PLJ 2012 SC 379
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui
and Asif Saeed Khan Khosa, JJ
Rana AAMER RAZA
ASHFAQ and another--Petitioners
versus
Dr. MINHAJ AHMAD
KHAN and another--Respondents
Civil Petition No.
1017-L of 2011, decided on 7.10.2011.
(Against the
judgment dated
Per
Tassaduq Hussain Jillani, J.
Interpretation
of Statutes--
----Referential
legislation--Determining factors--In construing such piece of legislation, the
Court has to examine and keep in mind three things; (i)
the statement of reasons and objects given therein; (ii) the statement of
objects given in other laws in pari materia to the one under consideration; and (iii) mandate
of Constitutional provision which stands adopted by way of reference. [P. 395] A
Constitution of
----Arts. 48
& 105--President and Governor--Working--System of Government--Advice of
Prime Minister and Chief Minister--Principle of parliamentary
democracy--Scope--Constitutional intent and mandate of Arts. 48 and 105 of the
Constitution are one of the foundational values of the constitutional
scheme--Constitution of Pakistan underpins a system of Federal Parliamentary Democracy--Governor
of a Province under the Constitution enjoys an exalted position, as he is a
nominee of the president and a symbol of federation in the province, whereas
Chief Minister is Chief Executive of the Province and is elected by Provincial
Assembly--Except otherwise so provided under the Constitution, President and
Governor are bound by the advice tendered by Prime Minister and Chief Minister
respectively and in the manner as provided in the Constitution. [P. 395] B
Interpretation
of Statutes--
----Referential
legislation--Kinds--Amendments incorporated in Statute--Duty of
Court--Referential legislation broadly is of two kinds i.e., either a specific
provision of a certain Act is incorporated into another statute or the
provision of a certain statute is incorporated by a general reference--Laws
including the adopted provisions do not remain static and issues crop up when
adopted provisions are amended in earlier statute--Question whether subsequent
amendments in such adopted provisions either by specific incorporation or by a
general reference would be ipso facto read into the latter is a subject of
judicial comment. [P. 396] C
AIR
1978 SC 793; PLD 1979 Lah, 415; ref.
Baha-ud-Din Zakariya University Act,
1975 (III of 1975)--
----S.11(8)--Constitution of
PLD
1997 SC 84 at 93 to 95; PLD 1993 SC 473 at 567; PLD 2009 SC 879; 1978 SCMR 428
& 1986 SCMR 1071 ref.
Interpretation
of Constitution--
----Judges, task
of--Scope--Societies grow and nations progress by strict adherence to rule of
law--Judges have nothing to do with shades of public opinion which holders of
public office may represent or with passions of the day which sway public
opinion--Task of Judges is to tenaciously and fiercely uphold and implement the
Constitution and the law. [P.
406] G
Administration
of justice--
----Judicial
whistle--Principle--Blowing a "judicial whistle" is a constitutional
mandate, which a judge can either shun when it is time to blow, nor can do so
without a just cause. [P. 406] H
Constitution of
----Arts. 4
& 9--Right to education--Scope--Right to education is a fundamental right
as it ultimately affects quality of life which has nexus with other Fundamental
Rights guaranteed under Arts. 4 and 9 of the Constitution--Awareness of rights
and duties, growth of civic consciousness in a society, enjoyment of
Fundamental Rights guaranteed under the Constitution and legal empowerment of
people depend to a great extent on quality of education--People cannot be free
in real sense unless they are properly educated. [Pp. 406 & 407] I
PLD
2003 Lah. 752 at 791 rel.
University--
----Role of
University and Vice-Chancellor--Universities are seats of learning and centres of excellence--University not only enables future
generations to equip themselves with degrees/practical tools to earn livelihood
but also enriches them with learning, with wisdom and with visions for
practical lives--To achieve its objects, University functions besides the
Chancellor and Vice-Chancellor through its various institutions i.e., the
Faculty, the Senate, the Syndicate and Board of Studies--Vice-Chancellor is a
University's institutional head and enjoys a pivotal position--Being the
executive and academic head of a University, it is for Vice-Chancellor to
ensure that University's Statute, Regulations and Rules are faithfully
observed--Vice-Chanceltor presides over meetings of
various bodies of University and affiliated colleges and in matters of urgent
nature, it is the Vice-Chancellor who takes remedial steps; it is he who
creates temporary posts when urgency requires; he sanctions expenditures
provided for in approved budget, re-appropriates amounts not exceeding a
certain amount; he convenes meetings of the Senate and the
Syndicate--Vice-Chancellor is a bridge between executive and academic wings of
University--Such multi-dimensional role of Vice Chancellor requires that person
who occupies this office should be imbued with values and character traits of
integrity, of academic excellence and administrative ability. [Pp. 407 & 408] J
Baha-ud-Din Zakariya University Act,
1975 (III of 1975)--
----Ss. 11(1)
& (8)--Constitution of
Per Asif Saeed Khan Khosa, J. agreeing
Constitution of
----Art.
