' MUHAMMAD AKHTAR SHABBIR, J.---Through this single judgment I would like to dispose of Writ Petitions Numbers:
(1) 2703 of 2001, (2) 4875 of 2000, (3) 5712 of 1999, (4) 4262 of 2001, (5) 3346 of 2001, (6) 4238 of 2001,
(7) 64 of 1997, (8) 2878 of 1997, (9) 2726 of 1997, (10) 1386 of 2001, (11) 4262 of 2000, (12) 3502 of 2001,
(13) 6005 of 1997 and (14) 6006 of 1997. ' as identical question of law and fact is involved therein.
2. The brief facts giving rise to the .Writ petitions mentioned at Serial Nos.1 to 12 are as under:--
(i) Writ Petition No,2703 of 2001 ' Dr. Zahid Hussain Chohan petitioner, in response to an advertisement for the post of Professor in Chemistry in Islamia University, Bahawalpur, applied for the same alongwith other candidates and he was ignored in spite of his qualification and quality of research work. The petitioner has agitated the issue of his appointment by filing Writ Petition No,4875 of 2000. Besides having recourse to the High Court, the petitioner filed a representation before the Minister for Science and Technology, Professor Dr. Atta-ur-Rehman. When the personal communication came into the knowledge of the University Authorities, the matter was referred to the Syndicate. The Syndicate in its meeting held on 3-3-2001 decided to proceed against the petitioner under the Islamia University Employees (Efficiency and Discipline) Statutes, 1976 and appointed respondent No,4 as Authorised Officer who issued show-cause notice dated 8-5-2001 to the petitioner. The proceedings of the Islamia University Authorities under the Islamia University Employees (Efficiency and Discipline) Statutes, 1976 have been assailed by the petitioner through the instant writ petition.
(ii) Writ Petition No,4875 of 2000 ' The same petitioner Dr. Zahid Hussain Chohan has invoked the Constitutional jurisdiction of this Court to call in question the proceedings and recommendations of the Selection Board dated 4- 10-2000 for the appointment on the post of Professor in the Department of. Chemistry Islamia University, Bahawalpur, in BPS-20 wherein he was ignored.
(iii) Writ Petition No,5712 of 1999 ' Through the present writ petition, Dr. Khawaja Alqama petitioner, Assistant Professor, Department of Political Science, Islamia University, Bahawalpur has challenged the appointment of Dr. Hina Qambar Abbasi, respondent No,5 as Professor in BPS-20 in the Department of Political Science of Islamia University, Bahawalpur.
(iv) Writ Petition No,4262 of 2001 ' Petitioner Syed Mustafa Nawaz Bukhari, Assistant, Islamia University, Bahawalpur, through the present writ petition, has challenged the appointments of respondents Nos.3 to 5 vide order dated 20-7-2001 by respondent No,1. The petitioner was initially appointed as Junior Clerk in Islamia University, Bahawalpur on 15-1-1977. He applied to respondent No,1 for his promotion as Administrative Officer against the post of Mr. Saeed Ahmad Malik, who had been retired.
Respondent No,1, instead of appointing the petitioner, invited applications to fulfil the vacant posts of Administrative Officers from in-service eligible Assistants of the University. The petitioner in response to the above invitation of respondent No,1 applied through proper channel and all the candidates who applied for the posts were given a written test and 10 candidates in all including the petitioner and respondents Nos.3 to 5 appeared in the written test and out of these 10 candidates, 5 including the petitioner and respondents Nos.3 to 5 could qualify the written test.
Thereafter 5 persons were called by the Selection Board for interview and the Selection Committee did not recommend the petitioner for appointment, rather recommended the cases of respondents Nos.3 to 5 for appointment and they were issued appointment letters by respondent No,
1. The order of respondent No,1 on the recommendation of the Selection Committee has been challenged by the petitioner through the instant writ petition.
