IHSAN-UL-HAQ CHAUDHARY, J.--- The petitioner through this Constitutional petition has called into question the Notification dated 11.11.1997 for appointment of respondent No. 3 as Vice Chancellor Punjab University. The petition came up for limine hearing on 24.11.1997 when the same was admitted to hearing and notices were issued to the respondents,' who are represented by Attorney General of Pakistan and Ch. Muhammad Raza Faruq, Advocate.
2. The learned counsel for the petitioner argued that respondent No. 3 went on initially two years' deputation on 20.7.1986. It is argued that the request of respondent No. 3 for extension in deputation period was considered by the University in the meeting of the Syndicate held on 29.3.1995 and it was resolved that as per policy the name of the officer is removed from the existing seniority list and placed on a separate statistic list with no claim to promotion or to seniority or any junior who may be promoted during this period. It is argued that respondent No. 3 illegally and in utter disregard of the seniority of the petitioner has been appointed Vice Chancellor.
3. Malik Muhammad Azam Rasool, Advocate added that in the discretionary matters the power is to be exercised in accordance with well-known principle of justice, fairplay and equity . In this behalf, learned counsel has relied on Chairman, P.T.A. Rawalpindi v. Pakistan Mutual Insurance Company Ltd. (PLD 1991. SC 14), Walayat Ali Mir v. Pakistan International Airlines Corporation (1995 SGMR 650), Muhammad Nawaz and others v. Muhammad Sadiq and another (1995 SCMR 105) and Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641). It is argued that the Chancellor while making choice between the officers of the University has to proceed on reasonable basis.
4. Mr. Muhammad Shahzad Shaukat, Advocate for petitioner argued that respondent No. 3 is not in the seniority list on account of decision of the Syndicate dated 29.3.1995 and as per policy of the University. It is added that although Chancellor has the discretion but that is subject to judicial review. In this behalf, he relied on Muslim Commercial Bank Ltd. And others v. Muhammad Umar Malik (PLD 1993 Lahore, 281), In this behalf, it is added that even the appointment of the Chief Justice of Pakistan and other Judges is in the discretion of the President while it was held by the Hon'ble Supreme Court that at the time of elevation the principle of seniority has to be kept in mind.
In this behalf reliance is placed on Al-Jehad Trust v. Federation of Pakistan and others (PLD 1996 SC 324) and Malik Asad Ali and others v. Federation of Pakistan and others (PLD 1998 SC 33).
5. On the other hand, learned Attorney General (nary objection to the effect that employee of the University cannot maintain a Constitutional petition as there are no statutory rules and principle of master and servant is attracted. Moreover, the petitioner has no vested right to promotion. In this behalf, reliance is placed on Marghub Siddiqul v. Hamid Ahmad Khan and 2 others (1974 SCMR 519) and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093). It is argued that past practice since form the inception of the Punjab University is that the Chancellor has absolute discretion to appoint anyone as Vice Chancellor and in this behalf he has placed on record list of the V.Cs. Since the creation (1882 to 1993). In this behalf, reliance is placed on Nazir Ahmad v. Pakistan, and 11 others (PLD 1970 SC 453), K.F. Shaifta v. Settlement and Rehabilitation Commissioner, Lahore and another (1974 SCMR 465), Marghub Siddiqui (supra and Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 353). It is added that it is evident from list of the V.Cs. That the discretion of Chancellor under section 14 of the University of the Punjab Act, 1973 is absolute.
6. Ch. Muhammad Raza Faruq, Advocate added that section 14(1) deals with the regular appointment of the V.C. While sub-section (2) deals with the appointment on stop gap/temporary arrangement. He thereafter referred to section I6 to argue that intention of the Legislature in giving the discretion in the appointment of V.C. Is clear. He submitted that the writ is not competent in view of the provision of section 48(a) of the University of the Punjab Act as the action was taken in good faith. It is added that there is nothing on record to show that the discretion has not been exercised judiciously. It is maintained that the evaluation made by the Chancellor cannot be set aside by this Court. In this behalf, reliance is placed on Board of Intermediate and Secondary Education, Lahore v. Saima Azad (1996 SCMR 676). In the end it is added that respondent No. 3 was the senior most and the petitioner has no vested right to claim the post of V.C. As it is not a promotion as of right.
