1. MURSHED, C. J.----This is an application under Article 98 of the Constitution. Petitioner, Dr. A. N. M.
2. Mahmood, was appointed a Lecturer in the Department of Economics, University of Dacca, in the year 1949. He continued to function as such until his appointment in 1963 as a temporary Reader in the said Department.
3. One Dr. K. T. Hossain was also appointed as a Lecturer in the Department of Economics some years after the appointment of the petitioner in 1949. Dr. K. T. Hossain was a pupil of the petitioner and was, obviously, junior in status to the petitioner, receiving lesser salary than the petitioner in respect of his post as a Lecturer in the University of Dacca.
4. Petitioner took five years to obtain his doctorate. It is patent that the time factor in obtaining a doctorate is not regarded as a decisive element in assessing the merits of a candidate. The qualification of a candidate is appraised in accordance with the learning and scholarship shown by him and by the capacity for research and investigation as reflected in the thesis which he has submitted. Petitioner obtained his Ph. D. From Harvard and has averred (and there is no reason why this statement should not be believed) that he was sent as a visiting Professor to another University in U. S. A. During the period of his stay in Harvard. This is an academic distinction of no small value.
5. He also obtained an assignment to the UNESCO and while he was thus working with the United Nations Organisation the University of Dacca recalled him to his position as a Lecturer in the University. In compliance with the said requisition the petitioner came back to Dacca and joined his former post in the Depart--ment of Economics. Thereafter in the year 1963, when a number of professors and senior teachers left the University (with a lien on their posts) to have various other kinds of assignment, it was decided to fill up two vacancies temporarily in the grade of Readers in the said Department. According to rules and regulations, in this behalf, and particularly in terms of Statute No. 13 of the University Statutes, a Selection Committee was constituted with the Vice- Chancellor of the University as Chairman.
6. Petitioner was appointed a temporary Reader on the recommendation of the said Selection Committee in which according to the evidence given before us by the Registrar of the University of Dacca, the Secretary of the Education Depart--ment of the Government of East Pakistan, namely, Mr. Burhanud--din Ahmed and the Head of the Department of Economics, i.e. Dr. Nurul Islam, had participated by their physical presence in the Committee. Dr. Nurul Islam, who was then Professor in the Department of Economics in the University of Dacca and the Head of the said Department, Has, undoubtedly, an expert within the meaning of Statute No. 13 as mentioned above. Before the said Selection Committee, at least, five candidates appeared, including Dr. K. T. Hossain (respondent No. 4 before us). The said Selection Committee gave the first preference to the petitioner and the second preference to one Dr. Anisur Rahman. This means that in the opinion of the said Selection Committee petitioner was the best candidate and the second best was Dr. Anisur Rahman. It further means that the Selection Committee did not consider Dr. K. T. Hossain fit for having the first and second preferences. Furthermore, it has been stated by the petitioner and not denied on behalf of authorities of the Dacca University that the said Selection Committee expressed an opinion that the third preference would go to Mr. Rahman Sobhan if there may be a third vacancy. It is important to remember this. In order to appreciate the nature and composition of the said Selection Committee I have already noticed that Dr. Nurul Islam, Head of the Department of Economics and the Secretary to the Government of East Pakistan Education Department had physically participated in the Committee in making the aforesaid selections. Thus regularly constituted Selection Committee, after due advertisement, interviewed the petitioner and other candidates including Dr. K. T. Hossain and did not recommend Dr. K. T. Hossain for the first two preferences, one of which, namely, the first preference, was obtained by the petitioner in an open competition with Dr. K. T. Hossain and some other candidates. The Selection Committee having further recommended one Mr. Rahman Sobhan for a third vacancy if required to be filled, it is obvious that the said Selection Committee did not consider Dr. K. T. Hossain tit for receiving even the third preference. The aforesaid facts must be clearly borne in mind as they constitute the background of the present appointment of Dr. K. T. Hossain whom the Syndicate, in an indirect manner, contrived to give a higher salary in the same post than what the petitioner is receiving.
7. Shortly after his failure to secure an appointment as a temporary Reader, and after the appointment of the petitioner as such Reader in the year 1963, Dr. K. T. Hossain, left the University of Dacca to take an appointment with the Planning Department of Government of East Pakistan, retaining a lien in respect of his post as Lecturer in the Department of Economics. This means that Dr. K. T. Hossain continued in the service of the University of Dacca in the position of a Lecturer in the Department of Economics with a status which was junior to that of the petitioner. That is to say, Dr. K. T. Hossain did not sever his connection with the University and his rank and status must be adjudged in such a context. The fact that Dr. K. T. Hossain secured for himself a much higher salary in the above-mentioned Planning Department is immaterial because the post to which he was appointed under the Government of East Pakistan was not an academic assignment. I may mention here that Mr. Rahman Sobhan was appointed as another temporary Reader while Dr. K. T.
8. Hossain was serving in the Planning Department of the Government of East Pakistan. It is, therefore, evident that in the interregnum Dr. K. T. Hossain teas not connected with the teaching of economics.
9. This is the immediate history of appointment made in the University of Dacca in the Department of Economics prior to the appointment of Dr. K. T. Hossain who had, until his recent appointment (which has been impugned in a suit before a Munsif at Dacca and also in the present application), occupied a junior status as compared with the petitioner. The present appointment (the legality of which has been challenged before us) connotes a sudden translation of Dr. K. T. Hossain to the post of a Reader in a position which is more advantageous, in point of salary to that enjoyed by the petitioner, who had obtained a decisive preference over the former in an open competition as awarded by a larger and snore representative Selection. Committee whose composition I have noted above. I may now note the circumstances leading to the appointment of Dr. K. T. Hossain.
10. Early in 1905 the Syndicate passed a resolution, in conformity with legal requirement in this behalf, that the Beads of various Departments be asked to furnish particulars of qualifications of teachers, having regard to the needs of the Departments concerned, with a view to advertise vacant posts. It is needless to say that advertisement is a well-recognised method of attracting the most suitable candidate from among those who may be available in open competition. Such a course tends to ensure fairness and efficiency in the selection.
11. It was stated before us that the Vice-Chancellor had for some time sounded several sources for a suitable candidate-- until he accidentally met Dr. K. T. Hossain. This accidental meeting is too good a coincidence to inspire any confidence is me. The chance meeting between the Vice-Chancellor and Dr. K. T. Hossain led, according to the affidavit filed oil behalf of the Vice-Chancellor, to the appointment of 13r. K. T. Hossain in the manner stated below.
12. On the 16th of October 1965, the Syndicate, without any advertisement and without a nomination made by a Selection Committee proceeded to pass the following resolutions "Resolved, that in view of the situation obtaining in the Department of Economics, due to the absence of some senior teacher on leave Dr. K. T. Hossain, Deputy Chief, Planning Board, Government of East Pakistan, Lecturer in Economics on leave, be appointed a temporary Reader in Economics Vice-Prof. Nurul Islam, until further orders on an initial salary of Rs. 1,050 and that for regularising the aforesaid appointment the case be referred to the Selection Committee: Resolved further, that the above post,-be not advertised."