(v) Writ Petition No,3346 of 2001 ' The petitioner Dr. Barkat Ali, Professor of Physics had applied to the Institute of Leadership and Management (I.L.M.) for the post of Professor in the Faculty of Information Technology for a gross salary of Rs,86,000 per month. Thereafter, he applied to the Vice-Chancellor of the Islamia University, Bahawalpur for leave of 2 years without pay and instead of deciding his application, the Vice Chancellor issued notice to him to explain as to why he had not applied the I.L.M. Through proper channel and the prayer of the petitioner for grant of leave was refused on the ground that the Department of Physics is short of qualified and experienced staff. The petitioner made a representation to the Syndicate and the Syndicate without, disposing of his application for grant of leave proceeded to appoint respondent No,4 as Authorised Officer to proceed agsinst the petitioner under the Islamia University, Bahawalpur Employees (Efficiency and Discipline) Statutes, 1976 on the charge of leaving the University without permission. The proceedings under the Islamia University Bahawalpur Employees (Efficiency and Discipline) Statutes, 1976 against the petitioner have been challenged by him through the present writ petition.
(vi) Writ Petition No,4238 of 2001 ' The petitioner Dr. Barkat Ali, Professor of Physics, Islamia University Bahawalpur has called in question the order dated 21-7-2001 passed by the Syndicate in its meeting held on the said date approving the petitioner's removal from service.
(vii) Writ Petition No,64 of 1997 ' Dr. Barkat Ali, Associate Professor of Physics, Islamia University, Bahawalpur has also invoked the Constitutional jurisdiction of this Court to strike down the order dated 28-8-1996 appointing respondent No,2 Dr. Bilal Ahmad Sukhera, Vice-Chancellor, Islamia University Bahawalpur as Chairman of the Department of Physics by respondents Nos.1 to 3.
(viii) Writ Petition No,2878 of 1997 ' The petitioner Dr. Barkat Ali, Associate Professor, Department of Physics, Islamia University Bahawalpur has challenged the recommendations of the Selection Board and appointment of respondent No,6 Dr. Muhammad Aslam Adeeb as Professor in the Department of Education, Islamia University, Bahawalpur (petitioner in Writ Petition No,6006 of 1997) in BPS-20, through the present writ petition.
(ix) Writ Petition No,2726 of 1997 ' The petitioner, Dr. Muhammad Bashir-ud-Din Hashmi, has been working as Senior Medical Officer in Islamia University Bahawalpur. He has approached this Court for expunching the adverse remarks in his ACRs for the years 1990, 1992, 1993, 1994, 1995 and 1996 and setting aside the orders of the Syndicate dismissing the appeals of the petitioner and initiating of proceedings under Efficiency and Discipline Rules against the petitioner.
(x) Writ Petition No,1386 of 2001 ' The petitioner, Mrs. Asma Bukhari, Assistant Directress Physical Education, Islamia University Bahawalpur has challenged the order dated 13-1-2001 passed by the Syndicate/Competent Authority under the Islamia University Bahawalpur Employees (Efficiency and Discipline) Statutes, 1976 imposing the major penalty of removal of the petitioner from service.
(xi) Writ Petition No,4262 of 2000 ' The instant writ petition has been filed by Mrs. Asma Javed Bukhari, Assistant Directress Physical Education, Islamia University, Bahawalpur for issuance of a direction to the respondents for grant of Ex-Pakistan leave to the petitioner and restraining the respondents from passing any adverse orders against her.
(xii) Writ Petition No,3502 of 2001 ' The petitioner Abdur Razzaq Shahid, Assistant Professor, Department of History and Pakistan Studies, Islamia University Bahawalpur has approached this Court through the instant writ petition to challenge the appointment of second Inquiry Officer and restraining the respondents from proceeding against him under the Islamia University, Bahawalpur Employees (Efficiency and Discipline) Statutes, 1976 on the same allegations which were already found false.
3. In Writ Petition No,64 of 1997, respondent No,2 Dr. Bilal Ahmad Sukhera, who was appointed as Chairman, Department of Physics, Islamia University Bahawalpur (the then Vice-Chancellor of the University) and whose appointment as such has been challenged in the writ petition, has expired.
Since no writ is competent against a dead person, therefore, this writ petition (Writ Petition No,64 of 1997) having become infructuous is dismissed.