105--Constitutional/statutory--Functions of Governor--Provisions of Art. 105 of
the Constitution do not recognize any distinction between Governor's functions
under the Constitution and his functions under any statute. [P. 414] M
PLD
1993 SC 473 at 567 and PLD 2011 SC 365 rel.
Baha-ud-Din Zakariya University Act,
1975 (III of 1975)--
----S.
11(8)--Constitution of
Mr. Ahmad Raza, A.S.C. along with Sajid Iqbal in person for Petitioners.
Respondent
No. 1 in person.
Mr. Nazir Ahmad Chishti, Deputy
Registrar, BZU for Respondent No. 2.
Maulvi Anwarul Haq, Attorney-General for
Dates of
hearing: 19.8.2011, 14, 19 and 22.9.2011.
Judgment
Tassaduq Hussain Jillani, J.--"Good
or bad fortune of a nation depends on three factors; its
Constitution, the way the Constitution is made to work and the respect it
inspires[1]."
The Constitution of a country is a sacrosanct document which establishes
various institutions, apparatus of the government, defines the relationship
between the individuals and the State, between the Federation and its
Federating Units/Provinces and various organizations of the State. The
judiciary is under oath to preserve and defend the Constitution under the rule
of law. It does so by its power of judicial review and in the case in hand, we have been called upon to exercise it in the
following set of circumstances.
2. Petitioner and Respondent No. 1 Dr. Minhaj Ahmad Khan applied for three posts of Assistant
Professors in Computer Sciences in
3. Seeking leave to appeal against the impugned
judgment, learned counsel for the petitioners submitted that the High Court had
no jurisdiction to interfere in the selection process as the employees of the
University are not governed by statutory rules; that even otherwise relief
could have been granted to Respondent No. 1 without interfering with the
selection of the petitioners as there was still one post vacant; that
petitioners had assumed the charge after having been selected and worked for
eleven months and that their appointment has been set aside for reasons not
sustainable in law. He further submitted that on account of the non-appointment
of the Vice Chancellor of the University, the meeting of the Selection Board
has not been convened for a denovo exercise for
selection in terms of the impugned judgment and not only the petitioners are
suffering but the University is partially dysfunctional on account of this
inaction on the part of the Provincial Government.
4. The University has not challenged the
impugned judgment. On 19-8-2011 during the course of hearing of this petition
and on Court query, the Deputy Registrar of the University apprised the Court
that meeting of the Selection Board to initiate the process of interviewing the
shortlisted candidates afresh in terms of the impugned judgment has not been
held because no Vice Chancellor has been appointed as yet; that the appointment
is being delayed as the Chancellor of the University/ Governor Punjab has not
passed any order in this regard despite the advice having been tendered by the
Chief Minister Punjab in terms of Section 11(8) of the Bahauddin
Zakariya University Act, 1975 [hereinafter referred
to as `the Act'].
5. Notice was issued to the learned
Attorney-General for
(i) Whether the
Chancellor of the University/Governor of Punjab is bound by the advice tendered
by the Chief Minister on reconsideration in view of Section 11 (8) of the Act
read with proviso to Article 105 of the Constitution and the law declared by
this Court [in the case of Muhammad Nawaz Sharif v.
President of Pakistan and others (PLD 1993 SC 473) and Sindh
High Court Bar Association and another v. Federation of Pakistan and others
(PLD 2009 SC 879)] and in Intra Court Appeals Nos. 243 and 245 of 2010, decided
by the Lahore High Court, Lahore, in which the Chancellor was a party.
(Emphasis is supplied)
(ii) Whether the delay in appointment of the
Vice Chancellor and the Pro Vice-Chancellor in the University has the effect of
making the Institution dysfunctional to achieve its objectives under the law?
(iii) Considering the Right to Education to be
a Fundamental Right, whether the same is being violated on account of delay in
appointment of the institutional head of the said University?
(iv) Whether the delay in
appointment of the Institutional Head has the effect of impinging on the
Fundamental Rights enshrined in Articles 9, 14, 18 of the Constitution?
