' SHUJAAT ALI KHAN, J.--- Through this petition under Article 199. Of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed orders dated 1.6.09.2008 and 23.09.2010 passed by the Vice Chancellor, University of the Punjab, Lahore (hereinafter to be referred as "V.C").
2. Shorn-of unnecessary details, the petitioner was appointed as Senior Medical Officer (Dental) in BS-18 by the V.C. Vide Office Order No,18540-51/Est.II dated 01.09.2006 issued by the Registrar.
Initially, he was on probation for two years. Later on, vide Office Order No,32316-22/Est.II dated 16.09.2008, his probation period was extended, for further two years w,e,f, 11.09.2008 as his performance was not up to the mark and finally the competent Authority viz. Chancellor, through order dated 29.03.2010 dispensed with services of the petitioner on account of unsatisfactory performance. Aggrieved of the orders regarding extension of his period of probation as well as termination of services, the petitioner has filed the instant petition.
3. Learned counsel for the petitioner, while opening his arguments, submits that since the V.C. Was not the competent Authority in the matter of the petitioner as he was serving in BS-18, the orders impugned in this petition are coram-non-judice; that as a matter of fact, the competent Authority in the matter of the petitioner was Syndicate and without any recommendation by it, no adverse order could be passed against the petitioner; that the impugned orders being violative of universally acknowledged principle of audi-alteram-partem is not sustainable; that since the petitioner's services were dispensed with on account of allegation of poor performance, the same could not be done without following the procedure of regular inquiry; that the mala fide on the part of the respondents is manifest from the fact that just after a day of termination of the petitioner, somebody else was inducted as Senior Medical Officer (Dental) in place of the petitioner. In support of his oral submissions learned counsel for the petitioner has referred to the cases of Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 Supreme Court 194), Dr. Ghulam Mustafa Chaudhary v. Dr. Muhammad Ashiq Khan Durrani, Vice-Chancellor, B.Z University Multan and 2 others (2000 PLC (C.S.) 385), Islamia University, Bahawalpur through Vice- Chancellor v. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141), judgment dated 14.09.2015 rendered in Kamran Ahmad v. WAPDA and others (I.C.A. No,1061 of 2013) and order dated 06.05.2015 passed in Nadeem Asghar Nadeem and others v. Province of the Punjab and others (Writ Petition No,26696 of 2014).
4. Conversely, learned counsel representing the respondents states that as the Rules governing the terms and conditions of service of the petitioner are non-statutory in nature, the instant petition is not maintainable; that if the plea of the petitioner that. V.C. Was not the competent Authority in his matter is taken as correct then order of his initial appointment as Senior Medial Officer (Dental) would not be tenable as he was appointed by the same Authority; that during service an inquiry was conducted against the petitioner and on conclusion thereof he was found at fault, as a result, warning was issued to him on more than one occasion regarding his poor performance but instead of any improvement, the petitioner continued with his uncalled for behavior which compelled the V.C. To terminate his services and that the petitioner being equipped with alternate remedy of appeal before the Syndicate, the instant petition is not maintainable. To fortify his contentions learned counsel for the respondents has relied upon order dated 16.09.2015 passed in Anwar Ahmad Siddique (deceased) through M. Omer Elahi and others v. University of the Punjab and others (Writ Petition No,2521 of 2009).
5. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that as the orders impugned in this petition are coramnon-judice the same is maintainable; that when an act of the public functionary offends against clear cut provision of an enactment, the same can be challenged in writ jurisdiction as per law laid down in the case reported as Pakistan Defence Officers' Housing Authority and others v. Col. Syed Jawaid Ahmad (2013 SCMR 1707) irrespective of the fact as to whether Rules are statutory or non-statutory; that as University of the Punjab Act, 1971 is applicable to the petitioner, the proceedings initiated against him are not tenable; that according to judgment of the learned Divisional Bench of this court in the case reported as Islamia University, Bahawalpur through Vice-Chancellor v. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141) this petition is maintainable against the university Authorities and that the petitioner's performance remained up to the mark but the respondents with a view to accommodate their blue eyed person passed the impugned orders against him. To conclude his arguments, learned counsel has adopted the plea that since Punjab Employees Efficiency and Discipline Accountability Act, 2006 (PEEDA, 2006) was applicable, the petitioner could not be penalized under any other law.
