' The petitioner Dr. Ghulam Mustafa Chaudhry is a Professor of the Department of Political Science and International Affairs of the respondent university. He also claims to be the Dean of the said department. Dr. Muhammad Ashiq Khan Durrani, Vice-Chancellor of the respondent university has passed an Order No,PF/20/10-18-/Admin/1826, dated August 28, 1999 purportedly in exercise of the powers of the Syndicate under the Vice-Chancellor's Delegated (Administrative) Power and in purported exercise of the said powers he has ordered the compulsory retirement of the petitioner. It is this order of 28-8-1999 which has been assailed by the petitioner in the present proceedings.
2. It appears from the documents placed on record by the parties that the aforesaid order of compulsory retirement was passed pursuant to a show-cause notice, dated 27-8-1999 which was delivered to a Clerk of some department of her than the petitioner's department at 12-20 p.m. On 28-8-1999, requiring the petitioner to submit a reply to that show-cause notice by 1.00 p.m. On the same day. The respondent Vice-Chancellor on the very same day i,e, 28-8-1999 passed the impugned order. The contents of the impugned order show that the respondent Vice-Chancellor relied on the fact that the final show-cause notice was served on the petitioner affording him an opportunity of being heard on 28-8-1999 at 1.00 p.m. It is further recorded in the impugned order that the petitioner did' not appear in spite of service. He was, therefore, proceeded against ex parte.
3. Learned counsel for the respondents at the outset, raised a preliminary objection to the maintainability of the present petition. His first contention was that the relationship between the petitioner and the respondent university was that of servant and master respectively. He argued that the Efficiency and Discipline Statues of the respondent university, which govern the petitioner, were non-statutory rules and as such, it was not open to the petitioner to invoke the Constitutional jurisdiction of this Court. In support of his argument, learned counsel relied on the case titled University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093). The cited precedent relates to the interpretation and the application of a statute namely the University of the Punjab Act, 1973 and the rules framed thereunder. The statute as well as the rules considered by the Honourable Supreme Court while deciding the above referred case are, in material particulars, identical to the terms of the statute and the rules which require consideration in the present writ petition.
4. In the precedent case the Honourable Supreme Court has, indeed, held that the rules relating to the efficiency and discipline of employees of the Punjab University are non-statutory and as a consequence a Constitutional petition to challenge any action thereunder is not, competent.
5. Learned counsel for the petitioner, on the other hand, has drawn a distinction between the facts and circumstances of the precedent case and those of the petitioner's case before me. In particular, he has drawn my attention to the fact that in the cited precedent the respondent employee of the Punjab University was on probation which had been extended by the competent Authority. Furthermore, the annual confidential reports of the said employee were not satisfactory.
Learned counsel further pointed out that the terms of appointment of said employee expressly stipulated that such employee's services could be terminated on one month's notice or on him being given one month's salary in lieu of notice. Learned counsel for the petitioner contends that none of the aforesaid circumstances exist in the present case where the petitioner is a tenured employee of longstanding of the respondent university. He has further highlighted the qualifications of the petitioner and his meritorious record of service leading to his current position as the senior most Professor of the respondent university.
6. The other point of distinction urged by learned counsel for the petitioner, to differentiate the present case from the precedent cited by the learned counsel for the respondents, is that the impugned order purports to impose a major penalty on the petitioner for which the Vice- Chancellor respondent No,1 is not competent. He has argued that the action of the respondent No,1 was entirely without jurisdiction. The impugned order, according to learned counsel, was valid as distinct from being merely an illegal exercise of power vested in an authority which is otherwise competent and is vested with jurisdiction.
7. The respective contention of the two learned counsel on the preliminary objection as to maintainability of the present petition need not be decided in these proceedings nor is there any need to give a decision on the statutory or non-statutory nature of the respondent university's rules as there are other grounds whicn can be dispositive of the present petition. As noted above the impugned order whereby the petitioner has been compulsorily retired, itself purports to be founded on authority delegated to the Vice-Chancellor by the Syndicate under the Vice-Chancellor's Delegated (Administrative) Powers. With the assistance of both learned counsel, I have gone through the provisions of the Bahauddin Zakariya University Act, 1975 (the "Act") and the Statutes framed thereunder. I have also been taken through the powers which have purportedly been delegated to the Vice-Chancellor under Chapter IV of the Act.
8. It is firstly to be noted that the learned counsel for the respondents relied on the provisions of sections 51 and 52 of the Act in support of his contention that the Vice-Chancellor respondent No,1 had the requisite power to pass the impugned order being a delegate of the Syndicate. Section 51 of the Act, I note, relates to transitional provisions. This section provides, inter alia, that a Chancellor's Committee may be constituted by the Chancellor to exercise the powers assigned to the Senate and Syndicate under the said Act until such time the Syndiate or the Senate, as the case may be, are respectively constituted in accordance with the provisions of the Act.