6. The learned Attorney-General for
(i) that the
Governor of Punjab while acting in his capacity as Chancellor under the Act as
opposed to his Constitutional capacity as Governor is not bound by the advice
of the Chief Minister. According to him the Governor is bound to act on the
advice of the Chief Minister under Article 105 of the Constitution only if he
is acting as Governor and not when he is seized of a matter as Chancellor of
the University;
(ii) that if Article 105 of the Constitution
was made applicable to acts done and orders passed by the Governor under a
Statute acting in a different capacity, it would deprive him of any
discretionary and independent decision making power under the Act and make the
relevant Statute redundant qua his role;
(iii) that a distinction has to be made in the
functions of the Governor when he acts under the Constitution in terms of its
Article 105 and in cases when he acts under the Statute in different capacities
i.e. Chancellor;
(iv) that the powers
of the President undef Article 48(1) and (2) are
comparable with that of the Governor in a Province in terms of latter's powers
under Article 105(1). This Court in Al-Jehad Trust v.
Federation of Pakistan (PLD 1997 SC 84 at 93 to 95) has dilated upon
matters/Articles of the Constitution where the President is bound by the advice
and where he can act in his discretion. This distinction has to be kept in view
in the case of Governor as well;
(v) that the advice
of the Prime Minister is binding on President in some cases under the
Constitution, whereas when the latter is acting under a Statute, he has discretionary
powers to act. The afore-referred judgment does not lay down that President/
Governor while performing functions in different capacities under a Statute,
will be bound by the mandate of Article 48(1) and Article 105 of the
Constitution respectively;
(vi) that Section 11(8) of the Act inserted
through an amendment has incorporated Article 105 of the Constitution into the
Act and this inserted provision applies to the functions of the Chancellor in
respect of those matters set out in Section 11 only and not those set out in
Section 14 of the said Act;
(vii) that while interpreting Section 11(8) of
the Act, this Court has to keep in view the decision taken by the Chancellors'
Committee in its meeting held on 11th of May, 2006 under the chairmanship of
President of Pakistan, para-7 of which unequivocally vests the power for
appointment of Vice Chancellor in the Chancellor. The said para
reads as follows:--
"7. Vice
Chancellors of all Provincial Public Universities should be appointed after
advertisement through a search Committee process. The search Committee will be
required to put up a panel of 3 names for approval of the Chancellor from whom
the Vice Chancellor may be selected."
(viii) that in the
present case the above mentioned decision was followed. An advertisement was
placed and the Search Committee recommended three names from which the Governor
in his capacity as Chancellor, not Governor, selected one, in his discretion
and gave credible reasons for his selection. This is fully in line with the
scheme envisaged by the Act under Section 14 and the law on the exercise of
discretion;
(ix) that in any
event Section 11(8) is wholly out of place in the Act and is contrary to the
scheme of the Act. It is entirely inappropriate to incorporate a Constitutional
provision into an ordinary piece of legislation which is relatable to the
functions of the Governor under the Constitution rather than a Statute. Its
incorporation can therefore be regarded as redundant vis-a-vis the working of the Act; and
(x) that it is notable that when the Chief
Minister ignored the summary by not recommending the first of the three in
order of merit on the Search Committee's list and interviewed only two of the
three candidates, he gave no reasons as to why he preferred candidate No. 2
over Candidate Nos. 1 or 3. On the other hand, the Chancellor/ Governor
interviewed all the three candidates selected by the Search Committee. After
careful examination of their comparative merit, he considered Dr. Muhammad Zafar Ullah as the best of the
lot which is not open to exception.
7. Learned Advocate-General Punjab, on the other
hand, submitted as follows:--
(i) that
refusal of Governor of Punjab to appoint Professor Dr. Syed
Khawaja Alqama and instead
appointing Prof. Dr. Muhammad Zafar Ullah is not tenable in law: first because in terms of
Section 11(8) of the Act read with Article 105 of the Constitution, the
Chancellor can only refer the matter back to the Chief Minister once for
re-consideration, but when the said advice is re-tendered by the Chief
Minister, the Governor has no option but to act in accordance therewith within
ten days;
(ii) that neither
the Constitution nor the law permits him to sit in judgment over the advice of
the Chief Minister and the law does not empower him to override the said
advice;
(iii) that the provisions of Section 11(8) of
the Act are based on the principle embodied in Article 105 of the Constitution
and cannot be termed to be violative of Articles 9,
14, 18 and 25 as contended in the written statement filed by the
Attorney-General;
(iv) that the
decision of the Second Chancellors' Committee meeting dated
(v) that the argument that Governor in his
capacity as Chancellor is not performing the Constitutional functions and
therefore is not bound by the advice completely ignores that Article 105 of the
Constitution was inserted in the Act by legislative reference to which no
exception can be taken and the advice of the Chief Minister with reference to
Section 11(8) of the Act is binding in the same manner on the Chancellor as the
advice of the Chief Minister on the Governor because Article 105 of the
Constitution is in pari materia
to Section 11 (8) of the Act;
(vi) that the Chief Minister was not bound to
interview Dr. Muhammad Zafar Ullah
though he was amongst the three recommended by the Search Committee for the
slot of Vice Chancellor because first Dr. Muhammad Zafar
Ullah was placed at No. 3 in the list of candidates
recommended by the Search Committee and, as such, it was the prerogative of the
Chief Minister whether to call him for interview or not; and, second there was
sufficient information available with the Chief Minister that the conduct of
Dr. Muhammad Zafarullah had not been above board, and
that he had been undergoing a number of inquiries during his previous tenure as
the Vice-Chancellor of the University; and
(vii) that the
Vice-Chancellor is the academic head of the University and enjoys a pivotal
position in various domains of the functioning of the University under the
Statute. The delay in the appointment of Vice-Chancellor is adversely affecting
the functioning of the University and may have a negative effect on the
fundamental right of Right to Education of the students. According to him, the
Vice-Chancellor of the University is head of the Senate which passes the annual
statement of accounts and revised budgets; that he appoints members of the
Syndicate; he convenes meeting of the Syndicate being its Chairman; he is head
of the Academic Council; he in his capacity as Head of Board of Studies has to
coordinate publication, research work, assigning subject to each faculty and
convenes the meeting of the Selection Board which fills various posts in the
University.
