MUDASSIR KHALID ABBASI, J. --- Through this single judgment, we intend to dispose of instant appeal alongwith ICA No. 529 of 2010 directed against judgment dated 15.07.2010 passed in W.Ps.
No. 9336/2010 and 11256/2010 by the Hon'ble Single Judge in Chamber.
2. Backdrop, of the case is that respondents filed with the following prayer:-- "Respondents may very kindly be directed to issue appointment orders of the petitioners on regular basis against the posts held by them w.e.f. their initial appointment against their respective posts with all consequential benefits.
That order dated 18.02.2010 and 20.03.2010 issued by the respondents may be declared illegal land be set aside."
In W.P. No. 9336 of 2010 respondents made following prayer:-- "The respondents may very kindly be directed to issue appointment orders of the petitioners on regular basis against the posts held by them w.e.f their initial appointment against their respective posts with all consequential benefits.
That order dated 13.02.21010 and 20.03.2010 issued by the respondents may be declared illegal land be set aside."
On 15.07.2010, after hearing the parties, learned Single Judge in Chamber allowed the Constitutional petitions and respondents were directed to issue appointment orders to the petitioners on regular basis against the posts held by them w.e.f. their initial appointment against the respective posts.
Respondents assailed the said judgment through the instant Intra-Court Appeals before Hon'ble Division Bench which were dismissed on the ground of maintainability vide judgment dated 19.01.2011. Respondents filed Civil Petitions Nos. 279-L and 280-L of 2011 before the Hon'ble Court. On 06.12.2012 the said judgment was set aside with the observations that Intra Court Appeals shall deemed to be pending before this Court which shall be decided afresh.
3. Learned counsel for the appellant contends that impugned order dated 15.07.2010 is against the law and facts of the case. Learned Single Judge in Chamber has overlooked the fact that as per decision of the University Syndicate. Laboratory Schools are not part of the University and are running under SchoolExecutive '
Committee/Governing Body on self-support basis. Moreover, respondents are ad-hoc employees and not teachers within the meaning of Section 2(w) of the University of Agriculture Faisalabad Act, 1973, therefore, direction with regard to issuance of appointment orders to the appellant on regular basis is illegal and unlawful. Impugned order is liable to be set aside. Reliance is placed on "Basal v.
Qaim Ali and 8 others" (PLD 2003 Supreme Court 325), "Mst. Bashiran Bibi v. Town Committee, Eminabad through Vice Chairman, Tehsil and District Gujranwala and others." (PLD 2003 Supreme Court 573), "Mien Asghar Ali v. Government of Punjab through Secretary (Colonies), BOR, Lahore and others" (2017 SCMR 118), "Pakistan International Airlines Corporation through Chairman and others v.
Samina Masood and others" (PLD 2005 Supreme Court 831), "University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali' (1992 SCMR 1093), "Fait Ahmad Khan and another v. Muhammad Ramzan Abid and 2 others" (1999 SCMR 2383), "Pakistan Telecommunication Co. Ltd. through Chairman v lqbal Nasir and others" (PLD 2011 Supreme Court 132), "Amjad Ali and others v. Board of Intermediate and Secondary Education and others" (2001 .SCMR 125), "Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affair, Government of Pakistan, Islamabad v. Mufti lftikhar ud Din and another" (2000 SCMR 1), "Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others" (2000 SCMR 1720), "Abdul Jabbar Memon and others" (1996 SCMR 1349), "Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others" (1997 SCMR 1043) and "Asadullah Mangi and others v.
Pakistan International Airlines Corporation and others". (2005 SCMR 445).
4. On the other hand, learned counsel for respondents at the very outset has raised objection regarding the maintainability of the appeals on the ground that Section 11-A of the University of Agriculture Faisalabad Act, 1973 provides remedy of revision before the Chancellor whereas in terms of Section 42 of the Act appeal/review has been provided. Contends that respondents were appointed being eligible by the competent authority and worked for a long time without any break, therefore, have become legitimate expectant for their regularization. Further contends that colleagues of the appellants situated alike were regularized whereas appellants are being discriminated. Argued that act of respondents is mala fide and is- colourable exercise of power.
