This order shall dispose of W.P. No. 245783-2018 titled "Dr. Mujahid Kamran v. Chairman NAB and others", W.P. No. 2450442018 titled "Professor Dr. Muhammad Amin Athar v. NAB and others", W.P.
No.245062-2018 titled "Dr. Kamran Abid v. NAB and others" and W.P. No.245063-2018 titled "Dr. Liaqat Ali v. NAB and others" as all petitioners challenged their arrest made under common grounds of arrest by invoking the constitutional jurisdiction of this court.
2. The allegations against the petitioners found during an inquiry conducted by the NAB is that Dr. Mujahid Kamran/petitioner as Vice-Chancellor of University of the Punjab (from 03.01.2008 to 19.12.2016) appointed numerous persons on contract on teaching and non-teaching posts without following the procedure through a committee constituted by the Syndicate, under his Chairmanship without recommendations of the Selection Board and without advertising the posts in the press in violation of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and thereby all petitioners committed offence under section 9(a)(vi) and (x) of National Accountability Ordinance, 1999.
3. Similar allegations were levelled against petitioners Dr. Liaqat Ali being Registrar/Secretary of the Committee of the University, Professor Dr. Muhammad Amin Athar another Registrar/Secretary of the University and Dr. Kamran Abid an Additional Registrar, who allegedly, only attended its meetings.
4. In the report and parawise comments submitted by the NAB, it was stated that petitioners committed the offence of misuse of authority as envisaged in the case of "The State v. Anwar Sail Ullah" reported as PLD 2016 SC 276. It was also stated that one Muhammad Rafiq Alvi son of Muhammad Tufail filed W.P. No.33673-2016 against Mujahid Kamran petitioner for illegal appointments/re-appointments/contractual appointment made in his capacity of Vice- Chancellor of University of the Punjab upon which on 27.10.2016 a direction was issued by this court to NAB Lahore to treat it as complaint and in pursuance thereof an inquiry was authorized on 05.05.2017 which was upgraded into investigation vide letter No.1(61)HQ/948/NAB-L on 19.09.2018. It was alleged that during his tenure, he appointed about 550 contractual employees of grade 17 and above in violation of the relevant rules and without advertising the posts depriving the general public of fair competition. It was further alleged that under the Public Sector Universities (Amendment) Act, 2012 the power of appointments were withdrawn from Vice-Chancellor of the Universities but he kept on using such powers and appointed his handpicked persons. On 11.10.2018 the petitioners were arrested and they completed their physical remand uptil 22.10.2018. In the comments. a reference was also given to section 26(2)(s) and Section 26(2)(cc) of University of the Punjab Act, 1973 and Calendar 2002 to substantiate that the appointment shall be made under the recommendations of the Selection Board and that there was no concept of contractual but or temporary or permanent employment. Adds that no recommendation was made by the Selection Board at all. Refers to Rule 17 of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 to argue that no post be filled without advertisement in at least in the two leading newspapers.
5. Learned counsel for the petitioners submits that all the petitioners are not only outstanding educationalists but also hold the doctorate degrees and had attained the status of Professors by making their names in their country as well as abroad. They have spent their lives in imparting education at the university level and produced hundreds of students serving the nation in their respective fields. Adds that the NAB has illegally involved them in alleged scam which is not covered within the domain of N.A.O., 1999. Further adds that they have never misused their authorities and had worked within the parameters prescribed under the University Act Calendar, Rules and Regulations. Adds that they have not appointed any favourites or any person who was not qualified for the post. Adds that there is no evidence on record that they have received any kickbacks and any favourable consideration for their appointments. Also submits that the procedure for the appointment of the contractual employments is somewhat different and that the Syndicate has delegated its authority to Sub-Committee for the appointments of the contractual employees. Finally, submits that the petitioners were greatly humiliated by the conduct of the NAB when they were put in handcuffs and brought before media badly affecting their reputation as professors/ educationalists.
