' MIAN ALLAH NAWAZ, J.--This judgment will dispose of three Intra-Court Appeals (I.C.A. Nos.15, 16 and 17 of 1992) and two Constitution petitions (W.P.Nos.1102 and 1072 of 1992) as these have arisen out of common factual background and involve the examination of common question of law and facts.
2. The facts out of which these I.CAs. And W.Ps. Have arisen may, at the outset, be briefly stated.
' FACTS OF ICAs. NOS.15 AND 16 OF 1992:
3. Dr. Muhammad Khan Malik, respondent in ICA No,15/92 was appointed as Associate Professor of Geography on 13-2-1988 by the Syndicate of Islamia University of Bahawalpur (hereinafter stated "Syndicate"). Subsequently being a senior man he was made Chairman of the Department of Geography. Dr. Muhammad Fazil, respondent in I.CA.No,16/92 was appointed as Associate Professor of Library, Information and Science vide order dated 17-8-1987 by the Syndicate. Thereafter he became Chairman of his Department on account of being senior professor. On 27-5-1991, the Vice- Chancellor of the University transferred Dr. Muhammad Khan Malik and posted him as Joint Director in his own pay and scales in the Department of Cholistan Institute of Desert Studies (hereafter to be referred as CHIDS). He was further directed to hand over the charge of office of Chairman to Dean, Faculty of Science. By an order of even date Dr. Muhammad Fazil was too transferred and appointed as Officer on Special Duty and was directed to hand over the charge of his Department to the Dean, Faculty of Arts. Feeling aggrieved with the aforesaid orders, Dr. Muhammad Khan Malik and Dr. Muhammad Fazil filed Writ Petitions Nos.632/92 and 326/92 respectively. These petitions were accepted by learned Single Judge of this Court vide judgment dated 5-7-1992 wherein he held that the Vice-Chancellor had no authority under the law to transfer the respondents from one Department to another Department. On this view the impugned order dated 27-5-1991 was declared to have been passed without lawful authority. This order is subject-matter of challenge in ICAs. Nos.15 and 16 of 1992.
' FACTS OF ICA NO.17. W.P.No,1102 and W.P.No,1072 of 1992:
4. ICA No,17 and W.P.No,1102 of 1992 are by same Dr. Muhammad Khan Malik, whose antecedents have been noted in paragraph No,3 of this judgment. Dr.Zahir Jang Khattak, petitioner in W.P.No,1072 is Ph.D in English Literature from Tufts University in U.SA. He was appointed as Associate Professor vide order passed in 1978 by the Syndicate. Thereafter he was appointed Chairman of his Department and so he became member of the Academic Council, Senate and other Institutions as Ex-Officio member. Vide order dated 27-5-1991, he was also transferred and posted as Officer on Special Duty in the Research and Translation Cell in his own pay and scale. Feeling aggrieved with this order, he instituted a suit in the Court of Senior Civil Judge, Bahawalpur. While the suit was pending, the writ petitions filed by Dr. Muhammad Khan Malik and Dr. Muhammad Fazil, succeeded vide order dated 5-7-1992. In consequence of this event, Dr. Zahir Jang Khattak withdrew his suit and resumed his duties in his Department.
5. The aforesaid events, however, did not bring the matter to an end. The cleavage between Dr. Malik, Dr. Fazil and Dr. Khattak on one side and the Vice-Chancellor continued widening. On 24-9- 1991, the Vice Chancellor proceeded to commence disciplinary proceedings against these Associate Professors under the provisions of Islamia University, Bahawalpur, Employees Efficiency and Discipline Statute, 1976 (hereinafter referred as Statute, 1976). For this purpose, he appointed Dr. Muhammad Saleem Ahmad, Dean of Faculty of Islamic Learning of the University, herein respondent No,3, authorised officer. The Vice-Chancellor passed the said order in exercise of his powers under section 15(3) of Islamia University of Bahawalpur Act IV of 1975 (hereinafter referred to as Act) and in exercise of his authority delegated to him by the Chancellor Committee vide order dated 28-2-1981. Persuant to this order respondent No,3 issued a notice on 2-10-1991 and 26-10- 1991, asking Dr. Malik to show cause why action should not be taken against him under the Statute of 1976 for omission and commissions completely enumerated in these notices. Dr. Malik submitted replies wherein objections were taken with regard to his appointment of authorised officer by Vice- Chancellor and commencement of proceedings on the premises that Vice-Chancellor had no authority to appoint authorised officer for starting proceedings under the Statute as it fell within the exclusive domain of Syndicate under section 25 of the Act. Feeling aggrieved Dr. Malik brought Writ Petition No,1385/91 challenging the validity of these proceedings from commencement to finish.
This writ petition was dismissed vide order dated 7-7-1992 by the learned Single Judge of High Court by coming to the conclusion that the Vice Chancellor had the powers under section 15(3) of the Act to initiate proceedings under the Statute, 1976 against Dr. Malik. Feeling aggrieved with this order Dr. Malik has filed I.C.A.No,17. Thereafter the proceedings under the Statute, 1976 were continued. Vide letter dated 28-11-1991 the authorised officer imposed penalty of censure and stoppage of two annual increments upon Dr. Malik. However, Dr. Malik challenged this letter successfully in Writ Petition No,632/91.
6. Soon afterward the Vice-Chancellor decided to initiate proceedings against Dr. Malik, Dr. Fazal and Dr. Khattak under the Statute of 1976. Vide an order dated 24-9-1991, in exercise of authority under section 15(3) of the Act and the authority delegated by Chancellor Committee, he suspended the aforesaid teachers for three months and appointed Dr. Muhammad Saleem as authorised officer to commence the proceedings under the Statute of 1976 against the aforesaid Associate Professors. Pursuant to this, the authorised officer constituted Enquiry Committee comprising of Dr. Muhammad Shafique Khan and Dr. Rashid Ahmad vide order dated 24-8-1992.
These orders and proceedings under Statute of 1976 are subject-matter of challenge in W.P.No,1102/92 and W.P.No,1072.