Learned counsel for respondents further contends that respondents are employees of University of Agriculture Faisalabad, they were appointed as teachers and worked in the Laboratory High School for Boys of University of Agriculture, Faisalabad and subsequently were promoted from EST to SST in BS-16. Further contends that impugned order dated 15.07.2010 does not suffer from any illegality and infirmity. Therefore, instant ICAs are not maintainable and liable to be dismissed. Reliance is placed on "Muhammad Abdullah v. Deputy Settlement Commissioner, Center-I, Lahore" (PLD 1985 SC 107), "Muhammad Aslam Sukhera v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another" (PLD 2005 S.C. 45) "Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others" (1996 SCMR 1185), "Independent Newspapers Corporation (Pvt.) Ltd and another v. Chairman, Fourth Wage Board and Implementation Tribunal For Newspaper Employees, Government of Pakistan and 2 others" (1993 SCMR 1533), "Muhammad Yasin v. Secretary, Government of Punjab and others" (2007 PLC (C.S.) 303), "Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another" (2008 SCMR 1148), "Mian Tariq Javed v. Province of Punjab through Chief Secretary Government of Punjab, Lahore and 2 others" (2008 SCMR 598), "Secretary (Schools), Government of Punjab, Education Department and 'others v. Yasmeen Bano" (2010 SCMR 739), "Zulfiqar Ali v.
Mst. ,Shazia Bibi and others" (2009 SCMR 1037), "Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and ,others" (1996 SCMR 1185), "Muhammad Najeeb v. Mst. Talat Shahnaz and others" (1989 SCMR 119) and "Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha"(2013 SCMR 120).
5. Arguments heard. Record perused.
6. When confronted with the maintainability of these appeals, with reference to Section-3 of Law Reforms Ordinance, learned counsel for the appellants contends that in terms of Section 11-A of the University of Agriculture Faisalabad Act, 197.3 revisional powers have been delegated to the Chancellor only in respect of the order passed by any authority whereas Section-2, sub-clause (c) defines the "Authority" as specified in Section 21 wherein respondents do not figure anywhere.
Further contends that appeal is a statutory right and Section 42 of the Act ibid does not provide any such remedy to the appellants.
7. In order to resolve the controversy, it would be advantageous to reproduce the relevant provisions of the Act:--- Section 11-A of Act ibid reads as under-- "11-A. Revisional Powers of the Chancellor-- The Chancellor may, of his own motion or otherwise, call for and examine the record of any proceedings in which an order has been passed by any Authority for the purpose of satisfying himself as to the correctness, legality or propriety of any finding or order and may pass such orders as he may deem fit: Provided that no order under this Section shall be passed unless the person to be affected thereby is afforded an opportunity of being heard."
Section 42 of Act reads as under:- "Appeal to and review by the Syndicate.--- </b> Where an order is made punishing any officer, other than the Vice-Chancellor, teacher or other employee of the University or altering or interpreting to his disadvantage the prescribed terms or conditions of his service, he shall, where the order is made by the Vice-Chancellor or any other officer or teacher of the University, have the right to appeal to the Syndicate against the order, and where the order is made by the Syndicate, have the right to appeal to the Chancellor for review of that order. The application for review shall be submitted to the Vice-Chancellor and he shall present it to the Chancellor with his views: Provided that no order under this Section shall be passed unless an opportunity of being heard is afforded to the person to be effected thereby: Provided further that if the appeal is against the order of the Vice Chancellor or any other officer or teacher of the University who is a member of the Syndicate, the Vice Chancellor, the officer or the teacher shall not attend the proceedings of the Syndicate for decision of the appeal and in the absence of the Vice Chancellor, the members shall choose one of them to chair the meeting for that item."