4. At the very outset, the learned counsel for the respondents Mr. M.M. Bhatti, and Masood Ashraf Shaikh, Advocates objected the maintainability of these writ petitions contending that the employees of the Islamia University Bahawalpur cannot invoke the Constitutional jurisdiction of this Court and that there is relationship of master and servant between the parties and there is no violation of the Act or the Statutory Rules. All the writ petitions pertain to the Statutes, Regulations and Rules provided in the Schedule of the Calendar of Islamia University, Bahawalpur and all these Statutes, Regulations and Rules are non-statutory, therefore, the violation of any of the same cannot be challenged through a writ petition. They relied on the following cases:--
(1) University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093);
(2) Khalid Hussain v. The Chancellor (Governor of Punjab) and others (NLR 1995 CLJ 219);
(3) M. Amin Farooq v. Vice-Chancellor, University of Engineering and Technology, Lahore and another (1993 CLC 474) (Lahore);
(4) Dr. M. Afzal Beg v. University of Punjab and others (1999 PLC (C.S.) 60);
(5) Ijaz Hussain Suleri v. The Registrar and another (1999 SCMR 2381);
(6) Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194);
(7) Chairman, WAPDA and 2 others v. Syed Jamil Ahmad (1993 SCMR 346);
(8) Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. Through its President, Karachi and 2 others (1995 SCMR 453);
(9) Dr. Iqtidar Hussain Zaidi v. University of the Punjab (PLD 1978 Lahore 298);
(10) Muhammad Jawad Ali v. Vice-Chancellor, Islamia University Bahawalpur, and others (1998 PLC (C.S.) 549).
3. On the other hand, the learned counsel for the petitioners Mr. Aejaz Ahmad Ansari, Mr. Aejaz Ahmed Chaudhary, Mr. Zafar Ali Hashmi and Mr. Bilal Ahmad Qazi, Advocates vehemently opposed the arguments of the learned counsel for the respondents contending that sections 30 and 31 of the Islamia University of Bahawalpur Act, 1975 have empowered the University Authorities and the Syndicate to conduct the business in accordance with the Statutes, Regulations and the Rules made thereunder; that section 15 of the Act has conferred the duties on the Vice-Chancellor, who is declared to be 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, publications, administration and the general efficiency and good order of the University and that the powers are conferred on the Vice-Chancellor and the Syndicate under the Act and if any of the same is violated by the Authorities who have been conferred powers by the Act, then the writ is competent. They further contended that the Universities are financed by the Government, therefore, the functionaries of the Universities shall be deemed to be the functionaries of the Federation and the Province and their actions are not immune from judicial scrutiny of the High Court.
4. Mr. Aejaz Ahmad Ansari, Advocate, learned counsel for the petitioner in Writ Petition No,6006 of 1997 has contended that Dr. Zahid Jang Khattak and Dr. Aslam Adeeb, writ petitioners in Writ Petition Nos.6005 and 6006 of 1997 respectively have applied for appointment of the post of Professor in their subjects for direct appointment, therefore, exercise of jurisdiction under Article 199 of the Constitution is attracted to their cases. He relied on the case of S. Irshad-ur-Rehman v.
Government of Pakistan through Chairman, Central Board of Revenue, Islamabad and 3 others (1993 PLC (C.S.) 39). He further contended that where the action of public functionary invested with statutory powers is challenged, the writ petition is maintainable even if the right to relief arises out of an alleged breach of contract. In this context he has placed reliance on the DFO South Kheri and others v. Ram Sonehi Singh (AIR 1973 SC 205). He further contended that show-cause notices against above-said writ petitioners have not been issued by the Authority while recalling their orders of appointment and the University Authorities having violated the principle of natural justice, the writ petition in view of maxim "Audi alteram partem" is competent. Reliance in this context can be placed on case of Mrs. Anisa Rehman v. PIAC and another (1994 SCMR 2232). The learned counsel further contended that the recall of the order of appointment of the above-said two writ petitioners is review of the order and no review is provided in the Islamia University of Bahawalpur Act, 1975 or the Rules for which no remedy is available except the writ petition. Reliance is placed on case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) and Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94). Further contended that after the appointment these two writ petitioners have joined their new assignment and order of appointment has been implemented which cannot be recalled as a vested right has been created in favour of the petitioners and in such-like cases the principle of locus poententiae is attracted to the case of these two writ petitioners. He relied on Pakistan through the Secretary, Ministry of Finance v.
Muhammad Himayatullah Faruki (PLD 1969 SC 407). The learned counsel maintained that the same authority (Syndicate) issued appointment letters to the petitioners, confirmed the order of some others while the cases of the petitioners were referred for reconsideration which was not valid under the rule of locus poenitentiae. Relied on the case of Muhammad Nawaz v. Federation of Pakistan and 61 others (1992 SCMR 1420). Further maintained that Syndicate has no jurisdiction to recall the order of the petitioners as where the order of authority is without jurisdiction there would be no bar to the filing of the Constitution petition under Article 199 of the Constitution. Relies on the case of Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak-Saudi Fertilizer Ltd. And another (2001 SCMR 777).