7. Having given the broad outlines of these cases, we herein proceed to note the arguments advanced by the learned counsel for the parties.
8. On behalf of Islamia University, Mr. M.M. Bhatti, Senior Advocate, Supreme Court, raised follow* contentions:-- ' Firstly, that the Vice-Chancellor was an Executive Officer of the University and was charged with a duty to run the University in accordance with the provisions of the Act. Under section 15 of the Act his powers were enumerated. Apart from general powers, he was conferred with emergent powers under section 15(3) to exercise the powers of Senate, Syndicate, Academic Council, Board of Faculties, Board of Studies, Advanced Studies and Research Board, the Selection Board, the Finance and Planning Committtee, the Affiliation Committee, the Discipline Committee and such other Authorities as may be prescribed by Statutes. According to learned counsel from the above provisions, it was quite clear that the Vice-Chancellor had authority to transfer any teacher from one department to another department of the University on the doctrine of administrative control.
' Secondly, that the Vice-Chancellor under sebsection (3) of section 15 of the Act had the power to take action which in his opinion was necessary for the purpose of effectively running University. He has, so, the power to appoint, suspend, remove any teacher in exercise of authority noted above.
Continuing further, he submitted that the question 'as to whether there existed emergency for the purpose of taking action' was within the sole domain of the Vice Chancellor and his decision could not be scrutinized by this Court under its Constitutional jurisdiction. Reliance was placed on Emperor v.. Benoari Lal Sarma and others AIR 1945 C 48, Natesa Asari v. State of Madras and another AIR 1954 Madras 481, Nagabhushanam and others v. Nagendramma AIR 1955 Andhra Pra.
181, Muhammad Abdul Haque (Member) National Assembly of Pakistan v. Fazlul Quader Chaudhry PLD 1963 Dacca 669, Jan Meah v. Deputy Secretary to Government of East Pakistan (Revenue)
Dacca PLD 1965 Dacca 36, Mir Abdul Baqi Baluch v. The Government of Pakistan and 5 others PLD 1968 SC 313, Malik Ghulam Jillani v. Deputy Commissioner, Karachi and 2 others PLD 1969 Karachi 253 and Muhammad Mushtaq Ahmad Khan and 2 others v. The A.C., Sialkot and 3 others PLD 1983 Lah.178.
' Thirdly, that the impugned orders dated 27-5-1991 and 24-9-1991 were passed by the Vice- Chancellor in exercise of his authority under section 15(3) read with the order of delegation of Chancellor Committeee noted above. According to the learned counsel, the emergent power was conferred upon the Vice-Chancellor by the Statute for the purpose of enabling him to deal with unforeseen circumstances on the doctrine of good administration. If these powers were clipped and circumscribed by means of judicial review, this will lead to choatic state in the University.
' Fourthly, that all the Universities of Pakistan have been following the interpretation of section 15(3) as highlighted by learned counsel earlier. This interpretation, therefore, had a backing of 38 years departmental practices. According to the learned counsel, the Court should accept this departmental interpretation. Strength was sought from Government of Pakistan v. Akhlaque Hussain and another PLD 1965 SC 527, Nazir Ahmad v. Pakistan and others PLD 1970 SC 453, Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32, Umar Daraz Cheema v. Nazar Muhammad and others 1980 SCMR 156, Arshad Hussain v. The State PLD 1982 AJK 107 and Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563.
9. Mr. M.M. Bhatti, Advocate, in reply to the arguments put forth by Mr. M. Jaffar Hashmi, Advocate, learned counsel for the appellant in I.CA. No,16, W.Ps. Nos.1102 and 1072 of 1992, submitted following points:--
(i) That the Vice-Chancellor is a pivotal officer under the Act. He is charged with a duty to run and regulate the affairs of the University within the four-corners of the Act. He is, therefore, invested with number of powers i,e, general, provisional and emergent. According to the learned counsel under section 15(3) ibid, the Vice-Chancellor had been conferred with the powers of Senate, Syndicate and Academic Council, Chancellor and Pro-Vice-Chancellor. From the Scheme of the Act, it is clear that the Vice-Chancellor is the officer who can pass the order in order to meet the situation arising out of unforeseen circumstances. This power enables him to make the transfer of a teacher from one Department to another Department.
(ii) That as regards the order dated 24-9-1991, the learned counsel submitted that this order was passed under section 15(3) ibid read with the order of Chancellor Committee dated 28-2-1981 by means of which the Vice-Chancellor was delegated authority to exercise the power of Senate and Syndicate. According to the learned counsel this delegation, despite cessation of the Chancellor Committee continues in the field. Reliance was placed on Mst. Nasim Fatima v. Government of West Pakistan and another PLD 1967 Lah. 103 and Abdullah v. The Crown PLD 1955 Sindh 384.
(iii) That the order of suspension passed by the Vice-Chancellor was tentative in nature and neither amounted to punishment nor occasioned any harm to the so-called aggrieved Associate Professors. Therefore, this order was not challengeable before this Court. Reliane was placed on Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321, Saifuddin Malik v. Government of West Pakistan PLD 1969 Lah. 506, Masoodul Hassan v. Government of Punjab PLD 1976 Lah. 630 and Muhammad Haroon v. Water and Power Development Authority PLD 1978 Lah.
1108.
(iv) That the I.CA. Filed by Dr. Malik and petitions filed by Dr. Malik and Dr. Khattak, merit to be dismissed on the doctrine of prematurity. Strength was sought from M/s. S.M.Chawala & Co. v.
Collector of Customs (Appraisement) etc. 1990 CLC 1248, A.F. Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429, Shagufta Begum v. The Income Tax Officer, Circle XI, Zone B, Lahore PLD 1989 SC 360 = 1989 PTD 544, Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109, M/s. Mumtaz Steel Corporation (Pvt.) Ltd. Etc. v. Pakistan Steel Re-Rolling Mills Association etc. PLD 1990 Kar. 335, Crescent Factories v. National Bank of Pakistan, Sahiwal and another PLD 1985 Lahore 150 and Mushtaq Hussain Bukhari v. The State and 6 others 1991 SCMR 2136.