6. Learned counsel, representing respondents in furtherance of his above oral submissions states that as the petitioner did not challenge the order regarding extension of his probation period at the appropriate time, he was debarred to file the instant petition in view of principle of acquiescence; that order dated 16.09.2008 could not be challenged in the instant petition as the same was hit by the principle of laches.
7. I have heard learned counsel for the parties and have also gone through the documents annexed with this petition in addition to those forming part of report and parawise comments in addition to the case-law cited at the Bar.
8. Firstly, taking up the question regarding maintainability of this petition, I am of the view that where the nature of the Rules, governing the terms and conditions of services of an employee are non-statutory, writ petition against an order of the Authority involving terms and conditions of service of the said employee is barred. If any case-law is required, reference can be made to the cases reported as Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary M/O Information Technology and Telecommunication and others (2012 SCMR 152) Riaz Hanif Rahi v.
Saeed uz Zaman Siddiqui and 4 others (2011 SCMR 948), Executive Council, Allama lqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (2010 SCMR 1484), Ijaz Hussain Suleri v. The Registrar and another (1999 SCMR 2381) and University of the Punjab Lahore and 2 others v. Ch. Sardar All (1992 SCMR 1093). The nature of the Rules/Regulations relating to the terms and conditions of employees of University of the Punjab came under discussion in the case of University of the Punjab Lahore and 2 others v. Ch. Sardar All (supra) wherein the said question has been responded to by the Apex Court of the Country in the following words:- "By invoking this subsection (8) of section 11 of the Act, the contention of the respondent is that the appointment of the teachers and the control under the Efficiency and Discipline Rules of the Chancellor becomes that of the Governor and hence statutory. This contention suffers from three defects.
' Firstly, the scheme of the Act otherwise does not show that the Rules of Efficiency and Discipline or the conditions of service of the respondent are governed by the statutory rules. In the absence of it, subsection (8) of section 11 which relates to the manner in which the Chancellor shall act in the discharge of his duties, does not make the conditions of service of the employees statutory. All that subsection (8) of section .11 provides is that the Governor shall be bound by the advice of the Chief Minister as he is bound in discharge of his functions under Article 105 of the Constitution of the Islamic Republic of Pakistan.
' Secondly, such an incorporation by reference on the strength of a statutory provision of a constitutional provision does not raise the status of the statutory provision to that of a constitutional provision. It has been so held by this Court in Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445 and The Lahore Central Cooperative Bank Ltd v.
Pir Saifullah Shah PLD 1959 SC 210.
' Thirdly, the difference between the position of the Governor as the Chief Executive of the Province and as the Chancellor of a University has been well brought out in an Indian decision in Dr. S. C.
Barat and another v. Hari Vinayak Pataskar and others AIR 1962 Madhya Pradesh 73 in the following words:- "When an Ad confers powers on the Governor not qua Governor but in a different capacity held by him by virtue of his office as Governor, the powers and duties so conferred are not the powers and duties of the office of the Governor. They are the powers and duties of a different office which the Governor holds by virtue of his office as Governor. It is altogether erroneous to say that as the other office is held by the person who is the Governor of the State by virtue of his office as Governor, therefore the powers and duties he exercises or performs of that other office under the relevant Act are the powers and duties of his office as Governor .... Thus the powers and duties that the Chancellor exercises or performs under the Act are not any powers or duties conferred on the Governor qua Governor or of a capacity which he occupies by virtue of his office as Governor.
They are the powers and duties of a public capacity held by the personage who is also the Governor. The Chancellor's powers under the Jabalpur University Act are thus not the powers and duties of the office of the Governor and consequently the protection provided by Article 361(1) cannot be invoked by the Chancellor in respect of the exercise and performance of the powers and duties of his office as Chancellor under the Jabalpur University Act." (emphasis provided).
