Syed Mansoor Ali Shah, CJ:- The challenge: Private respondents no. 1 to 3 are associated with higher education and are desirous of being considered for the post of Vice Chancellor. They challenged Notifications dated 3.3.2015 and 7.4.2105 ("Notifications") issued by the Higher Education Department ("HED"), Government of the Punjab, before the learned Single Judge. The first notification constitutes a Search Committee, for a period of two years. Its mandate is to recommend to the Government, a panel of three suitable persons for the post of Vice Chancellor, in 11 public sector universities, {{FN1}}to be finally appointed by the Chancellor. The second notification provides for qualifications, experience, other requirements and criteria for the selection to the post of Vice Chancellor.
2. The private respondents challenged the constitutionality and legality of these Notifications on the ground that standards in institutions of higher education fell within the exclusive domain of the Federal Legislature under Entry 12 of Part-II of the Federal Legislative List of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), therefore, Provincial Legislature through section 14(2) and (4) of the University of the Punjab Act, 1973 ("Act") as substituted by the Public Sectors Universities (Amendment) Act, 2012 {{FN 2}}could not provide for standards i.e., qualifications, etc and criteria. They prayed that the said provisions of the Act be either read down or declared unconstitutional. They also agitated that the Notifications fell short of the statutory requirements and were ultra vires section 14 of the Act. {{FS1}} There are 31 public sector universities in Punjab, however, term of the existing Vice Chancellors had come to an end in 11 public sector universities when the said notification was issued. {{FE1}} {{FS2}} Identical amendments have been made in the laws relating to the other three Universities in connected petitions, however, for the purpose of this consolidated judgment, amendment in section 14, made in the University of the Punjab Act, 1973 will be considered.1 2 1 2 {{FE2}} Impugned judgment
3. Impugned judgment dated 14.11.2016 struck down section 14 (2) & (4) of the University of the Punjab Act, 1973 and similar provisions in the law of 10 other public sector universities in Punjab (even though only four universities were before the Court). As a consequence, impugned Notifications issued by the Higher Education Department, were also struck down.
4. The impugned judgment held that till the appointment of the new Vice Chancellors in accordance with the judgment, Senior Professors in terms of length of service be appointed as Vice Chancellors in the under- mentioned four public sector universities before the Court. The impugned judgment was suspended vide order dated 19.12.2016 {{FN3}}by this Court, and as an interim measure, one of the recommended candidates from the proposed panel for the under-mentioned four universities was provisionally appointed to hold the post of Vice Chancellor.
(i) University of the Punjab, Lahore.
(ii) University of Sargodha, Sargodha.
(iii) Lahore College for Women University, Lahore.
(iv) Muhammed Nawaz Sharif University of Engineering & Technology, Multan.
Facts
5. Through section 2 of The Public Sectors Universities (Amendment) Act, 2012 (LX of 2012) dated 14.11.2012, amendment was brought about in section 14 of the Act. Identical amendments were brought about in the statutes of other public sector universities in Punjab. Section 14 deals with appointment of Vice Chancellor and authorizes the Provincial Government to determine through a Notification the qualification, experience and {{FS3}} In I.C.A.no. 1767/2016. As modified by order dated 12.01.2017. {{FE3}} other relevant requirements for the post of Vice Chancellor, as well as, constitute a Search Committee of not less than three members and not more than five members for making recommendations for appointment of the Vice Chancellor. The Government is also to determine the procedure and criteria to be followed by the Search Committee, constituted to recommend a panel of three persons to be considered for the post of Vice Chancellor.
6. The Notifications were given effect to and as a consequence the Search Committee recommended a panel of three persons each, for the post of Vice Chancellor in 11 public sector universities. The Chancellor appointed Vice Chancellors in 7 out of the 11 public sector universities from the panel of persons recommended by the Search Committee to the Government. While the appointments process was afoot in the remaining four universities, the process of appointments was challenged through the instant litigation.
Arguments
7. Mr. Shakeel-ur-Rehman, Advocate General Punjab, assisted by Mr. Anwaar Hussain, AAG, has argued that the matter of only four public sector universities was under challenge before the learned Single Judge but provisions of laws of as many as seven other universities which were not before the court, were also declared unconstitutional without impleading and affording an opportunity of hearing to the said universities. That the learned Single Judge failed to appreciate that the Province of Punjab followed the minimum guidelines prescribed by the Higher Education Commission and infact had improved upon them. He vehemently argued that impugned judgment fails to demonstrate as to how minimum guidelines prescribed by the HEC were violated by the Provincial Government. That there is no conflict between the provisions of Section 14 and the Higher Education Commission Ordinance, 2002. That both the laws can co-exist as long as minimum standards prescribed by the federal Higher Education Commission are not violated. He submitted that Higher Education Commission Ordinance, 2002 does not set any mandatory guidelines or standards for the office of Vice Chancellor, inspite of the same, the guidelines developed by the Higher Education Commission were followed by the Provincial Government. He submitted that "Education" as a subject falls within the unwritten residuary list, post 18 Constitutional Amendment and Higher Education is part of "Education," therefore, setting standards for institutions of higher education is a legislative power which overlaps and is shared between the3 3 th Federation and the Province. The Federation can only set minimum standards in institutions for higher education as they are national overarching standards and cater to all the public sector universities in the country, irrespective of the stage of development of the respective provinces. Learned Advocate General in addition to the above, argued that the private respondents had no locus standi to maintain the writ petition as they failed to establish any violation of their right under law; that the impugned judgment ignores the effect of section 10(1) (q) of the HEC Ordinance; that appointment of Vice Chancellor has no nexus with standards of higher education as he does pass for faculty under the HEC Ordinance. In the end it is contended that learned Judge in chambers has not relied on the latest case law on the subject including Kalyani Mathivanan v.
K.V.Jeyaraj and others (2015 (6) SCC 363). Justifying the constitution of the Search Committee under section 14(3) of the Act, he submitted that the Members of the Search Committee are reputable and renowned educationists who have been selected after due deliberation. He submits that no one has objected to the calibre, integrity and competence of the said Members. As far as the criteria is concerned he submits that the minimum guidelines issued by HEC were duly followed by the Committee hence the process and criteria as envisaged under section 14 of the Act was strictly followed.
8. Mr. Amir Sohail, learned counsel for Provincial Higher Education Commission adopted the arguments of learned Advocate General, Punjab. Mr. Awais Khalid, learned counsel representing University of the Punjab while adopting the argument of the learned Advocate General Punjab added that the impugned judgment offends provincial autonomy in the post 18 amendment scenario and learned Single Judge has granted relief beyond the pleading of the parties.
9. Learned counsel representing the Federal Higher Education Commission submitted that HEC enjoys exclusive power to set standards for the institutions of higher education, research, scientific and technical institutions. In support of this contention learned counsel placed reliance on Haji Nasir Mehmood v. Mian Imran Masood and others (PLD 2010 SC 1089). Learned counsel further submitted that standards for institutions of higher education include minimum standards to be followed by the public sector universities. He adds that once Government of the Punjab has admittedly followed the said standards, the question whether such standards are mandatory or directory is not relevant. Commenting on the role and status of HEC post 18 Constitutional Amendment, he submitted that the matter is sub judice before the august Supreme Court of Pakistan in CP no. 33, 34 and 35 of 2011 wherein vide order dated 12-4-2011 the status of HEC has been kept intact for the time being.
10. Mr. Saad Rasool, learned counsel representing the private respondents who had brought the challenge before the learned Single Judge submitted that on the constitutional plane the sole prerogative to set standards in institutions of higher education is of the federal legislature under Entry 12 of Part-II of the Federal Legislative List read with Higher Education Commission Ordinance, 2002. He submits that for this reasons, section 14 (2) and (4) of the Punjab University Act, 1973 offend Entry 12 of Part-II of the Federal Legislative List. It is also contended that impugned notification issued under section 14 did not meet the requirement of the law. That criteria notification should have been specifically tailored for the requirement of different distinct universities and the Government cannot arbitrarily determine the criteria for the qualification of the Vice Chancellor. The criteria notification must have been issued prior in time to the Committee Notification. Learned counsel further submitted that there is no mechanism or rational for selecting and appointing the committee members of the Search Committee. The criteria set by the Government is in violation of the HEC criteria. The interview process was neither deliberative nor diligent and the selection process was invalid in the light of dicta of the august Supreme Court of Pakistan laid down in Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132).
11. Mr. A.K. Dogar, learned counsel representing the applicant/respondent (C.M. No.198/2017 in ICA No.1777/2016) Dr. Uzma Qureshi, who had completed her four years as Vice Chancellor of Lahore College for Women University and vide notification dated 29-07-2015 was given a look after charge till regular appointment of the Vice Chancellor. Mr. Dogar raised a preliminary objection that the instant ICA cannot proceed as Dr Uzma Qureshi, being the incumbent Vice Chancellor, was not heard by the learned Single Judge, hence theth th impugned judgment be set aside on this score alone and the case be remanded and heard afresh. On merits, he went on to submit that Higher Education Commission Ordinance, 2002 is non-est after the 18 Constitutional Amendment, therefore, question of following any standards set by the HEC is unconstitutional. In support of this contention he placed reliance on Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416). He submitted that Search Committee is a recommending body and not the appointment authority. He adds that the Government is the appointing authority and is not bound by the recommendations of the Search Committee.
Preliminary objection.
12. Addressing the preliminary objection raised by Mr. A.K. Dogar (above), it is an admitted position that Dr Umza Qureshi, had served her terms as a Vice Chancellor of Lahore College for Women University and is currently on a look after charge till the appointment of a regular Vice Chancellor. Dr Uzma Qureshi, therefore, has no right to the post and as a consequence no locus standi to challenge the appointment process or the selection made by the Search Committee. She was, therefore, not a necessary party and was not required to be heard by the learned Single Judge. The preliminary objection is misconceived and without any legal force.
Therefore, her application (C.M. No.198/2017 in ICA No.1777/2016) is hereby dismissed. We, however, point out that Mr. A.K. Dogar also made submissions on the merits of the case, his submissions were considered and have been substantially addressed in this judgment.
Opinion of the Court
13. The constitutional and legal questions that arise in this appeal are as follows: A. Whether the legislative power to set standards in institutions of higher education under Entry 12 of Part-II of the Federal Legislative List is exclusively within the domain of the Federation or whether, the subject of "education," falling in the unwritten Residuary List also empowers the Province to legislate on the subject ?
Whether "education" includes "Higher Education"? Whether in the case of "education" there is an overlap of legislative power and as a consequence both Federation and the Province have the power to legislate ?