(v) That the I.C.A. Filed by Dr. Fazil was clearly barred by time.
(vi) That the allegations of mala fides levelled by the Associate Professors against the Vice- Chancellor were wholly unfounded and were completely devoid of truth. These, being factual allegations could not be examined in writ jurisdiction. Reference was made to Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151 and Muhammad Azhar v. Province of Balochistan 1975 SCMR 176.
10. Mr. M. Jaffar Hashmi, Advocate entered appearance on behalf of Dr. Malik in I.CA. No,17/92, Qazi Bilal Ahmad, Advocate represented Dr. Malik in I.CA. No,15/92 and Dr. Fazil in I.CA. No,16/92. Mr. Ijaz Ahmad Chaudhry, Advocate appeared on behalf of Dr. Malik in W.P.1102/92 and Dr. Khattak in W.P.1072/92. The arguments led by Mr. M. Jaffar Hashmi, Advocate can be summarised below:--
(i) Tkat the impugned orders passed by the Vice-Chancellor were subject to judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance was placed on Ch. Muhammad Bakhsh v. Government of Punjab through Secretary Education Department and 2 others PLD 1989 Lahore 175.
(ii) That the terms and conditions of Joint Director CHIDS were entriely different and dissimilar to the terms and conditions of appointment of Associate Professors. In these circumstances, the Vice- Chancellor had no power to transfer Dr. Malik from the Department of Geography to the Department of CHIDS and Dr. Muhammad Fazil to post of Officer on Special Duty.
(iii) That under section 15 of the Act, the Vice-Chancellor could only exercise the power of Syndicate when Syndicate was not functioning. He had no power to assume the duties of Syndicate otherwise. Reliance was placed on Mst. Murad Begum etc. v. Muhammad Rafique etc. PLD 1974 SC 322 and Abdul Ghafoor and another v. Mst. Iqbal Begum and another PLD 1975 Lah.
524.
(iv) That the impugned order was passed by the learned Single Judge of this Court on 7-7-1992.
The application for receipt of the copy was given on the same date. The copy was received on 27- 7-1992. The I.C.A. Was filed on 15-9-1992. According to the learned counsel, this Court was closed for long summer vacation and re-opened on 18-9-1992. The I.CA. Filed by Dr. Malik was therefore, within time under the impact of section 4 of the Limitation Act. Reliance was placed on Noor Muhammad v. Sachal PLD 1957 Karachi 843, Rasul Bakhsh v. Ghulam Qadir and another PLD 1960 Karachi 741, Oriental Metal Pressing Works and others v. Bashir Kashinath Thakoor AIR 1961 SC 573, Muhammad v. Mst. Zainab etc. 1983 CLC 2853.
11. Qazi Bilal Ahmad and Ch. Ejaz Ahmed, Advocates, adopted the arguments advanced by Mr. M.
Jaffar Hashmi, Advocate.
12. Mr. Ejaz Ahmad Ansari and Ch. Abdul Sattar, Advocates were called by the Court to assist as amicus curiae. On the question of the scope of section 15(3) of the Act, Mr.Ejaz Ahmad Ansari, Advocate, submitted that this section deals with the emergent powers of the Vice-Chancellor. The exercise of power depended upon jurisictional fact i,e, the existence of such a situation which may call for immediate action. According to the learned counsel, this Court had a power to scrutinize as to whether there existed the jurisdictional fact/material upon which the Vice-Chancellor had formed opinion for taking action under Article 199 of the Constitution. He referred to Haji Mian Muhammad and others v. Ghulam Mustafa PLD 1973 Supreme Court 394, Mst. Hamida Begum v.
Mst. Murid Begum and others PLD 1975 SC 624, Mst. Arnim Begum v. Sh. Muhammad Nazir and others PLD 1985 SC 260 and Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360. Ch. Abdul Sattar, Advocate, adopted the views of Mr. Ejaz Ahmad Ansari, Advocate.
13. From the above narration, the following questions arise for decision:--
(1) Whether the exercise of powers under section 15 as well as in exercise of powers under the order of the Chancellor Committee is amenable to the doctrine of judicial review embodied under Article 199 of the Constitution?
(2) Whether the Vice-Chancellor had power under section 15(1)(3) and (4) of the Act to transfer a teacher from one Department to another?
(3) Whether the Vice-Chancellor had authority to suspend Associate Professors in exercise of authority under section 15(3) of the Act in conjunction with the authority delegated to him by the Chancellor Committee under section 30 of the Act?
(4) Is the I.CA. No,17 barred by the provisions of limitation?
(5) Are the Writ Petitions Nos.1102 and 1072 of 1992, hit by the principle of prematurity?
(6) Whether the impugned orders had been passed in exercise of colourable authority?
14. Having penned down the facts, the circumstances of these causes and points for decision, we herein proceed to determine the aforenoted questions in seriatum. Before we proceed to dilate upon these questions we find it appropriate to re-state four well known principles of interpretation having decisive bearing on these questions. Firstly, it is an elementary rule of construction that the Court called upon to interpret any provision of statute needs to ascertain the intention of law- makers from the words used which must receive their literal, natural and ordinary meaning where the words are not defined in that statute. This is known as 'rule of litra legis'; secondly, if two constructions are possible then that consturction should be adopted which is more reasonable or which will ensure a smooth, harmonious working of the satute, or which will save it from invalidity or which will further the object of statute. This is known as 'principle of liberal construction/beneficial construction'; thirdly, a statute is to be interpreted as an organic whole giving effect to its various parts and trying to harmonise different provisions of it as much as possible. See Fazlul Quader Chowdhry v. Mr. Muhammad Abdul Hague PLD 1963 SC 486 and Massu v. United Bank Ltd. 1990 MLD 2304; fourthly, that our cherised State has a written Constitution which is parliamentary and federal in nature. It is based upon the doctrine of separation of powers. There are three principal organs of State i,e, Legislature, Executive and Judiciary. The functions and powers of each organ are sharply defined and demarcated therein. The function of the legislature is to make laws, the function of the executive is to enforce the laws and the task of judiciary is to interpret laws and apply them to facts brought to its notice. In short our quality is wedded to rule of law/due process of law as ordained by the golden principles of Islam. The rule of law in short in our quality is persuasive and of wide amplitude than any other country. Our system rejects the rule of dynasties the rule of few privileged. In brief the functionaries of the State/functionaries of statutory bodies/functionaries of statutory corporations/functionaries of statutory Universities, are required to act strictly within the defined sphere of their authorities under the law. If there is any transgression of powers, the abuse of powers or colourful exercise of powers, the exercise is open to correction in Constitutional jurisdiction of the superior judiciary. This is known as judicial review.