The afore-quoted paragraph of the judgment passed by the Apex Court of the Country leaves no ambiguity that the Rules/Regulations governing the terms and conditions of services of the employees of the University including the petitioner, are non-statutory thus the plea of the petitioner that the same are statutory in nature is not tenable.
9. Now coming to the petitioner's contention that in view of law laid down by Apex Court of the country in the case of Pakistan Defence Officers' Housing Authority and others (supra) this court can take care of orders passed by the Administrative Tribunals or Special Court or authorities working in local bodies while exercising jurisdiction vested under Article 199 of the Constitution of Islamic, Republic of Pakistan 1973 with all humbleness at my command and due reverence to the verdict of the Apex Court of the Country it is observed that there is no cavil with the proposition that this court can determine the legality of an order passed by a Government functionary or an administrative Tribunal irrespective of the fact as to whether the Rules governing terms and conditions of employee are statutory or non-statutory but the condition precedent for exercise of such power is that the order impugned is patently illegal. Insofar as the case in hand is concerned, learned counsel for the petitioner has referred to Section 15(3) of the University of Punjab Act, 1973 to show that the V.C. Has been empowered to exercise his powers only in case of emergency.
Perhaps learned counsel for the petitioner has raised said plea in oblivion of the fact that the appointment of the petitioner was undertaken by the VC while exercising the powers under the same provision. If it is presumed that said provision could only be exercised in case of emergency, in my humble view no emergency having been established on record, certain queries surfaced on the scene against the initial appointment of the petitioner. Learned counsel for the petitioner has not argued that the powers conferred upon the V.C. Under the aforesaid provision are contrary to any other provision, the action taken by the V.C. While pressing into service the said provision cannot be considered as arbitrary, capricious or fanciful warranting interference by this court in exercise of its constitutional jurisdiction. If the petitioner was of the view that the competent Authority was Syndicate, why he kept mum at the time of his appointment; at the time of order of inquiry and lastly when his period of probation was extended for further two years. Though the petitioner has challenged order regarding extension of his probation in the instant petition but the learned counsel for the respondents has rightly pointed out that the same being hit by principle of laches cannot be entertained by this court. It is very ironical that on the one hand the petitioner is claiming setting aside of impugned orders on the ground that he having been appointed by the competent Authority served the institution to the entire satisfaction of his superiors but on the other has adopted the plea that V.C. Was not competent to pass any order against him. It is well established by now that an authority which has the power to appoint anybody enjoys the power to proceed against an appointee under the relevant provisions of law.
10. Now taking up the question regarding non-affording of opportunity of personal hearing to the petitioner, I am of the view that the same is not sustainable for the reason that after pouring in of certain complaints, an inquiry was conducted against the petitioner whereby he was found guilty.
However while taking lenient view, he was warned by the competent Authority to improve his performance and when he gave deaf ear to the said warning, the impugned termination order was passed against him. Even otherwise, when the services of any probationer are terminated on the basis of poor performance, he is not entitled for any show cause notice. In this regard, I stand guided by the cases reported as Muhammad Siddique Javaid Chaudhary v. Government of West Pakistan (1974 PLC 243), Engineer Majeed Ahmed Memon v. Liaqat University of Medical and Health Sciences Jamshoro through Principal Executive and 3 others (2010 PLC (C.S.) 856), Muhammad Iqbal Khan Niazi v. Lahore High Court, Lahore through Registrar (2003 PLC (C.S.) 285), Miss Saima Gardezi v. President, First Women Bank Ltd and 2 others (2007 PLC (C.S.) 1033), Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others (2004 SCMR 44), Rehan Saeed Khan and others v. Federation of Pakistan and others (2001 PLC (C.S.) 1275), Ch. Muhammad Hussain Na shbandi v. Government o the Punjab and others (2003 PLC (C.S.) 1421) and Mrs. Abida Perveen Channar v. High Court of Sindh (2011 PLC (C.S.) 836). The Hon'ble Supreme Court of Pakistan in the case of Muhammad Siddique Javed (supra) has categorized the cases where the show cause notice is required to be issued while dispensing with services of a probationer and where the competent Authority can straightway terminate the services of such person relevant portion of the said judgment reads as under:- "** In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the government but if the service of a probationer is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour: In the last mentioned case, the probationer will be protected by the provisions of Article 177 of the Constitution of 1962 and will be entitled to a show-cause notice and a proper enquiry against him must be made. ...."
