MUZAMIL AKHTAR SHABBIR, J. Through this constitutional petition, petitioner has challenged advertisement dated 10.01.2021 issued for the purpose of appointment to various posts in the Government College University, Faisalabad ('respondent-university') to the extent of the criteria fixed for appointment of Associate Professor in BPS-20 and seeks direction to the respondent- university to receive application of the petitioner for the said post and consider her on merit in the pending selection process.
2. It is contended by learned counsel for the petitioner that petitioner, who is working in respondent-university for quite some time as Assistant Professor, is qualified for appointment to the post of Associate Professor on the basis of qualification fixed by the H.E.C. in its policy criteria and conditions for appointment to the said post, hence, respondent-university be directed to consider her case for appointment without seeking strict compliance of the criteria fixed by the respondent-university in the impugned advertisement.
3. It is noted that through advertisement dated 10-1-2021 and corrigendum dated 27-1-2021 respondent-university advertised vacant posts in Daily "Jang" Lahore, inter alia, for the post of Associate Professor (BPS-20) with closing date 26-2-2021 and with the following eligibility criteria: "Eligibility Criteria for the post of Associate Professor (BS-20) fixed by the University.
Age Limit: 35-50 Years.
Minimum Qualification: a. Ph.D. in law or equivalent degree from an H.E.C. recognized University/Institution.
Experience: a. 10-years teaching/research experience in H.E.C. recognized University or a post-graduate Institution or professional experience in a National or International Organization.
OR 5-years post-Ph.D teaching/research experience in an H.E.C. recognized University or a post- graduate Institution or professional experience in the relevant field in a National or International Organization.
Whereas the Discipline Criteria, eligibility conditions for the appointment of faculty in Law Discipline prescribed by H.E.C. under the head "Associate Professor" is as under: Minimum qualification: a. Ph.D. in law or equivalent degree from an H.E.C. recognized University/institution. b. LL.M, J.D in law or equivalent degree from an H.E.C. recognized University/institution.
Experience: a. 10-years teaching/research experience in H.E.C. recognized University or a post-graduate institution or professional experience in the relevant field in a National or International Organization.
Note: After 30th June, 2015, at least 4-years post-Ph.D. level experience in an H.E.C. recognized university or post-graduate institution or professional experience in the relevant field in a National or International Organization.
OR 5-years post-Ph.D. teaching/research experience in an H.E.C. recognized University or a post- graduate institution or professional experience in the relevant filed in a National or International Organization. b. 12-years teaching/research experience (with at least 4-years' experience after the post-terminal degree level) in an H.E.C. recognized University or a postgraduate Institution or professional experience in the relevant field in a National or International Organization.
4. The claim of the petitioner is that H.E.C. only can prescribe the criteria for appointment to variou's posts in the university and the respondent-university itself has no authority to change the same. In this regard reference has been made to Section 10(1)(q) of The Higher Education Commission Ordinance, 2002, which is reproduced as under: "10. Powers and functions of the Commission.- (1) For the evaluation, improvement, and promotion of higher education, research and development, the Commission may-
(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; "
As regards Section 10(1)(q) reproduced above, suffice it to observe that the High Education Commission is to provide guidelines as regards minimum criteria and qualification for appointment, etc. yet this does not mean that the Educational Institution cannot fix requirement of a higher qualification for the purpose of appointment, etc.
5. Be that as it may, regardless of what has been observed above and whether the qualification for appointment to the post of Associate professor has been correctly fixed, it is observed that in the present case the impugned advertisement for appointment to the vacant posts including the post of Associate Professor in BPS-20 was published on 10.01.2021 with last date for filing applications as 29.01.2021 and through corrigendum dated 27.01.2021, the last date was extended to 26.02.2022, whereas the instant petition has been filed on 28.11.2022 i.e. after a period of about 22 months without explaining the delay in filing the same. Although, it has been mentioned that appointment process has not been finalized till today and direction is sought to be issued to respondents to consider the petitioner's claim for the said appointment yet it has not been mentioned in the petition that whether the petitioner applied till 26.02.2022 (i.e. last date fixed in advertisement) or not, for seeking appointment. On inquiry, the learned counsel has stated that there is urgency in the matter as there is likelihood that if stay order is not granted today, the post may be filled on 02.12.2022. The petitioner's counsel has been asked that why has the petitioner not approached this Court earlier as the petitioner claims to be working in the respondent-university as Lecturer in BPS- 18 with effect from 15.06.2012 and as Assistant Professor in BPS-19 with effect from 07.06.2018 and now seeks appointment as Associate Professor in the same university and it cannot be assumed that petitioner has no knowledge of the advertisement mentioned above and in view of the above, learned counsel for the petitioner at the outset has been confronted with the question of laches as an impediment against this petition to be able to proceed further, he states that as the criteria fixed in advertisement is against criteria fixed by H.E.C, the entire recruitment process is void, hence question of laches does not arise.
6. The principle of laches is based on the maxim: "vigilantibus non dormientibus acquitas subvenit" which means equity helps the wakeful and not the slumbering. In other words, equity aids the vigilant and not those who sleep over their rights. Moreover, laches signifies laziness in pursuing a legal remedy, which may result in estoppel against petitioner seeking remedy otherwise available under the law.