Whether the principle of Federalism and its derivative i.e., co operative federalism, embedded in our Constitution, address the overlap of legislative competence ?
B. The nature and scope of "standards in institutions of higher education" set under Higher Education Commission Ordinance, 2002 ? Whether minimum and directory ?
C. Whether provincial law under section 14 (2) and (4) of the University of the Punjab Act, 1973 (and identical provisions in the statues of the other universities) setting standards, procedure and criteria in institutions of higher education is per se unconstitutional and illegal?
D. Whether, impugned Notifications, without prejudice to the constitutional argument, comply with the statutory requirement of section 14 (2) and (4) of the Act, to the extent of providing a fair mechanism for the constitution of the Search Committee and an open and fair process and criteria for the selection to the post of Vice Chancellor of a public sector University?
E. The Role and importance of Council of Common Interest ("CCI") under article 154 of the Constitution over matters falling in Part-II of the Federal Legislative List especially "standards in institutions of higher education..." and whether in the present case CCI has played its constitutional role ?
We now deal with the above questions in detail.
A. Whether the legislative power to set standards in institutions of higher education under Entry 12 of Part-II of the Federal Legislative List is exclusively within the domain of the Federation or whether, the subject of "education," falling in the unwritten Residuary List also empowers the Province to legislate on the subject ? Whether "education" includes "Higher Education"? Whether in the case of "education" there is an overlap of legislative power and as a consequence both Federation and the Province have the power to legislate ? Whether the principle of Federalism and its derivative i.e., co - operative federalism, embedded in our Constitution, address the overlap of legislative competence ?
14. Lets begin by mapping "education" as a legislative subject. Under Government of India Act, 1935 "education" fell within the exclusive domain of the Province. {{FN4}}While the subject dealing with "federalth 4 agencies and institutes for the purposes of research, professional or technical training or for the promotion of special studies" fell within the federal domain. {{FN5}}Entry 20 of the Provincial List, of the 1956 Constitution, vested exclusive power in the provincial legislature regarding "education," including universities, {{FS4}} Entry 17 of the Provincial Legisaltive List. Section 103(3) of the Government of India Act, 1935{{FE4}} {{FS5}} Entry 12{{FE5}} technical education and professional training.{{FN6}} While Entry 21 of the Federal List, of the 1956 Constitution, dealt with "federal agencies and federal institutions for the promotion of special studies and special research; libraries and museums financed by the Federation." Similar was the position under the 1962 Constitution where article 132 provided that Provincial Legislature shall have power to make laws for the Province with respect to any matter other than enumerated in the Third Schedule. Education as a subject did not fall in the Third Schedule, while entry 30 of the Third Schedule provided for "central agencies and central institutions for the promotion of special studies and special research." Under the 1973 Constitution (pre- 18 constitutional amendment), "education" fell under entries 38 and 39 of the Concurrent List in the following manner:
38. Curriculum, syllabus, planning, policy, centers of excellence and standards of education.
39. Islamic Education While the Federal Legislative List under entries 16 and 17 covered the following:
16. Federal agencies and institutes for the following purposes, that is to say, for research, for professional or technical training, or for the promotion of special studies.
17. Education as respects Pakistani students in foreign countries and foreign students in Pakistan.
Post 18 constitutional amendment, the Concurrent Legislative List was abolished and "education" became part of the invisible and unwritten, Residuary List, falling within the exclusive domain of the Provincial Legislature, under article 142(c) of the Constitution. Standards of higher education now fall under Entry {{FS6}} see article 106 of the 1956 Constitution. {{FE6}} 12 of Part-II of the Federal Legislative List in the following manner:-
12. Standards in institutions for higher education and research, scientific and technical institutions.
15. What do we mean by "Education" ? It is defined as the process of teaching and learning, usually at school, college, or university. {{FN7}}Education, therefore, is an expansive and wide-ranging legislative subject, including all tiers of education in a Province including higher education. It is axiomatic that =education' includes standards in education at all levels. Therefore, while "standards in institutions of higher education" is a federal legislative subject, it also, indubitably, falls within the larger provincial legislative subject of "education." There is, therefore, an overlap of legislative competence in the area of "education" and "standards of higher education" between the federation and the provinces.
16. This legislative overlaps brings us to the concept of Federalism under our Constitution. "The commonly accepted features of a federal constitution are: (i) existence of two levels of government; a general government for the whole country and two or more regional governments for different regions within that country; (ii) distribution of competence or power - legislature, executive, judicial, and financial - between the general and the regional governments; (iii) supremacy of the constitution - that is, the foregoing arrangements are not only incorporated in the constitution but they are also beyond the reach of either governments to the extent that neither of them can unilaterally change nor breach them; (iv) dispute resolution mechanism for determining the competence of the two governments for exercising {{FS7}} Longman dictionary of contemporary English, 6 Edition, Third Printing, 2015 by Pearson Education Limited, at page. 568, The Chambers Dictionary, 12 Edition, 2011 by Chambers Harrap Publishers Ltd, at page 490 and Oxford Dictionary of English{{FE7}} any power or for performing any function". {{FN8}}?Federalism may be broadly described as a device by which a system of double government is made to operate in one and the same State. It envisages a scheme of securing division of power between the National Government, on the one hand, and the Regional Governments, on the other, in such a way that, both of them discharge their law-making and executive functions strictly within the sphere of their allotted jurisdiction. It is one of the important characteristics of the federal constitutions that5 4 5 6 th th 6 7 7 th th 8 they invariably contain a well defined procedure for resolving conflicts and clashes of authority, between the two governments thus established within the framework of one and the same State. The two governments accommodated within the framework of a federal polity are of coordinate authority and work independently of each other in the sphere marked out to them.... in a Federal Constitution there are really two governments working side by side, and the operation of each one of them, within the limits defined by the Constitution, is independent of the control by the other. They are coordinate, independent organs of sovereign power, each being a master in the sphere of its own allotted jurisdiction."{{FN9}} Federalism is in fact the basis of the division of powers...The principle of Federalism is a central organizational theme of the constitution and represents a political and legal response to underlying social and political realities... A federal system of government allows different provinces to pursue specific policies tailored to the particular concerns and interests of residents in that province. The Principle of Federalism also enables provinces to enact specific statues to pursue specific collective goals, and may promote different cultures and linguistic minorities within a specific province or areas. At the same time federalism allows citizens to {{FS8}} The Oxford Handbook of Indian Constitution. edited by Sujit Choudhry Madhav Khosla & Pratap Bhanu Mehta. Oxford University Press 2016 Federal Scheme- Chapter 25. {{FE8}} {{FS9}} A K Brohi- Fundamental Law of Pakistan -1958. p 56-58. {{FE9}} construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction. Consequently, federalism is key to enable citizens to participate in different collectivities and to pursue objectives at local, provincial and national levels.{{FN10}}
17. Federalism as a political system is primarily concerned with the ideas of developing a manageable system of governance thus establishing an orderly arrangement among different tiers of government in a nation. Establishing a manageable and accommodating system is the real test for federalism which should ensure that the general and regional governments coordinate with each other while remaining independent. {{FN11}} Federalism is a process through which authority is distributed and redistributed, structured by a set of institutions. It seeks cooperation from the sub-units such as provinces and states to create and implement decisions and activities.{{FN12}}
18. Under our Constitution, the preamble provides that Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed. The distribution of legislative power is provided under article 142 of the Constitution in the following manner: Article 142. Subject to the Constitution--
(a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List;
(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence; {{FS10}} Guy Regimbald & Dwight Newman- The Law of the Canadian Constitution (Lexis Nexis) p.97-98{{FE10}} {{FS11}} Zubair Faisal Abbasi- Federalism, Provincial Autonomy and Conflicts. Centre for Peace and Development Initiatives. Friedrich Naumann Stiftung. 2010. p.2{{FE11}} {{FS12}} ibid p.3{{FE12}}
(c) Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List;
(d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province.9 8 9 10 11 12 10 11 12
19. Article 142 supports the Federal principle. The two governments have exclusive power to legislate in their own delineated spheres. Under article 142(a), Parliament has exclusive power to make laws with respect to any matter in the Federal Legislative List and similarly article 142(c) states that the Provincial Assembly shall have the power and the Parliament shall not have the power to make laws in respect of matters not enumerated in the Federal Legislative List. Provincial Assembly, therefore, enjoys legislative power over an unwritten residuary list of subjects which do not fall under the Federal Legislative List. The two legislatures enjoy plenary power regarding their subjects and do not encroach upon the legislative space of the other. With the Concurrent Legislative List gone, the common legislative areas between the Federation and the Provinces are no more.
With the removal of the common legislative areas, provincial autonomy and the Federal Principle stand accentuated. The two governments now legislate in their own domain to advance the social and political realities of the State. The exclusivity of legislative power under article 142 provides a clear divide of legislative subjects between the two governments. This horizontal sharing of legislative power provides that the legislative competence, in any matter, is either with the Federation or the Province.
20. There is more. What if a legislative subject falls within the legislative competence of both the Governments?
For example, as in the present case. "Education" as a subject surely includes "standards in education." How do we read the exclusivity under article 142 of the Constitution when there is vertical sharing of legislative power, somewhat akin to the erstwhile concurrent sharing of power? According to the Federal Principle, even in such an overlap, no matter how uneven and lopsided the overlap is, both the Governments enjoy plenary legislative power on the subjects assigned to them. It is important to highlight and recall that under the late Concurrent Legislative list, same legislative subjects were common to both the legislatures, this evenness and symmetry allowed the entire subject to be occupied by either of the two legislatures and if the federal legislature occupied it, provincial legislature stood ousted. 18 constitutional amendment by removing the Concurrent Legislative List, gives more legislative space to the Province and boosts provincial autonomy. There is no common legislative list anymore but subjects in Part-II of the Federal Legislative List might overlap with the corresponding subjects in the unwritten Residuary List, as in the instant case. Post 18 constitutional amendment, the commonality of the legislative subjects is asymmetrical and uneven e.g. "education" (Residuary List) versus "standards in higher education....(Federal Legislative List). " Even in such an uneven overlap, Federal Principle applies and both the governments enjoy plenary legislative power on the subject but federal legislature does not oust the legislative power of the provincial legisalture as was the case under the erstwhile Concurrent Legislative List. The only exception is when the federal and provincial statutes are locked in an unavoidable and ineluctable direct conflict. In such a unique situation, there federal law prevails under article 143 to resolve the impasse. However, such conflicts are not encouraged and do not sit well with the theme of Federalism.
How is the legislative power to be shared in the new constitutional scheme in cases of overlap?