8. We have considered the submissions made and
have gone through the precedent case-law to which reference has been made
above.
9. The issues mentioned in Para-5 above have
nexus and are being dilated upon together.
10. The role and functions of the Chancellor
under the Act have been delineated in various provisions of the Act. In terms
of its Section 11(1), the Governor Punjab is the ex officio Chancellor of the
University; under Section 11(2), he or his nominee presides over the Convocation
of the University and the meeting of Senate; he has the power to issue
show-cause to an Authority functioning under the Act for annulling any
proceedings which are violative of the Act, the
Statute, the Regulations or the Rules framed under the Act [Section 11(3)]; he
confirms conferral of an honorary degree on any one [Section 11(4)]; he issues
assent to Statutes which are to be submitted to him by the Senate [Section
11(5)]; and he has the power to remove any one from membership of any Authority
under the Act for reasons given in sub-section (6) of Section 11.
"Subsection (8) of Section 11 mandates that "in performance of his
functions under the Act the Chancellor shall act and be bound in the same
manner as the Governor of the Province acts and is bound under Article 105 of
the Constitution of the Islamic Republic of Pakistan." (Emphasis is
supplied). He has the revisional powers (Section
11-A), powers of visitation and inspection (Section 12), power to appoint
Vice-Chancellor on such terms and conditions as he may determine, and he has
the power to appoint Pro Vice-Chancellor (Section 15).
11. Sub-section (8) of Section 11 of the Act
referred to above was inserted along with certain other amendments by the
Multan University (Amendment) Act, 1975 (Punjab Act No. XIX of 1975, Section
2). The declared object and reasons for this amendment were as follows:--
"it is also imperative that in order to preserve the academic
atmosphere of the Universities, there should be effective machinery to regulate
the conduct and behaviour of all people engaged in
the instruction of the youth of the country."
12. A perusal of the Statutes relating to some
other Universities in Punjab indicate that similar amendments were brought
about in following Universities:--
|
S.No. |
Description |
Amendment |
Reasons and Objects |
|
1 |
The University
of the |
In Section 11
after sub-section (7), sub-section (8) was added. (8) In the
performance of his functions under the Act the Chancellor shall act and be
bound in the same manner as the Governor of a Province acts and is hound
under Article 105 of the Constitution of the Islamic Republic of Pakistan
(Emphasis is supplied) |
It is necessary
that principles of good Government as enunciated in the Constitution should
be made applicable as widely as possible. It is, therefore, necessary to
amend the law on the subject. |
|
2. |
The |
In Section 11
after sub-section (7), sub-section (8) was added. (8) In the
performance of his functions under the Act the Chancellor shall act and be
bound in, the same manner as the Governor of a Province acts and is bound
under Article 105 of the Constitution of the Islamic Republic uf Pakistan (Emphasis is supplied) |
It is necessary
that principles of good Government as enunciated in the Constitution should
be made applicable as widely as possible. It is, therefore, necessary to
amend the law on the subject. |
|
3. |
The |
In Section 11
after sub-section (7), sub-section (8) was added. (8) In the
performance of his functions under the Act the Cliancellor
shall act and be bound in the same manner as the Governor of a Province acts
and is bound under Article 105 of the Constitution of the Islamic Republic of
Pakistan. (Emphasis is supplied) |
It is necessary
that principles of good Government as enunciated in the Constitution should
he made applicable as widely as possible. It is, therefore, necessary to
amend the law on the subject. |
|
4. |
The |
In Section 9
after sub-section (6), sub-section (7) was added. (7) In the
performance of his functions under the Act the Chancellor shall act and be
bound in the same manner as the Governor of a Province acts and is bound
under Article 105 of the Constitution of the Islamic Republic of Pakistan.