7. I have given my anxious consideration to the arguments advanced on behalf of both the sides. It was after hearing the counsel for the petitioner and Attorney General that necessity of perusing the summary was felt by me. Copy of the same has also been placed on record. Besides this Ch. Muhammad Raza Faruq, Advocate has placed on record that at least on three occasions the junior was appointed as V.C. Over the head of the seniors. However, when he was asked as to whether any of the seniors challenged this action of the Chancellor, the reply was in negative. Before proceedings any further it is relevant to refer to section 14, which reads as under:- "14. (1) The Vice-Chancellor shall be appointed by the Chancellor on such terms and conditions as the Chancellor may determine and shall hold office during the pleasure of the Chancellor for a term not exceeding four years.
(2) At any time when the office of the Vice-Chancellor is vacant, or the Vice-Chancellor is absent or is unable to perform the functions of his office due to illness or some other cause, the Chancellor shall make such arrangements for the performance of the duties of the Vice- Chancellor as he may deem fit".
8. Now after this I proceed to refer to the summary submitted to the Chancellor. Para 3 of the same reads as under:- "3. The detail of the 5 Professors in order of seniority is being given below for appointment as Vice Chancellor: Sr. No. NAME OF THE PROFESSOR DATE OF RETIREMENT #tbs Dr. Khalid Hameed Sheikh, Professor of Botany (working abroad)
Dr. M. Afzal Baig Pro-Vice Chancellor #the 24-08-1998 18- 06-1998
3. 4. #tbs
5. 10-11-1997
6. #the
7. Dr. Abdul Majid, Professor of Mathematics.
8. Dr. Zafarullah Sheikh, 03-09-1988 Director Institute of ' Chemical Engg. -
9. Dr. Muhammad Zafar Iqbal, 19-07-2002 Director, Institute of Chemistry." {{date misarranged}} Thereafter the Secretary proceeded to recommend officer on serial No. 5 with the following remarks:- "4. Dr. Muhammad Zafar Iqbal, Director of Institute of Chemistry is reported to be a neutral and competent person who can be appointed as Vice Chancellor. He would be retiring on 19-07-2002 and as such he can serve for a reasonable period whereas, the other Professors as detailed above would be retiring within the next year."
However, Chief Minister advised the Chancellor to appoint respondent No. 3. The possibility cannot be ruled out that the Chief Minister has recommended the name of respondent No. 3 being senior most as the summary revealed.
9. Now coming to the seniority of respondent No. 3. The matter of extension of the deputation period of respondent No. 3 was considered in the meeting of Syndicate dated 29.3.1995. The request of respondent No. 3 was processed by V.C. Working paper was prepared wherein the previous policy as well as revised policy of the Government were noted. The recommendations were made for adopting the revised policy as issued by the Government and also for sanctioning of the leave of respondent No. 3. The Syndicate granted extension in period of deputation with effect from 21.7.1991 to 20.7.1991 as requested by respondent No. 3 subject to the policy/rule. The relevant revised policy duly adopted by. Respondent No. 3 is reproduced as under:- "Government may allow an officer to continue against his assignment abroad even after the expiry of 5 years on the request of the officer or his employer. However in all such cases, the officer's name will be removed from the existing seniority list and placed on a separate static list with no claim to promotion or to seniority over any junior who may be promoted during this period. An officer's name would be brought back on the seniority list only after he resumes duty on return. In such cases also the officer must earn a confidential report for one full year before he is considered for promotion. If approved for promotion, he will not regain his seniority. He will be assigned seniority in the higher post only from the date he assumes its charge."