18 constitutional amendment gives way to cooperativeness and coordination between the governments to deal with such overlaps. This coordination is a derivative of federalism and has come to be known as co-operative federalism or participatory federalism.
21. Constitution is not a straitjacket, but a breathing document, that is alive and living. Intergovernmental cooperation and coordination in administrative and legislative matters under Chapter 2 of Part V of the Constitution reflect constitutional vitality. The biological architecture of our constitution rests on co-operative federalism, which is a concept of federalism in which national, state and increasingly local governments interact cooperatively and collectively to solve common problems, rather than making policies separately. {{FN13}}Cooperative federalism, also known as marble-cake federalism, is a form of federalism where there is mixing of powers, resources, and programs between and among the national, state, and local governments. Federalism is a system of government in which power is divided between a central government and regional or sub-divisional governments. In marble cake federalism there will be an intermingling of all levels of government in policies and programming. This is also known as co-operative federalism. Cooperative Federalism simply refers to making federalism work through cooperationth th th 13 14{{FN14}} between various levels of government. It emphasizes the partnership between the different levels of government providing effective public service for the nation...the various levels of governments, under this arrangement are seen as related parts of a single government system, and characterized more by cooperation and shared functions than by conflict and competition. {{FS13}} International Conference on Cooperative Federalism , National Perspectives and International Experiences.
New Delhi. Conference Booklet, 2016. p.1{{FE13}} {{FS14}} 14 https://definitions.uslegal.com/m/marble-cake-federalism/{{FE14}} {{FS15}} Theories of Federalism, Ademola Ariyo, Adhoc Expert Group Meeting, 2003. Economic Commission for Africa. United Nations. {{FE15}} A critical feature of cooperative federalism is the balance it strikes between complete federal preemption (a preemptive federalism) and uncoordinated federalism (dual federalism). Under preemptive federalism, federal law preempts a provincial law to enter the common legislative field. While under dual federalism two legislatures retain their uncoordinated domains. Cooperative Federalism blends these two models. Cooperative federalism rejects the suggestion that federal law demands uniformity in all situations. Rather, cooperative federalism presumes that supplementation of a uniform minimum standards should be left to the States. {{FN16}}Supreme Court of Canada {{FN17}}went further in acknowledging that the principle of federalism encouraged intergovernmental cooperation. It rejected rigid formalism and favoured accommodating cooperative intergovernmental efforts to challenge complex issues that could not be allocated to any specific head of power. Cooperative federalism is embedded into our constitutional architecture under Part V. Chapter 1 of this part deals with distribution of legislative powers, while chapter 2 deals with administrative relations between Federation and Provinces. Chapter 3 deals with special provisions including Council of Common Interest (CCI) which is forms the fulcrum of cooperative federalism under our Constitution.
22. Cooperative Federalism, being an intrinsic part of our constitutional design, is also an effective and potent interpretative tool for the courts. The overlap in legislative space between the Federation and the Province over standards in institutions of higher education and education and the limits of exclusivity under Article 142 of the Constitution can be resolved through purposive {{FS16}} Philip J Weiser - Federal Common Law, Cooperative Federalism and the Enforcement of Telecom Act. New York University Law Review -2011. vol.76 1692. At 1692/1697/1732{{FE16}} {{FS17}} Reference re Securities Act, [2011] S.C.J no. 66 {{FE17}} interpretation with this clear constitutional purpose in mind. Article 142 opens with: "subject to the Constitution." This means that while interpreting the article, other provisions of the Constitution and foundational constitutional principles envisaged in the Constitution will take preference over article 142.{{FN18}} The legislative subjects of standards in institutions of higher education and education have to be contextualized within the constitutional architecture of federalism and made to co-exist under the principles of cooperative federalism. Courts must, therefore, favour functional coexistence of the federal and provincial statutes in cases where there is vertical sharing or an overlap of legislative powers. Cooperative federalism flowing through the Constitution helps prevail over and dilute the exclusivity of article 142 into a more workable and constitutionally compliant inclusivity. Giving both the legislatures space to co-exist. Only in cases of irreconcilable inconsistency between the federal and provincial statutes, article 143 provides a solution, but only as a last recourse.15{{FN15}} 13 15 16 17 16 17 18 Constitutional Court of South Africa when dealing with a similar issue held: "where two legislature have concurrent powers to make laws in respect of same functional areas, the only reasonable way in which these powers can be implemented is through co operation. And this applies as much to policy as to any other matter. It cannot therefore be said to be contrary to the constitution for Parliament to enact legislation that is premised on the assumption that the necessary cooperation will be offered and which requires provincial administration to participate in cooperative structures and to provide information or formulate plans....and are relevant to finding the best solution to an impasse that has arisen.?{{FN19}} Justice Iacobucci, speaking for the Supreme Court of Canada in Husky Oil, held: " In closing, although I find {{FS18}} 18 Madav Khosla, The Indian Constitution, Oxford 2012 Chapter 2{{FE18}} {{FS19}} Dispute Concerning the Constitutionality of certain provisions of the National Education Policy Bill no. 83 of 1995. Case No. CCT 46/95. Para 34 {{FE19}} there to be no conflict between section 133 (1) and the Bankruptcy Act, I posit that, even if there were to be some element of conflict, this must be evaluated in light of the fact that the provincial legislation is intra vires.
Legislation that is intra vires is permitted to have an incidental and ancillary effect on a federal sphere. I would emphasize again that this court has traditionally declined to invoke the parmountcy doctrine in the absence of actual operational conflict. I am uncomfortable with the ?water tight? approach to federal bankruptcy legislation propounded by the respondents. To interpret the quartet as requiring the invalidation of provincial laws which have any effect on the bankruptcy process is to undermine the theory of cooperative federalism upon which (particularly post war) Canada has been built....it is appropriate to adopt as narrow a definition of operational conflict as possible in order to allow each level of government as much area of activity as possible within its respective sphere of authority.? In Attorney General for Saskatchewan, Supreme Court of Canada held: ?Given the guiding principle of cooperative federalism, paramountcy must be narrowly construed.
Whether under the operational conflict or the frustration of federal purpose branches of the paramountcy analysis, courts must take a ?restrained approach,? and harmonious interpretations of federal and provincial legislation should be favoured over interpretations that result in incompatibility... Constitutional doctrine should give due weight to the principle of cooperative federalism... this principle allows for some interplay, and indeed overlap, between both federal and provincial legislation...cooperative federalism accordingly ?normally favours - except where there is an actual conflict - the application of valid rules adopted by governments at both levels as opposed to favouring a principle of relative inapplicability designed to protect powers assigned exclusively to {{FS20}} Husky Oil Operations Ltd v. Minister of National Revenue. [1995] 3 R.C.S 453. Para 162 {{FE20}} the federal government or the provinces"....while the principle of cooperative federalism cannot be seen as imposing limits on the otherwise valid exercise of legislative competence, it may be invoked" to facilitate interlocking federal and provincial legislative schemes and to avoid unnecessary constrained on provincial legislative action".... in line with this principle, absent clear evidence that parliament intended a broader statutory purpose, courts should avoid an expansive interpretation of the purpose of federal legislation which will bring it into conflict with provincial legislation."{{FN21}}
23. Coming to our Constitution, in matters of standards in education and standards in institutions of higher education, the principle of cooperativeness, leads us to understand the scope of Entry 12. We see that national or federal standards are so designed as to fit all the institutions of higher education in the country. Any such standards are equally applicable to all the provinces irrespective of their state of development in higher education. Hence, federal or national standards by design will always be the baseline minimum national standards, reflective of national integrity and unity. This overarching national architecture of minimum standards provides a baseline for institutions of higher education. The provincial public sector universities and the19 19 20{{FN20}} 20 21 provincial government exercising their legislative power under the Residuary List are fully empowered to go beyond these minimum standards by setting their own higher standard of excellence. Federation cannot stifle or stunt the progress of higher education in the Provinces, if the Provinces wish to progress and build higher and more robust standards of learning. The only limitation on the Province is that its standards must be at par or higher than the federal minimum standards but cannot be below the federal standards as it would offend national unity and the federal {{FS21}} Attorney General for Saskatchewan v. Lemare Lake Logging [2015] 3 R.C.S 419. Paras 21, 22 and 23. {{FE21}} compact. In case of vertical power sharing, as in the case of `education,' federalism encourages cooperation and interdepartmental coordination, which takes the form of participatory or cooperative federalism.
24. In conclusion, the federation can set standards in institutions of higher education, however, they will always pass as minimum or mean standards as they cater to all the public sector universities in the country.
Simultaneously, the Provinces are fully empowered to develop their own standards in institutions of higher education as long as they are not below the federal standards. This limitation supports national unity and the federal principle.
25. Learned Single Judge has over-emphasized on exclusivity of the federal legislature, sidelining the overarching constitutional structure of federalism and cooperative federalism, which prevails over article 142. The impugned judgment largely proceeds on the reasoning given in Professor Yashpal and another v. State of Chhattisgarh and others (AIR 2005 SC 2026) without giving due weightage to the fundamental concepts of participatory/cooperative federalism and provincial autonomy that stood revitalized under the 18 constitutional amendment. Even the Indian jurisprudence has moved away from the reasoning in Yashpal case. After almost eleven years, Supreme Court of India, in Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others {{FN23}}(AIR 2016 SC 2601) has held: The intent of our Constitution framers while introducing entry 66 of the Union List was thus limited only to empowering the Union to lay down a uniform standard of higher education throughout the country and not to bereft the State legislature of its entire power to legislate in relation to `education' and organizing its own common entrance examination...The term `fixing of standards of institutions for higher education' is for the purpose of harmonizing {{FN22}} Three member bench{{FE22}} Five member bench. {{FE23}} coordination of the various institutions for higher education across the country. Looking at the present distribution of legislative powers between the Union and the States with regard to the field of =education,' that State's power to legislate in relation to ?education, including technical education, medical education and universities? is analogous to that of the Union. However, such power is subject to entries 63,64, 65 and 66 of the Union List, as laid down in entry 25 of the Concurrent List. It is the responsibility of the Central Government to determine the standards of higher education and the same should not be lowered at the hands of any particular State . ....
26. The scheme of the HEC Ordinance, provides for minimum guidelines and standards, giving leeway to the Province to improve on these standards exercising its own legislative and executive power. There is, therefore, no conflict between HEC Ordinance, setting minimum standards and Section 14 of the Act providing for qualifications, experience and criteria for appointment of a Vice Chancellor. In the present case, the Province has fully applied the minimum guidelines issued by the HEC without objecting to its directory nature. The view of the learned Single Judge that setting standards in institutions of higher education fall within the exclusive domain of the federal legislature just because of Entry 12, is not sustainable for the reason that HEC Ordinance itself provides for minimum guidelines which are non-binding. Even if this was not so, constitutional scheme of21 22{ { FN 22}} th 23 22 {{FN23}}23 24{{FN24}} cooperative federalism would have given space to both the federation and the province to have a functional co- existence.