8. Plain reading of these provisions reveal that no remedy is available to the present appellants/university. In such eventuality appellants cannot be deprived from their right of appeal before this Court Any interpretation contrary to this would offend Articles 4 and 10 of the Constitution and is against the principle of natural justice. University of Agriculture Faisalabad Act, 1973 does not provide any remedy to the University against Syndicate or Chancellor.
9. In terms of Section 42 of the Act ibid, where the order is made by Vice Chancellor or any other officer or teacher of the University right to appeal is available before the Syndicate and where the order is made by the Syndicate right to appeal is before Chancellor for review of that order.
Whereas, under the revisional jurisdiction, Section 11-A, empowers the Chancellor to call for and examine the record of any proceedings in which an order has been passed by any authority. Since the impugned decisions/orders have been passed by the Director, Division of Education & Extension, University of Agriculture, Faisalabad obviously they cannot assail their own order before Chancellor or the Syndicate. Therefore, the appellants are excluded from availing any remedy before the Chancellor or the Syndicate whereas Proviso of Section 3 of Law Reforms Ordinance, 1972 provides that an appeal referred in this Section shall not be available or competent if the petition brought before the High Court under Article 199 is arisen out of any proceedings in which the law applicable provides at least one appeal or one revision or one review before a Court, Tribunal or Authority against the original order. Since no such remedy is available to the appellant, therefore, this appeal is maintainable.
10.This Court has already taken a view, while confronted with somewhat similar situation in a case cited as "National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited" (PLD 2015 Lahore 661):-- "The Appellant decided the motion for leave to review vide order dated 16.6.2014, which was impugned before the learned judge in chambers, who set aside the said order, holding that Rule 16(6) of the Tariff Rules required full strength of the Authority to hear the motion for leave to review.
The Authority has impugned the judgment of the learned single judge before us and is not aggrieved of the order issued in the motion for leave to review as the said order was -actually the order passed by the Authority itself. The Act read with Tariff Rules cannot possibly contemplate a remedial forum for the Authority where it would challenge its own orders as the Authority itself is the appellate and reviewing authority under the Act and the Tariff Rules. Therefore, Section 12A has no applicability to the case of the Appellant. The provision of one appeal, review or revision against the original order, under Section 3 of the Ordinance must be available to the parties to the dispute in order to question the maintainability of the ICA. No such remedy is available to the Appellant under the Act and therefore the Appellant cannot be deprived of its right of appeal
(ICA) before us. Any such interpretation would also be against the right to access to justice.
Hence, the preliminary objection, being without any substance is overruled. Objection taken by the respondents without any force. Therefore, the present petitions are maintainable".
11. Now coming to the merits of the case, primary and critically important question relates to the status of respondents with particular reference to the fact that:-- a. As to whether the university is an administrative authority of the respondents, b. As to whether the Executive Committee of laboratory schools constituted under the Act falls within the definition of authority in terms of Section 21(xi) of the Act read with Rule 4 of the University of Agricultural, Faisalabad Junior Laboratory and Laboratory High Schools Executive Committee Rules, 1978.
12.Relevant provisions of these Rules read as under:-- "1 These Rules may be called the University of Agriculture, Faisalabad Junior Laboratory and Laboratory High Schools (Executive Committees) Rules, 1978. They shall come into force at once.
2.
3. (1) For the efficient management and control of each of the Junior Laboratory School and Laboratory High School maintained by the University the Vice-Chancellor, shall constitute an Executive Committee for a period of two years.
(2) Each Executive Committee shall meet at least once in two months at such times and at such placed as may be fixed by the Chairman.
(3) The quorum for a meeting of an Executive Committee shall be once-half of the total number of members, a fraction being counted as once.