15. It is true that there was judicial authority in support of proposition that wherever the authority was given power to take action in exercise of emergency power the said authority was the sole master of the exercise of such powers; and that action taken by him was immune from challenge in Constitutional jurisdiction of this Court. Reference be made to Jan Meah v. Deputy Secretary to Government of East Pakistan Revenue (Reguisition) Department, Dacca and others PLD 1965 Dacca 36, Malik Ghulam Jillani v. Deputy Commissioner, Karachi and others PLD 1989 Karachi 253 and Muhammad Mushtaq Ahmad Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others PLD 1983 Lahore 178.
16. However with the march of time this view stands buried in the debris of past. While dealing with the case of detention under emergency laws the Supreme Court of Pakistan expounded the rule of law with vigour in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, wherein it was held: "This distinction in the terminology of the two clauses of Article 98, which was pointed out by this Court in the case of Abdul Baqi Baloch for the first time, was placed before the learned counsel and they were invited to assist the Court in the ascertainment of its true meaning. They all agreed that the expressions 'without lawful authority' and 'in an unlawful manner' occurring in sub-clause (b) were not merely tautologous. A defmite meaning had, therefore, to be given to each of them. The Constitution it appears, costs a heavy responsibility upon the Court to satisfy itself with regard to both these two matters. The question therefore arises as to what are these matters. It is agreed that without lawful authority will be comprised all questions of vires of the statute itself as also of the persons acting under the statute, i,e, there must be a competent law authorising the detention and the officer issuing such an order must have been lawfully vested with the power. But, what is it that falls within the expression 'unlawful manner'? The learned counsel for the Government of West Pakistan thought that it might refer only to the manner or mode of detention. The learned Attorney- General went a little further and suggested that it might include all matters of procedure. The learned Advocate-General of East Pakistan, however, conceded that all matters which fell within the scope of judicial review apart from questions of vires were covered thereunder."
' This view was reaffirmed in Amena Begum v. Muhammad Nazir PLD 1985 SC 260) and was followed in Rehmatullah v. University of Punjab PLD 1982 Lah. 411 and Ch. Muhammad Bakhsh v.
Government of Punjab PLD 1989 Lah.175. The doctrine of judicial review reached the highest water mark in Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah.
725. While dealing with the powers of President to dissolve National Assembly under Articles 58(2)
(b) and 48(2) it was held that:-- " It would be not quite correct to say that even if action of the President in dissolving the National Assembly be totally based on no facts at all, the Courts will stand aside and let the Constitution be flouted. Caesar while declining to go to the Senate for reason extraneous to public office when asked by the person directed to communicate his decision the cause thereof, said: 'The cause is in my will;--I will not come; That is enough to satisfy the Senate.' He lost his life. Therefore, however powerful the person or the office of the President may be he has to act like a reasonable person with common prudence and take his steps in life on solid foundations and reasons understandable by common people. Therefore, it is not quite right to contend that since it was in his 'discretion', on the basis of his 'opinion' the President could dissolve the National Assembly. He has to have reasons which are justifiable in the eyes of the people and supportable by law in a Court of Justice.
The 'discretion' and formation of the `opinion', of course, are 'subjective' yet these have to be based on facts and reasons which are objective realities. The 'discretion' or formation of 'opinion' cannot be based on illusions, fancy or whim. It is understandable that if the President has any justifiable reason to exercise his 'discretion' in his 'opinion' but does not wish to disclose, he may say so and may be believed or if called upon to explain the reason he may take the Court in confidence without disclosing the reason in public, may be for reason of security of State. After all patriotism is not confined to the office holder for the time being. He cannot simply say like Caesar it is my will, opinion or discretion. Nor give reasons which have no nexus to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects. It is well-established law now that even if one reason for the action is invalid, it goes in its entirety. If the authority, power or discretion were to be free from reason and absolute it will partake of the Omnipotent which is impermissible to a mortal however high he may be. If it were otherwise, the life of the representatives of the people in the National Assembly and liberty of their constituent the nation will be at the mercy, fancy or whim of the individual holding the authority for the time being. This kind of interpretation cannot be made of the Constitution which provides for running of the affairs of the State by People through freely chosen representatives in a rational manner. Therefore, it is quite clear and definite that absolute, unchallengeable and unlimited power is not available to an individual however high place he may occupy. It is still under the sky and governed by laws made by man as well as nature. Therefore, let us proceed to examine as to whether the grounds given by the President for exercise of his discretion of dissolution of the National Assembly are based on facts, reason and are specific or these are general, vague and such that these can be advanced at any time."
' On appeal by the Government of Pakistan as well as Haji Saifullah Khan, the Supreme Court upheld the decision of the Full Bench of the Lahore High Court, His Lordship Mr. Justice Dr. Nasim Hasan Shah, in Federation of Pakistan v. Muhammad Saif-Ullah Khan PLD 1989 SC 166 observed that:-- "True enough, it is within the discretion of the President to determine whether these conditions are met or not but this discretion has to be exercised in terms of the words and spirit of the Constitutional provision. 'According to his discretion', as explained, relying on Maxwell, in M. Abdul Majid v. The West Pakistan Province and 2 others PLD 1956 Lah. 615, means: `According to the rules of reason and justice, not private opinion, according to law and not humour, it is to be not arbitrary, vague and fanciful, but legal and regular, to be and for substantial reasons and it must be exercised within the limits to which an honest man competent in the discharge of his office ought to confine himself i,e, within the limits and-for the objects intended by the Legislature'."