5. I have heard the arguments of the learned counsel for the parties and perused the record.
6. The functions of the Islamia University Bahawalpur alongwith the Act, 1975 are conducted and carried on through the Statutes, the Regulations and the Rules. The matters in hand relate to Islamia University Bahawalpur Teachers (Appointment and Conditions of Service) Statutes, 1977.
The Islamia University, Bahawalpur Officers (Appointment) Statutes, 1977 and the Islamia University Bahawalpur Employees (Efficiency and Discipline) Statutes, 1976.
7. The question that boils down for determination in these writ petitions is that whether these Statutes, the Regulations and the Rules are statutory in nature or non-statutory. The Parliament is the law-making authority. It passes the Acts and empower the Government under the relevant Act to make Rules for carrying on the business. A statute is the formal expression in writing of the will of the legislative organ in a State. A Statute is a declaration of the law as it exists or as it shall be from the time at which such statute is to take effect. It is usually called
8. An Act of the Legislature. It expresses the collective will of that body. A Statute is the highest Constitutional formulation of law, the means by which supreme legislative, after the fullest deliberation expresses its final will.
9. An 'enactment' may mean something other than an Act of Parliament, but an Act means an Act of Parliament. In other words 'enactment' does not mean the same thing as 'Act'. 'Act' means the whole Act, whereas section or part of a section in any Act may be an enactment.
10. "Statute law" is defined as the will of the nation, expressed by the Legislature, expounded by the Courts of Justice. If the Parliament is not in session then the laws are enforced through the Ordinances issued by the President or the Governor expressing will of the nation as the case may be. So, the Act passed by the Parliament and the Ordinance issued by the President or the Governor, expressing will of the nation would be called the Statutory Law.
11. Rules framed under the powers conferred by an Act are integral part of the Act and these Rules are called Statutory Rules and these are held to be part of the parent Act. It can do any thing if within its scope. The Rules or the Bye-Laws made under the Statutes or Act cannot override the provisions of other Statute. Neither the Rules control the construction to be placed on the provisions of the Act nor they can enlarge the meaning of the section. The Rules are framed under the Act in aid to construction of ambiguous Statutes. The Rules under the Act shall be made by the Authority empowered under the Act to frame the Rules or Bye-Laws. No other authority who is not empowered under the Act make the Rules, A Rule-Making Body also cannot frame the Rules in conflict with or derogating from the substantive provisions of law or Statute under which the Rules are framed.
12. A statutory "instrument" means a document which is a Legislative (as opposed to executive) made by a Rule-making Authority in exercise of its statutory powers. A Rule is defined in "Words and Phrases, Permanent Edition, 37A" as under:-- "'Rule' is that which is prescribed or laid down as a guide to conduct; that which is settled by authority or custom; a regulation; a prescription; a minor law; a uniform course of things. 'Rules' is not properly original process, but is auxiliary and for facilitation of jurisdiction already acquired.
Although statute sometimes authorises its use as original process."
12, The Statutory Rules stand on different footing. Parliament or Legislature instead of incorporating the Rules into Statute itself ordinarily authorises Government to carry out the details of the policy laid down by the Legislature by framing Rules under the Statute and once the Rules are framed they are incorporated in the Statute itself and part of Statute and it must be governed by the same Rules as Statute itself.
13. Where the statutory corporation, body or organization enact laws, rules of their own they are called by-laws. The term 'bye-laws' applied to the local laws or regulations made by the public bodies of municipal kind or concerned with local Government or by Corporations, or organizations, Universities, or societies formed for commercial or other purposes including gas, water, railway companies, educational institutions, trade unions, etc. And these bye-laws must be made sanctioned and published in the manner prescribed by Statute which authorises them. Bye-laws (Rules and Regulations) are framed by the Corporations or statutory bodies for carrying out their purpose or administration. All bye-laws made by subordinate authorities are subject to system of check. The bye-laws are required the approval of different concerned Government Departments.
The Rules or Bye-laws not framed by the Government or framed by the Corporation, if are not approved by the Government would be called non-statutory rules. A reference in this context can be made to the case of Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194).