B. The nature and scope of "standards in institutions of higher education" set under Higher Education Commission Ordinance, 2002 ? Whether minimum and directory ?
27. The legislative sanction behind HEC Ordinance is Entry 38 of the late Concurrent Legislative List, which provided for {{FS24}} As per R. Banumathi J. in paras 119 and 121. {{FE24}} "curriculum, syllabus, planning, policy, centres of excellence and standards of education." Post 18 Constitutional Amendment, a truncated version of Entry 38 found its way in Entry 12 of Part-II of the Federal Legislative List of the Constitution, while the expansive subject of "education? fell within the Provincial domain and forms part of the unwritten and invisible Residuary List. HEC Ordinance, as it stands today, draws its legislative sanction (only, to the limited extent of standards in institutions of higher education...) from the said Entry, which only provides for "standards in institutions for higher education and research, scientific and technical institutions." We wanted to touch upon the scope and extent of HEC Ordinance, post 18 Amendment, but were informed that the matter is sub judice before the august Supreme Court of Pakistan in CP no. 33, 34 and 35 of 2011 wherein vide order dated 12-4-2011 the status of HEC has been kept intact for the time being. We have, therefore, left this issue untouched.
28. The powers and functions of the Higher Education Commission under the HEC Ordinance, relevant to this case, are provided in section 10. The relevant portion is reproduced hereunder for reference:- Section 10. Powers and functions of the Commission (1) For the evaluation, improvement and promotion of higher education, research and development the Commission may:-
(a) formulate policies, guiding principles and priorities for higher education Institutions for promotion of socio- economic development of the country;
(b) cause evaluation of the performance of Institutions; {{FS25}} 19th April, 2010 {{FE25}}
(c) prepare, through consultations with the institutions, plans for the development of higher education and express its opinion on all matters relating thereto:
(m) advise Institutions in ensuring a proper balance between teaching and research;
(q) provide guidelines as regards minimum criteria and qualifications for appointment, promotion, salary structure in consultation with the Finance Division and other terms and conditions of service of faculty for adoption by individual Institutions and review its implementation;
(v) guide Institutions in designing curricula that provides a proper content of basic sciences, social sciences, humanities, engineering and technology in the curricula of each level and guide and establish minimum standards for good governance and management of Institutions and advise the Chancellor of any institution on its statutes and regulations;(emphasis supplied)
29. Summary of the relevant powers and functions of HEC under section 10 of the HEC Ordinance (for the purposes of this case) show that HEC is empowered to develop guidelines regarding minimum criteria and qualifications for appointment of faculty, guide institutions in designing curricula and establish minimum standards for good governance. HEC Ordinance, therefore, simply provides guidelines regarding minimum criteria/standards. Secondly, HEC Ordinance does not cast any obligation on the Provincial Government or any provincial public sector university to follow the said guidelines. In other words if the Province or the provincial public sector universities do not follow these guidelines, they are apparently not violating the HEC Ordinance. There is no penal consequence attached to non- observance of the24 th 25{{FN25}} th 25 minimum criteria or standards by the Provinces or their public sector universities, which make these guidelines, at best, advisory or directory in nature.
30. This aspect of the case goes un-discussed in the impugned judgment, which restricts itself to the legislative entry and assumes that any law under the said entry would necessarily lay down mandatory and binding standards. It also assumes that Federation is the sole provider of standards in institutions of higher education and the Province has no role to play in this regard. The impugned judgment fails to examine the actual legislation i.e., HEC Ordinance, which provides non-binding minimum standards or guidelines. Legislative entries in the Federal Legislative List, simply demarcate topic and space for the federal legislature to make laws.
The design and details of the legislative architecture are left to the legislature. Legislative entries set the broad contours of legislative power but what shape and design is to be carved out from that legislative space is the prerogative of the legislature. In this case, the Federation in its own wisdom, did not empower the HEC to provide binding standards in institutions of higher education but instead empowered HEC to frame mere guidelines as regards minimum criteria/standards. Even if the HEC Ordinance provided standards (as opposed to minimum standards) in institutions of higher education, they would be contextualized in the constitutional scheme and interpreted in a manner to promote cooperative federalism so that the federal and provincial standards smoothly co-existed. Only in case of inescapable conflict between the two, would recourse be made to article 143 of the Constitution to give preemptive status to the federal law.
31. The Guidelines for appointment of the Vice Chancellor were developed in the 12 meeting of the Higher Education Commission held on 24 February, 2007 in the following manner: Guidelines for Selection of the Rector/Vice Chancellor Introduction: Rector or Vice Chancellor is fundamentally a leadership position that largely determines destiny of University or a Degree Awarding Institute. Conceiving a vision and a mission statement and, then leading university functions of achieving excellence and international compatibilities in academic learning, research, technology applications, social harmony and development and transparent governance through guiding, motivating and inspiring faculty and administration are a few of the core tasks associated with the position of a Rector or a Vice Chancellor. The Guidelines for Selection of the Rector/ Vice Chancellor are aimed at identifying crucial aspects that need to be valued by the Search Committee while processing selection of a Rector or a Vice Chancellor.
The Search Committee is encouraged to invite and or nominate potential candidates for the position of Vice Chancellor/ Rector, in writing, explaining the basis of recommendation and having been availed willingness of the nominee to assume the responsibility and honor of governing a public sector university.
1.Should preferably have earned doctorate degree in an academic discipline and an outstanding academician of international stature.
2. Should have attained a distinguished leadership preferably in education and academic administration and financial management with proven track record of extensive experience and skills in initiating and managing change strategic planning and overseeing the implementation of plans through to outcomes.
3. In-depth knowledge of the major issues affecting learning and teaching in higher education, funding and technological developments.
4. Thorough understanding of the scholarly purposes of a university, and of the economic, social and political issues faced by the higher education sector nationally and internationally.
5. An understanding of the diverse needs of and issues pertaining different disciplines in higher education and the ability to form and balance priorities relevant to national socio-economic needs and growth.
6. Ability to represent the university effectively, nationally and internationally especially with government, business and wider community.
7. In-depth knowledge of the major development in higher education learning and teaching with ability to create linkage and networks.
8. Excellent entrepreneurial, negotiating, interpersonal and communication skills with strong ability to work collaboratively and inspire staff and teams to achieve organization tasks and goals.th th
9. Commitment and equal opportunity principles, transparent governance and swift response.
The above guidelines developed by HEC for the selection of a Vice Chancellor in public sector universities cannot, therefore, be taken to be, binding standards, by any measure.
32. Statutory predecessor of HEC Ordinance was the University Grants Commission Act, 1974 ("UGCA"), drawing its legislative support from the same Entry 38 of the erstwhile Concurrent Legislative List. Section 8 of UGCA provided:
8. Functions of the Commission. For the promotion and co-ordination of university education, the determination and maintenance of standard of teaching, examination and research in Universities, the promotion of national unity and solidarity, the orientation of university programmes to national needs the Commission may-
(1) in consultation with the Federal Government, a Provincial Government or the University or other body concerned - ....
(i) recommend to the universities the measures necessary for the improvement of University education.
33. The above shows that the role of UGC was simply to recommend measures necessary for the improvement of the universities. More importantly the purpose of UGC was to promote coordination of university education, determine and maintain standard of teaching, examination and research in universities and promote national unity and solidarity. These goals under UGCA were to be achieved through consultation between the Federal Government, Provincial Governments and the Universities. As per section 8(1)(i) UGCA, University Grants Commission was to merely recommend measures necessary for the improvement of university education.
34. Review of the two legislative instruments reveal that the role of UGC or HEC was and is to recommend measures and set minimum standards in institutions of higher education. The wisdom behind fashioning these standards in this manner, lends support to the constitutional design of co- existence and cooperativeness between the two governments. Like this "education" as a subject can be shared between the governments as mandated by the Constitution and the Federal Principle.
C. Whether provincial law under section 14 (2) and (4) of the University of the Punjab Act, 1973 (and identical provisions in the statues of the other universities) setting standards, procedure and criteria in institutions of higher education is per se unconstitutional and illegal?
35. Section 14 of the University of Punjab Act, 1974 provides as follows:
14. Vice Chancellor. - (1) A person who is eligible and who is not more that sixty five years of age on the last date fixed for submission of applications for the post of the Vice Chancellor may apply for the post.
(2) The Government shall determine, by notification in the official Gazette, the qualifications, experience and other relevant requirements for the post of the Vice Chancellor.
(3)The Government shall constitute, for a term of two years, a Search Committee consisting of not less than three and not more than five members for making recommendations for appointment of the Vice Chancellor.
(4) The Search Committee shall follow such procedure and criteria for selection of the panel for the post of the Vice Chancellor, as the Government may by notification, determine.
(5) The Search Committee shall recommend to the Government, in alphabetical order without any preference, a panel of three persons who, in its opinion, are suitable for appointment as the Vice Chancellor.
(6) The Chancellor shall appoint the Vice Chancellor for each term of four years but he shall serve during the pleasure of the Chancellor.
(7) The Government shall determine the terms and conditions of service of the Vice Chancellor.
(8) The incumbent Vice Chancellor shall not be allowed any extension in his tenure but subject to eligibility he may again compete for the post of the Vice Chancellor in accordance with the procedure prescribed by or under this section.