10. The summary submitted to the Chancellor did not reflect the correct position as to the seniority of the petitioner and respondent No.3. There is nothing in the advice given under Article 48 and the order of the Chancellor that respondent No. 3 was given preference over the others for some other reason. Although no other reason has been given either in the advice or in the order of Chancellor yet assuming that there were some valid reasons but those would also not save the order in view of the rule laid down in the judgments reported as Muhammad Amal Khan v. The District Magistrate, Lyallpur and 4 others (PLD 1977 Lahore 20), Government of East Pakistan v. Mrs. Rowshan Bijaya Shoukat Ali Khan (PLD 1966 SC 286) and Hek Ammal v. Political Agent, Malakand (PLD 1975 Pesh. 67). It seems that somebody interested either in the University, or in the Education Department decided to get the appointment of respondent No. 3 by giving incorrect and misleading facts. The fraud and misrepresentation vitiates most solemn acts/transactions. In this behalf, reference can be made to Assistant Director, Intelligence and Investigation, Karachi v. M/s. B.R. Herman and others (PLD 1992 SC 485) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazlil Khan and others (PLD 1975 SC 331).
11. Now coming to the preliminary' objection that the petitioner has no vested right of promotion and otherwise cannot maintain writ petition as the rules are not statutory. The relief claimed is two- fold one as to the person; and other is challenging the appointment of respondent No. 3. The relief as to the personal promotion is refused in view of the preliminary objection but as far the writ of qua warranto is concerned that can be issued as law laid down by the Hon'ble Supreme Court in It.-Col. Farzand Ali and others v. Province of West Pakistan (PLD. 1970 SC 98) and Muhammad Zia- ul-Haq etc. v. Government of Punjab, etc. (1996 PLC (C.S.) 134), wherein scope of quo warranto has been discussed in detail. The relevant portion of the latter judgment reads as under:- "10................ If looked in this background the petitioners can maintain writ of quo warranto' to challenge the appointment of respondents Nos. 3 and 4 as violative of the law and rules. I am fortified in my view by the Judgment in the case of Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another (1995 SCMR 650). The relevant portion reads as under:- "9. The contention that no employee has a vested right in promotion may be correct but where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of the competent Authority, the aggrieved person would be entitled to challenge it. In Ch. Muhammad Insha Ullah and others v.
Chief Conserver of Forests (P&E) and others (PLD 1988 SC 155), it was observed that "Even if, no vested right exits, if a principle of policy is given effect to and the principle of policy is such which has not matured into a vested right, none can say that in the absence of the vested right, the principle Of policy should not be recognized or enforced". Therefore, in the light of the above observation, the regulation providing for recommendation of the Promotion Board for promotion should have been taken into consideration which cannot be brushed aside lightly without due reason. Respondent No. 2 was inducted irregularly, the charge held the appellant and respondent No. 2 was interchanged, ...... These facts go a long way to point out the illegalities, irregularities and breach of regulation without any just and reasonable ground leading to the conclusion that the impugned order of respondent No. I was arbitrary, unfair and devoid of good faith. By such acts, the appellant was deprived of promotion which he was entitled under the Regulation...................... "
The objection is, therefore, without any merit. Reference in this behalf can also be made to the judgments in the cases of Dr. Kamal Hussain and others and Abdul Jaffar Lakhani (supra)."
12. There is no dispute about the ouster clause but to advance the same as defence, the action must be within the four comers of the statute, In this behalf, reference can be made to Zafar-ul- Ahsan v. The Republic of Pakistan (PLD 1960 SC (Pak.) WS), Muhammad Rafiq v. The Board of Intermediate and Secondary Education and others (1983 SCMR 1024) and Ch. Muhammad Anwar v.
Government of West Pakistan (PLD 1963 (W.P.) Lahore 109).
13. The upshot of the above discussion is that this writ is practically accepted with no order as-to costs. The result is that writ of quo warranto is issued and appointment of respondent No. 3 as V.C.
Punjab University vide notification dated 11.11.1997 is declared without lawful authority while other relief as to the appointment of the petitioner is disallowed.