' The discretion conferred by Article 58 (2)(b) of the Constitution on the President cannot, therefore, be regarded to be an absolute one, but is to be deemed to be a qualified one, in the sense that it is circumscribed by the object of the law that confers it.
' It must further be noted that the reading of the provisions of Articles 48(2) and 58(2) shows that the President has to first form his opinion, objectively and then, it is open to him to exercise his discretion one way or the other, i,e, either to dissolve the Assembly or to decline to dissolve it. Even if some immunity envisaged by Article 48(2) is available to the action taken under Article 58(2) that can possibly be only in relation to the exercise of his `discretion' but not in relation to his 'opinion'.
An obligation is cast on the President by the aforesaid Constitutional provision that before exercising his discretion he has to form his 'opinion' that a situation of the kind envisaged in Article 58(2)(b) has arisen which necessitates the grave step of dissolving the National Assembly. In Syed Abul Ala Maudoodi v. Government of West Pakistan PLD 1964 SC 673 Cornelius, C.J. While interpreting certain provisions of the Criminal Law Amendment Act, 1908, construed the word 'opinion' as under: ..It is a duty of Provincial Government to take into consideration all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed consequent upon which the opinion must be formed honestly, that the restriction is necessary. In this process, the only element which I find to possess a subjective quality as against objective determination, is the final formation of opinion that the action proposed is necessary. Even this is determined, for the most part, by the existence of circumstances compelling the conclusion. The scope for exercise of personal discretion is extremely limited... .... ... ....As I have pointed out, if the section be construed in a comprehensive manner; the requirement of an honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and appreciation of the governmental agency is clearly a prerequisite to the exercise of the power. In the period of foreign rule, such an argument, i,e, that the opinion of the person exercising authority is absolute may have at times prevailed, but under autonomous rule, where those who exercise power in the State are themselves citizens of the same State, it can hardly be tolerated.'
' Thus, though the President can make his own assessment of the situation as to the course of action to be followed but his opinion must be founded on some material. In the present case the President himself chose to state the grounds on which he was basing his action. As the grounds have been disclosed their validity can be examined. The first four grounds stated in the order for dissolution, were, as already noticed, extraneous having no nexus with the preconditions prescribed by Article 58(2)(b) of the Constitution empowering the president to dissolve the National Assembly in his discretion. As for the fifth and last ground, namely, that 'a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution', nothing was shown either before the High Court or before us that the machinery of the Government of the Federation had come to a stand-still or such a breakdown had occurred therein which was preventing the orderly functioning of the Constitution. Indeed, it appears that the first-mentioned four grounds are the basis for the assertion made in the last- mentioned ground that the Government could not be carried on in accordance with the provisions of the Constitution. But, as observed already all the first-mentioned four grounds were extraneous to and had no nexus with the preconditions prescribed by Article 58(2) (b). Hence, in the eyes of law, no basis existed on which the President could form the opinion 'that a situation had arisen in which the Government of Pakistan cannot be carried on in accordance with the provisons of the Constitution and an appeal to the electorate is necessary'. But, unless the President be of the said 'opinion', he cannot pass an order of dissolution even in exercise of his discretion becuase under sub-clause (b) of clause (2) of Article 58 his 'opinion' in this behalf is a condition precedent to the exercise of the discretion. Thus, if it can be shown that no grounds existed on the basis of which an honest opinion could be formed, the exercise of the power would be unconstitutional and open to correction through judicial review." (See Ghulam Jillani v. Government of West Pakistan PLD 1967 SC 373 at page 393).
17. From the foregoing examination we are clear in our mind that action/order taken/passed by the Vice-Chancellor in exercise of general/residual/emergency powers are subject to judicial scrutiny under Article 199 of the Constitution of Pakistan (1973). We are further of view that the Vice- Chancellor had to support his order/action by satisfying this Court that there was some material which was before him at the time of passing/taking order/action; that he had to show that material also.
18. While reverting to questions Nos.2 and 3, we feel it necessary to have a rapid survey of Act. It has eight chapters. Chapter I relates to commencement and definition sections. Chapter II has eight sections. Section 3 prescribes that the University shall be a body-corporate having perpetual succession and the common seal; that it shall comprise of Chancellor, the Pro-Chancellor, the Vice-Chancellor and members of the Senate, the Syndicate and the Academic Council. Sections 4 and 5 relate to powers and jurisdiction of the University. For the purpose of this controversy it is to be noted that under section 4(p) the University has the authority to establish Teaching Departments, Schools, Colleges, Faculties, Institutes, Centres of Excellence and Area Study Centres, Museums and other centres of learning for the development of teaching and research and to make such arrangements for their maintenance, management and administration as it may determine. Section 7 prescribes that the University shall be open to all persons of either sex regardless of religion, race, creed, class or colour. Section 8 lays down all recognised teaching in various courses shall be conducted by the University or the colleges in the prescribed manner.
Subsection (2) of section 8 says that the University shall have authority for organising recognised teaching. Chapters III and IV relate to internal organisation of the University. Under section 10, the Chancellor, the Pro-chancellor, the Vice-chancellor, Dean, the Director, Principals of constituent colleges, Chairman of teaching Department, the Registrar, the Teasurer; the Controller of Examinations, the Librarian; and such other persons as may be prescribed, have been decided as the officers of the University. Sections 11 and 13 describes powers of Chancellor as well as Pro- Chancellor. Next comes the important sections i,e, Sections 14 & 15. Section 14 deals with appointment of Vice-Chancellor while section 15 enumerates his powers. Sections 16, 17, 18, 19 and 20 pertain to the offices of Registrar, Treasurer, Controller of Examinations, Auditor and any other officer that may be prescribed. Section 21 names the authority of the University, namely:
(i) The Senate;
(ii) The Syndicate;
(iii) The Academic Council;
(iv) The Boards of Faculties;
(v) The Boards of Studies;
(vi) The Advanced Studies and Research Board;
(vii) The Selection Board; (viii)The Finance and Planning Committee;
(ix) The Affiliation Committee;
(x) The Discipline Committee; and
(xi) Such other Authorities as may be prescribed by Statutes.