(9) If the office of the Vice Chancellor is vacant or the Vice Chancellor is absent or is unable to perform the functions of the Vice Chancellor owing to any cause, the Pro-Vice Chancellor shall perform the functions of the Vice Chancellor but, if at any time the office of the Pro-Vice Chancellor is also vacant or the Pro-Vice Chancellor is absent or is unable to perform the functions of the Vice Chancellor owing to any cause, the Chancellor shall make such temporary arrangements for the performance of the duties of the Vice Chancellor as he may deem fit.(emphasis supplied)
Section 14 (2) and (4) authorize the provincial government to determine the qualifications, experience, other relevant requirements and criteria for the post of Vice Chancellor. The Federal structure of our Constitution mandates autonomy and independence of the federating units i.e., the Provinces. The Province is, therefore, equally empowered under the Constitution to legislate on the subject of =education" including ?standards in institutions of higher education." The two legislations and the standards thereunder do not disturb the constitutional equilibrium. The federal standards, if any, as discussed above, are by nature minimum, overarching, baseline standards - so that they can conveniently fit all the public sector universities in the country and maintain a threshold standard that would strengthen the federal compact and promote national unity. The Provinces are free and independent to build upon these minimum standards, make them more stringent or improve upon them, keeping in view their own educational roadmap, as well as, to meet their own political, social, economic and cultural realities. Post 18 constitutional amendment, provincial autonomy and cooperative federalism stands revitalized and must be protected and encouraged. Hence it would be constitutionally unpalatable to limit the self-sufficiency and independence of the Provinces by restricting their ability to determine their educational standards, policy and vision. There is no stopping the Provinces to establish centers of excellence and build a globally competitive educational system for their people. National standards, are not meant to stunt the progress and growth of higher education in a Province. This freedom and autonomy flows from foundational constitutional principle of federalism. Harmony of constitutional architecture requires that the Provincial education standards in higher education are not below the national standards. That's all.
Section 14(2) and (4) of the Act requiring the government to lay down qualifications and other criteria for appointment to the post of Vice Chancellor are not unconstitutional. The Provincial government possess the legislative power to lay down educational standards in institutions of higher education (as discussed above in the judgment). There, however, might arise an operational conflict amongst federal and provincial standards (being instruments of subordinate legislation) but this in no manner affects the substantive legislative power of the Province under section 14 (2) and (4). The operational conflict, if any, is to be resolved on the principles of cooperative federalism and unless the provincial standards are directly in conflict or below the national standards,they are constitutionally valid. Therefore, the impugned judgment declaring section 14(2) and (4) of the Act to be unconstitutional on the ground of being opposed to Entry 12, Part-II of the Federal Legislative List is not sustainable in law and amounts to depriving our federal constitution of its new found vitality post 18 constitutional amendment. The impugned judgment declaring this and similar provisions in other statues of seven universities is therefore set aside for this reason and also because the other seven universities were not even before the learned Single Judge and were never heard.
D. Whether, impugned Notifications, without prejudice to the constitutional argument, comply with the statutory requirement of section 14 (2) and (4) of the Act, to the extent of providing a fair mechanism for the constitution of the Search Committee and an open and fair process and criteria for the selection to the post of Vice Chancellor of a public sector University?
36. Impugned Notifications dated 3-3-2015 and 7-4-2015 have been issued under section 14 of the Act constituting the Search Committee and laying down the procedure and criteria for appointment to the post of Vice Chancellor. The said notifications are reproduced here for ready reference: GOVERNMENT OF THE PUNJAB HIGHER EDUCATION DEPARTMENT 7th April, 2015 NOTIFICATION NO.SO(Univ.)5-3/09-P. The Competent Authority has been pleased to approve the following qualifications, experience and other relevant requirements for the post of Vice Chancellor of Public Sector Universities: SR. NO. NAME POSITION 1 Syed Babar Ali Convenerth th 2 Dr. Ayesha Ghousa Pasha Member 3 Dr. Zafar Iqbal Qureshi Member 4 Dr. Mohammad Nizamuddin Chairperson, HEC, PunjabMember 5 Secretary Higher EducationSecretary
2. The Search Committee shall follow such procedure and criteria, for selection of the panel for the post of the Vice Chancellor, as the Government may, by notification, determine.
3. The Search Committee shall make recommendations for the appointment of Vice Chancellors of the following Public Sector Universities: i. Fatima Jinnah Women University, Rawalpindi ii. Lahore College for Women University, Lahore iii. Government College University, Lahore iv. University of Education, Lahore v. University of Sargodha vi. Bahauddin Zakariya University, Multan vii. University of the Punjab, Lahore. viii. The Ghazi University, Dera Ghazi Khan ix. Government Sadiq College Women University, Bahawalpur x. Muhammad Nawaz Sharif University of Engineering & Technology, Multan xi. Khawaja Fareed University of Engineering & Information Technology, Rahim Yar Khan.
SECRETARY HIGHER EDUCATION DEPARTMENT No. & Date Even A copy is forwarded for information and necessary action to:-
1. Secretary to Governor/Chancellor, Punjab.
2. Secretary to Chief Minister, Punjab w/r to his diary No.11472 dated 17.02.2015.
3. All Members of the Search Committee.
4. P.S. to Minister for Education, Punjab.
5. P.S. to Secretary, Higher Education Department.
6. Notification File.
Sd/- (ISHTIAQ AHMAD)
SECTION OFFICER (UNIV.)
GOVERNMENT OF THE PUNJAB HIGHER EDUCATION DEPARTMENT 7th April, 2015 NOTIFICATION NO.SO(Univ.)5-3/09-P. The Competent Authority has been pleased to approve the following qualifications, experience and other relevant requirements for the post of Vice Chancellor of Public Sector Universities: Sr.
No.Criteria Maximum MarksScoring 1Ph. D 15 Maximum Score 2Ph. D from one of the top 500 Universities of the World (QS Ranking) will be given additional marks05 Maximum Score 3Teaching & Research Experience (not less than 12 years of teaching experience of an HEC recognized University with at least 15 Research Publications in HEC recognized Research Journals)20 Maximum Score 4Administrative Experience20 Category Score Level scoreLength of experience (Maximum 10 marks)
VC/Pro-VC/CEO of local corporations102.5 marks for each year of experience Dean/Director General/Head of a Govt./Semi Govt./Private Organization092 marks for each year of experience Head of Department of a University/ Director/Principal of a University College/Institute081.67 marks for each year of experience Professor with experience of being Member on the two071.25 marks for each year of important Committees of a Universityexperience 5Interview 40 *In case of overlapping Administrative experience, the highest score in any category will be counted towards determining merit of the candidate.
(Note: Only full-time Teaching and Administrative experience will be considered. For the same period, both Teaching and Administrative experience cannot be counted). a) Qualification (15+5+20+20) = 60 (Candidate with 75% of the 60 marks will be short listed) b) Interview = 40
2. The aforesaid Criteria shall be applicable to the extent of the following Public Sector Universities: i. Fatima Jinnah Women University, Rawalpindi ii. Lahore College for Women University, Lahore iii. Government College University, Lahore iv. University of Education, Lahore v. University of Sargodha vi. Bahauddin Zakariya University, Multan vii. University of the Punjab, Lahore. viii. The Ghazi University, Dera Ghazi Khan ix. Government Sadiq College Women University, Bahawalpur x. Muhammad Nawaz Sharif University of Engineering & Technology, Multan. xi. Khawaja Fareed University of Engineering & Information Technology, Rahim Yar Khan.
SECRETARY HIGHER EDUCATION DEPARTMENT
37. It has been argued that the procedure and criteria, other than being in the federal domain, has not been transparently provided as mandated under section 14. We have meticulously gone through the entire record to examine the procedure and criteria adopted by Search Committee. The procedure followed by the Search Committee as per record is that after the constitution of the Search Committee, the Committee in its meeting held on 11-3-2015 reviewed and recommended the quantifiable criteria for the selection of Vice Chancellors of public sector. The qualifications, experience, other relevant requirements and the procedure and criteria recommended by the Search Committee was subsequently determined and approved by the Provincial Government vide notification dated 7-4-2015. Other than the qualifications and experience, the procedure to be followed by the Search Committee includes the allocation of marks for qualifications and interview. In the present case 60 marks were allocated for qualifications and 40 marks for interviews. The qualifications, experience, procedure and criteria has been widely advertised in the local and international press and also communicated to the Pakistani Missions abroad so that the post can be widely circulated amongst the Pakistanis living overseas. The procedure and criteria was also put up on the website i.e., www.hed.punjab.gov.pk of the Higher Education Department. The public advertisement carries the gist of the procedure and criteria while the advertisement clearly mentions that ?A detailed criteria for the post of Vice Chancellor is available on the website.? The submission of the learned counsel for the respondents that there is a disconnect between the advertisement and the notifications is, misconceived. The qualifications and experience set by the Search Committee do not offend the guidelines or minimum standards set by HEC and are infact in line with the HEC guidelines.
38. In addition to the above, HED has also issued guidelines (procedure) for qualitative assessment of the candidates in the following manner: GUIDELINES FOR THE SEARCH COMMITTEE FOR QUALITATIVE ASSESSMENT OF CANDIDATES (40 MARKS) FOR THE APPOINTMENT OF VICE CHANCELLOR(S) OF PUBLIC SECTOR UNIVERSITIES UNDER THE ADMINISTRATIVE CONTROL OF HIGHER EDUCATION DEPARTMENT The Search Committee shall consider the following aspects for qualitative assessment of candidates short-listed for the appointment of Vice Chancellor(s) in Public Sector Universities: I) First Round of Interviews of all short-listed candidates:
1. Personal appearance and presentation;
2. Communication skills in Urdu as well as in English; an articulate and effective communicator who is comfortable speaking in a wide variety of public and private arenas and across a diverse range of audiences;
3. Quality and Relevance of academic background, research and administrative experience;
4. Basic understanding of core issues relating to higher education;
5. Insight on first set of reforms in a university; even though there is no binding requirement to do so under the HEC Ordinance. {{FE26}} The Short-listed candidates for the 2 round are requested to submit their Vision / Mission Statement.
II) 2 Round of Interviews of candidates short-listed after the 1 Round
1. Vision and Mission: The ability of the candidate to articulate the present institutional environment and crafting a vision for the next four years. Also, translating the vision into annual strategic objectives;
2. Personal Qualities: Drive, interpersonal skills, commitment to diversity and merit based policies in all sphere of University working. Risk taking in face of adversity, swift response and negotiating skills;
3. Understanding of Higher Education Sector: In-depth understanding of issues pertaining to higher education in the context of technological developments, economic, social and political environment. Introducing innovative practices in learning, teaching and curricula to tackle challenges in Higher Education;
4. Leadership Qualities: The ability to translate vision into implementable plans. Identification of areas needing reforms and improving the reputation of the University. Developing relationships both vertical and horizontal across all areas of university working;
5. Operational Management: The Ability to create a learning environment conducive for serious learning, commitment to equal opportunity principle and transparent governance. Ability to lead and motivate senior teams. In addition, understanding for National and International ranking systems and to prepare the University for achieving good ranking. The ability to use university budget as a controlling mechanism to ensure fiscal responsibility in the entire working of university;
6. Academic Leadership: The ability to asses socio-economic knowledge needs of the country and develop new academic programs to meet the scholarly purposes. Secondly, periodically assessing the quality of existing academic programs and ensuring that they are at the cutting edge. Understanding about the research needs of the country and allocating funds for promoting research culture to generate knowledge which is useable and which creates new publishable knowledge.