14. Section 30 of the Islamia University of Bahawalpur Act, 1975 deals with Statutes, Regulations and Rules. Subsection (1) of this section provides that subject to the provisions of this Act, Statutes may be made to regulate or prescribe all or any of the following matters:--
(a) The constitution of pension, insurance, gratuity, provident fund and benevolent fund for University employees;
(b) the scales of pay and other terms and conditions of service of Officers, Teachers and other employees of the University;
(c) the maintenance of the Register of Registered Graduates;
(d) affiliation and disaffiliation of educational institutions and related matters;
(e) admission of educational institutions to the privileges of the University and the withdrawal of such privileges;
(f) the conduct of elections for membership of the Authorities of the University and related matters;
(g) the establishment of Faculties, Institutes, Colleges and other Academic Divisions;
(h) the powers and duties of Officers and Teachers;
(i) conditions under which the University may enter into arrangements with other institutions or with public bodies for purposes of research and advisory services;
(j) conditions for appointment of Professors Emeritus and award of honourary degrees;
(k) efficiency and discipline of University employees;
(1) the general' scheme of studies including the duration of courses and the number of subjects and papers for an examination; and
(m) all other matters which, by this Act are to be or may be prescribed or regulated by Statutes.
' Subsection (2) of the said section has contemplated that the draft of Statutes shall be proposed by the Syndicate to the Senate which may approve it, or pass it with such modifications as the Senate may think fit, or may refer it back to the Syndicate for reconstruction, or may reject it: Provided that:--
(i) the Syndicate shall not propose draft of Statutes affecting the constitution or powers of any Authority of the University, until such Authority has been given an opportunity of expressing an opinion in writing upon the proposals;
(ii) the draft of Statutes concerning any of the matters mentioned in clauses (a) and (b) of subsection (1) of this section shall be forwarded to the Chancellor and shall not be effective until it has been approved by the Chancellor; and
(iii) the Syndicate or the Senate shall not have the power to make any Statutes concerning efficiency and discipline of officers, teachers and other employees of the University and such Statutes may be made by the Chancellor.
15. Section 31 postulates that subject to the provisions of this Act; and the Statutes, Regulations may be made for all or any of the following matters:--
(a) courses of study for degrees, diplomas and certificates of the University;
(b) manner in which the recognized teaching referred to in subsection (1) of section 8 shall be organized and conducted;
(c) admission of students to the University;
(d) conditions under which students shall be admitted to the courses and the examinations of the University and shall, become eligible for the award of degrees, diplomas and certificate;
(e) conduct of examinations;
(f) fees and other charges to be paid by students for admission to the courses of study and the examination of the University;
(g) conduct and discipline of students of the University;
(h) conditions of residence of the students of the University or the college, including the levying of fees for residence in halls of residence and hostels;
(i) approval and licensing of hostels and belonging;
(j) conditions under which a person should carry on independent research to entitle him to a degree;
(k) institution of fellowships, scholarships. Exhibitions, medals and prizes;
(1) institution of stipends and free and half-free studentships;
(m) academic costume;
(n) use of the library;
(o) formation of Teaching Departments and Boards of Studies; and
(p) all other matters which by this Act and the Statutes are to be or may be prescribed by Regulations.
(2)
16. Section 33 of the Act has provided that (1) the Authorities and the other bodies of the University may make Rules, consistent with this Act, the Statutes and the Regulations, to regulate the conduct of their business and the time and place of meetings and related matters. Provided that the Syndicate may direct the amendment or the annulment of any Rules made under this Act by another Authority or body other than the Senate; and Provided further that, if such other Authority or body is dissatisfied with such direction it may appeal to the Senate whose decision in the matter shall be final. (2) The Syndicate may make Rules to regulate any matter relating to the affairs of the University which by this Act, has not to be specifically provided for in the Statutes or Regulations.
17. Section 23 of the Act has empowered the Senate:--(a) to consider the drafts of Statutes proposed by the Syndicate and deal with them in the manner indicated in subsection (2) of section 30;
(b) to consider and pass resolutions on the annual report, the annual statement of accounts and the annual and revised budget estimates;
(c) to appoint members to the Syndicate ' and other Authorities in accordance with the provisions of this Act;
(d) to delegate any of its powers to an Authority or Officer or a Committee or sub-Committee; and
(e) to perform such other functions as may be prescribed by Statutes.