4. (1) Each Executive Committee shall, within the framework of the University, have the following financial and administrative powers: (i)to prepare the annual budget estimates of the respective school under its control for submission to the University authorities and to sanction all expenditure provided for in the approved budget and to re-appropriate funds within the approved budget; (ii)to prepare and submit duly audited annual statement of income and expenditure of the preceding year in respect of the respective school to the appropriate University Authority: (iii)to appoint, teachers and other staff of the school concerned in National Pay Scale Nos. 1 to 10 and to recommend to the Vice-Chancellor appointment of staff in NPS 11 to 15. Any appointment to be made in National Pay Scale No. 16 or above shall be made by the Syndicate on the recommendation of the Selection Board as provided under the First Statutes, appended to the University of Agriculture Lyallpur Act, 1973 as in force for the time being.
Provided that the entire staff of these schools, as therefore. shall be deemed to be staff of the University and entitled to all rights and privileges as admissible to them under the University Rules."
Before dilating upon the afore-cited aspect of the case it would be relevant to refer Section 4 of the act ibid which reads as under:--- "4. Powers of the University. --The University shall have the powers--- (p)to establish teaching departments, schools, colleges, faculties, institutes, centers of excellence, museums and other centers of learning for the development of teaching and research and to make such arrangements for their maintenance, management and administration as it may determine;"
13.Sub-rule (1) of Rule 3 provides that for the efficient management and control of each of the Junior Laboratory School and Laboratory High School maintained by the university, Vice Chancellor is the authority to constitute the executive committees. Likewise clause 1 of Sub Rule 1 of Rule 4 clearly envisages that the budget and estimates of these schools shall be submitted to the University authorities. Moreover, Sub-Clause-3 of these rules provides that the appointment shall be made by the syndicate most importantly, proviso of the said Rule unambiguously reads that entire staff of these schools shall be deemed to be staff of the University and is entitle to all rights and privileges as admissible to them under the University Rules. Section 21 of the Act ibid, defines the authorities of the University Sub Clause-11 provides that the authorities prescribed by statutes are included in the authorities of the University. Since executive committees/laboratory schools /respondents are creation of A a statute i.e. Rules of 1978 therefore, they come within the ambit of University authorities. 'Likewise Section 4(p) as coated above stipulates that the university shall have the power to establish teaching departments, schools, colleges faculties, institutes, centers of excellence or museums under the said provision.
14.Combined reading of the afore-cited provisions of the Act and the Rules would lead to a conclusion that for all legal purposes executive committees/schools and the respondents/teachers squarely falls within the administrative hierarchy of the University.
Appellants cannot escape and wriggle out from their responsibilities with reference to the statutes and rights of the respondents guaranteed under Articles 3, 4 and 14 of the Constitution. Hence, the respondents are employees of the University.
15.At this juncture, certainly an important question is required to be addressed by us that as to whether this Court under constitutional jurisdiction could have directed the appellants to issue appointment letters to the respondents without addressing the question of suitability of the respondents. Honourable Single Judge in Chamber has mainly relied on "Dr. Naveeda Tufail and 72 others v. Government of Punjab and others" (2003 SCMR 291) which is distinguished from the present case for the reason that in the said case, petitioners were directed to be send to the Punjab Public Service Commission for determination of their suitability for regularization.
16.In our view suitability and eligibility of a candidate cannot be compromised at the cost of length of service or any other consideration without going through a process and any such exercise would be against the dictates of Articles 240. and 242 of the Constitution. Even otherwise, it is to be noted that respondents are adhoc employees and on that score alone, according to the consistent view of the Hon'ble Apex Court such employees do not have vested right for regularization. Reliance is placed on "S.M,C. No. 15 of 2010" (2013 SCMR 304).
In view of what has been discussed above, impugned judgment is modified to the extent that the cases of the respondents shall be placed before the syndicate of the University by the Vice Chancellor. Each case shall be examined by the syndicate for regular appointments of the respondents. This exercise shall be undertaken within a period of 08-weeks after the receipt of this judgment, under intimation to the Deputy Registrar (Judi.) of this Court.
Meanwhile, respondents shall continue to serve on their respective appointments. Disposed of accordingly.