If the case of the petitioner is adjudged on the basis of afore quoted judgment of the august Supreme Court, I am of the view that the case of the petitioner falls within the category where no show cause notice is required to be issued prior to proceedings against him, thus no exception can be taken against the impugned orders on the ground under discussion.
11. Even otherwise if the clog is imposed upon by the competent authority to follow procedure of regular inquiry against a probationer even, the purpose to place a person on probation would become redundant simply for the reason that a government employee acquires certain rights only after successful completion of his probation period. In the case of Mrs. Abida Parveen Channar (supra) the apex Court of the Country while clinching the issue, under discussion, has inter alia held as under:- "** that appointment of a probationer can only acquire a sure footing if he successfully completes the period of probation and the appointing authority is fully satisfied with his conduct and performance of duties ..."
12. It is important to observe over here that under Section 43 of the University of the Punjab Act, 1973, an employee against whom an order has been passed by the competent Authority has been bestowed with remedy of appeal. A conjunctive reading of Section 43 ibid with Sections 12, 15 and 17 of the Punjab University Employees (Efficiency and Discipline) Statutes, 1975 (hereinafter to be referred as "statutes 1975") makes it crystal clear that not only remedy of appeal or review has been provided to an aggrieved employee of the University against an order passed by the competent Authority rather remedy of revision has also been catered for an aggrieved person.
According to the opening lines of the Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 a writ petition is only maintainable in the cases where no alternate remedy is provided to the aggrieved person but in the instant case, the petitioner having been equipped with remedy of review, revision and appeal under the aforementioned provisions, the instant petition is not maintainable. Though learned counsel for the petitioner has tried to wriggle out of the said embargo with the plea that even if the remedy of appeal, review or revision is available to the petitioner, he can knock the doors of this court on the premises that the remedy provided under any law is not efficacious. In this regard, I am of the view that when remedy of appeal review or revision has been provided under the relevant statutes no one can be allowed to by-pass the same simply for the reason that in his view the same is not efficacious for redressal of his grievance. The apex Court of the country while dealing with somewhat similar situation in the case reported as Syed Match Company Ltd. Through Managing Director v. Authority under Payment of Wages. Act and others (2003 SCMR 1493) has laid law to the following effect:- "It is not the discretion of a party to ignore the provisions of appeal and file Constitutional petition instead. Even, if it is assumed for the sake of arguments that the claim of the respondents was on higher side, yet , for this reason alone it could not be asserted that the respondent No,1 had no jurisdiction in the matter. In various cases, this court has discouraged the tendency to bypass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of High Court... " (emphasis provided)
13. Learned counsel for the petitioner has repeatedly argued that as the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 was in vogue at the time of termination of the petitioner, his services could not be terminated except through the procedure as provided under the PEEDA Act, 2006. In this regard, I do not find myself in agreement with learned counsel for the petitioner firstly for the reason that the appointment of the petitioner was undertaken by the VC while exercising powers vested under Section 15(3) of the University of the Punjab Act, 1973. Further, the terms and conditions of the employees of University of the Punjab are to be governed according to the said statute and the Regulations made thereunder. It is not case of the petitioner that the University of the Punjab Employees (E&D) Statutes, 1975 have been repealed. Secondly, when the petitioner's services have been dispensed with while pressing into service the terms and conditions mentioned in his appointment letter, the petitioner has no cheeks to claim that his case was to be proceeded under PEEDA, 2006.
14. As far as contention of the learned counsel for the petitioner that remedies provided before departmental hierarchy cannot be equated with constitutional jurisdiction of this court thus said remedies pointed out by learned counsel for the respondent cannot be considered efficacious while abridging jurisdiction of this court vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, suffice it to note that if such a view is taken, the same would amount to nullify clear cut provision of an enactment which being in violation of the established principles of interpretation of statutes cannot be approved.
15. For what has been discussed above, I see no force in this petition which is dismissed leaving the parties to bear their respective costs.