' Section 22 deals with the composition of Senate, while section 23 provides the power and duties of the Senate. It will be worthy to note that the Senate has the authority to pass the draft Statute proposed by the Syndicate. It has further power to consider and pass resolution on the annual report, the annual statement of account and the annual and revised budget estimates. From there it follows that the Senate is the legislative body of the University. Section 24 again deals with the composition of the Syndicate while section 25 describes the powers and duties of Syndicate.
Section 25 says that the Syndicate shall be executive body of the University and subject to the provisions of the Act and Statute take measures to effectively raise the standards of teaching, research, publication and, academic pursuits and exercise general supervision over the affairs and management of the property of the University. Under section 25(r) the Syndicate has to create, suspend, or abolish such administrative research, or any other post which it feels necessary. Sub- clauses (s) (v) and (w), relate to the powers of the University to appoint teachers and other officers on the recommendation of the Selection Board for teaching posts in the initial pay of Rs,500 per mensem or above, to prescribe the duties of officers and teachers and other employees of the University, to suspend, punish, remove from service officers (other than the Vice-Chancellor) in the manner prescribed. The Syndicate had power to delegate any of its powers to an authority or Committee or a sub-Committee. From the perusal of aforesaid statutory powers of Syndicate there can be no escape from the conclusion that Syndicate is a collective body charged with the running of management and supervision of the University. The executive power of the University resides in it as an entity. Section 26 lays down the composition of Academic Council, while section 27 prescribes the powers and duties of Academic Council. In short, Senate, the Syndicate and the Academic Council occupy high position in running/governance of University. Chapter V relates to the framing of Statutes, Regulations and Rules by the various authorities. Chapter VI pertains to the matters of affiliation of Educational institutions to the University. Chapter VII relates to University funds, and the last Chapter i,e, VIII deals with general provisions out of which section 50 is of significance. In these cases section 50 is a transit provision and postulates that the Board of Covernors as constituted before the commencement of this Act shall cease to exist and a Chancellor Committee shall be constituted by the Chancellor on the recommendations of the Vice-Chancellor in order to exercise powers assigned to Senate and Syndicate under this Act till such time the Syndicate or Senate are constituted. On this analysis we have no doubt in our mind that the University is a sanctuary of high learning, has a corporate status and is autonomous. It means that the University is orientation towards the collective approach and collective decision- making. Furthermore, it is clear that the terms and conditions of appointment of the teachers above the salary of Rs,500 is exclusively within the domain of Syndicate, which is a large almost representative body. The purpose and object underlying the Act is to run the University as an autonomous corporate body by means of collective orientation and free from interference from outside. While there are number of executive officers including the Vice-Chancellor who are charged with the duty of running and managing the University under the Act. The question for decision is whether the Vice-Chancellor had under section 15 powers to transfer any teacher from one Department to another; whether he has powers to suspend and initiate action under section 15(3) read with the order of delegation by the Chancellor Committee. The questions are not free from difficulty. In order to answer these questions we will have to examine the relevant provisions of Act that is provisions of section 15 and section 25 in the light of scheme and spirit of Act highlighted above. Section 15 and section 25 are as under:- "Section 15.--(1) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall ensure that the provisions of this Act, the Statutes, the Regulations and the Rules are faithfully observed in order to promote teaching, research, publication, administration and the general efficiency and good order of the University. He shall have all powers necessary for this purpose including administrative control over all officers, teachers and other employees of the University.
(2) The Vice-Chancellor shall preside at the meeting of the Authorities of which he is the Chairman and be entitled to attend and preside at any meeting of any other Authority or body of the University.
(3) The Vice-Chancellor may, in an emergency which in his opinion requires immediate action, take such action as he may consider necessary and shall as soon thereafter as possible, report his action for approval to the officer, Authority or other body which in the ordinary course would have dealt with the matter.
(4) The Vice-Chancellor shall also have the powers--
(i) to create and fill temporary posts for a period not exceeding six months;
(ii) to sanction all expenditure provided for in the approved budget, and to re-appropriate funds within the same major head of expenditure;
(iii) to sanction by re-appropriation an amount not exceeding Rs,5,000 for an unforeseen item not provided for in the budget, and report it to the Syndicate at the next meeting;
(iv) to appoint papers-setters and examiners for all examinations of the University after receiving panels of names from the relevant Authorities;
(v) to make such arrangements for the scrutiny of papers, marks and results as he may consider necessary;
(vi) to direct teachers, officers and other employees of the University to take up such assignments in connection with teaching, research, examinations, administration and such other activities in the University as he may consider necessary for the purpose of the University;
(vii) to delegate, subject to such conditions, if any, as may be prescribed, any of his powers under this Act to an officer or officers of the University;
(viii) To appoint employees below the initial monthly pay of Rs,500; and
(ix) to exercise and perform such other powers and functions as may be prescribed.
' Section 25.--(1) The Syndicate shall be the executive body of the University and shall, subject to the provisions of this Act, and the Statutes, take effecitve measures to raise the standards of teaching, research and publication and other academic pursuits and exercise general supervision over the affairs and management of the property of the University.
(2) Without prejudice to the generality of the foregoing powers, and subject to the provisions of this Act and the Statutes, the Syndicate shall have the powers-- (a)
(b)
(c)
(d)..........................
(e)
(f)
(g)
(h)..........................
(i) ..........................
(1) .........................
(k) ..................
(I)..........................................
(m) .
(n)
(0) ..
(P).
(q) ..
(r) .......................
(s) to appoint University Teachers and other Officers on the recommendation of the Selection Board of teaching and other posts in the initial of Rs,500 per mensem or above.
(t) .
(u) .................
(v) to prescribe the duties of Officers, Teachers and other employees of the University;
(w) to suspend, punish and remove from service qfficers (other than the Vice-Chancellor), teachers and other employees in the manner prescribed; (x)..........................
