MUHAMMAD SHAN GUL, J. By means of this common judgment, the following constitutional petitions in addition to the titled petition are sought to be decided: W.P. No.18668 of 2019 W.P. No.18683 of 2019
2. Facts common to the three petitions are that the Bahauddin Zakariya University, Multan, by way of an advertisement dated 21.12.2017 advertised the posts of Deputy Controller, Deputy Registrar and Deputy Treasurer (BS-18). The petitioners before this Court applied, went through the process and were declared successful and were eventually appointed vide Notification dated 13.12.2018.
Two unsuccessful candidates, Mst. Nasreen Akhtar and Muhammad Faraz Imam, respondents No.4 and 5 in these petitions, challenged the process of recruitment by means of filing a revision petition in terms of Section 11-A of Bahauddin Zakariya University Act, 1975, praying for the appointments to be reviewed and recalled.
3. The Chancellor of the University set aside the order of appointment approved by the Syndicate vide order dated 28.11.2019 but did so without affording any opportunity of hearing to the petitioners before this Court. The petitioners were dealt a marked hand inasmuch as they were condemned unheard. They were not even called! The postulates of Article 10-A of the Constitution were compromised, the ethos of due process contained in Article 4 of the Constitution was offended and fairness, both substantive and procedural, was given a short shrift. The order of the Chancellor, therefore, besides being violative of the proviso to section 11-A of the Bahauddin Zakariya University Act, 1975 is also in derogation of Articles 4 and 10-A of the Constitution.
4. The proviso to section 11-A of the Bahauddin Zakariya University Act, 1975, was added subsequently after the promulgation of the Act in its original form and is, therefore, manifestly reflective of the legislative intent in supporting, ensuring and making the exercise of power under section 11-A subject to the right of fair hearing. The provision of personal hearing to affectees of exercise of powers in revision under section 11-A is mandatory. This power of revision is a quasi- judicial power, as held in the now famous case of "Dr. Zahid Javed v. Dr. Tahir Riaz Chauhdary and others" (PLD 2016 SC 637) (5 members). Even though the artificial distinction between administrative and executive exercise of power on the one hand and quasi-judicial and judicial exercise on the other stands eclipsed post Ridge v. Baldwin (1964 AC 40, House of Lords) and University of Dacca [("1. Saiyyid Abul A'la Maudoodi,
2. Mishahul Islam Faruqi and 3. Umar Farooq v.
1. The Government of West Pakistan and 2. The Government of Pakistan" (PLD 1964 SC 673)] and a hearing is now considered essential in both cases and which principle has now been made impregnable by the insertion of Article 10-A of the Constitution, the fact that the power of revision under section 11-A is a quasi-judicial power means that the audi alteram partem rule applies with that much more vehemence. Furthermore, with the statute itself providing for a right of hearing a posthumous (post-event) hearing can also not cure the initial defect either and the decision so taken has to be quashed ("Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others" (PLD 1971 SC 61) and "Sind Employees'
Social Security Institution and another v. Dawood Cotton Mills Ltd." (PLD 1977 SC 177) may be referred).
5. But the most alarming part about the entire issue is the submission of comments before this Court in these constitutional petitions. These comments submitted on behalf of the Chancellor acknowledge without demur and rather proclaim that the petitioners were not heard because appointment orders had been passed by the Selection Board and the Syndicate of Bahauddin Zakariya University and, therefore, it is the Syndicate or the Selection Board which had to be heard in the matter and not the petitioners. This, on the face of it is unreasonable in the wednesbury sense and even going by the strict and high threshold of review employed in administrative matters relating to universities and colleges, the rubicon has indeed been crossed!
6. Para-9 of the comments submitted on behalf of respondent No.1 is as follows:- "9. That the common objection taken by the petitioner and other petitioners is regarding the violation of the proviso clause of Section 11(A) of BZU Act, 1975. In this regard, it is stated that the orders that have been reversed while exercising powers under Section 11(A) were of selection board and syndicate and it was these authorities who were going to be effected from the adverse orders passed by the answering respondent No.1 and representative of both the authorities have been duly heard with patience and in detail; and, after giving a proper right of hearing, the orders of appointment of petitioner were set aside as the same were not justifiable from any angle, hence, this objection is liable to be turned down."
7. Since the orders approved by the Selection Board and passed by the Syndicate were in favour of the petitioners and since the petitioners had gained employment in terms of these orders it was incumbent upon the Chancellor to hear them before passing any order against them. This is trite and needs no reiteration.
8. The Chancellor, it may be mentioned, may wish to acquaint himself with the fundamental right to fair hearing according to which no one can be condemned unheard and before passing an adverse order against any person that person has to be heard.
9. In R vs Rent Officer ex P Muldoon (1996) 1 WLR 1103, it has been eloquently held, that a person is directly affected by something, connotes, that he is affected without being protected by any intervening cushion that softens the effect of the adverse impact. A fundamental aspect of procedural fairness is the duty to give relevant and germane persons an opportunity to be heard.
In R vs Sec of State ex P Doody (1994) I AC 531, it has been held that fairness requires that a person who may be adversely affected by a decision will of course be allowed to make submissions in his defence. The petitioners having been treated and dealt with like objects and not humans, the impugned orders are also violative of the right to dignity contained in Article 14 of the Constitution.
The petitioners were the only direct affectees and not hearing them is definitely not right!
10. At this stage, the learned Legal Advisor of Bahauddin Zakariya University has relied on the case of "Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another" (PLD 2010 SC 483) to submit that there was no need for the Chancellor to hear the petitioners because the entire record was placed before the Chancellor. The facts of this precedent case are completely distinguishable and not applicable or attracted to the present matter.
11. Suffice to state here that the requirements of Article 10-A of the Constitution eclipse all such arguments. The Chancellor may be reminded of the very famous quote about, "history being replete with cases which were touted to be open and shut but which when came to be argued turned out to be totally different (Megarry J. 1974) or that it is an acknowledged and pronounced facet of any judicial system that an oral hearing is the most powerful force to promote a change of mind by the adjudicator and that the duty to hear being inextricably linked with the exercise of power under section 11-A Bahauddin Zakariya University ACT 1975, it cannot be dispensed with.
12. In view of what has been observed above, there is no way that the order under challenge can be sustained. The order dated 28.11.2019 is, thereof, declared to be of no legal effect and is set aside.
13. For the reasons stated above, these constitutional petitions are allowed.