(Emphasis is supplied) |
As the Chief
Minister is the executive head of the Province, the Governor in his capacity
as Chancellor of the University shall act on his advice. The Minister for
Education, |
|
5. |
The |
In Section 10,
after sub-section (6), sub-section (7) was added. (7) In the
performance of his functions under the Act the Chancellor shall act and be
bound in the same manner as the Governor of a Province acts and is bound
under Article 105 of the Constitution of the Islamic Republic of Pakistan.
(Emphasis is supplied) |
As the Chief
Minister is the executive head of the Province, the Governor in his capacity
as Chancellor of the University shall act on his advice. The Minister for
Education, |
|
6. |
The |
In Section 9,
after sub-section (6), sub-section (7) was added. (7) In the
performance of his functions under the Act the Chancellor shall act and be
bound in the same manner as the Governor of a Province acts and is bound
under Article 105 of the Constitution of the Islamic Republic of Pakistan.
(Emphasis is supplied) |
As the Chief
Minister is the executive head of the Province, the Governor in his capacity
as Chancellor of the University shall act on his advice. The Minister for
Education, |
|
7. |
The University
of Engineering & Technology Taxila (Amendment)
Bill, 2003 |
In Section 9,
after sub-section (5), sub-section (6) was added. (6) In the
performance of his functions under the Act the Chancellor shall act and be
bound in the same manner as the Governor of a Province acts and is bound
under Article 105 of the Constitution of the Islamic Republic of Pakistan.
(Emphasis is supplied). |
As the Chief
Minister is the executive head of the Province, the Governor in his capacity
as Chancellor of the University should act on his advice. Government of the |
|
8. |
The |
In Section 8,
after sub-section (6), sub-section (7) was added. (7) In the
performance of his functions under the Act the Chancellor shall act and be
bound in the same manner as the Governor of a Province acts and is bound
under Article 105 of the Constitution of the Islamic Republic of Pakistan.
(Emphasis is supplied). |
As the Chief
Minister is the executive head of the Province, the Governor in his capacity
as Chancellor of the University should act on his advice. Government of the |
13. There is no cavil to the proposition as
canvassed by the learned
Attorney-General for
14. A bare perusal of the statement of objects of
the similar amending provisions in various Universities of Punjab, a detail of
which has been given in the table above, reflects that the legislative intent
was that "the principles of good government as enunciated in the
Constitution should be made applicable" (The University of the Punjab
Second Amendment Bill, 1975) or "as the Chief Minister is the executive
head of the Province, the Governor in his capacity as Chancellor of the
University shall act on his advice" [The Government College University,
Lahore (Amendment) Bill, 2003]. These amendments insert in the Statutes an
important principle of Parliamentary Democracy enshrined in Article 105 of the
Constitution which inter alia mandates that (at the Provincial level)
"subject to Constitution, in the performance of his functions, Governor
shall act [on and] in accordance with the advice of the Cabinet [or the Chief
Minister]. "
15. The Constitutional intent and mandate of
Article 48 and Article 105 are one of the foundational values of our
Constitutional scheme. The Constitution of Islamic Republic of Pakistan
underpins a system of Federal Parliamentary Democracy. The Governor of a
Province under the Constitution enjoys an exalted position--he is a nominee of
the President and a symbol of Federation in the Province, whereas the Chief
Minister is the Chief Executive of the Province and is elected by the
Provincial Assembly. Except otherwise so provided under the Constitution, the
President and Governor are bound by the advice tendered by the Prime Minister
and the Chief Minister respectively and in the manner as provided in the
afore-referred provisions of the Constitution. The Governor while acting as
Chancellor is a statutory functionary. By specific mention
of Article 105 of
the Constitution in Section 11(8) of the Act and in laying down that, "in
the performance of his functions under the Act, the Chancellor shall act and be
bound in the same manner as the Governor of a Province acts and is bound under
Article 105 of the Constitution of Islamic Republic of Pakistan", the
Legislature has blended the same value of supremacy of the
Parliament/Provincial Assembly which underlie the adopted Constitutional
provision.
16. The insertion of sub-section (8) in Section
11 of the Act and similar provisions in Statutes of other Universities are
instances of referential legislation which is a common device to incorporate
earlier statutory provisions by reference rather than setting out similar
provisions in totality. Such a legislation is as old
as the Latin maxim Verba relata
hoc maxime operantur per referentiam ut in eis inesse vindentur
i.e. words to which reference is made in an instrument have the same effect and
operation as if they were inserted in the clause referring to them.
