution, the advice of the Chief Minister in our view should have been in well-defined and express words rather than implied or indeterminate. So far as the experience of Dr.Noshad Shaikh as Vice-Chancellor in LUMS is concerned, it was the dominion and province of Search Committee to consider the administrative experience and not only they had considered it but also awarded marks in this sphere as well.
What we find out that both the advice put forward by the Chief Minister on one and the same selection process are at variance and divergence, predominantly the last advice dated 25.10.2015 was not in consonance with the mandate and precept envisioning under Section 12(1) of the Dow University of Health Sciences Act, 2004 and Article 105 of the Constitution.
22. It is an admitted fact that when the earlier Search Committee was constituted Dr.Asim Hussain was one of the members, but he was replaced by Mr.Fazal-ur-Rehman, however, when Dr. Saeed Quraishy filed his C.V. Mr.Fazal-ur-Rehman, was not member. An objection was raised that since the Dr.Saeed Quraishy has given the name of Mr.Fazalur-Rehman as "referee" in column 12 of his CV, therefore, he should not have become part of the Search Committee. In our outlook, this objection to a certain extent is sustainable though the counsel for Dr.Saeed Quraishy as well as the learned AAG argued that after nomination of Mr.Fazal-ur-Rehman as member of the Search Committee, Dr. Saeed Quraishy withdrawn the name of Mr.Fazal-ur-Rehman from his CV mentioned in column 12. It was further argued that Mr.Fazal-urRehman awarded lesser marks to Dr.Saeed Quraishy than Dr.Noshad Shaikh in the interview. We feel no reluctance to hold that if in the C.V. Of Dr. Saeed Quraishy the name of Fazal-ur-Rehman was mentioned as "referee" then propriety demands that he should not have accepted the task nor it be suitable for the Government to appoint a person as member of Search Committee who was shown as "referee" by one of the candidates. There may be a possibility that when Mr.Fazal-ur-Rahman was nominated he might not aware of his name as referee but when he joined the committee, he must have vetted the curriculum vitae of all candidates even at that moment in time, he could have recused but he continued without any demur. The arguments that Mr.Fazal-ur-Rehman gave more marks to Dr.Noshad Shaikh than Dr. Saeed Quraishy is irrelevant. Quite the reverse, this possibility cannot be ruled out that being conscious to the fact, Mr.Fazal-ur-Rehman in order to show unbiased, he might not judge the credentials and antecedents of Dr. Saeed Quraishy fair and square to give an impression and idea that despite his reference he has given lesser marks to show impartiality and lack of prejudice but on the other hand one can presume that he might have given the higher marks than his estimation. So in our view, may be some other person if appointed in his place, he could have judged more rationally and fairly the worth, potential and ability in more transparent manner and for that reason the induction and or nomination of Dr.Fazulur-Rahman as member in the Search Committee to accomplish the D assignment was not a workable choice which indeed made the process questionable and untrustworthy.
23. We do not aspire to say again the importance and significance of Vice-Chancellor appointment, nevertheless we are constraint to observe that one of the members of the Search Committee professor Mazhar-ulHaq Siddiqui was absent throughout and his absence was defended with the plea that due to his absence, marks in the interview were awarded out of 30 only. The mandate was also given to the Search Committee members to appoint a coopted member but no such member was appointed. In our understanding, choice of appointing coopted member was given believably with an idea that Search Committee may engage one more expert member for their assistance in the relevant field to make the competitive process more translucent and transparent. On the contrary, the Search Committee even failed to ensure the presence of professor Mazhar-ul-Haq Siddiqui and completed the entire task in a slipshod manner. No justification was placed before us as to why professor Mazhar-ul-Haq Siddiqui was absent when such a crucial decision of great consequence was to be taken. We have also noticed that through earlier Notification dated 23.10.2013, the search committee encompassing three members only and when it was reconstituted vide Notification dated 8.9.2015, the quantity of members was increased from three to give including a provision of coopted member. What make sense of the terms of reference delineated in the Notification that no quorum was defined with the sagacity that in absence of any member or coopted member, the remaining members on board may carry on and conclude the selection process. To be more precise, we are of the firm view that in absence of defined quorum or any condition relaxing the attendance of any member, it is somewhat logical to comprehend that the members of search committee had no choice to be in session without assembling their full strength of committee members, on the contrary, the search committee failed to discharge its onerous duty entrusted to them to accomplish the task of a great magnitude and messed up the course of action which deserves to be scraped and set aside with the directions to the Search Committee to act de novo. In the case of Tariq Aziz-Ud-Din, (2010 SCMR 1301), the Hon'ble Supreme Court held that "It is the duty and obligation of the competent authority to consider the merit of all the eligible candidates while putting them in juxtaposition to find out the meritorious amongst them otherwise one of the organs of the State i,e, Executive could not survive as an independent organ which is the command of the Constitution. Expression 'merit' includes limitations prescribed under the law. Discretion is to be exercised according to rational reasons which means that; (a) there be finding of primary facts G based on good evidence; and (b) decisions about facts be made for reasons which serve the purposes of statue in an intelligible and reasonable manner. Actions which do not meet these threshold requirements are considered arbitrarily and misuse of power."
24. As a result of above discussion, the petitions are admitted to regular hearing and disposed of in the following terms:--
(1) The Notification dated 26.10.2015 issued for the appointment of Dr.Noshad A. Shaikh as Vice- Chancellor, Dow University of Health Sciences, Karachi is set aside.
(2) Since Dr.Saeed Quraishy is also one of the candidates in the selection process therefore, in order to maintain impartiality and neutrality, the Chief Minister, Sindh is directed to substitute the nomination of Mr.Fazal-ur-Rehman and in his place any other competent person be inducted into Search Committee through reconstitution.
(3) The Search Committee shall consider the applications of all 12 candidates de novo on merits with proper application of mind and recommend three most suitable candidates for approval of the Chief Minister, Sindh for one of the most suitable candidate.
(4) The Chairperson of Search Committee shall ensure the presence of all members of Search Committee at the time of considering the applications for awarding marks on the basis of pro- forma yardstick and on the day when the interviews shall be conducted. The members of search committee may also consider the appointment of co-opted member according to the mandate given to them.
(5) After completion of process, the Chief Minister, Sindh shall forward his advice to the Governor of Sindh/Chancellor in terms of Section 12(1) of the Dow University of Health Sciences Act, 2004 (As amended) and Article 105 of the Constitution of Islamic Republic of Pakistan, 1973.
(6) This entire process should be completed within 20 days positively without any delay. However on issuance of Notification for the appointment of Vice-Chancellor, Dow University of Health Sciences, Karachi on the advice of Chief Minster Sindh, the Additional Charge given to Professor Dr.Masood Hameed Khan vide Notification dated 10.11.2015 as Vice-Chancellor, Dow University of Health Sciences, Karachi as stopgap arrangement will come to an end automatically. During this period, he shall perform only day to day and routine work without taking any major decision as directed earlier vide orders dated 1.12.2015 passed in CP.No,D-7383/2015.
(7) All pending applications in the aforesaid petitions are also disposed of accordingly.