7. Linkages: Ability to develop linkages with Industry and international academic institutions for collaboration and making academic programmes market driven. The ability to use these linkages to generate recourses; and
8. Organizational Management: Team Building to achieve organizational tasks and goals; understanding the existence of various university bodies, their mandate and overseeing implementation of decisions taken by26{{FN26}} {{FS26}}26 nd nd st different bodies. Ability to coordinate across different faculties and network with regulatory bodies, Government functionaries, Business and wider Community.
After the interview of each candidate, the Convener shall invite the opinion of each member. The Convener shall take the average of all members' score which is then assigned to each candidate on the basis of performance in the interview.
In case of any difference of opinion, the Convener shall ask each member to explain their view point and efforts will be made to arrive at a consensus. In rare cases where consensus is not possible, majority view point shall be considered for final allocation of interview score.
Each member of the Search Committee will disclose before the start of the interviews that he / she has no conflict of interest in assessing any candidate.
The above Guidelines are fully compliant with the requirement of HEC and the procedure described above does not offend any federal standard under the HEC Ordinance. The Guidelines have been followed in letter and spirit by the Search Committee as has been confirmed by the record and the statement of Mr. Zafar Iqbal Qureshi, one of the senior members of the Search Committee, who was summoned by Court.
39. Adopting the above procedure and criteria, the Search Committee recommended panels of three for the four public sector universities. Summary dated 20-12-2016 put up by the HED to the Chief Minister after the completion of the procedure of the Search Committee is self-explanatory and is reproduced hereunder; Government of the Punjab Higher Education Department SUMMARY FOR THE CHIEF MINISTER Subject: Appointment of Vice Chancellors of 04 Public Sector Universities.
Higher Education Department through an advertisement in international and national press on November 3, 2015 and November 4, 2015 respectively invited applications for 04 positions of Vice Chancellors for Lahore College for Women University, Lahore, University of Sargodha, Muhammad Nawaz Sharif University of Engineering & Technology, Multan and University of the Punjab, Lahore .
2. In Toto, 115 applicants applied for the said 4 positions in Public Sector Universities before cutoff date i.e. 4 December, 2015. The applications were examined on the basis of qualification, experience and other relevant requirements as were determined by the Government vide Notification No.SO(Univ)5 3/09-P, dated 07 April, 2015. Punjab Higher Education Commission (PHEC) analyzed the research publications of the applicants, verified the same and forwarded a list of 94 applicants shortlisted for interview. Of this number, 89 candidates were called in person for interviews, whereas 05 were interviewed via Skype by the Search Committee, constituted by the Government vide notification No.SO(Univ)5-3/09, dated 3 March, 2015.
3. The Search Committee interviewed all the candidates from 06.01.2016 to 09.01.2016 in the Committee Room of Government College University, Lahore. On the basis of merit, the Search Committee further short-listed 18 suitable candidates for 2 round of interviews on 13-14 January, 2016.
4. The relevant provision of the Acts / Ordinances of the Lahore College for Women University, Lahore, University of Sargodha, and University of the Punjab, Lahore stipulates that: "The Search Committee shall recommend to the Government, in alphabetical order without any preference, a panel of three persons who, in its opinion, are suitable for appointment as the Vice Chancellor.
The Chancellor shall appoint the Vice Chancellor for each term of four years, but he shall serve during the pleasure of the Chancellor?
While Muhammad Nawaz Sharif University of Engineering & Technology, Multan Act 2014 stipulates that: The Search Committee shall recommend to the Government, in the order of merit, a panel of three persons who, in its opinion, are suitable for appointment as the Vice Chancellor.
The Chancellor shall appoint the Vice chancellor for each term of four years but he shall serve during the pleasure of the Chancellor (Annex-E).
5. The Search Committee, after thorough deliberation, has proposed the following panels of three persons for each University for consideration of the Government: Lahore College for Women University, Lahore (in alphabetical order)th th rd nd Name CV Dr. Aamir Ijaz Annex-L Dr. Mohammad Zuber Annex-M Dr. Shahid Munir Annex-NUniversity of Sargodha, Sargodha (in alphabetical order)
Name CV Dr. Ishtiaq Ahmad Annex-I Dr. Tahir Kamran Annex-J Dr. Zaffar Mueen Nasar Annex-K Muhammad Nawaz Sharif University of Engineering & Technology, Multan (in order of merit).
Name CV Dr. Rukhsana Kausar Annex-F Dr. Shahida Hasnain Annex-G Dr. Uzma Qureshi Annex-H The Search Committee in the case of the above panel found the three candidates to be of equal merit.
University of the Punjab, Lahore (in alphabetical order)
Name CV Dr. Muhammad Zakaria Zakar Annex-O` Dr. Zaffar Mueen Nasar Annex-P The candidate who was discussed as the third possible candidate was Dr. Mujahid Kamran, the present VC of University of the Punjab. The Convener of the Search Committee was of the opinion that the present VC has already had two terms and was 64 years and 10 months at the time of applying for this post. The university needed to move on under fresh leadership and therefore his name should not form a part of the panel. Dr. Zafar Iqbal Qureshi agreed with this point of view. The matter was discussed in the Search Committee. The overall positive and negative factors of Dr. Mujahid's performance, as VC, were also discussed. Initially the Search Committee did decide to agree with the Convener but subsequently, before the summary could be sent, the Chairman PHEC and Dr. Ayesha Ghous Pasha showed serious reservations on this decision. It is their point of view that as Dr. Mujahid Kamran does come in the first three on merit and legally fulfills the eligibility criteria, it would not be correct to leave him out. As the matter stands, the Search Committee is to present a panel of three candidates to be interviewed by the CM who in its opinion are the best suited. In this particular case, there is lack of consensus within the Search Committee. In my opinion, Dr. Mujahid Kamran may be interviewed as he is the third candidate on merit but due weightage needs to be given to the Convener's point of view by the competent authority along with an independent performance review of the incumbent.
06. Foregoing in view, it is proposed that the Chief Minister may advise the Governor/Chancellor to appoint suitable candidates as Vice Chancellors of aforesaid 4 Universities for a term of four years, in exercise of his powers under the relevant Acts / Ordinances of the Universities as per recommendations of the Search Committee at para 05/ante for the appointment of Vice Chancellors of above named Universities.
07. Proposal contained in Para 06 / ante is submitted for consideration and approval of the Chief Minister please.
(IRFAN ALI) Secretary Higher Education Department 20/01/2016
40. Following the impugned Notifications and the above Guidelines and Procedure, the Search Committee recommended a panel of three {{FN27}}candidates for 11 public sector universities in Punjab. So far appointments have already been made in the following public sector universities through this process: i. Fatima Jinnah Women University, Rawalpindi ii. Government College University, Lahore iii. University of Education, Lahore iv. Bahauddin Zakariya University, Multan v. The Ghazi University, Dera Ghazi Khan vi. Government Sadiq College Women University, Bahawalpur vii. Khawaja Fareed University of Engineering & Information Technology, Rahim Yar Khan. And recommendations of the Search Committee for the under mentioned four public sector universities are on a hold due to this litigation. i. Lahore College for Women University, Lahore ii. University of Sargodha iii. University of the Punjab, Lahore. iv. Muhammad Nawaz Sharif University of Engineering & Technology, Multan.
41. The qualifications, experience, procedure and criteria determined by the Government and followed by the Search Committee shows substantial compliance of the law. The HEC {{FS27}} except in the case of the University of the Punjab. {{FE27}} Guidelines developed under the HEC Ordinance were strictly followed by the Search Committee. In future the Government is directed to consider these Guidelines or any other minimum standards framed by HEC under the law and as a matter of process include them as part of the Notification under section 14(4) of the Act. We are, however, not inclined to interfere and put the efforts of the Search Committee at naught just on the pretext that the criteria provided in the notification does not incorporate the above guidelines. We are satisfied that these Guidelines were fully complied with and followed by the Search Committee. For the future, we direct the Government to ensure that before the next selection and appointment of a Vice Chancellor in any public sector university, notification under section 14(4) must carry in detail the entire process and criteria to be followed by the Search Committee.
During the course of the hearing, HED has presented the following procedure for streamlining the procedure of the Search Committee in future.
PROCEDURE AND CRITERIA TO BE FOLLOWED BY THE SEARCH COMMITTEE: Search Committee shall oversee the entire process of selection of Vice Chancellor and follow the following procedure and criteria:
(i) Preparation and approval of required advertisement to be published by the Department concerned in national or international press, as the case may be, for the post of Vice Chancellor in accordance with the required qualification, experience and other requirements notified by the Government in official Gazette.
(ii) Preparation of proforma and formula for short-listing of candidates in accordance with approved quantifiable criteria of the Government.
(iii) Short-listing of candidates in accordance with prescribed proforma and formula.
(iv) Conduct interviews of the short-listed candidates in accordance with the criteria notified by the Government for the interviews.
(v) Search Committee will ensure that adequate time is give to each candidate appearing for the interview and each candidate is treated fairly without any bias or discrimination.
(vi) After the interview of each candidate, the convener shall invite the opinion of each member. The Convener shall take the average of all members' score which is then assigned to each candidate on the basis of27 27 performance in the interview.
(vii) In case of any difference of opinion, the Convener shall ask each member to explain their view point and efforts will be made to arrive at a consensus. In rare cases where consensus is not possible, majority view point shall be considered for final allocation of interview score.
(viii) The Search Committee shall recommend to the Government, in alphabetical order, a panel of three persons who, in its opinion, are suitable for the appointment as Vice Chancellor.
(ix) Each member of the Search Committee will disclose before the start of the interviews that he/she has no conflict of interest in assessing any candidate.
(x) The Search Committee shall maintain a strict level of confidentiality to protect the privacy of the candidates and to reserve the integrity of the search process.?
Government is directed to include this process in the future Notification under section 14(4) of the Act.
Constitution of the Search Committee:
42. Section 14 (3) states that Government shall constitute for a period of two years, a Search Committee consisting of not less than three and not more than five members for making recommendations for appointment of Vice Chancellor. This was done through Notification dated 3-3-2015 (above) issued by the Higher Education Department, wherein one Search Committee was constituted for a period of two years to select Vice Chancellors in 11 public sector universities.
43. It has been argued that: (i) the process of selection of the members of the Search Committee has not been provided. (ii) the Search Committee has to be constituted through separate notification for every university under its respective statute. (iii) Specialized search committees were not constituted for specialized public sector universities like: agriculture, health and medicine, IT/CS and all women universities.