6. Conversely, learned Special Prosecutor for NAB submits that under section 7 of the Schedule attached to the University of the Punjab Act, 1973, the Functions of the Selection Board constituted under section 6 thereof are that it should recommend to the Syndicate the names of suitable candidates for appointment to teaching or other posts and under section 26(2)(s) thereof, it was the Syndicate which could appoint University Teachers and other officers on such recommendations of the Selection Board for teaching and other posts in the initial pay of Rs.450/- per mensera or above. Submits that in 1696th Meeting of the Syndicate held on 06.04.2013 under agenda Item No.6, the Syndicate had discussed the delegation of powers to a Sub-Committee comprising of five members including the Vice Chancellor under section 26(2)(cc), since the Vice- Chancellor could not fill a post for more than six months but the Syndicate can. In the 1697th Meeting of the Syndicate held on 20.04.2013 under agenda Item No.10, the said committee was delegated with a power of approval of contractual employment on teaching/ Research posts on behalf of Syndicate. The committee was comprised of Dr. Mujahid Kamran as Chairman and the two Registrars as Secretary of the Committee, Dean of the faculty concerned (Member), Head of the Department concerned (Member) and, therefore, prays for the dismissal of writ petitions.
7 Arguments heard. Record perused.
8. The precise allegation against the petitioner, Professor Dr. Mujahid Kamran is that he being the Vice-Chancellor of the University of the Punjab from 03.01.2008 to 19.12.2016 recruited about 500 contractual employees of grade 17 and above while sitting as a Chairman of the Sub-Committee by exercising the delegated powers of Syndicate, without following the procedure of advertisement and seeking the recommendations of Selection Board. Under section 25 of the University of the Punjab Act, 1973, the Vice-Chancellor is the Chairman of the Syndicate besides others members and under section 26 thereof, the Syndicate being the Executive Body of the University can take effective measures to raise standard of teaching, research and publications and other academic pursuits and exercise general supervision over the affairs and managements of the property of the University. Under section 26(2)(s), it is authorized to appoint University Teachers and other officers on the recommendations of the Selection Board for Teaching and other posts in the initial pay of Rs.450/- per mensem or above. Under section 26(2)(cc), the Syndicate can delegate any of its powers to an Authority or a Committee or sub-committee. Both section 26 clauses 1 and 2(s)(cc) of the University of the Punjab Act, 1973 are reproduced as under:- "26(1). The Syndicate shall be the executive body of the University and shall, subject to the provisions of this Act and the Statutes, take effective measures to raise the standard of teaching, research and publication and other academic pursuits and exercise general supervision over the affairs and management of the property of the University.
(2) Without prejudice to the generality of the foregoing powers and subject to the provisions of this Act and the Statutes, the Syndicate shall have the powers:- 26(2) (s) to appoint University Teachers and other Officers on the recommendations of the Selection Board for Teaching and other posts in the initial pay of Rs.450/- per mensem or above;
(cc) to delegate any of its powers to any Authority or, a Committee or sub-committee."
9. In its 1696th meeting of Syndicate held on 06.04.2013, it was decided under agenda Item No.6 that a committee and subcommittee might be constituted to consider and approve appointments on teaching/research posts on behalf of the Syndicate. Consequently, in 1697th meeting of Syndicate held on 20.04.2013, under agenda item No.10, the powers were delegated to the said committee for approval of contract of employment on teaching/research posts on behalf of the Syndicate. The committee was comprised of five members including Vice-Chancellor as Chairman, besides Dean of the faculty concerned (member), Head of the Department concerned (member), Two members from Syndicate (member) and the Registrar (member/Secretary). The functions of the committee was that it should consider the request of appointment for appointments on teaching/Research posts on contract basis and approve the same for a period of one year if the applicant proved eligible under the rules.
10. The case of the prosecution is that said committee was to act on the recommendations of the Selection Board under clause 7 of the Schedule attached to the said Act of 1973, therefore, it was for the Selection Board to consider the applications received in response to the advertisement and recommend to the Syndicate the names of the suitable candidates. However, it is not denied that the said appointments in question were not made on r Permanent basis.