(y) .......................
(z)
(aa) ........................
(bb) to regulate, ,determine and administer all other matters concerning the University and to this end exercise all other powers in this behalf not specifically mentioned in this Act and the Statutes."
19. From the plain language of section 15, it is evident that this section is beautiful amalgam of the powers. It enumerates the general/residual/emergent powers of the Vice-Chancellor as he is a central figure in the running of the University. Subsection (1) of section 15 gives him all necessary powers to run the University and ensure the implementation of the Act, Statutes, Regulations and Rules. He has administrative control over all the officers, teachers and other employees of the University. Subsection (3) of section 15 ibid grants him the power known as emergent powers to take such actions which he may consider necessary in order to meet any emergent situation. In exercise of this authority he has been empowered to exercise the authority of Senate, Syndicate, Academic Council, Board of Studies, and other executive officers namely, Chancellor, Pro- Chancellor, Deans, Directors, Chairman of Teaching Department, the Registrar, the Treasurer, Controller of Examination and Librarian. This power is clear from the language of Statute and is subject to approval of the officer/authority or any other body which in the ordinary course would have exercised such powers. Subsection (4) of section 15 on an ex facie examination shows that it is a mixture of provisional and permanent powers. For example the Vice-Chancellor has been bestowed with power to create and fill in temporary posts for a period not exceeding six months, to sanction all the expenditure provided for in the approved budget and reappropriate funds with the same major fund of expenditure, to sanction by reappropriation of amount not exceeding Rs,5,000 for an unforeseen item not provided for in the budget and report it to the Syndicate at the next meeting; to direct teachers, officers and other employees of the University to take up such assignments in connection with teaching, research, examinations, administration and such other activities in the University as he considers necessary. He has been granted power to delegate any of his powers under this Act to an officer or the officers of the University to appoint employees below the initial pay of Rs,500 and to exercise and perform such other powers as may be prescribed. From the aforesaid it is clear that the Vice-Chancellor has full administrative control of University and has been vested with emergent powers to take any action which in his opinion is necessary to meet unforeseen exigencies. The question for decision is whether this power is arbitrary, unfettered and uncircumscribed. After the survey of the Act and section 15 as a whole, we are persuaded to say 'no'. Being repository of public power, the Vice-Chancellor is subject to limitation imposed by the Act. Seen from this background, we would like to note peculiar feature of the University that it is a place of high learning from where the Statesmen, the Jurists, Administrators of high calibre, teachers and scientists come. Such institution had to be run on the golden principles of rule of law. When seen from this perspective we note that there is no provision of transfer of any teacher from one Department/discipline to another. Clause (vi) of subection (4) of section 15 of the Act empowers the Vice-Chancellor to direct teachers, officers and other employees of the University to take up such assignment in connection with the teaching, research, examination, administration and such other activities which he finds necessary. Is this power so vast as to include the power of transfer of a teacher/specialist from his Discipline to the other Discipline. After anxious consideration we are not persuaded to accept the stance of the University.
It is crystal clear to us that the concept of transfer and concept of assignment as used in clause
(vi) ibid are totally different. Transfer means the physical moving of one incumbent of post to another post while assigning connotes allocation of functions and duties. The word 'assignment' according to Chambers 20th Century Dictionary' means: "act of assigning; anything assigned, the writing by which a transfer is made; a task allotted.. .. .."
' While word 'transfer' according to same dictionary means: "to carry or bring over; to convey from one place, person, ownership, object, group....... To change over; to convey (as a design) to another surface......."
' From the plain meaning of these two words we are clear that the word `transfer' cannot be synonymous with 'assignment'. Both the words carry different connotations and consequences.
Word 'transfer' means that the person who is transferred is physically removed from the place of his office and sent to some other place while 'assignment' indicates some allocation of work in addition to his previous work. On this conclusion we are not inclined to agree with the learned counsel for the University that under section 15(4) ibid the Vice-Chancellor has a power to transfer one specialist/teacher from one discipline to another discipline.
20. Having dealt with section 15(4) clause (vi) we now take up subsection (3) of section 15 ibid. As already remarked grant of power under this section is for an emergent situation. Being the principal executive and academic officer of the University he is to run, regulate, manage and supervise the University. A host of problems might crop up for his immediate decision. Some problem might be so urgent that he might have to exercise the authority of Senate, Syndicate, Academic Council and even of his superior authority, i,e, Chancellor and Pro-Chincellor. No jacket formula can be prescribed by this Court except that this power is of wide amplitude. The condition for the exercise of power under section 15(3) is that he must examine facts which call for exercise of extraordinary powers under this clause and secondly after taking action he must refer his action, to the officer/authority or the other body which in ordinary course of business would have dealt with this situation within reasonable time for approval.
21. It is not the case of any party that the Vice-Chancellor had the initial authority to appoint, suspend, punish and remove teachers from service. The power undisputedly, belongs to Syndicate.