9. According to the learned counsel for the respondents, the Chancellor's Committee was, therefore, authorised to exercise the powers of the Syndicate. Such powers are contained in section 26 of the Act and include a power to punish and to remove an employee from service as contained in section 26(2)(w) of the Act and a further power to delegate the powers and duties of the syndicate in accordance with clause (cc) of subsection (2) of section 26 of the Act. I have gone through the provisions of the aforesaid clause (cc) of section 26(2). This provision expressly stipulates that the power of the Syndicate may only be delegated to an Authority. The term "Authority" is a defined term, the definition being that containing in section 2(iii) of the Act. By virtue of this definition, the authorities of the University have been specified in section 22 of the Act. A bare reading of this section shows that the authorities of the university include various bodies including the Senate and the Syndicate but do not include the Vice-Chancellor of the respondent university.
It is. Thus, clear that no delegate of the Syndicate's power could have been made under the Act in favour of the Vice-Chancellor respondent No,1.
10. There is yet another aspect of the matter which was emphasised by the learned counsel for the petitioner. He argued that the provisions contained in section 51 of the Act, were merely transitional in nature and were put in place to cover the initial period when the Senate and the Syndicate of the respondent university had not been constituted. He pointed out that by means of notification issued under the Act the Senate and the Syndicate were duly created on 22-11-1987. The Senate became properly constituted on 24-4-1988 when all Senators were duly notified under the Act.
Learned counsel for the petitioner, therefore, argued that any powers, which had initially been delegated to the respondent No,1 Vice-Chancellor under section 51 of the Act on account of the absence of the Senate and the Syndicate, stood terminated with the Constitution of the Senate and the Syndicate on 24-4-1988 and 22-11-1987 respectively. This legal contention, indeed, appears to be correct. There could have been no continued delegation to the Vice-Chancellor by a Chancellor's Committee constituted under section 51 once the Senate and the Syndicate had been constituted in accordance with law. Although no authority for this legal proposition is required, learned counsel referred to the case of Islamia University bahawalpur v. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141) which is a Division Bench judgment of this Court and is authority for the argument advanced by learned counsel for the petitioner.
11. The two legal bases of the respondent Vice-Chancellor's powers, which have been set out in the concluding paragraph of the impugned order, are that he is a delegate either of the Syndicate or of the Vice-Chancellor's Committee. Both bases are not legally tenable in view of the legal position discussed above.
12. Learned counsel for the respondents next contended that under section 52 of the Act it was possible tor the respondents to rely on the rules and regulations framed by the Punjab University under the University of the Punjab Act, 1973 in the same manner as if such rules and regulations had been made under the Act. He stated that the University of the Punjab had, in fact, delegated administrative powers to its Vice-Chancellor, a copy of which he produced before me. The said delegated powers include a power to pass final orders on behalf of the Syndicate on routine and urgent cases during the summer vacation. It is difficult to accept that the matter of imposing a major penalty on the petitioner resulting in his compulsory retirement, was a routine matter.
Urgency, rightly was not pleaded bylearned counsel for the respondents. It is further to be noted that the provisions of section 52 of the Act are only applicable where the rules and regulations, framed by the Punjab University, are consistent with the provisions of the Act. From the discussion above, it is clear that the rules and regulations of the Punjab University cited by the learned counsel for the respondents, are in conflict with the provisions of the Act and in particular the provisions contained in sections 51, 22 and 26 thereof which have been referred to above.
13. Before parting with this judgment it is necessary to address one further submission made by the learned counsel for the respondents. He argued that the present petition should not be entertained on the ground that there was an alternative remedy available to the petitioner. In this regard he made reference to section 11-A of the Act which provides revisional powers to the Chancellor in respect of any orders passed by an Authority of the respondent University. The availability of an alternate remedy does not, per se, bar the exercise of writ jurisdiction by the High Court.
Constitutional jurisdiction has, in appropriate cases, been exercised by this Court even where an alternate remedy is available. Notwithstanding the said position, it is relevant to note that section 11-A of the Act only relates to orders which have been passed by an Authority. As discussed above, the Vice-Chancellor is not an Authority as defined, and as a consequence, any order passed by the Vice-Chancellor respondent No,1 does not fall within the purview of the revisional power vested in the Chancellor under section 11-A of the Act. In these circumstances, the argument of learned counsel for the respondent that an ,alternate remedy is available to the petitioner is not well- founded.
14. In view of the foregoing discussion, the present writ petition is allowed with costs and, as a consequence, the impugned order, dated 28-8-1999 is set aside.