13. Thus, by the above-mentioned resolutions the Syndicate appointed, as a fait accompli, Dr. K. T.
14. Hossain, as a Temporary Reader, on a salary higher than that enjoyed by everybody else in the said Department and, what appears to be all the more peculiar, higher than the salary received by the petitioner who was hitherto senior to Dr. K. T. Hossain and had obtained an unequivocal preference from a more complete Selection Committee in an open competition. This will look all the more curious when it is remembered that Dr. K. T. Hossain, on his failure to obtain a nomination from an earlier Selection Committee, left the University to function elsewhere in a non-academic post and was thus divorced from teaching activities when thus away from the said University. Dr. K. T.
15. Hossain having chosen to work else where, suddenly made his appearance in the University in terms of the resolutions specified above. The reason which has been given for such a strange course is that Dr. K. T. Hossain had to be appointed with a comparable salary in order to persuale him to join the University of Dacca (this fact has not been proved before us by legal evidence), having received an appointment in the University of Rajshahi on a higher salary. Such a course of conduct exhibits no consideration for the position and status of an obviously more qualified person, namely, the petitioner. In this fashion, Dr. K. T. Hossain secured, in a circuitous manner, from the Vice-Chancellor and the Syndicate an advantage over the petitioner which the former failed to receive in an open competition on a previous occasion. This fact stares one in the face.
16. I have already noted that no advertisement was made with regard to the appointment made by the aforesaid resolutions. Such advertisement is required under Chapter XVI, section 1-A of the Dacca University Ordinance and Regulations. The said section reads thus:- "Ordinarily all teaching and administrative appointments shall be advertised."
17. It is thus clear that advertisement is the normal requirement and I am not satisfied that such advertisement could not be made even if there was urgency in making the appointment if the University authorities had taken timely action. There was sufficient interval between the point of time when Dr. Anisur Rahman left on deputation and the appointment of Dr. K. T. Hossain in the resultant temporary vacancy to enable the Syndicate to act according, to law in its spirit and letter.
18. However, what is more serious is that a prior nomination of a Selection Committee was not obtained.
19. Under the law the obtaining of a nomination by a Selection Committee is a compulsory requirement as a condition sine qua non before the Syndicate could arrogate to itself the power to make an appointment. I may refer to Statute 13 of the First Statutes of the University framed under section 31 (1) of the Dacca University Ordinance, 1961 (East Pakistan Ordinance No. XXIII of 1961), which reads as follows:- "13. (1) Appointments to salaried Professorships and salaried Readerships shall be made on the nomination of a Committee of Selection constituted for the purpose as follows, namely :-
(i) The Vice-Chancellor (Chairman) ;
(ii) two nominees of the Syndicate ;
(iii) two members nominated by the Chancellor ; and
(iv) three experts of whom at least one must be an external expert; nominated by the Chancellor.
(2) A Committee of Selection appointed under paragraph (1) shall report to the Syndicate which shall, if it accepts the nomination of the Committee, make the appointment to the post accordingly. If the Syndicate does not accept the nomination of the committee, it shall refer the case to the Chancellor, who shall make such appointment as he thinks fit.
(3) The Syndicate may, on the recommendation of the Selection Committee offer an eminently qualified person a professorship in the University, on such terms and conditions as it may determine."
20. From what has been quoted above it follows that the Syndicate was empowered to make an appointment, in posts specified above, after the Selection Committee has given its opinion with regard to the appointment. The obvious intendment of the statute, as stated above, is that the Syndicate is required to act on the report of the Selection Committee.The foundation of the Jurisdiction of the Syndicate to make such appointment is the nomination of the Selection Committee contained in a report to that effect. If the Syndicate disagrees with the nomination mace by the Selection Committee, it can refer the matter to the Chancellor. This appears to be the irresistible implication of the language of statute 13, as stated above.
21. With regard to the power of the Syndicate to make such appointment, the law which governs the matter is section 22(f) of the Dacca University Ordinance, 1961. The said section 22(f) runs thus "22. The Syndicate-
(f) save as otherwise provided by this Ordinance or the statutes, shall appoint -the Officers (other than the Chancellor, the Vice-Chancellor, and the Treasurer), teachers, clerical staff and other employees of the University, and shall define their duties and the condition is of their service and shall provide for the filling of temporary vacancies in their posts." (The underlining has been done by me).
22. Thus the powers of the Syndicate are subject to Statutes or the Ordinance of 1961 mentioned above.
23. Therefore, the requirement as to obtaining opinion of a Selection Committee and as to advertisement would govern the powers of the Syndicate with regard to appointment made by it.
24. The implication of sec--petition 22(f) of the Ordinance is : Temporary appointments are to be made by the Vice-Chancellor in accordance with the provisions of section 13 (7) of the Ordinance and substantive (as opposed to temporary) appointment, are to be made by the Syndicate. In making such appointments the Syndicate shall define the duties of appointees and the conditions of their service and shall also make provisions for the filling of temporary vacancies that may occur in respect of the particular post or posts to which appointments are to be made by it. Provision for filling "temporary vacancies" in existing posts is ancillary to the power of making substantive appointments. Power to appoint carries with it an obligation to make provisions for the filling of temporary vacancy in the same post. In accordance with the mandate of the Ordinance, namely, Dacca University- Ordinance, 1961, if the Syndicate makes provision for the filling of tem--porary vacancies in existing posts authorising itself to make such temporary appointments, it cannot disregard the Statutes in this behalf. And what is the kind of the temporary vacancies for the filling of which provision has to be made ? It is pertinent to ask this question. The vacancy spoken of is a vacancy in the very post which has temporarily fallen vacant and not a resultant vacancy in a lower level.
25. It is patent that the said Ordinance of 1961 makes a distinc--petition between making "temporary appointments" and making provision for "the filling of temporary vacancies" in the post. This distinction is evidently clear when one compares the language of sections 13 (7) and 22 (f) of the Ordinance.
26. Section 13 (7) runs thus:- "The Vice-Chancellor shall have the power to appoint, on a purely temporary basis ordinarily for a period of not more than six months, officers (excepting the treasurer), teachers, administrative and subordinate staff and report such action to the Syndicate."
27. Thus the power to appointments on a temporary basis for not more than six months is the province of the Vice-Chancellor, but making provision for filling of temporary vacancy in the very post which has become so vacant is incidental, as a mandatory duty, to making the substantive appointment in the same way as defining the terms and conditions of the post is a mandatory obligation.