44. It is important to trace the appointment process of Vice Chancellor of public sector universities in Punjab. Pre 18constitutional amendment, late section 14 provided as follows:- Section 14 (1) The Vice-Chancellor shall be appointed by the Chancellor on such terms and conditions as the Chancellor may determine and shall hold office during the pleasure of the Chancellor for a term not exceeding four years.
(2) At any time when the office of the Vice-Chancellor is vacant, or the Vice-Chancellor is absent or is unable to perform the functions of his office due to illness or some other cause, the Chancellor shall make such arrangements for the performance of the duties of the Vice-Chancellor as he may deem fit.
Since then, efforts were made without any legislative backing to make the selection process more open and broad-based and finally post 18 constitutional amendment, Search Committee has been provided under section 14 (3) of the Act and identical provision has been inserted in statutes of other public sector universities in Punjab. The present Search Committee comprises of the following members:- Sr. No. Name POSITION 1.Syed Babar Ali Convener 2.Dr. Ayesha Ghous Pasha Member 3.Dr. Zafar Iqbal Qureshi Member 4.Dr. Muhammad Nizamuddin Chairperson, HEC, PunjabMember 5.Secretary Higher Education Secretary The Members of the Committee are well-known and reputable educationists and no one has cast any doubt or raised any objection on the competence, integrity and ability of the members of the Committee. Their recommendations have already been honored in seven public sector universities where the Vice Chancellors have been duly appointed and are since performing their duties.
45. We do not wish to interfere in the recommendations of the Search Committee, at this stage, for the following reasons: (a) there is no specific objection regarding the competence and integrity of the Searchth th Committee, so constituted. (b) We are satisfied after going through the record that procedure and criteria for selection was strictly in terms of the guidelines of the Higher Education Commission and the law. (c) The recommendations of the Search Committee have already been acted upon and Vice Chancellors have already been appointed in seven public sector universities. Any interference at this stage would unnecessarily cast doubt on the appointments made in the seven public sector universities, which are not before the court.
46. ?Rome was not built in one day.? Process of appointment of a Vice Chancellor has improved with time.
Once dependent on the sole discretion of one man i.e., the Chancellor, the process has improved and now passes through a Search Committee comprising of not less than three and not more than five members of unblemished reputation and stature. According to the record, the Search Committee has proceeded transparently to recommend a panel of three candidates for the post of the Vice Chancellors for the Chancellor to select. The so-called violations pointed out in the constitution of the Search Committee by the private respondents are not fatal and are more like suggestions for future improvement in the process. Any interference on these grounds, at this stage, would be against public interest and would unduly derail administration in 11 public sector universities, causing more loss to higher education than good. We do not intend to interfere in this regard and place reliance on Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Multan Electric Power Company Ltd. through Chief Executive and another v.
Muhammad Ashiq and others, (PLD 2006 SC 328), Major (Retd.) Barkat Ali and others v. Qaim Din and others (2006 SCMR 562) and Suo Motu Case No.13 of 2007 (PLD 2009 SC 217).
47. During the course of the hearing HED and PHEC have frankly made suggestions to further improve the selection process of the members of the Search Committee in the following manner: Suggestions of HED i. Government appoints a Search Committee for selection of Vice Chancellors for the public sector universities. ii. There are five members of the Committee. There are three non official members with strong credentials in building/managing academic institutions and are outstanding academics or senior executives with experience of selecting leaders in the corporate sector and two ex-Officio Members comprising Chairperson Punjab Higher Education Commission and Secretary Higher Education Department. iii. The decision about non-official members rests with the Government which ensures that each member enjoys impeccable integrity and character. iv. Mandate of the Search Committee is to oversee the entire process of selection of Vice Chancellors. v. The Committee recommends a panel of three persons for each university. The panel is recommended in alphabetical order.
It has further been observed that most members of the Search Committee are time tested and enjoy impeccable character and integrity; hence most of the time, Search Committee appears uniform in its composition. The Committee catered to educational needs of each university and recommended such candidates to the Government for appointment which then brought reformatory changes in university culture. a) Search Committee shall comprise of not less than three and not more than five members. However, Committee so constituted may co-opt a maximum of two subject/field experts if so required. b) The Search Committee shall comprise of three non-official members with impeachable character and integrity and two ex-officio members. c) Secretary of the concerned Government Department shall be the ex-officio member and Secretary of the Committee d) Convener and Members of the Search Committee shall be persons of eminence having credible experience in Policy development, institution building, management and governance, research and development and are outstanding academics or senior executives with experience of selecting leaders in public and corporate sector. e) The co-opted subject/field experts, preferably PhDs, should possess demonstrated experience in teaching and research and through understanding of issues and challenges of higher education sector. f) The Department concerned shall identify a pool of professionals with above-mentioned attributes with the help of Punjab Higher Education Commission and seek their willingness to serve on the Search Committee. g) The Department concerned shall recommend a panel containing eight names to the Government for consideration and nomination of not less than three and not more than five members on the Search Committee. h) The Government shall constitute Search Committee separately for each University.
Suggestions of PHEC Responsibilities of Specialized Search Committees: i. Proactively reach out by email, letter and telephone to peers, subject matter experts, international organizations and Pakistani mission abroad for nominations of qualified potential candidates ii. Prepare a separate announcement for print and electronic media for each university (national/international) keeping in view unique requirements iii. Review and assess all applications/nominations using the agreed upon evaluation criteria, notified by the Chancellor for short-listing candidates and conducting interviews iv. Recommend to the Chancellor a panel of three persons, in alphabetical order, who in its opinion are suitable for appointment as the Vice Chancellor v. Maintain a strict level of confidentiality to protect the privacy of the candidates and to preserve the integrity of the search process
4. The PHEC will serve as the Secretariat for the Search Committees and will facilitate it in the execution of its responsibilities including specialized announcements, short-listing of eligible candidates and the interview process for all the position of Vice Chancellors in Punjab. PHEC's Act provides mandate for all public sector HEIs and its composition of Commission members includes Secretaries of Agriculture, Health, Higher Education and Finance Departments. Currently, there are 11 position of Vice Chancellor to be filled in 2017. (Annex-A)
5. Proposed panels for Chairpersons and expert members to be co-opted for the specialized Search Committees (IT/CS, Medical/Health, Agriculture, Women, and General) are placed at Annex B. The Specialized Search Committees will be constituted and notified by the Chancellor, separately for each institution according to its category, comprising members approved by the Chief Minister from amongst the proposed panels or anyother persons he deems fit.
6. A short-listing and evaluation criteria for the position of Vice Chancellor in a public sector university taking into account the assessment criteria developed by the Federal HEC and the previously announced criteria of the Government of the Punjab is placed at Annex C.
7. The summary is submitted to the Chief Minister for his perusal and approval of the composition of the Specialized Search Committees and the short-listing and evaluation criteria for the position of Vice Chancellor in public sector universities of Punjab.
We, therefore, direct the Higher Education Department, Government of the Punjab to consider the above recommendations and the following improvements in order to crease out wrinkles in the current process; i. Under section 14(3) of the Act, the process of appointment of the members of the Search Committee be brought out in the public domain. The Government can draw wisdom for the mechanism of appointment of the Members of Search and Scrutiny Committee constituted under the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014. Which provides as follows:
6. Constitution of the Search and Scrutiny Committee.---
(1) The first Search and Scrutiny Committee constituted under section 7, shall administer the process of the constitution and appointment of subsequent Search and Scrutiny Committee and Commissioners respectively.
(2) Whenever any seat or position is laying vacant in the Search and Scrutiny Committee or where a position of Commissioner is vacant, the Search and Scrutiny Committee shall fill the position according to the criteria prescribed under this Act.
(3) The Search and Scrutiny Committee shall comprise five (05) members of high moral integrity, repute and stature, and at least one of whom shall be a female: Provided that no person presently in service of Government or the office bearer of a political party shall be a member of the Search and Scrutiny Committee, unless such 9 person resigns one (1) year prior from such service or party office, as the case may be, at the time of appointment:
(4) A person shall not be appointed as member of Search and Scrutiny Committee unless he: (a) is a citizen of Pakistan;
(b) is the permanent resident of Khyber Pakhtunkhwa Province;
(c) is an individual with reputation of high moral integrity and competency;
(d) is sagacious, righteous, honest and a person with a good character;
(e) is not less than forty (40) years and more than seventy-five (75) years of age during the year of selection; and
(f) declare his assets as per law.
(5) Except for members of the first Search and Scrutiny Committee, who shall be appointed through procedure prescribed in section 7, the Search and Scrutiny Committee shall be responsible for initiating the process for appointment of successor member or members of Search and Scrutiny Committee six (6) months prior to end of tenure of members of the Search and Scrutiny Committee or immediately upon creation of a vacancy, as the case may be, and the process for nomination of Commissioners prescribed in section 8, shall apply mutatis mutandis to nomination and confirmation of members for the Search and Scrutiny Committee
(6) Members of the Search and Scrutiny Committee shall elect one amongst them as Chair, who shall discharge administrative responsibilities in relation to functioning of the Search and Scrutiny Committee in consultation with the members, and in case of any disagreement decisions will be reached by majority vote.
(7) The Search and Scrutiny Committee may meet as often as necessary for the effective performance of its functions and two thirds of the members shall constitute a quorum for a meeting.
(8) Members of the Search and Scrutiny Committee shall serve for one nonextendable term of four (04) years on an honorary basis and shall not be remunerated for their work: Provided that all expenses related to functioning of the Search and Scrutiny Committee shall be borne by the Commission, and the Commission shall also provide secretarial staff to the Search and Scrutiny Committee to assist its functioning.
(9) A member of the Search and Scrutiny Committee may, by writing under his hand addressed to the Governor, resign from his position.
(10) A member of the Search and Scrutiny Committee shall not be removed unless by three-fourth majority vote of members of the Legislative Committee on the ground of misconduct or for physical or mental incapacity upon such declaration being made by a Medical Board constituted by Government: Provided that the Legislative Committee shall afford such member the right to be heard prior to voting on his removal.
7. Appointment of the members of the first Search and Scrutiny Committee.---
(1) After the commencement of this Act, Government, within fifteen (15) days, shall nominate candidates as provided in sub-section
(3) of section 6, at least one of whom shall be a female, and send such list to Secretary and simultaneously publicly disclose the list of recommended candidates for scrutiny inviting comments and objections from the public against such nominees to be sent directly to Secretary within a period of six (06) days.
(2) Within seven (07) days of receipt of the list of nominees for the Search and Scrutiny Committee, the Secretary shall circulate to members of the Legislative Committee the list of all nominated candidates together with public comments and objections received in relation to such nominees.