7. As regards the process being void due to University prescribing different criteria than the one recommended by the H.E.C., it has already been noted above that H.E.C., prescribes the minimum criteria for appointment and University can have requirement of higher qualification for appointment and such fixation of higher qualification subject to some exceptions would not be per se void. However, to consider the effect of laches on void order, reference may be made to case titled "Masooda Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others" (PLD 2003 SC 90) wherein the Honourable Supreme Court of Pakistan held that Constitutional petition can be dismissed on ground of laches even against a void order. The operative part of the afore-referred judgment is reproduced below: "8 ... There is sufficient case law on the question of condonation of laches of more than a decade and the dismissal of the writ petition on the ground of delay of few months, therefore, no hard and fast rule can be laid down for application of the principle of laches "
"9 ... The High Court could refuse the discretionary relief in the writ jurisdiction on the ground of laches but bar of laches would not deny the grant of right or seeking of the remedy unless it is found that grant of relief may cause injustice to another party. There is no cavil to the proposition that the writ petition even against a void order, can be dismissed on the ground of laches but this rule cannot be applied in every case as a mandatory rule. "
The same principle was laid down in "Zaheer Ahmad Chaudhry and others v. City District Government Karachi and others" (2006 YLR 2537).
8. This Court in case titled "Abdul Rehman Janjua v. Punjab Bar Council and 3 others" (PLD 1983 Lah. 47) held that Writ may be refused even against a void order, where an Applicant is estopped by his conduct to challenge impugned order or is guilty of laches.
9. The Honourable Supreme Court of Pakistan, in case titled "Syed Asif Majeed and 5 others v.
A.D.C.(C)/ASC(L), Lahore and 15 others" (2000 SCMR 998) held that High Court had rightly declined to interfere on the ground of laches where the allotment of disputed Khata was made on 25.1.1970 and petitioner invoked the Constitutional jurisdiction after about quarter of century to challenge the same.
10. In case titled "Mirza Maqbool Elahi through Legal Heirs and 8 others v. Capital Development Authority, Islamabad and 3 others" (1998 SCMR 1074) the Honourable Supreme Court of Pakistan held that Constitutional jurisdiction is an equitable jurisdiction and High Court was justified in refusing to interfere in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as petition suffered from laches and acquiescence.
11. The Honourable Supreme Court in case titled "Soofi Muhammad Din and others v. Settlement and Rehabilitation Commissioner and others" (1991 SCMR 905) held that the High Court was justified in dismissing the petition on the ground of laches where Constitutional petition was filed in 1987 against order passed in 1977 and no interference was called for in circumstances,
12. There is another aspect of the matter that a party may be estopped by its own conduct to challenge an order if it has acquiesced to the said order and had not challenged the said order within a reasonable time and the conduct of a party in belatedly challenging an order is inconsistent with the previous conduct. Reference is made to case titled as "Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others" (PLD 1993 Kar. 237) wherein it is mentioned that the rule of estoppel is a rule which debars a party on account of its conduct from taking a plea of adopting a particular course of action. Essence of the rule of estoppel lies in the inconsistency between the previous conduct of the party and the course which a party wants to pursue.
13. In case of "M.H. Abidi v. State Life Insurance Corporation" (1990 MLD 563 Karachi) a learned Division Bench of Karachi High Court has held as under: "..........In the absence of a bar of limitation, the period within which remedy is to be sought has, however, in variably to be a reasonable one. Element of due diligence is also to be reconciled.
What is more, delay should never be such as to generate a belief or situation of abandonment of the right because, then, vested right comes into operation and cannot be deviated from."
14. In case titled "Ahmed and 25 others v. Ghama and 5 others" (2005 SCMR 119) Honourable Supreme Court of Pakistan has held as under: "There is not cavil with the proposition that existence of laches is sufficient for dismissal in limine of petition."
It has further been held as under: "We have absolutely have no hesitation in our mind that the petitioners failed to pursue their case vigilantly, vigorously and woke up from the deep slumber after 108 days which cannot be ignored without sufficient justification which is badly lacking in this case."
15. In the present case, impugned advertisement for appointment to the vacant posts including the post of Associate Professor in BPS-20 was published on 10.01.2021 with last date for filing applications as 29.01.2021 and through corrigendum dated 27.01.2021, the last date was extended to 26.02.2022, whereas the petitioner did not apply within time and the instant petition has been filed on 28.11.2022 i.e. after a period of about 22 months without explaining the delay in filing the same.
Although, it has been mentioned that appointment process has not been finalized till today and direction is sought to be issued to respondent-university to consider the petitioner's claim for the said appointment, yet it has not been denied that the appointment process initiated through the aforesaid advertisement is to be finalized in the near future and rights have accrued to the candidates, who had applied within time to be considered for appointment, whereas the petitioner suddenly has arisen from deep slumber to challenge the said process, which was not earlier called in question despite the fact that the petitioner has been working in the respondent-university with effect from 15.06.2012 and it cannot be assumed that petitioner had no previous knowledge of the advertisement mentioned above. The petitioner had acquiesced into the matter and was now estopped by her own conduct to challenge the said process at its final stage as stopping the said process at this stage may cause injustice to the candidates participating in the same. It is well settled principle that law favours the vigilant and not the indolent, hence, delay of 22 months in filing this petition for challenging of said criteria fixed through the advertisement dated 10.01.2021 after the last date for filing applications has already expired on 26.02.2022 makes this petition not only barred by laches but the petitioner is also estopped by her conduct to challenge the said process at this stage.
16. The claim of the petitioner that another W.P. No.12964 of 2021 challenging the same advertisement is also pending before this Court, therefore, this petition be also entertained, is without any substance as through the said petition, the petitioners therein had challenged the eligibility criteria for the purpose of appointment to the post of Assistant Professor BPS-19, which was a different post and the said petition had been filed on 25.02.2021 when the last date for filing of application for appointment had not lapsed, hence, the case of the petitioners in that petition is distinguishable from the case of present petitioner and of no help to her for entertaining her petition at this stage, especially when it is claimed that the process for the purpose of appointment to the post of Associate Professor is likely to be finalized by 02.12.2022 of immediately thereafter.
17. In view of the above discussion, this petition having been belatedly filed is dismissed.