28. It is, therefore, clear that the Syndicate is required to make provisions under which appointments to temporary vacancies would be made and, can, in this connection confer upon itself the power to filling temporary vacancies by provisions made under section 22 (f), as set out above. Power to make provisions for filling temporary vacancies is not the same thing as power to quake temporary appointments and it is obvious that the Syndicate must derive legal authority to fill temporary vacancies under a provision made, in this behalf, in accordance with section 22 (f). Under such provision some other authority A may be empowered to make appointments to temporary vacancies. It may be that in accordance with a provision so made the Registrar or the Deans of respective faculties may be empowered to fill temporary vacancies in administrative or teaching assign--ments for a defined term. One thing is, however, patent that the temporary vacancy referred to in section 22 (f) of the Ordinance must be in respect of the very post in which such tem- -porary vacancy has occurred and not in a lower hierarchy in the same chain. The vacancy obviously refers to casual vacancy or a vacancy of a similar nature. Filling up the gap by making an appointment in a lower post comes within the purview of making temporary appointments under section 13 (7) by the Vice---Chancellor and not within the scope of filling a "temporary vacancy" in a particular post, which must mean the same post. We were informed that no provisions has yet been made in this connection for the filling of temporary vacancies in the rank of teachers under section 22 (f)mentioned above although under identical terms of the repealed Act some provision was made in such behalf but the provision has been rescinded. The provisions of section 13 (7) are complementary to those of section 22 (f) of the said Ordinance of 1961.
29. Now, what has been done by the Syndicate under the impugned resolution. It has purported to fill the gaps caused by the absence of Dr. Nurul Islam, who held the post of a Professor and not that of a Reader, which is a lower post, by appointing Dr, K. T. Hossain to the post of a temporary Reader which is a post next below that which had fallen vacant. This is evident from the very language of the resolution itself. It is, therefore, clear that a "temporary appointment" was made by the Syndicate by the resolution of the 16th October and subsequently ratified by the first resolution of the 18th October. The Syndicate has not filled the "temporary vacancy" itself as the vacancy had occurred in the post of a professor, but has made a "temporary appointment" to fill up the gap caused by such a "temporary vacancy" in the post of a professor which is still vacant. This Court has been informed by Mr. Sobhan that the "temporary vacancy" in the post of Professor, caused by the absence of Professor Nurul Islam has not yet been filled. It should be remembered that the vacancy has occurred in the post of a Professor and not in the rank of a Reader. In order to fill in the vacuum (not the vacancy) the "temporary vacancy" has not been filled but, instead, a. " temporary appointment " has been made in a lower post, namely, that of a Reader, normally this should have been done .By the Vice--Chancellor under section 13 (7). The Syndicate could fill the temporary vacancy in the rank of a professor if suitable provision had been made under section 22 (f). If it purported to make a "temporary appointment" it could not disregard statutes and Rules in this behalf. It must do so under the same rules which it is obliged to follow in case of substantive appointment.
30. It would further be seen that in the resolution of the 16th October 1965, there is a reference to a Selection Committee but only for the purpose of "regularising" the aforesaid appoint--ment. In this context, the said Selection Committee was described by Mr. Hafez as a "Ratification Committee " rather than a "Selection Committee". This is really putting the cart in front of the horse and the legality of such a course has been strenuously attacked before us. But, before I deal more fully with this question, I would notice some events that occurred after the resolutions of the 16th of October 1965 were passed.
31. The petitioner, being naturally perturbed at this turn of events, made an abortive attempt to obtain a corresponding increment in the salary which was received by him and those of other teachers who had hitherto enjoyed a higher status in the University than that held by Dr. K. T. Hossain. He therefore, filed a suit in the Court of a Munsif at Dacca on the 6th of November 1965, challenging the vires of the said resolutions of the 16th of October 1965, passed by the Syndicate.
32. The plaint filed in the said suit contains a number of grievances in addition to the points which I have already noted above. The main attack, as gathered from the statements made at the Bar, seems to be, in the first place, that there was no advertisement with regard to the appointment; secondly, that there was no prior recommendation of a Selection Committee, as required by law; thirdly, it was asserted that the Syndicate had, without lawful authority, made a "temporary appointment", having trade no provision even as to filling "temporary vacancies" under section 22
(f) of the Ordinance of 1961; fourthly, that the appointment of Dr. K. T. Hossain, on a salary higher than that enjoyed by the petitioner, affected the status of the petitioner who was thus superseded by one who was junior to the petitioner and who did not possess a higher academic qualification than that enjoyed by the petitioner.
33. After the suit was filed on the 6th November 1965, the said "Selection Committee" was summoned to meet on the 3rd of December 1965, and the Vice-Chancellor further directed the Registrar to give notice to Dr. K. T. Hossain alone to appear before the said Committee. The "Selection Committee" was summoned at a time when it could not be reasonably expected that an expert from outside the University of Dacca would be able to attend the same. In fact, no expert attended the meeting of the " Selection Committee " which has been described by learned Advocate for the petitioner as a "ratification committee".
34. Thus without having participated in what is normally, described as academic activities and by sheer efflux of time, Dr. K. T. Hossain came to be appointed as temporary Reader on a salary higher than that enjoyed by the petitioner when the position of Dr. K. T. Hossain in relation to the petitioner, prior to the said resolution, was that of a Lecturer in the Department of Economics, junior to the status of the petitioner since Dr. K. T. Hossain happened to leave the University of Dacca, with a lien on his post as such Lecturer.
35. Petitioner, therefore, filed another application for an interim injunction with a view to meet the new exigency created by the summoning of the so-called "Selection Committee" particularly, because the learned Munsif did not issue any ex parte interim injunction when the earlier application was made but had merely directed the issuance of notices upon the parties to show cause as to why it should not be issued.
36. When the second application was moved, the learned Munsif felt the necessity of preserving the status quo ante item. Written objection was filed on behalf of all the defendants other than defendant No. 5, Dr. K. T. Hossain who submitted a separate written objection. The written objection on behalf of the defendants other than Dr. K. T. Hossain was directed to be filed by the Vice- Chancellor including the Syndicate. The application was fully contested and, after a full hearing of the case, the learned Munsif, delivered a comprehensive judgment in issuing the injunction which was prohibitory in character. The learned Munsif passed the following order "It is accordingly ordered that the prayer for injunction as made on 22-11-65 be allowed on contest against the defendants. Defendants 2 and 3 are restrained by order of ad interim injunction from giving effect to the order dated 19-11-65, directing defendant No. 5 to appear before the committee of selection on 3-12-65 or any other date and defendant No. 5 is restrained from appearing before such committee and defendants 1 to 4 are further restrained from taking any step affecting the status of the plaintiff till disposal of the suit."