18. From the perusal of the above provisions of law it is manifestly clear that the Act has not empowered the Government to make Statutes, Regulations or the Rules under the Act. This power has been conferred on the Authorities of the University. So much so the Act has not directed the University concerned authorities to seek sanction of the Rules from the Government. The Governor who is the Chancellor of the Islamia University .Bahawalpur, may make. Statutes and the power of approval of Regulations prepared by the Academic Council has been conferred on the Syndicate and power of consideration of drafts of Statutes proposed by the Syndicate has been conferred upon the Senate and after consideration of the Senate the draft of Statutes, it shall be forwarded to the Chancellor and would not be effective until it has been approved by him. It means that the Statutes, Regulations and Rules made by the Islamia University Bahawalpur under the Islamia University Bahawalpur Act, 1976 are non-statutory in nature.
19. The Governor exercises the powers and duties that the Chancellor exercises or performs under the Islamia University Bahawalpur Act, 1976. These are not any powers or duties conferred on the Governor qua Governor or of a capacity which he occupies by virtue of his office as Governor. The powers of the Chancellor under the Islamia University Act are, thus, not the powers and duties of office of the Governor and consequently not protected under Article 105 of the Constitution of Islamic Republic of Pakistan. The point in issue was examined by the Honourable Supreme Court of Pakistan in case of University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093) wherein it has been observed that the terms and conditions of employee were not governed by statutory rules but only by the non-statutory rules/regulations and the terms and conditions of employee of such Institution, if not governed by the statutory rules but by Regulations, Instructions or Directions which body in which the petitioners were employed, had issued for its internal use, any violation thereof, would riot normally be enforced through Constitutional petition. The dictum laid down in the above said case was affirmed by the Supreme Conn in case of Ijaz Hussain Suleri v. The Registrar and another (1991 SCMR 2381). In the case of Chairman, WAPDA and 2 others v. Syed Jamil Ahmad (1993 SCMR 346) the Honourable Supreme Court has observed that where the Government while setting up a Corporation does not reserve to itself the power to regulate the terms of service of the Corporation's employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the Corporation by empowering it to frame rules or regulations in respect thereof without the Government's intervention, then the Corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case neither a suit nor a writ petition for the relief of reinstatement will be competent and the remedy of the employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable. However, where the terms and conditions of service of an employee of a Statutory Corporation is regulated by a statute or statutory rules, any action prejudicial taken against him in derogation or in violation of the statute and/or the statutory rules will give him a cause of action to file a suit or a writ petition for the relief of reinstatement, as the power of the Corporation will be fettered with the statutory provisions and the principle of master and servant will not be applicable. In case of Dr. M. Afzal Beg v. University of Punjab and others (1999 PLC (C.S.) 60), a Single Judge of this Court has observed that the petitioner was governed by non-statutory rules and principle of master and servant was attracted in his case, Constitutional jurisdiction of High Court under Article 199 of the Constitution could not be invoked. This argument is further strengthened by the dictum laid down in case of Muhammad Umar Malik v. The Muslim Commercial Bank, Ltd. Through its President, Karachi and 2 others (1995 SCMR 453). In case of M. Amin Farooq v. Vice-Chancellor University of Engineering and Technology, Lahore and another (1993 CLC 474) (Lahore), the principle laid down in case of University of the Punjab, Lahore (1992 SCMR 1093) was also followed by a Single Judge of this Court observing that no Constitutional petition was maintainable in case of any violation of non-statutory provisions such as Regulations and Ordinances framed by the Syndicate of the University. The same view was followed in case of Khalid Hussain v. The Chancellor (Governor of Punjab) and others (NLR 1995 CLJ 219).
20. In view of the above discussion and in following the dictum laid down in the cases referred to above, I have no hesitation in observing that the Islamia University Bahawalpur Employees (Efficiency and Discipline) Statutes, 1976, the Islamia University, Bahawalpur Teachers (Appointment and Special Conditions of Service) Statutes, 1977 and the Islamia University Bahawalpur Officers (Appointment) Statutes, 1977 and the Islamia University, Bahawalpur Employees (Pension) Statutes, 1979 are not statutory in nature, therefore, any violation of the Statutes, Regulations or Rules would not attract the Constitutional jurisdiction of this Court under Article 199 of the Constitution. Thus, the Writ Petition Nos.2703 of 2001, 4875 of 2000, 5712 of 1999, 4262, 3346, 4238 of 2001, 2726 of 1997, 1386 of 2001, 4262 of 2000 and 3502 of 2001 being incompetent are dismissed.