17. Referential legislation broadly is of two
kinds i.e. either a specific provision of a certain Act is incorporated into
another Statute or the provision of a certain Statute is incorporated by a
general reference. Laws including the adopted provisions do not remain static
and issues crop up when the adopted provisions are amended in the earlier Statute.
The question whether subsequent amendments in such adopted provisions either by
specific incorporation or by a general reference would be ipso facto read into
the latter has been a subject of judicial comment. In Bajaya
v. Gopikabai and another (AIR 1978 SC 793), the Court
was of the view as follows:--
Broadly
speaking, legislation by referential incorporation falls in two categories:
First, where a statute by specific reference incorporates the provisions of
another statute as of the time of adoption. Second, where a
statute incorporates by general reference the law concerning a particular
subject, as a genus. In the case of the former, the subsequent
amendments made in the referred statute cannot automatically be read into the
adopting statute. In the case of latter category, it may be presumed that the
legislative intent was to include all the subsequent amendments also, made from
time to time in the generic law on the subject adopted by general reference.
This principle of construction of a reference statute has been neatly summed up
by Sutherland, thus:
A statute which
refers to the law of a subject generally adopts the law on the subject as of
the time the law is invoked. This will include all the amendments and
modifications of the law subsequent to the time the reference statute was
enacted.
(Vide,
Sutherland's Statutory Construction, Third Edition, Article 5208, page 5208).
Corpus Juris Secundum also enunciates
the same principle in these terms:
...Where the
reference in an adopting statute is to the law generally which governs the
particular subject, and not to any specific statute or part thereof,... the
reference will be held to include the law as it stands at the time it is sought
to be applied, with all the changes made from time to time, at least as far as
the changes are consistent with the purpose of the adopting statute."
18. In a rather instructive judgment of the
Lahore High Court in Pakistan International Airlines Corporation v. Chairman,
Punjab Labour Appellate Tribunal, Lahore (PLD 1979
Lahore 415), the rule of interpretation in this context was summed up as
follows:--
"37. The rule of interpretation to be inferred from all the
references quoted above is:
(a) When a statute adopts a part or all of
another statute by specific or descriptive reference, the adoption takes the
statute as it exists at that time and the adopted, provisions with necessary
adaptations if any became a part of the adopting statute as if it was written
down in it;
(b) any subsequent
addition to or modification of the adopted statute, can be included in
the-adopting statute only if so expressly or impliedly provided in the adopting
statute;
(c) When particular sections of an earlier
statute are expressly incorporated into a later statute the other sections of
the earlier statute may be referred to in order to resolve any ambiguity or
obscurity that may arise in its interpretation of that section;
(d) When the adopting statute refers to law
generally which governs a particular subject, the reference in such a case includes
not only the law in force at the date of adopting Act but all subsequent laws
on the particular subject referred to, in so far as they are consistent with
the adopting law;
(e) When Legislature in adopting the
procedural provisions of another Act, made substitutions in certain instances,
it will be inferred that in matters not specified no substitutions were
intended."
19. In a recent judgment of the Supreme Court of
India dated 11-1-2011 passed in Messrs Girnar Traders
v. State of Maharashtra and others (Civil Appeal No. 3703 of 2003 and Civil
Appeal No. 292 of 2011), a similar view was taken and it was held as follows:--
"Reference
to an earlier law in the latter law could be a simple reference of provisions
of earlier statute or a specific reference where the earlier law is made an
integral part of the new law, i.e., by incorporation. In the case of
legislation by reference, it is fictionally made a part of the latter law. We
have already noticed that all amendments to the former law, though made subsequent
to the enactment of the latter law, would ipso facto apply and one finds
mention of this particular aspect in Section 8 of the General Clauses Act,
1897. In contrast to such simple reference, legal incidents of legislation by
incorporation is that it becomes part of the existing law which implies bodily
lifting provisions of one enactment and making them part of another and in such
cases subsequent amendments in the incorporated Act could not be treated as
part of the incorporating Act. Ultimately, it is the expression and/or the
language used in the new law with reference to the existing law that would
determine as to under what class of referential legislation it falls."
20. The effect
of this referential legislation [Section 11(8) of the Act] would be that any
Constitutional amendment made in the said Article would be read into the
amended provision of the Act. Consequently the amendments brought about in
Article 105 of the Constitution by virtue of the 18th Amendment (Act X of 2010)
would be fully applicable. Article 105 as amended reads as follows:--
"105.