37. It is hardly necessary to repeat that any portion of a docu--ment or writing or an order must be understood in the light of the entire statement, that is to say, that it must be understood with reference to the contest. The plain purpose of the order passed by the learned Munsif was to preserve the status quo ante item and, in fact, he has said so in a comprehensive judgment pronounced by him in respect of the injunction. The legality of the resolution (of the 16th October 1965) itself was one of the primary issues which the Court was called upon to adjudicate and one of the main grievances of the petitioner, as he sought to make out in the suit itself, was the awarding of a higher salary to defendant No. 5, Dr. K. T. Hossain on the ground that receipt of higher pay affected the status of the petitioner as compared with Dr. K. T. Hossain, who was a new entrant to the post of a Reader and had hitherto been all along junior to the petitioner in the Department of Economics. The word "status" must be understood in such a contest. It not merely connotes the position of the parties inter se but also involves the salary assigned to Dr. K. T. Hossain when compared with what is received by the petitioner. There can be no difficulty in understanding the implication of the expression "status" in the background of the case itself. In the circumstances enumerated above and in the light of the case sought to be made out in the plaint, the order of injunction passed by the learned Munsif prohibited the Syndicate from "affecting" the status of the plaintiff-petitioner. Now; in this connection, the word "status" bears, inter alia, a clear reference to awarding of a higher salary to Dr. K. T. Hossain. The word "status" does not appear in a vacuum in the order passed by the learned Munsif and it cannot be mis--construed by any reasonable body of men, particularly, by those who had contested the issuance of the prohibitory order and more particularly when it is recalled that such body of men contained several lawyers. Obviously the order required that nothing should be done with regard to the position of the petitioner in relation to defendant No. 5 so as to jeopardise that position any further when one of the main grievances of the petitioner was the conferment of a high salary to defendant No. 5, Dr. K. T. Hossain. The very appointment of the defendant No. 5 with a higher salary was sub judice inter partes and the controversies, including the awarding of higher salary to defendant No. 5, were in medio in the said Court. According to the case of the plaintiff-petitioner, as stated in his plaint, the appointment of Dr. K. T. Hossain, on a higher salary, would upset the status of the petitioner in relation to the former who was junior to him in the Department of Economics. This is plain enough. It is clear, as a matter of plain common sense, that the order passed by the learned Munsif has to be understood in the light of the object and purpose for which the injunction was granted and in the background stated above. There can be no misconception on this question.
38. The defendants, including the Syndicate, preferred an appeal against the al interim injunction issued by the learned Munsif, which was admitted for hearing by the learned District Judge of Dacca, who vacated, ex parte, a portion of the order, that is, only in so far as it prohibited the Selection Committee from holding its contemplated meeting and in so far as it restrained defendant No. 5 from appearing before the said Selection Committee. The rest of the prohibitory order remained intact. With the modifica--petition of the order passed by the learned Munsif, as indicated above, the Selection Committee hastened to meet and only defendant No. 5 was summoned before it. There was no selection to be made in the sense that no choice was required to be made in a competition between more than one candidate. The Selection Committee was convened for "regularising" the appointment. It met without the presence of experts; three of whom are required by law to be constituents of such body. It transpires that they had sent their written opinions to the said committee. We had asked for the production of the necessary file with regard to the Selection Committee and, from the documents which have been produced by the opposite- parties in this behalf, it appears that one of the experts outside the University of Dacca has expressed an opinion in a letter which had been transmitted to the said Committee, that, on merits and personal qualifications, petitioner and Mr. Rahman Sobhan possessed higher qualifications than those possessed by Dr. K. T. Hossain. There was also recommendation by the said expert that defendant No. 5 should not be given a higher salary than what was received either by the petitioner or by Mr. Rahman Sobhan. Notwithstanding such expression of opinion by an expert, as embodied in the letter written by him, the Syndicate appointed Dr. K. T. Hossain with a salary higher than that received by petitioner and by Mr Rahman Sobban by virtue of a Resolution passed on the 18th December 1965. These resolutions of the 18th December as challenged as illegal in the present petition under Article 98 of the Constitution.
39. During the pendency of the aforesaid prohibitory order passed by the learned Munsif, the Syndicate passed the following resolutions on the 18th of December 1965, in respect of the said appointment :- "Resolved, that in pursuance to the resolution of the --Syndicate adopted at its meeting held on the 16th October 1965 and as recommended by the Selection Committee at its meeting held on the 15th December 1965, the appointment of Dr. K. T. Hossain as a temporary Reader in Economics on an initial salary of Rs. 1,050 p.m in the scale of Rs. 750-75-1,20J--E.B.-75-1500, be confirmed: Resolved further, that in view of the fact that Dr. K. T. Hossain had to forego a permanent appointment of a Reader in Economics in the Rajshahi University on the same pay, i.e, Rs. 1,050 p.m.
40. To accept this temporary post, lie be appointed on a permanent basis when a permanent vacancy in the Readership occurs without reference to the Selection Committee."
41. These resolutions passed on the 18th December 1965, con--stitute the subject-matter of the present petition. This must be --borne in mind.
42. The aforesaid resolutions of the 18th December 1965 have been impeached before us on the ground that the first part of it merely purported to re-affirm a prior resolution passed by the Syndicate on the 16th of October 1965, on the recommendation of a so-called Selection Committee which had met only to "regularise" the said appointment. I have already noticed that it was beyond the power of the Syndicate under section 22 (f) to make a temporary appointment as distinguished from filling a "temporary vacancy" in a particular post without at least, complying with statutes and Rules. The second part of the resolution was also challenged as illegal and it stares one in the face as a curious step taken by the University. It has further been contended that the aforesaid resolutions which were passed, in breach of the prohibitory order made by the learned Munsif, constituted a flagrant abuse of power and was, therefore, illegal and mala fide in that sense.
43. At the hearing of this Rule nisi Mr. Ahmad Sobhan has urged that the present application was incompetent because the petitioner was unable to show that his "legal right" has been encroached upon by the impugned resolutions. This argument is based on the basis that an application like the one before us, under Article 98 of the Constitution, can be maintained only when a "legal right" or "franchise" appertaining to the petitioner is encroached or otherwise threatened. This restricted application of Article 98 in the shape of the Limitation sought to be imposed upon the meaning of the expression, "any aggrieved party", is clearly untenable and would not bear the test of scrutiny.
44. The analogy of what is required for the issuance of a writ of e mandamus is not wholly applicable to a petition under Article 98 of the Constitution. It should be remembered that the relevant portion of Article 98 of the Constitution is that an applicant, under it, can be made by "an aggrieved party" only. The material portion of the said Article runs thus :- "98. (1)
(2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law "(a) on the application of any aggrieved party, make an order-
(i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do ; or
(ii) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect, or . . . . . '."
45. It thus appears that the right to make an application has been given to "an aggrieved party" and not merely to such person who has been "injured" by a violation of "right" or "franchise" or by a threat thereupon. Article 98 does not say that an application, under it, can be made only by such party who can say that his "right" has been invaded upon and that he has, therefore, been "injured" in such a sense. The expression "right" is a well-known concept in Jurisprudence and the converse of it is ---injury---.
46. Mr. Ahmed Sobhan drew our attention to a number of cases where the decisions were based on the requirement of law for issuance of a writ of mandamus. It would be noticed in the first place, that Article 98 of the Constitution is available to a much wider class of persons than those who could ask for the issuance of a writ of mandamus.
47. "Provided----
(a) that an application for such order be made by some persons whose property, franchise or personal right would be injured by the forbearing or doing (as the case may be) of the said specific act."