21. The facts giving rise to Writ Petitions Nos.6005 and 6006 of 1997 are that Dr. Zahir Jang Khattak (petitioner in Writ Petition No,6005 of 1997) and Muhammad Aslam Adeeb (petitioner in Writ Petition No,6006 of 1997), in response to advertisement dated 11-10-1996, published in "Daily Jang" issued by the Islamia University Bahawalpur inviting applications for permanent posts of Professor in BPS-20 in the Departments of English and Education applied for the same respectively. After processing the petitioner's applications, their cases were placed before the Selection Board, who called the petitioners for interview and thereafter, recommended the petitioners for appointment as Professor in the Departments of English and Education respectively. The recommendations of the Selection Board were placed before the Syndicate for approval. Therefore, the cases of the petitioners were circulated among the Members of the Syndicate under rule 13 of the Rules of Procedure for the Meeting of Syndicate and more than 50% of the Members expressed their opinion in favour of the petitioners and after the approval of the cases of the petitioners by majority of the Members of the Syndicate the appointment letters as Professors were issued to the petitioners vide Appointment Letters No,262-67/Esst. Dated 19-1-1997, and 468-73/Esst., dated 19-1-1997 in favour of the petitioners and they were posted as Professors of English and Education in BPS-20 and after their appointment, the petitioners joined as Professors in their respective Departments. The meeting of the Syndicate was held on 4-10-1997 and approval of the appointment of the petitioners by circulation was reopened and the cases of the petitioners were referred to the Selection Board for re-examination. The resolution/order dated 4-10-1997 of the Syndicate has been assailed through the instant writ petitions.
22. Rule 13 of the Rules of Procedure for the Meetings of the Syndicate provides that in case it is not considered feasible to call an emergency meeting of the Syndicate, the Vice-Chancellor may decide that opinion of members on a certain issue be invited by a certain date by circulating the relevant papers and the issue be deemed to have been settled according to the views of the majority of the members who send in their opinion without time treating the rest as neutral, provided that at least 50 per cent. Of the members express their opinion on the issue.
23. Plain reading of the above Rules makes it clear that when meeting of the Syndicate cannot be convened, the opinion of the members of the Syndicate can be obtained by the Vice-Chancellor by circulating the relevant papers to the members of the Syndicate and if more than 50 per cent.
Of the members express their opinion in favour it would be presumed that Syndicate has approved the matter ,referred to the members of the Syndicate.
24. The appointment of the petitioners was put in the next meeting the Syndicate held on 4-10-1997 and in the said meeting the appointments of all the appointees except the petitioners were confirmed and the cases of the petitioners were referred to the Selection Board without issuing any show-cause notice and affording opportunity of being heard to the petitioners. It is settled proposition of law that anybody or corporation having violated the principle of natural justice, its action against its employees would be without lawful authority and of no legal effect. The principle of natural justice would be applicable to judicial as well as to non-judicial proceedings and it would be read into every statute as its part even if right has not been expressly provided therein and the violation of the maxim "Audi alteram partem" could be equated with the violation of provision of law warranting pressing into service Constitutional jurisdiction. Reliance in this context can be placed on the cases of Mst. Afroz Jehan v. Mst. Noor. Jehan and others (1988 CLC 1318), M/s. Capital Sports Corporation, Sialkot v. Government of Pakistan (1989 MLD 999), Mst. Maryam Younus v. Director of Education Cantonment, G.H.Q., Rawalpindi and others (PLD 1990 SC 666) and Mrs. Anisa Rehman v. I.I.A.C. And another (1994 SCMR 2232).
25. The superior Courts have already observed that mere absence of a provision in the Statute as to notice cannot override principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held where the giving of a notice is necessary condition for proper exercise of jurisdiction then failure to comply with the requirement render the order void and the entire proceedings which follow also becomes illegal.
