1. ' S. NASIM HAIDER (SENIOR MEMBER).---The admitted facts of this appeal are that the then Chancellor, N.E.D. University of Engineering and Technology/respondent No,1, appointed the appellant as Vice-Chancellor of the said University vide Notification dated 18-11-1991 with immediate effect for a period of 4 (four) years during the pleasure of the Chancellor on usual terms and conditions. However, vide Notification dated 17-4-1994, issued by the respondent No,1, the appellant 'ceased' to hold the office of the Vice-Chancellor with immediate effect (without assigning any reasons thereof i,e, 19 months prior to the expiry of his specified tenure of four years).
2. ' The appellant, therefore, filed a Constitutional Petition bearing No,D-1641 of 1994, before the Hon'ble High Court of Sindh, which was dismissed in limine vide order, dated 22-8-1994.
3. ' The appellant, challenged the orders of the Hon'ble High Court of Sindh before the Hon'ble Supreme Court of Pakistan in Civil Appeal No,960 of 1995, which, vide its judgment dated 26-6-1996, held that in view of the amendments made by the Sindh Service Tribunals (Amendment) Act, 1994, gazetted on 16-1-1995 the said appeal had 'abated' and dismissed it. However, since this service appeal in the meanwhile stood tiled before the Sindh Service Tribunal on 13-4-1995 S.S.P. Was directed to decide it according to law.
4. ' The appellant argued his appeal, in person, at length. He contended that the respondent No, 1, was 'unrepresented' despite service, because the Vakalatnama of Mr. Rehanul Hassan Farooqi is signed by the 'Registrar' on behalf of respondent No,2 (only) and not by the respondent No,1 in person. He also pointed out that the written statement filed on behalf of respondent No,1 is not actually filed on behalf of respondent No,1 is not actually signed by him but carries the marking sd/-(signed).
5. Moreover, the verification is that of the 'Registrar'. He also pointed out that in the Hon. Supreme Court of Pakistan, the respondent No,1 was reprsepted by M. Aziz A. Munshi, Advocate.
6. ' After his preliminary objections, his main argument was that the impugned order, dated 17th April, 1994 was in violation of the principles of natural justice, fair play and equity, because no show- cause notice was issued to him, nor any departmental inquiry was held against him. He was also not provided any personal hearing prior to the issuance of the impugned notification, as such he was condemned 'unheard'.
7. ' He argued that the words 'during the pleasure of the Chancellor' do not confer unlimited power to the Chancellor to terminate his stipulated period of appointment for four years, arbitrarily and he was required to exercise such powers, judiciously and bonafidely. He narrated a long history of his differences with the then Chancellor. According to him, the decision of the academic council was 'not to allow any irregularity in the admissions to Dawood Engineering College --- such as change of Technology, allegedly overruled/violated by the then Chancellor. Moreover, according to him there were only 3 reserved seats for Dinshaw Family, which were increased to 8. He submitted that such actions of the then Chancellor were widely condemned in national press ann he has attached clipping of the same, with his appeal, which substantiate the alleged mala fides of the impunged notification.
8. ' He, therefore, pleaded strongly that the impugned order may be set aside and he may be allowed to complete the remaining tenure of his appointment as Vice-Chancellor of the said University. On a query from the Chairman whether there could be two (2) Vice-Chancellors in a University will it not be 'unfair' to the incumbent Vice-Chancellor, whose services may have to be dispensed with, for no fault of his own? He replied that he was 'ready to wait till the expiry of the tenure of the present Vice-Chancellor provided he is reappointed to that post/allowed to complete his remaining revenue.
9. ' Mr. Rehanul Hassan Farooqi, Advocate for the respondents argued the matter at great length. He firstly narrated the past history of the litigation between the appellant and the respondents. He argued that C.P. 1641 tiled by the appellant before the Hon. High Court of Sindh was dismissed 'in limine', which prima facie amounted to denial of the relief (s) claimed by the appellant. He further submitted that the Hon. Supreme Court of Pakistan held that the civil appeal had abated due to the amendment of the Sindh Service Tribunals (Amendment) Act, 1994 and had only directed Sindh Service Tribunal to decide this service appeal in accordance with law.