48. Mr. Ahmed Sobhan wants us to hold that the expression "aggrieved party" in Article 98 of the Constitution is equivalent to the expression "person whose property, franchise or personal right would be injured" in section 45 of the Specific Relief Act, one need hardly state that the meaning of the term "aggrieved party" and the connotation of expression "person whose property, franchise or personal right would be injured" are no `7 the same. The two expressions are as distinct as the poles as under. Article 99 provides that if a party can show that he has been "aggrieved" by an act which is not permitted by law or by an omission to do something which is required to be done by law, he can maintain an application under the said Article. Furthermore, the language of Article 98(2)(ii) should be noted Under it a party has been given a right to ask for a mere declaration that the impugned act is without lawful authority. It is questionable whether an applicant for a writ of mandamus could merely ask for a declaration that an impugned act was without lawful authority without asking for mandamus to do or refrain from doing something in consequence of the aforesaid act. Under Article 98 this can be done. The provision of Article 98 is obviously much wider.
49. The word "aggrieved" has been noticed in various contexts and has been given a very wide meaning.
50. "I feel no doubt that in the circumstances of this case, and in view of the provisions of this Act, it was quite open to this rating authority to appear as; and to be treated as, a person aggrieved within the meaning of the section."
51. "In one sense any application to the assessment committee is speculative because the applicant does not know whether the evidence he is going to produce will be accepted or whether it will not, but I cannot see that if the rating authority consider that, owing to changes which have taken place, the probabi--lities are that the whole of properties of a particular class in their district are under-assessed, they are not `persons aggrieved' and, as such, able to make a proposal.
52. Accordingly, I think both these points fail and the mandamus must go as asked."
53. The tenant and occupier of a house, licensed for the sale of beer on the premises, in 1876 assigned all his interests in the premises for the residue of his term of years, and the benefit of the licence, to the appellants by way of first mortgage to secure the repayment of moneys advanced by them ; and by the mortgage deed irrevocably constituted the appellants his attorneys, in his name, and as his act and deed, to do all acts necessary to procure a transfer of the licence. In 1883, the moneys secured b the mortgage being still unpaid, the occupier sent a written application for a renewal of his licence to the Justices at their annual licensing meeting, and they adjourned the hearing of the application. At the adjourned hearing the appellants applied, as mortgagees as under their power of attorney, for a renewal of the licence to the occupier, who appeared, but stated that he did not wish for a renewal. No objection was made to the renewal on any of the grounds specified in 32 and 33 Vict. c. 27, which Act applied to the occupier's licence. The Justices refused the application, and the appellants appealed to quarter sessions in their own names as mortgagees, and also as attorneys of the occupier, and in. His name, and for and on his behalf. At the hearing the occupier again appeared, and stated, that he did not wish the licence to be renewed, and the quarter sessions thereupon affirmed the order of the licensing justices. It was held, first, that the appellants were "persons aggrieved", within 9 Geo. 4 c. 61, s. 27, by the refusal of the licensing justices to renew the occupier's licence ; and were, therefore, entitled to appeal to quarter sessions : secondly, that upon the facts stated the licensing justices and the Court of quarter sessions were bound to grant the application of the appellants for renewal of the licence to the occupier.
54. By section 8 (iii) (f) of the Workmen's Compensation Act, 1906, if an employer or a workman is aggrieved by the action of a certifying or other surgeon in giving or refusing to give a certificate of disablement of a workman by an industrial disease within the Act, the matter shall be referred to a medical referee, whose decision shall be final. In this case the certifying surgeon had given a certificate that a workman was suffering from an industrial disease, but in the certificate fixed the commencement of the disablement at a date which, under the circumstances of the case, precluded the workman from taking proceedings for compensation under the Act. It was held that the workman was "aggrieved" by the certificate. The relevant portion of the Workmen's Compensation Act, 1906, runs thus "(1) Where the certifying surgeon . . . Certifies that the workman is suffering from a disease mentioned in the Third Schedule to this Act and is thereby disabled from earning full wages at the work at which he was employed------------and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous to the date of the disablement ------.He------------shall be entitled to compensation under this Act as if the disease---------.Were a personal injury by accident arising out of and in the course of that employment---------..(f) If an employer or a workman is aggrieved by the action of a certifying or other surgeon in giving or refusing to give a certificate of disable--ment------..The matter shall in accordance with regulations made by the Secretary of State be referred to a medical referee, whose decision shall be final . . . "
55. The workman, having preferred an appeal, it was contended that he had no right of appeal which would accrue to him only when such certificate was refused. It was submitted that inasmuch as the certificate was granted, he could not prefer an appeal within the meaning of section 8. Holding that the workman, under the aforesaid circumstance, was a person "aggrieved" by the certificate, Cozens-Hardy, M. R., observed: "Now, was the workman, or was he not, `aggrieved' by the action of the certifying surgeon in giving or refusing to give a certificate?' It seems to me that the workman thought he was `aggrieved'. It may be put in various ways. He was aggrieved by the giving of the certificate which was given and was quite useless, or by the surgeon refusing to give a certificate within the meaning of the Act which would have been of use to him. I see no difficulty whatever in holding that the man was `aggrieved' whether he is treated as `aggrieved' by the certificate which the surgeon gave, or by his refusing to give the certificate which the workman required and which alone was necessary to enable to proceed under the Act. On that short ground, it seems to me that the appeal must fail."
56. By section 90 of the Patents, Designs and Trade Marks Act, 1'883, the Court may, on the application of any "person aggrieved" by the entry of a trade mark made without sufficient cause in any register kept under the Act, make such order for expunging the entry as the Court thinks fit. Where the applicant is in the same trade as the person who had registered the trade mark, and where the existence of the entry upon the register would or might limit the legal rights of the applicant so that he could not lawfully do that which he could otherwise have lawfully done, he was a locus standi to be heard as a "person aggrieved". It was so held by the House of Lords affirming the decision of Chitty, J. And the Court of Appeal. Lord Watson, in delivering the opinion of the House of Lords observed thus (pp. 12 and 13)
57. "In disposing of the appellant's contention that the respon--dents were not `aggrieved persons' it appears to me that the Courts below proceeded on the right construction of section 90 of the Act of 1883. In my opinion, any trader is, in the sense of the statute, `aggrieved' whenever the registration of a particular trade mark of rates in restraint of what would other--wise have been his legal rights. Whatever benefit is gained by registration must entail a corresponding disadvantage upon a trader who might possibly have had occasion to use the mark in the course of his business.
58. It is implied, of course, that the person aggrieved must manufacture or deal in the same class of goods to which the registered mark applies, and that there shall be a reasonable possibility of his finding occasion to use it. But the fact that the trader deals in the same class of goods and could use it, is prima facie sufficient evidence of his being aggrieved, which can only be displaced by the person who registered the mark, upon whom the onus lies, showing that there is no reasonable probability that the objector would have used it, although he were free to do so. That reading of the statute appears to me to be in substantial conformity with the construction adopted by the Court of Appeal in In re : Rivere's Trade Mark 26 Ch. D 48 and also in In re : Apollinaris Company's Trade Mark (1891), 2 Ch. D 186.