Governor to act on advice, etc.--(1) Subject to Constitution, in the
performance of his functions, Governor shall act [on and] in accordance with
the advice of the Cabinet [or the Chief Minister]:
[Provided that
[within fifteen days] the Governor may require the Cabinet or, as the case may
be, the Chief Minister to reconsider such advice whether generally or
otherwise, and the Governor shall [within ten days] act in accordance with the
advice tendered after such reconsideration.] (Emphasis is supplied).
(2) The question
whether any, and if so what, advice was tendered to the Governor by the Chief
Minister [or Cabinet] shall not be inquired into in, or by, any Court, tribunal
or other authority.
[(3)................................
(a) ............................
(b) ............................
(5) The
provisions of clause [(2)] of Article 48 shall have effect in relation to a
Governor as if reference therein to "President" were reference to
"Governor".]
21. The principle of Parliamentary Democracy or
supremacy of the Parliament which underlie the afore-mentioned provision is
also reflected at the Federal Level in Article 48(1) of the Constitution qua
the binding nature of the advice tendered by the Prime Minister to the
President and has time and again been highlighted by this Court. In a seminal
judgment titled as Mian Muhammad Nawaz
Sharif v. President of Pakistan (PLD 1993 SC 473 at 567), it was held as
follows:--
"Our
Constitution, in fact, is designed to create a parliamentary democracy. The
President in this set-up is bound to act, in the exercise of his functions, in
accordance with the advice of the Cabinet or the Prime Minister [Article 48(1)]
and the Cabinet in its turn is collectively responsible to the National
Assembly [Article 91(4)] though the Prime Minister holds office at the pleasure
of the President. However, the President cannot remove him from his office as
long as he commands the confidence of the majority of the members of the
National Assembly [Article 91(5)]. In view of these provisions, the system of
Government envisaged by the Constitution of 1973 is of the Parliamentary type
wherein the Prime Minister as Head of the Cabinet is responsible to the
Parliament, which consists of the representatives of the nation.
It is manifest,
therefore, that in the scheme of our Constitution the Prime Minister in
administering the affairs of the Government is neither answerable to the
President nor in any way subordinate to him. In formulation of the policies of
his Government and in the running of its affairs, the Prime Minister is
answerable only to the National Assembly and not to the President. Indeed, it
is the President who is bound by the advice of the Prime Minister or the
Cabinet in all matters concerning formulation of policies and administration of
the affairs of the Government and not the other way about, as appears to have
been mistakenly understood. Undoubtedly, the President may require the Cabinet
or the Prime Minister, as the case may be, to reconsider any advice tendered to
him but the President is bound to act on the advice tendered, even if it be the
same, after consideration. Undoubtedly, both are expected to work in harmony
and in close collaboration for the efficient running of the affairs of the
State but as their roles in the Constitution are defined, which do not overlap,
both can exercise their respective functions unhindered and without bringing
the machinery of the Government to a standstill. Despite personal likes or
dislikes, the two can co-exist Constitutionally. Their
personal likes or dislikes are irrelevant so far as the discharge of their
Constitutional obligations are concerned. Despite personal rancour,
ill-will and incompatibility of temperament, no deadlock, no stalemate, no
breakdown can arise if both act in accordance with the terms or the Oath taken
by them, while accepting their high office. They have sworn:
not to allow their
personal interest to influence their official conduct or their official decisions."
And takeh Oath:
"to do right in all circumstances, to all manner of people,
according to law, without fear or favour, affection
or ill-will."
22. In yet another Full Court judgment of this
Court in Sindh High Court Bar Association v.
Federation of Pakistan (PLD 2009 SC 879), the Hon'ble
Chief Justice of Pakistan, Mr. Justice Iftikhar
Muhammad Chaudhry, speaking for the Court,
reiterating the ratio laid down in Al-Jehad Trust v.
Federation of Pakistan (PLD 1997 SC 84), observed as follows:--
"198. In
Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC
84), it was held that in respect of appointments of Judges as contemplated
under Articles 177 and 193 of the Constitution, advice of the Cabinet or Prime
Minister under Article 48(1) would be attracted, but the same would be further
qualified by, and subject to the ratio decidendi of
the judgment passed in Al-Jehad Trust v. Federation
of Pakistan (PLD 1996 SC 324). Following the principles enunciated in the
aforesaid two judgments, it is declared that in the matter of apppintment of Judges of the High Courts, the Governor
could act only on the advice of the Chief Minister in terms of Article 105 of
the Constitution. In this view of the matter, the fact that the recommendations
of the Governor in the case of the Respondents Nos. 3 and 4 acting otherwise
than on the advice or in absence of the advice of the Chief Minister were
invalid even though the same coincided with the recommendation of Abdul Hameed Dogar, J."