10. ' He referred to the appointment of the appellant as Vice-Chancellor of N.E.D. University vide Notification dated 18-11-1991- Part H of the said notification which reads as follows:- "The Governor Sindh/Chancellor N.E.D. University of Engineering and Technology, in exercise of powers vested in him under section 27(1) of the N.E.D. University of Engineering and Technology Act, 1977 is further pleased to order the appointment of Prof. Dr. Muhammad Munir Hasan, as Vice- Chancellor, N.E.D. University of Engineering and Technology with immediate effect for a period of four years during the pleasure of the Chancellor on usual terms and conditions." He contended that the 'specific' terms and conditions of the appointment were never notified and therefore, no violation thereof can be alleged by the appellant. He argued that the crucial words in the appointment order were 'during the pleasure of the Chancellor' - hence it was entirely within the powers of the Chancellor to terminate that appointment before the expiry of 4 years, without specifying any reasons thereof. He also pointed out that the said appointment order was issued on 18-11-1991. The stipulated period of 4 years expired on 17-11-1995, and therefore, Sindh Service Tribunal in 1998/1999 according to him could not order the reinstatement of the appellant as this appeal has now become in-fructous'. He strongly contended that Sindh Service Tribunal had no powers to order for the reinstatement of the appellant now, which by passage of time had become 'fate accomplied'. He argued that, if the appellant felt aggrieved with the impugned order dated 17- 4-1994, perhaps the correct remedy for him was to file a suit for damages' or specific performance, as both are outside the jurisdiction and competence of Sindh Service Tribunal."
11. ' He contended that in the absence of specific terms and conditions of the appointment of the appellant, the law applicable to him was that of 'Master and Servant'. He further elaborated that 'personal service' which can not be performed by the legal heirs of an employees is not enforceable at law, under section 21 of the Specific Performance Act. As such he contended that no reinstatement of the appellant could be ordered. He specifically referred to PLD 1961 S.C. Page-53I which according to him was precisely on this point i,e, no decree can be passed against an unwilling master.
12. ' At the most, according to him, the relief that could be considered by Sindh Service Tribunal was 'Notice Pay'---salary for reasonable period for search of (another) employment, as held in P.L.D.
13. 1962- page 899 (of late Justice Waheeduddin).
14. ' When his attention was drawn to the famous case of Anisa Rehman involving the same relationship of 'Master and Servant' wherein it was held by the Hon. Supreme Court of Pakistan that even such persons' services could not be terminated without a show cause/departmental inquiry, he said that the latest judgment on this subject was 1998 SCMR page 60 by the same author, wherein it was held again that no decree can be passed against an unwilling master- in the case of Habib Bank employees.
15. ' A.A.-G. Adopted the arguments of Mr.Farooqi. He, however, submitted that grant of images' is outside the jurisdiction of Sindh Service Tribunal. Nevertheless the Tribunal could order for the payment of the salary of the remaining period which was within the competence of this Tribunal.
16. We have gone through the arguments of either side, carefully and dispassionately, perused the record, documents and citations quoted.
17. ' In our opinion, there are three issues in this appeal viz:-
(i) Whether the impugned order dated 17-4-1994 issued by the respondent No,1 is legal and valid?
(ii) If otherwise, should it be set aside or modified and to what extent?
(iii) What appropriate remedy the appellant is entitled to (within the competence of Sindh Service Tribunal)?
18. ' We would like to point out that Pakistan is an Islamic State where the Sovereignty vest in Allah only.
19. The concept of an 'Omni potent' human being is beyond Islam. Further the accepted principle of Islam is : {{{ARABIC TEXT}} ' Allah alone is the absolute owner of all propriety and the absolute Law Maker. The law framing authority of human beings of Qur'an and Sunnah as re-affirmed in opening pragraph of 'Preamble' of the Constitution of the Islamic Republic of Pakistan, 1973 which reads as follows:- "Whereas sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits presdribed by Him is a sacred trust;".
20. ' It is also the spirit of Article 203-D. (Powers, Juirisdiction and Function of Shariat Court) that any law or provision of law if found, repugnent to the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet, (p.b.u.h.) ceases to have effect on completion of mechanism provided under Article 203-D(a) and (b). The established tradition of 'Kulfa-i- Rashedeen' - the "Rightful Caliphs' is also that no human being, including the Caliph the Amirul Momineen, is above the laws of Allah and legislation made thereunder. There are score of Qur'anic verses about dispensation of justice without fear and favour also embodied in western accepted maxims of law such as equality before law, none to be condemned unheard i,e, without affording him a chance to defend himself, the guilt of the ,accused being proved beyond doubt in short recognized as principles of natural justice, fairplay and equity, also guaranteed as fundamental rights in our Constitution. It is, therefore, not possible for us to subscribe to the idea that the Chancellor's Pleasure is 'absolute' or 'unfettered' specially when it involves the question of dispensation of the services of a Vice-Chancellor --- his next in command. The entire machinsism of 'democracy' is based on the theory of 'checks and balances' and absolute powers are 'undesirable' in public adminisfration also because such powers invariably lead to misuse of powers. Justice demands that all powers even discretionary powers must be exercised judiciously, bonafidely and not malafidely. Without going into details of alleged mala fides and denial thereof in this appeal for which the most appropriate forum is a suit for 'damages' suffice it to say that the impugned order dated 17-4-1994 is a non-speaking order, considered bad in law, all over the civilized world and against the principles of natural justice, fairplay and equity. Since no show- cause notice was issued to the appellant; nor any inquiry held against him nor a personal hearing given to him before 'he ceased to hold office under the impugned notification dated 17-4-1994' it cannot be upheld in our considered view.