59. The second point argued, relating to the user of the words `Yourkshire Relish', as a trade mark by the appellant, appears to me to involve still less of the legal element than the first. I listened to the argument with the view of learning whether the decisions of the Courts below were to any, and if so to what extent tainted by legal error, but so far as I could gather no legal defect was pleaded by the appellant. All the learned Judges assume, in my opinion, rightly, that the appellant might use, and acquire right to use, as his own, a trade mark affixed to cases intended for his wholesale trade., as well as another trade mark affixed to each bottle of sauce which was packed in these cases, and upon which the retail customer admittedly relied."
60. It is clear that the words "party aggrieved" have to be under--stood in the context in which they have been used. If an act is without lawful authority, then any person who has been adversely hit by it can come, before a Court and ask for a declaration that such an act is without lawful authority. It does not mean that he must establish that he has been "injured" by violation of pecuniary or proprietary right vested in him or by contravention of any franchise that he claims. We may again note the word `injured' as used in section 45 of the Specific Relief Act' is distinct from the expression "aggrieved" in Article 98 of the Constitution.
61. Moreover, it is a well-known principle of construction that when codified language of a law has to be construed, it must be done according to the ordinary and natural meaning of the t words with reference to their context. Decisions which have been given in some other context would not have any bearing upon the case with which we are now faced. In construing Article 98(2)(a)(i) and (ii) of the Constitution, the Court has primarily to ask itself : Is the impeached act without lawful authority? If the answer is in the affirmative, that is, the act is without lawful authority, the Court is further required to enquire whether the applicant would be hit by the illegality in the sense that the act may cause "grief" to the applicant, that is to say, whether he would be "aggrieved"? If the answer is `yes' to both questions, it must be held that the applicant has a "legal right" to maintain the application under Article 98. The applicant is not required, as a legal obligation to show that a pecuniary or proprietary right vested in him has been "injured" or that a. "franchise" claimed by him has been contravened.
62. Applying these principles to the present case, it would be seen that the petitioner, on his appointment as a Lecturer in the Department of Economics in the University et Dacca and, furthermore, on his appointment as a temporary Reader as also the Head of the Department of Economics, acquired a bundle of rights, over and above those which directly arose under the terms and conditions upon which he was appointed. This is, more particularly so in view of statutory provisions governing his employer, namely, the University of Dacca. The terms and conditions of iris appointment should not be read in vacuum they have to be read in the context to which they belong, namely the law appertaining to the University of Dacca which is a creature of law and which is governed by law. Therefore, in addition to the specific advantages and disadvantages which directly accrue to the petitioner from the express terms and conditions governing his appointment, a further bundle of advantages and disadvantages accrues to him by virtue of the legal status of the University itself. In such context, the petitioner is clothed with a category of protective rights and advantages apart from the "rights" which directly flow from the specific terms and conditions of his appointment. The petitioner was, therefore, invested with an additional accumulation of advantages and disadvantages which were available to him by virtue of the law which binds the employer. These are in addition to the rights which be has acquired in accordance with his contract of service. For example, the petitioner, on his appointment, could legitimately expect that, if he answered the requisite qualifications, he would not be debarred from competing for a permanent appointment. Such an advantage could be taken away from him strictly in accordance with law and not otherwise. This expecta--petition is legitimately raised by the law which governs the University. Petitioner could also expect that he would not be superseted in any manner by anybody except in accordance with law. He can legitimately spell such security in the tenure of his appointment by the very fact that his employer is a creature of law and is bound to conform to law. Any action which tantamount to such supersession or which can be construed as such supersession, in breach of the law, undoubtedly places him in the category of an --- aggrieved party--- in respect of such violation of law. Then again, an action which debars him from competing for the next permanent appointment, if illegal, has a devastating effect upon his position and status as a teacher in the University. Can it be said that he is not an "aggrieved party" when he can show that the impugned act is without lawful authority and of no legal effect? We have no hesitation to hold that the present application is maintainable under Article 98 of the Constitution.
63. Even in order to maintain a petition for issuance of a Writ of Mandamus it is not always necessary that the petitioner must show that his proprietary or personal right has been violated. See, for example, R. v. Manchester Corp. ((1911) 1 K B 560). I have, however, noticed above, that under the specific provisions of Article 98 of the Constitution all that a petitioner need show is that the impugned act is without lawful authority and furthermore, that he has been "aggrieved" as distinguished from being "injured" by the said Act. Anything which tends to harm the petitioner or to cause any disadvantage to him must have the effect of making him an "aggrieved party".
64. Mr. Ahmad Sobhan next drew our attention to sub---Article (3) (b) of Article 98 (2) of the Constitution which reads thus.
65. "(3) An order shall not be made under clause (2) of this Article- "(a)
(b) On application made by or in relation to any other person in the service of Pakistan in respect of his terms and conditions of service, except a term or condition of service that is specified in this Constitution."
66. Alternatively, even if the petitioner could be described as a "person in the service of Pakistan", it would be seen that the petitioner is not seeking to enforce the specific terms and conditions of his service but to prevent a mischief to be done to him because of illegal acts which have been impeached in the petition. The implication of the language of sub-Article (3) (2) of Article 98 of the Constitution is often misunderstood.
67. Clause (b) of sub-Article (3) as quoted above imposes two composite limitations in the way of an applicant under Article 98. In the first place, the applicant must not be a person in the service of Pakistan or the application must not be in relation to a person in the service of Pakistan ; secondly, the application must not directly relate to the terms and conditions of such service. If both the aforesaid limitations are attracted the application would be barred. It does not mean that a person in the service of Pakistan cannot make a grievance of an act which will affect an advantage which accrued to him in consequence or as a result of the cumulative effect of the terms and conditions of his office but which itself is extraneous to them. What is prohibited by the aforesaid clause is that there should be no agitation with regard to the terms and conditions of service as such. It does not contemplate that when a person is hit by an illegal act, he would not be allowed to make an application merely because his own position is governed by certain terms and conditions. The application of the petitioner is not directed towards an enforcement of the terms and conditions of his office. Besides, neither the petitioner nor Dr. K. T. Hossain can be described as a person in the service of Pakistan. This argument has, therefore, no substance whatsoever.
68. Having held that this application is maintainable I propose to consider whether the impugned resolutions are without lawful authority and of no legal effect.
69. It has been further noticed that the aforesaid section 22(f) is a verbatim reproduction of section20(f) of the Dacca University Act, 1920, which conferred the same power on the Executive Council to which the Syndicate is the successor body. Section 20(f) of the University Act, 1920 runs thus :- "20. The Executive Council-
(f) save as otherwise provided by this Act or the Statutes, shall appoint the officers (other than the Chancellor, the Vice---Chancellor and the Treasurer), the teachers, clerical staff and servants of the University, and shall define their duties and the conditions of their service, and shall provide for the filling of temporary vacancies in their posts."