26. The letters of appointment were issued in favour of the petitioners on 19-1-1997 and in compliance with the letters they have joined their duties as Professors in their respective departments and the order which has taken effect and created valuable rights in favour of the person in whose favour the order has been passed, then -the rule of 'locus poenitentiae' would come into play in his favour and the Competent Authority who passed the order could not recall the same. In this respect reference can be made to the cases of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407), Muhammad Nawaz v.
Federation of Pakistan and 61 others (1992 SCMR 1420), Messrs Arfat Woollen Mills Limited v. The Income Tax Officer, Companies Circle C-I, Karachi (1990 SCMR 697) and Messrs Central Insurance Co. And others v. The Central Board of Revenue, Islamabad and others (1993 SCMR 1232)..
27. Where the order passed by the Authority is in violation of the principle of natural justice the writ petition would be competent even if violation of non-statutory rules has been made by the Competent Authority
28. The case of the petitioners after evaluating the merits of their cases were recommended by the Selection Board and approved by the Syndicate by circulation and in compliance with the opinion of the Syndicate orders of appointment were issued in favour of the petitioners. The reopening of the cases by the Syndicate would mean the review of earlier orders and the Syndicate is not competent to review the order and where the order passed by the Authority is without jurisdiction and unlawful, then there would be no bar to the filing of the Constitution petition as observed in case of Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak-Saudi Fertilizer Ltd. And another (2001 SCMR 777).
29. The power of relaxation has been conferred on the Syndicate as provided in Statute No,11 of the Islamia University, Bahawalpur Teachers (Appointment and Special Conditions of Service) Statutes, 1977, which contemplates as under:- "Any of these Statutes, for reasons to be recorded in writing, may be relaxed in special cases, if the Syndicate is satisfied that a strict application of such Statutes would cause undue hardship to an individual teacher or adversely affect the interests of the University. Provided that whenever such relaxation involves a question on which consultation with the Selection Board is necessary, the Board shall be consulted before the relaxation is made.
' Explanation.---The Selection Board must be consulted when the question relates to the relaxation of the age limit or the qualifications and experience prescribed for appointment to a post or the fixation of initial pay."
30. The relaxation in the qualification of the petitioners was granted by the Syndicate when the Selection Board has sent the cases of the petitioners for approval and the approval was sought by circulation, therefore, if the Syndicate in its meeting held on 4-10-1997 found that the Rules were not complied with strictly, if should have given its reasons in the order and pointed out the defect not cured by the Selection Board or members of the Syndicate while sending their opinions. As the reopening of the matter by the Syndicate would mean review of the earlier order which is not provided under the Act or the Rules and even availability of the alternate remedy would not be attracted to such-like cases and when the order is without jurisdiction, the writ petition is competent.
31. Rule 11 of the Rules of Procedure for the Meeting of the Syndicate provides that:--
(i) The minutes of the meetings of the Syndicate shall be recorded by the Registrar and, after having examined by the Vice-Chancellor shall be within one month of the date of the meeting circulated among the members for objections/observations, if any, to reach the Registrar within 15 days of the issue of minutes. The Vice-Chancellor may approve an advance para relating to any item of the minutes for implementation.
(ii) In case no objections are received within the period specified above, it shall be presumed the member/s has/have to objection/s or observation to make.
(iii) After the Vice-Chancellor has taken into consideration the objections/observations of the members (if any), the minutes shall be confirmed by the Vice-Chancellor/Chairman, as the case may be. The minutes, after authentication, shall be circulated among the members. No observations shall be allowed in the next meeting."
32. In the instant cases, no objection or observations of the members were received by the Vice- Chancellor in respect of the appointment of the petitioners, therefore, the cases of the petitioners were not required to be put in the Agenda of the meeting of the Syndicate. Furthermore, there is nothing in the Rules that the opinion of the members of the Syndicate by circulation shall be subject to confirmation in the meeting of the Syndicate. The learned counsel for the respondents when confronted with the situation could not refer any Rule for confirmation of the opinion of the members of the Syndicate sought by circulation.
33. In view of the above discussion the cases of the petitioners are distinguishable from that of the other petitioners, therefore, in agreeing with the dictum laid down in the above-referred cases, these two writ petitions (Writ Petitions Nos.6005 and 6006 of 1997) are accepted as prayed for. The reopening of the cases of the petitioners' appointments by the respondents is declared as illegal and without lawful authority.
34. In view of my findings on Writ Petitions Nos.6005 and 6006 of 1997, Writ Petition No,2878 of 1997 is dismissed.