21. ' We may point out here that the words "during the pleasure" is a legacy (and a bad too) of the past colonial era. Whereunder all appointments were made at the 'pleasure of the Crown'. After independence, and adoption of Government of India Act, 1935 these were substituted with 'the pleasure of the Governor-General (or Governor)' and remained so till 1956 i,e, framing of the 1st.
22. Constitution of Pakistan, whereunder these were again substituted with ' the pleasure of the President (or the Governor)'. After the framing. Of 1973 Constitution, the terminology, by and large became redundant and stands dropped in the notification regarding appointments, promotions, transfer and administrative actions. However, it continues to be used 'off and on' for 'want of coinage of an appropriate, substitute terminology --- main reason being it is more suited for various exigencies, though undesirable. The law requires use of 'specifics' and not vague, ambiguous and indefinite terminologies. The word "pleaure" is related to 'aesthetic' sense and cannot be defined in specific words. If there were any reasons, whatsoever to dispense with the appointment of the appellant, justice demanded that these should have been communicated to him in writing, he should have been provided a proper opportunity to defend himself and a judicious order should have been passed in the matter, after affording him a proper personal hearing. Undoubtedly this was not done.
23. ' Consequent to the conclusion that the impugned order cannot be maintained in law, the 2nd issue is whether the impugned order be set aside or modified and if so upto what extent? In our opinion if the impugned order is set aside, the appellant would be entitled to be reinstated w,e,f, 1994, which is neither, desirable nor feasible administratively or financially as the post is occupied by the present incumbent. Besides heavy financial implications, in present day financial crises all over the country, well-known to all, it will not be just and fair to the present incumbent, whose services may have to be dispensed with for fault of his own resulting in yet another round of litigation.. It would also open a Pandora's Box for the N.E.D. University about the legality and validity of all administrative, financial and academic decision taken by the successor " (s) in office of the appellant/incumbent Vice-Chancellor during the intervening period. We are in agreement with the counsel for the respondents that no decree can be passed against an unwilling master, as per decision of the Hon'ble Supreme Court reported in 1998 SCMR 60' Moreso, because Sindh Service Tribunal has no powers to direct the Chancellor to re-appoint the appellant --Governor Sindh being the ex-officio Chancellor of the said University. We are strengthened in our thinking by the provisions of Articles 101 to 105, Part IV, Provinces, Chapter I, The Governors of 1973 Constitution, whereunder the only two things binding on a Governor are:-
(a) Directives of the President under Article 101(5) and;
(b) The Advice of the Cabinet (or the Chief Minister) under Article 105(1).
24. ' Therefore, we are of the considered view that the correct/feasible relief to the appellant is to amend the impugned order dated 17th April, 1994 to the extent of grant of appropriate 'Notice Pay' for search of another job as enunciated in PLD 1962 Page (W.P.) Kar.
899. We may point out here that before his appointment as Vice Chancellor, the appellant retired from service (of NED University after completion of 26 years of qualifying service, as per Resolution No,SYN-74.8 Annexure 'D' of the written statement of the respondent No,2). After Administrative Reforms of 1973 in the country there is no provision for extension in service of a retired civil servant - -- but he can be re-employed for specific period --- on such terms and conditions as may be notified by the employer. One of the usual terms and conditions of such re-employment is notice period of 30 days or one month from either side or payment/deposit of the salary of the notice period, in lieu thereof. Had the respondents taken care of this aspect and notified proper terms and conditions of appellant's appointment instead of the using the vague words 'on usual terms and conditions', unnecessary litigation in this appeal with consequent unnecessary expenditure to either side could have been avoided. Since the period for which the appellant was technically reemployed is of four (4) years, this notice period in our considered opinion cannot be more than 90 days or three months from either side with payment of salary/deposit of salary in lieu thereol.
25. ' We, therefore, modify the impugned order to the extent that the appellant shall be entitled to 3 months' salary in lieu of notice.
26. ' We are in agreement with the counsel for the respondents that grant of 'damages' if any is outside the jurisdiction of Sindh Service Tribunal and lies within the domain of appropriate civil Court.
27. However, the appellant undoubtedly incurred unnecessary substantial, financial expenditure for the omission of the respondents to notify the 'specific' terms and conditions of his re- employment/re-appointment as Vice-Chancellor of the said University particularly the omission of notice clause from either side, resulting in the 1st round of litigation before the Hon'ble High Court of Sindh and Supreme Court of Pakistan and therefore order the payment of Rs,1,00,000 (Rupees one lac only) as costs by the respondent No,2 to the appellant. Undoubtedly it was the duty of the ministerial officers of the respondent particularly the Registrar of the said University to get prepared an appropriate draft of the exact terms and conditions of the appointment of the appellant as 'Vice-Chancellor of the said University and get it approved/notified accordingly.
28. Undoubtedly it was not so done.
29. ' Announced in open Court this 29th day of January, 1999, at Karachi.