70. It is interesting to note, as the Court was informed under instruction from the Registrar, that under section 22 (f) quoted above, the Executive Council of the University of Dacca passed an "Ordinance" which made provisions for the filling of temporary vacancies in respect of teachers of the University. It has also passed such Ordinance in respect of clerical staff and other servants of the University. We have been informed that the aforesaid Ordinance for filling of temporary vacancies in the posts of teachers was rescinded and that no corresponding provision has been made under section 22 (f) of the present Ordinance of 1961. The Ordinance in respect of temporary appointments in clerical staff, however, still continues to be effective law.
71. "(7) The Vice-Chancellor shall have the power to appoint, on a purely temporary basis ordinarily for a period of not more than six months, officers (excepting the Treasurer), teachers, administrative and subordinate staff and report such action to the Syndicate."
72. It appears that no such power was given to the Vice-Chancellor under the Dacca University Act, 1920. It is significant that this power has been newly conferred by the present Ordinance which contemplates a different scheme in this behalf.
73. Thus, it is clear that under the scheme of the Dacca University Ordinance, 1961 the Vice-Chancellor can make "temporary appointments" with regard to teachers and that the Syndicate is required to make provisions for the filling of "temporary vacancies" in a particular post. The Vice-Chancellor is empowered to make such temporary appointments ordinarily for a period of not more than six months. But if there is a temporary vacancy in any particular post, due to the absence of the incumbent, and if it is desired that the vacancy in the post itself should be filled, then it must be done in accordance with the provisions made, in this behalf, by the Syndicate by virtue of the duty cast upon it by section 22 (f). No such thing has been done by the Syndicate which would entitle the Syndicate to pass the impugned resolution. The impugned resolution of the 18th December in so far as it seeks to re-confirm the said resolution of the 16th October is obviously without any lawful authority because both the resolutions are bad in law.
74. The first part of the said resolutions is without lawful authority because (a) the Syndicate has acted beyond its power under section 22 (f) and has arrogated to itself the power of the Vice-Chancellor under section 13 (7). What has been done is that a "temporary-appointment" has been made in the` rank of a Reader and the "temporary vacancy" in the post of a Professor due to absence of Professor Nurul Islam has not been filled ; (b) because there was no sitting of the Selection Committee according to Statute 13 ; and (c) because the appointment is in rnala fide not merely on account of the series of circumstances which establish bad faith, but also because it was made in breach of a prohibitory order passed by the Munsif, as set out above.
75. It would next be seen that the first portion of the impugned resolution is directed towards a re- affirmation of the resolution which was passed on the 16th of October 1965. Its legality has been impeached and is pending adjudication in the Court of the said Munsif at Dacca. The learned Mutisif had passed a prohibitory order, which still subsists, restraining the syndicate from affecting the "status" of the petitioner in relation to Dr. K. T. Hossain. It is patent that the aforesaid resolution of the 18th December 1965, was passed in violation of a prohibitory order made by the learned Munsif, as set out above, and is, therefore, mala fide in that sense. To say the least, it constitutes an abuse of an alleged power to make such appointments.
76. I would lice to emphasise that the requirement of clause (1) of Statute 13 of the First Statutes requiring appointments (temporary or otherwise) to be made by the Syndicate upon a nomination of the Selection Committee means that the power to make such appointments by the Syndicate is conditioned upon a nomination of the report of Selection Committee giving its nomination. It is one thing, on the part of the Selection Committee to send a recommendation by itself in the shape of nomination upon which the Syndicate may act and another thing to merely ratify and "regularise" an appointment made by the Selection Committee without prior reference to the said Committee.
77. Coming back to the composition of the so-called Selection Committee, it would be noticed that the Selection Committee is required, under the aforesaid Statute 13, to be constituted thus
(i) The Vice-Chancellor (Chairman) ;
(ii) Two nominees of the Syndicate ;
(iii) Two members nominated by the Chancellor ; and
(iv) Three experts, nominated by the Chancellor.
78. The inclusion of "experts" in that body is evidently a vital element in the composition of the Selection Committee, required to be constituted under the said Statute 13 because it is in-- conceivable that a bona fide appraisal of the merits of candidates could be made without an assessm ent made by "experts" in the relevant subject which is required to be taught. In the case under review no "expert" was present in the meeting of the Selection Committee, not even the Head of the Department of Economics in the University of Dacca or a senior teacher (of the rank of a Reader or of a higher position) or the said University. From the opinion of experts as produced on behalf of the opposite-parties it appears that three of them gave their opinion separately in writing. Obviously written opinion is no Substitute for mutual deliberations and discussions and for a viva voce examination of the candidate which are the normal incidents of a Selection Committee. Two of the three experts did not express themselves on the merits of the candidate as compared with the petitioner. They did not also give any opinion as to whether Dr. K. T. Hossain should be given a higher salary than that received by the petitioner who was the Head of the Department of Economics. One of them, was definitely of opinion that the qualification of the petitioner was higher than that possessed by Dr. K. T. Hossain, and the said expert was also of opinion that Dr. K. T. Hossain should not be given a higher salary than that enjoyed by the petitioner.
79. This is the only opinion which has been given in regard to the respective salaries which should be enjoyed by the parties. The impugned resolution of the 18th December was passed in total disregard of it. It is said that there is no rule fixing the quorum of the Selection Committee. True, but the sitting of the Committee must conform to spirit and intendment of Statute 13. A Selection Committee in which not a single, expert was physically present at its sitting when the candidate was inter--viewed is like a rudderless vessel in an unchartered sea. When Dr. K. T. Hossain was awarded a higher salary than what was enjoyed by the Head of the Department of Economics, namely, the petitioner, without a specific invitation to the experts to evaluate the respective merits of the two, it is patent that the fixing of salary was an arbitrary act or, to say the least, an abuse of power.
80. Besides, the circumstances enumerated above constitute a chain of evidence which irresistibly establish that the appointment was made in male fide. (i) The candidature of the petitioner and Dr. K. T. Hossain and some others who were interviewed by a fuller Selection Committee where an expert, that is, Professor Nurul Islam, was physically present and the giving of the first preference to the petitioner and the second nomination to somebody else is a circumstance of seminal significance in the appraisal of the respective merits of Dr. K. T. Hossain as compared with the petitioner ; (ii) leaving the University by Dr. K. T. Hossain with a view to take a non-academic assignment soon after the aforesaid selection ; (iii) after a fairly longish absence in a non- academic post the accidental meeting between him and the Vice-Chancellor ; (iv) the sudden resolution, there--after, dated the 16th of October, by the Syndicate appointing Dr. K. T. Hossain as a temporary Reader, without advertisement and without a prior nomination of the Selection Committee ; (v) the summoning of a Selection Committee, where no expert was physically present, to give an ex post facto approval to a fait accompli; (vi) the giving of a salary to Dr. K. T. Hossain higher than what is enjoyed by the petitioner who is not only the current bead of Department of Economics but who was adjudged as a person possessing superior qualification to those possessed by the former by a more competent Selection Committee and against the opinion of the only expert who expressed himself directly on the comparative merits of the two is a circumstance which speaks volumes against the bona fide nature of the appointment ; (vii) lastly, the impugned resolution of the 18 December which adopted and ratified the previous resolution of the 16th October was in direct contravention of the prohibitory order passed by the above- mentioned Munsif ; (viii) the assign--ment of permanent assignment in future, apart from being tainted with illegality, shuts of' the petitioner from competing for the next permanent vacancy. All these circumstances, in their totality, present an incontrovertible chain, which when the chronological list of events are taken together, lead to the only conclusion, and no other, that the impugned appointment of Dr. K. T. Hossain exhibits a flagrant abuse of power and was in male fide.