The Vice-Chancellor can take appropriate actions in exercise of his power under section 15(3) of the Act to meet sudden, unexpected happenings or unforessen occurrences on the doctrine of emergency. The action taken by the Vice-Chancellor is tentative in nature and is intended to control the sudden situation/exigency. He has to report the action to Syndicate/competent Authority for approval of his action. The Syndicate might approve or disapprove the action. We have, therefore, no hesitation in concluding that the Vice-Chancellor can take actions having connection with some urgent situation subject to the confirmation of Syndicate. His action is, therefore, inchoate preliminary in nature till it is confirmed by the competent Authority. If his action is disapproved, it loses its efficacy. We further find that the Vice-Chancellor is obliged under the law to submit his actions to Syndicate for approval within a reasonable time. Applying these principles to the facts and circumstances of these cases noted above, it is clear that in the first round the Vice-Chancellor transferred all the teachers from their discipline to different posts. Dr. Malik was shifted to the department of CHIDS while Dr. Fazal and Dr.Khattak were posted as O.S.Ds. Despite our research, we have not been able to find the posts of O.S.Ds. In schedule or in any statute or regulation made by the University. When the order of Vice-Chancellor was struck down by this Court, he, in exercise of power under section 15(3) of the Act in conjunction with the order of delegation passed by Chancellor Committee in 1980 not only suspended Dr. Malik, Dr. Fazal and Dr. Khattak but also appointed as Authorised Officer to initiate proceedings under Islamia University Bahawalpur Employees Efficiency and Discipline Rules, 1976. Pursuant to this, the Authorised Officer issued notice to these Associate Professors to show cause "as to why the penalties as provided under rule 4 of the Statute be not imposed upon them". The Authorised Officer further constituted the Enquiry Committee under rule 6 of the Statute. We are afraid, we are not able to endorse these actions as these are wholly beyond the powers of the Vice-Chancellor under section 15(3) of the Act. These powers belong to Syndicate under section 25 of the Act. It is the prerogative of Syndicate to initiate proceedings when it finds that there are sufficient grounds for proceeding under Statute against delinquent officials. The Syndicate has further power to appoint Authorised Officer to proceed against delinquent employees. The mechanism of taking action to logical conclusion against delinquent official/employee/teacher is comprehensive and is built upon the rule 'that no body should be condemned unheard.'. Such mechanism can have no nexus with the doctrine of emergent power and cannot be resorted to by the Vice-Chancellor. It is true that the Vice- Chancellor can suspend the teachers of University if he forms opinion that continuous presence of these teachers in their discipline is harmful to the atmosphere of such discipline and University and submit his action to the Approving Authority for approval and for initiation of proceedings against the said teachers under Statute, 1976.
22. There is yet another very important aspect of these cases. On behalf of Vice-Chancellor it has been claimed that the delegation of powers of Chancellor Committee vide an order dated 28-2- 1981 under section 50 of the Act subsists notwithstanding the fact that the Chancellor Committee has ceased to exist with the advent of Syndicate under the Act. This position in our estimation is wholly illogical and contrary to section 50 of the Act. A simple look at section 50 shows that this provision was incorporated in the Act as a transitory so as to establish the University when no authority was in existence. The Chancellor was endowed with the power under the Act to constitute Chancellor Committee as recommended by the Vice-Chancellor in order to exercise the powers of Syndicate and Senate. This was wholly a temporary measure. The Syndicate, admittedly, had come into being in 1989 under the Act. The position of the University is utterly in defiance of the well- settled principle of law that "Delegated legislation continues in force until repealed, unless its duration is limited by the parent Act or by its own terms. When the parent Act is repealed, any delegated legislation made under it falls with it unless it is expressly preserved and continued in force by the repealing statute.
' Delegated legislation may be expressly repealed (or amended) by a later statute, or where a statute expressly authorises the repeal by ministerial order of the earlier delegated legislation, by such an order". (See at page 75 of Foulkes' Administrative Law by Butterworths, Sixth Edition).
23. In view of the aforementioned settled position of law we have no doubt in our mind that the order of delegation passed by the Chancellor Committee on 28-2-1981 is for all intents and purposes a dead order as the Senate and Syndicate came into being in 1989 under the Act. The same cannot be resurrected for the purpose of exercising the power of Senke, Syndicate or any other authority of the University under the Act.
24. In the light of foregoing critical analysis of the Act we find that the order passed by the Vice- Chancellor dated 27-5-1991 and proceedings dated 24-8-1992 commenced by the authorised officer appointed by the Vice-Chancellor are null and void being in violation of law. The impugned orders as well as proceedings before the authorised officer are hereby declared to be without lawful authority.
25. So far as the question of limitation is concerned we do not find any merit in the contention of the learned counsel for the University. Admittedly the impugned order was passed by the learned Single Judge on 7-7-1992. The appellant submitted an application for receipt of the copy on the same date. The copy was received on 27-7-1992; I.CA. Was filed on 15-9-1992. There is no doubt that on account of long summer vacation the High Court was closed for regular registry except for urgent work. The learned Vacation Judge was only to take up the urgent work. In view of this the appellant could have filed the I.CA. On the reopening of the High Court after long summer vacation.
The High Court reopened on 19-9-1992. On these facts, the I.CA. Filed by Dr. Malik is held to be within time. Reference be made to Noor Muhammad v. Sachal PLD 1957 Kar. 843; Rasul Bakhsh v. Ghulam Qadir and another PLD 1960 Kar. 741; Oriental Metal Pressing Works and others v. Bashir Kashinath Thakoor AIR 1961 SC 573 and Muhammad v. Mst. Zainab etc. 1983 CLC 2853.
26. As regards the questions of prematurity and mala fides we do not feel necessity to dilate upon.
It is sufficient to say that the hallmark of Constitutional jurisdiction is to keep the functionaries of the State within the orbit of their authority specified by Statute and to check the excess made by them under the doctrine of judicial review embodied in Article 199 of the Constitution. This Court can strike down any order passed by the functionaries of the State or the functionaries of any Statutory Corporation if the order is tainted with lack of power or excess of power or colourable exercise of authority. Having held that the impugned orders are coram non judice, there is no use to dilate upon the questions Nos. 4 and 5.
27. As a result of above discussion the I.CAs. Nos. 15 and 16 of 1992 filed by the University fail and are hereby dismissed. I.CA. No,17 of 1992 and W.P.
No,1102 of 1992, filed by Dr. Malik and W.P.No, 1072 of 1992 filed by Dr. Khattak, succeed and are accepted with requested reliefs.
28. Before parting with this judgment we would like to make it quite clear that this judgment will not preclude the Vice-Chancellor to use his emergent power within the orbit of section 15(3) of the Act.
He has prerogative to suspend any teacher or take any measure by which he intends to disassociate the teacher from his Discipline in order to prevent the unforeseen circumstances or exigencies created by delinquent teacher. This order will not prevent him from taking appropriate action within the sphere of section 15(3) of the Act, if he finds it necessary to do so against Dr. Malik, Dr. Fazil and Dr. Khattak.
' Since the case was not free from difficulty we would not like to burden any party with costs.