(3) Within seven (07) days of receipt of the nomination by members of the Legislative Committee, and in view of the public comments and objections received in relation to such nominees, the Legislative Committee shall confirm/reject the nominees by simple majority of the total membership: Provided that if the Legislative Committee neither confirms a nominee nor rejects him, such nominee shall be deemed to have been confirmed.
(4) If a nomination is rejected by the Legislative Committee, it shall communicate its decision to Government and Government shall nominate another candidate within seven (07) days of such rejection and resubmit the name of such candidate to the Legislative Committee in accordance with the procedure hereinabove prescribed.
(5) Not later than one (01) day of the confirmation or deemed confirmation of nominees, the Secretary, shall send the names of the nominees confirmed or deemed to have been confirmed to the Governor for appointment: Provided that if the Governor fails to make such appointments within a period of ten (10) days of receipt of the list of nominated candidates, such nominated candidates shall be deemed to have appointed and Government shall issue notification accordingly.
(6) The provisions of sub-section (6), (7), (8), (9) and (10) of section 6 shall apply mutatis mutandis to first Search and Scrutiny Committee, appointed under this section.
8. Procedure for appointment of Commissioners.---
(1) The Search and Scrutiny Committee shall seek applications for the position of Commissioners from the general public through public advertisement:
(2) Notwithstanding anything contained in sub-section (1), the Search and Scrutiny Committee may recommend to the Legislative Committee, the name of any person of high repute, integrity and
(d) members shall receive information and details of candidates under seal and shall affix thumbprint, sign the evaluation sheet and return the same under seal;
(e) in view of the aggregate score of each candidate, top thirty percent of the candidates or a maximum of three candidates for each position to be filled shall be short-listed for interview;
(g) the names of shortlisted candidates shall be disclosed for public scrutiny in order to solicit objections within a period of fifteen (15) days;
(h) after expiry of public scrutiny period, the shortlisted candidates shall be interviewed by the Search and Scrutiny Committee with each member asking each candidate equal number of similar questions; 12
(i) each candidate shall be evaluated on a scale of one to three, with one signifying unsuitable and three signifying most suitable, and the score shall be marked on the evaluation sheet in ink pen; and
(j) all interviews shall be conducted on the same day and at the end of interviews of all candidates the evaluation sheets shall be collected from all members for immediate preparation of a merit list by adding up the scores for each candidate, which will be certified by the signature of all members.
(4) The Search and Scrutiny Committee shall, in accordance with the merit list, recommend to the Legislative Committee one name for each vacancy on the Commission, and the candidate with the highest score as Chief Ehtesab Commissioner and also publicly disclose the list of recommended candidates inviting comments and objections from the public against such nominees to be sent to Secretary.
(5) Within fifteen (15) days of receipt of a nomination or nominations from the Search and Scrutiny Committee, and in view of the public comments and objections received in relation to such nominees, the Legislative Committee shall confirm the nominee or nominees, as the case may be, unless it rejects a nominee by three- fourth majority vote:stature, to be appointed as Commissioner, who had not applied under sub-section (1).
(3) The Search and Scrutiny Committee shall evaluate the eligible candidates in accordance with the following process:
(a) each member shall score each eligible candidate on a scale of one to three, with one signifying unsuitable and three signifying most suitable, on an evaluation sheet in ink pen for five competencies, integrity, educational qualification, relevant experience, provincial stature, and public service contributions; (b) a single score one on integrity by any committee member shall disqualify a candidate;
(c) members shall undertake evaluation on the same day and time, but without interaction with other members of the Search and Scrutiny Committee; ii. The notification for the Search Committees be issued separately for every University. It may contain the same members but must be separately notified under the respective statute in order to meet the requirement of the law. iii. The Search Committee for specialized universities e.g., Information Technology, Computer Science, Medical/Health, Agriculture, Women, and General, must comprise of members carrying requisite skill and expertise in the area.
E. The Role and importance of Council of Common Interest ("CCI") under article 154 of the Constitution over matters falling in Part-II of the Federal Legislative List especially "standards in institutions of higher education..." and whether in the present case CCI has played its constitutional role ?
48. There is another dimension, which requires attention. Cooperative or participatory federalism is deeply embedded in our Constitution. One of its manifestations is in the shape of Council of Common Interest (CCI) under articles 153 and 154 of the Constitution. Entries falling under Part- II (including Entry 12) of the Federal Provided that if the Legislative Committee neither confirms a nominee nor rejects him by three-fourth majority vote, such nominee shall be deemed to have been confirmed: Provided further that if a nomination is rejected by the Legislative Committee, it shall communicate its decision to the Search and Scrutiny Committee and the Search and Scrutiny Committee shall nominate the candidate next on the merit list, or if there is no other eligible candidate, furnish a new nomination in accordance with the evaluation process above.
(6) The Secretary shall send the name of the nominees confirmed or deemed to have been confirmed to the Governor for appointment that if the Governor fails to make such appointments within a period of ten (10) days of receipt of list of nominated candidates, such nominated candidates shall be deemed appointed and Government shall issue notification accordingly.
(7) The Search and Scrutiny Committee shall, upon intimation of a vacancy by the Commission or six (06) months prior to such vacancy arising, initiate the appointment process as mentioned hereinabove.Legislative List are governed by Article 154 of the Constitution which provides: Article 154.
(1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and shall exercise supervision and control over related institutions.
(2) The Council shall be constituted within thirty days of the Prime Minister taking oath of office.
(3) The Council shall have a permanent Secretariat and shall meet at least once in ninety days; Provided that the Prime Minister may convene a meeting on the request of a Province on an urgent matter.
(4) The decision of the Council shall be expressed in terms of the opinion of the majority.
(5) Until Majlis-e-Shoora (Parliament) makes provisions by law in this behalf, the Council may make its rules of procedure.
(6) Majlis-e-Shoora (Parliament)] in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matters to take action as Majlis-e-Shoora (Parliament) may deem just and proper and such directions shall be binding on the Council.
(7) If the Federal Government or a Provincial Government is dissatisfied with a decision of the Council, it may refer the matter to Majlis-e-Shoora (Parliament) in a joint sitting whose decision in this behalf shall be final.
Legislative subjects under Part-II of the Federal Legislative List require a coordinated and intergovernmental policy. CCI is to formulate and regulate policies in relation to matters in Part-II of the Federal Legislative List and to exercise supervision and control over related institutions. HEC being a related institution, falls under the supervision and control of the CCI. Any standards, guidelines or recommendations regarding standards in institutions must obtain the approval of CCI. This constitutional obligation takes precedence over the powers and functions of the HEC under the HEC Ordinance. CCI also acts as an intergovernmental forum to avoid conflict and dysfunctionality between the policies of the provinces and the federation under vertical sharing of power. CCI encourages cooperative federalism and strengthens provincial autonomy.
CCI can also formulate and regulate policies in respect of matters in Part-II of the Federal Legislative List. The constitutional wisdom behind this is to embed and mainstream participatory and cooperative federalism in our national governance. Such policies, with constitutional fiat behind them, may be considered by the legislature while legislating on subjects falling under Part-II of the Federal Legislative List so that the footprint of provincial autonomy and federalism is visible in the proposed legislation. This is also a constitutional requirement as article 142 has been made ?subject to the Constitution.? Reliance with advantage is placed on Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641), Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad etc. v. United Sugar Mills Ltd., Karachi (PLD 1977 S.C. 397) Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another (PLD 1992 S.C. 646) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 S.C. 473) and Khalid Malik and others v.
Federation of Pakistan and others (PLD 1991 Karachi 1).
Held
49. For the above reasons, we hold and declare as under: i. That the Federation can set standards in institutions of higher education under Entry 12 of Part-II of the Federal Legislative List, however, they will always pass as minimum national standards, as they cater to all the public sector universities in the country and maintain national unity and federal compact. Simultaneously, the Province, under the legislative subject of "education" in the unwritten residuary legislative list is fully empowered to develop standards in institutions of higher education for the Province, these standards can be higher and more stringent as compared to the federal standards, but they cannot be below the federal standards. ii. HEC Ordinance, 2002, as it stands today, sets minimum and non-binding guidelines for the appointment of Vice Chancellors in public sector universities. It is held that Provincial legislature has the power to set standards i.e., procedures and criteria for selection of the Vice Chancellor, as long as, they are not below the minimum and baseline standards set by the Federation. If any future legislation under Entry 12 Part-II of the Federal Legislative List provides for mandatory minimum standards they will be binding on the Provincial Government, but in no manner restrain the provincial government to develop standards higher than the federal standards in order to improve the quality of higher education in the Province. iii. That section 14(2) and (4) of the University of the Punjab Act, 1973 and the corresponding provisions in the statutes of other public sector universities are intra vires the Constitution. iv. That Notifications dated 3-3-2015 and 7-4-2015 issued by the Higher Education Department, Government of Punjab are valid and intra vires the Act subject to the directions given above and to be followed in future appointments to the post of Vice Chancellor. v. The role of CCI over the years has been disturbingly dormant. We direct CCI to review all the standards in institutions of higher education framed by HEC in order to make them constitutionally compliant in the next six months. vi. We also direct the Higher Education Commission, as well as, Federal Government that in future, Higher Education Commission will work under the supervision and control of CCI and any policies or regulations prepared by the Higher Education Commission shall be routed through the CCI and will only be considered to be legally binding, if approved by CCI. vii. We direct the Government/Chancellor to proceed with the appointment of the Vice Chancellors for the four public sector universities namely: a. Lahore College for Women University, Lahore b. University of Sargodha c. University of the Punjab, Lahore. d. Muhammad Nawaz Sharif University of Engineering & Technology, Multan. strictly on the basis of the recommendations of the Search Committee by considering a panel of three persons in the case of each University, however, all future appointments in the public sector universities in Punjab will be made in accordance with law settled in this judgment. The provisional appointments made vide interim orders dated 19.12.2016 and 12.01.2017 shall come to an end when appointment of the regular Vice Chancellors is made in compliance of this judgment. viii. There has been slight confusion whether the impugned judgment has set aside the appointments made in the other seven public sector universities as cases of four public sector universities were before the learned Single Judge. We hold as a matter of clarification that impugned judgment is restricted to the abovementioned four universities and cannot upset or affect the appointments made in the other seven universities, which are valid and intact. ix. For the above reasons this appeal, as well as the connected appeals mentioned in the Schedule, are allowed and impugned judgment set aside, with no order as to costs.
Before parting with the judgment the valuable contribution made by M/s. Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Associates at LHCRC is acknowledged.