81. It is well-settled that the Courts will intervene to prevent aril abuse of power and, even when the act done is ostensibly in execution of a statutory power and within its letter, it would nevertheless be held not to come within the power if done otherwise than honestly and in the spirit of the enactment. The act done will not, under such circumstances, fall within the n statute. (See Maxwell, Interpretation of Statutes, 11th Edition, pages 116 to 118). If in the exercise of power, a public authority, takes into consideration a matter which the Courts consider not to be proper for the guidance of their discretion, then in the eye of law they have not exercised their discretion. (Maxwell, 11th Edition, page 118). In the present case, even if the power appropriated by the Syndicate had been legally done, after full compliance with the formalities of law, it could, perhaps (I am not sure of this) award a higher initial salary to Dr. K. T. Hossain on the ground that he had to forego a lucrative assign--ment. But, when the salary given to him is higher than what is available to another person in the same Department, namely, the Department of Economics, and when such other person is not only the Head of the Department but was also adjudged to possess better merits than Dr. K. T.
82. Hossain in a competition between the two before a competent Selection Committee, then to give such a kind of higher salary, must be held to be awarded on an extraneous and improper consideration which should not have weighed with the Syndicate. ''
83. Then, again, in passing the impugned resolution of the 18th' December the Syndicate was, in duty bound to pay due regard anal to obey the prohibitory order passed by the learned Munsif. Instead, it (the Syndicate) proceeded to do the very thing which it was enjoined not to do. A statutory discretion exercised, under, such circumstances, is no exercise of a legal power. Moreover, the act of giving a permanent appointment of Dr. K. T. Hossain, in a speculative post, which may or may not fall vacant, in advance, and without compliance with the legal duty of a contemporaneous reference to a Selection Committee, when the vacancy, in fact, occurs, is a circumstance, which clinches the issue, that is, the appointment was in male fide. The action oil shutting off the petitioner from being a candidate for the next vacancy is also an act which is in mala fide. The good faith or otherwise of the appointment is directly and substantially in issue, having regard to the totality of the allegations made on behalf of the petitioner and the affidavits-in-opposition submitted by the opposite-party. Apart from the legality of the appoint--ment, the good faith of the Syndicate has been put in issue by the undoubted trend of the averments in the pleadings before us.
84. I may turn to another part of the resolution, namely, that by which Dr. K. T. Hossain was given the next permanent appointment without reference to the Selection Committee. This part of the resolution is bad on several counts. In the first place, the Syndicate has no authority to do away with the requirement of a nomination by a contemporaneous Selection Committee as required by Statute 13 of the First Statutes which we have quoted above. This means that an appropriate Selection Committee must function at the time when the vacancy occurs and not in advance. P Can the Syndicate repeal or by-pass that provision? An appoint--ment without reference to the Selection Committee at the relevant point of time is ultra vires the powers of the Syndicate. It is allth the more so when the resolution expressly states that no reference be made to the Selection Committee.
85. What does this part of the impugned resolution of the 18th December mean? It means that the Syndicate is seeking to make a permanent appointment with regard to a post which does not exist and the existence of which cannot be anticipated with any certainty. It is a phantom which cannot be seen. It lies wholly in the realm of an uncertain futurity. It is said that the Syndicate has power to make such appointment. True ; but the power must be directed towards an appointment which exists or which is in sight, and in compliance of mandatory provisions of law. The University can only make an appointment to a definite post which is vacant or to a post the, vacancy of which is definitely identifiable in point of time or which can be located with certainty. The assumption of a power to make an appointment the existence of which cannot be foreseen with certainty or located in an identifiable or definite manner, is, to say the least, an abuse of power. The impugned resolution is, even in this limited sense, illegal. The Syndicate cannot lose sight of the fact that it is frustrating the obvious right of the petitioner to be a candidate for the next permanent vacancy. It is, therefore, in male fide. It follows that the resolution purporting to make a permanent appointment with regard to a vacancy which does not exist and as to which it cannot be anticipated as to when it is likely to exist, and without, in this connection, a reference to a Selection Committee, is ultra vires the powers of the University and is also an act in male fide.
86. Mr. Ahmad Sobhan has argued that this Court should refrain from deciding this position under Article 98 of the Constitution because it might involve an adjudication of the legality of the resolution of the 16th October 1965, which is the subject-matter of the suit pending before the said learned Munsif. In the first place, the existence of a suit with regard to some other resolution which may have a bearing upon our present decision does not debar this Court from deciding this application. Secondly, it would be noticed that the cause of action, if I may use such a phrase, is not the same. Before the learned Munsif the suit is in respect of the resolution of the 16th of October 1965, and in this petition the subject-matter of the controversy are two composite resolutions passed, subsequently, on the 18th of December 1965. The two resolutions are different and although the first part of the resolution passed on the 18th of December 1965, has reference to the resolution of the 16th of October 1965; nonetheless, they are distinct and separate resolutions. The mere possibility that certain observations which we make in this petition may have some bearing on the matter which is pending before the learned Munsif would not justify a refusal to bear the petition.
87. So far, as the vires of the resolution of the 16th of October 1965, is concerned, the learned Munsif is free to come to an independent finding, on the merits of the case pending before him, unfettered by any observation that I have made in this judgment. The fact that a decision of this Court is likely to influence the learned Munsif in his assessment of the merits of this case before h6 is no ground for refusing to consider a different set of resolutions even when a part of the resolutions impeaches before us is vitally connected with a prior resolution which is the subject-matter of the said suit.
88. Mr. Ahmad Sobhan has rightly refrained from arguing that the petitioner has been guilty of laches or delay in approaching this Court under Article 98 of the Constitution. The impugned resolutions are dated the 18th of December 1965, and the petitioner approached this Court on the 31st of January 1966. In the circumstances of this case, the petitioner has shown reason able diligence in making this application before us.
89. For reasons stated above, I make the Rule absolute without any order as to costs. It is declared that the impugned resolutions, dated the 18th of December 1965, as mentioned in the petition and as quoted in the judgment, are without lawful authority and of no legal effect.
90. The operation of this order is suspended for a period of two months from today.
91. ABDULLA, J.----I agree.