11. It is not the prosecution case that out of those live hundred contractual appointees even one was academically or otherwise disqualified to be appointed against the said post. It is also not the case of the prosecution that kith and kin of the petitioners were accommodated over and above their merits. No allegations were made regarding non-performance of duty by the aforesaid employees. Even after the change of the petitioners from their respective posts, the University did not move against such appointees. Likewise, the prosecution has not alleged that the petitioners have received any kickbacks or any illegal gains out of the said appointments. The only allegation against them is that they misused their authority. According to them the act committed by them constituted the offence as defined in "The State v. Anwar Saif Ullah Khan" reported as PLD 2016 SC
276. However, the perusal of the said judgment reveals that without the demand of the jobs by the OGDC the appointments were made- just to accommodate and facilitate the political recommendees which was considered to be an extraneous consideration. The relevant extract from paragraph 34 is reproduced as under:- "For what has been discussed above it is quite clear to us that in the matter of getting 145 persons appointed to various jobs in the Oil and Gas Development Corporation the respondent had ignored the mandate of Articles 18 and 25 of the Constitution, he had defied the law declared in the above mentioned judgments rendered by this Court and by some other Courts and Tribunals, he had utilized his authority under the relevant law for extraneous considerations and purposes, he had used his position and power against the interests of the relevant Corporation of which he was incharge and he had done all that to dish out undue favours to others by imposing his will upon a hesitant or unwilling competent authority."
12. In case titled "Mirza Luqman Masud and others v. Chairman NAB and others" reported as 2017 SCM R 838, the appointments made in the NAB without following the procedure i.e. advertisements were not considered enough to probe the allegations of misuse of authority inside NAB which shows that such may be a procedural irregularity which has not been accompanied by mens rea.
Here this court is also guided by case titled "Mansur-ul-Haque v. Government of Pakistan" reported as PLD 2008 SC 166, in which it was held that merely a procedural irregularity without mens rea was not prima facie constitute an offence. Relevant extract is reproduced as under:- "We may point out that notwithstanding the special provision contained in the NAB Ordinance regarding shifting of the burden of proof, the fundamental principle of the law of criminal administration of justice that basic onus is always on the prosecution to establish the commission of an offence is not changed and in the present case, we find that the respondents having negotiated with the seller company abroad in the official capacity entered into the contract of purchase of ships and in the process certain procedural irregularities constituting an act of misconduct in the contemplation of law applicable to their service were probably committed but the same mar not constitute a criminal offence under section 9(a) (vi) of NAB Ordinance punishable under section 10 of the said Ordinance or under any other law without proof of the existence of element of dishonest intention of personal gain."
13.For the purpose of disposal of present constitutional petitions in respect of the grant of post arrest bails we will restrain ourselves in going into the deeper appreciation of evidence and will prima facie see the case of the prosecution in terms of alleged misuse of authority by the petitioners. We have no hesitation to observe here that Kamran Mujahid/VC/petitioner being the Chairman of the sub-committee along with the other Registrar/Secretary had exercised their authority delegated to it by the Syndicate in a bona fide manner for the purpose of appointment of teaching staff on contractual basis, without any mens rea on their part. It-does not appear that they have misused their authority to make illegal gain for themselves or for someone else by depriving any aggrieved person of his valuable vested right. Interestingly, the contract employment of many of the employees has been regularized/extended and the said employees have not given any opportunity of complaint to anyone against them in reference to the performance of their job. The allegations of appointments on contractual basis, by the committee while exercising the authority of Syndicate, without approval of the Selection Board made against the petitioners being its members require further probe as contemplated under section 497(2), Cr.P.C. Further detention of the petitioners would serve no useful purpose to the prosecution.
14. Keeping in view the above, we are of the considered view that prima fade the petitioners have made out a case for grant of post-arrest bail, therefore, these writ petitions are allowed as a result of which the petitioners are granted post-arrest bail subject to their furnishing of bail bonds in the sum of Rs.5,00,000/- each with two sureties each in the like amount to the satisfaction of the learned trial court.