23. In a recent case pertaining to appointment of
Vice Chancellor of Government College University, Faisalabad, a learned
Division Bench of the Lahore High Court in Intra Court Appeals Nos. 243 and 245
of 2010 has already held that the Chancellor of the University/Governor of
Punjab is bound by the advice tendered by the Chief Minister qua appointment of
Vice-Chancellor. In this judgment, the Chancellor/Governor of the
24. In the instant case, the Chief Minister of
"Chief
Minister, after interviewing the first two candidates on the panel recommended
by the Search Committee, is of the view that Dr. Syed
Khawaja Alqama son of Khawaja Khair-ud-Din
is more suitable for appointment as Vice Chancellor, Bahauddin
Zakariya University, Multan and has been pleased to
advise the Governor/Chancellor in terms of Section 14 and Section 11(8) of the Bahauddin Zakariya University,
Multan Act, 1975 read with Article 105 of the Constitution of the Islamic
Republic of Pakistan to appoint Dr. Syed Khawaja Alqama as Vice Chancellor
of the said University for a term not exceeding four years."
25. The Chancellor of the University/Governor of
Punjab instead of acting on the advice tendered by the Chief Minister, or
sending it back to him for reconsideration in terms of Article 105(1) of the
Constitution, himself interviewed the panel of three candidates (selected by
the Search Committee) and sent a memo. to the Chief Minister on 7-7-2011 in
purported exercise of appointing Dr. Muhammad Zafarullah
as the Vice-Chancellor and gave his own reasons which inter alia are as
follows:--
(i) The amended
provision in sub-section (8) of Section 11 would itself be void under Article 8
of the Constitution impinging upon the Fundamental Rights of Articles 9, 14, 18
and 25 of the Constitution of the Islamic Republic of Pakistan and hence, by
virtue of inbuilt mandate of the Constitution, the extent of such inconsistency
(sub-section (8)), the amending Act would be void and non-operative, ineffective
and liable to be declared accordingly by the Judicial for a causing
embarrassment to the Government.
(j) As per prevailing position in the
Federally Chartered Public Sector Universities, the Head of the State as
Chancellor appoints the Vice Chancellors at his discretion. Similarly in the
other Provinces, Constitutional Heads of the Provinces exercise such powers in
their capacity as Chancellors without the advice of the Chief Ministers. This
is also reflected from the decision of the 2nd Chancellors Committee meeting
held on
In view of the above, I, in exercise
of the powers vested in me, in my capacity as Chancellor, under Section 14(1)
of the Bahauddin Zakariya
University Act, 1975, hereby appoint Prof. Dr. Muhammad Zafarullah
as Vice Chancellor,
26. The procedure adopted by the
Chancellor/Governor of
"Chief
Minister has seen and has observed as under:--
The purported
powers claimed by the Governor in his capacity as Chancellor and the consequent
"appointment" of Dr. Muhammad Zafarullah,
as Vice-Chancellor,
Accordingly, the
purported appointment of Dr. Muhammad Zafarullah, in
disregard of the advice of the Chief Minister (para
9/ante), is illegal, void ab initio and of no legal
effect in view of Section 14(1) and Section 11(8) of the Bahauddin
Zakariya University, Multan Act, 1975, read with
Article 105 of the Constitution and the legal opinion at Annex-K (paras 18 and 26). Be that as it may, considering the
observations of the Chancellor as a referral for reconsideration, particularly
in view of the contents of para 11 (a) to (e) supra,
the Chief Minister, after thoroughly examining the case from all conceivable
angles, is pleased again to advise the Chancellor to appoint Dr. Syed Khawaja Alqama
as Vice Chancellor of the said University for a term of four years.
The case may be
placed before the Chancellor accordingly. "
(Sd)/-
(Abdul Qayoum)
Additional Secretary
Chief Minister's
Secretariat"
27. The afore-mentioned summary/advice by the
Chief Minister after reconsideration is dated
28. In the afore-referred circumstances, we
further hold that the summary dated
29. It is imperative to remind ourselves
particularly those who are under Oath, "to defend and protect" the
Constitution that in terms of Article 5(2),
"obedience to the Constitution and law is the (inviolable) obligation of
every citizen wherever he may be and of every other person for the time being
within
30. We may add that prior to Eighteenth Amendment
[brought about by Constitution (Eighteenth Amendment) Act, 2010 (Act No. X of
2010)], no timeline was provided within which the President was to act under
the advice of the Prime Minister (Article 48) or the Governor was to act on the
advice of the Chief Minister (Article 105). The absence of timeline could be
problematic. It was vulnerable to misuse, had the potential to cause delay in
decision making and to impede the working of two elected office holders
enjoying majority in respective Assemblies i.e. the Prime Minister at the
Federal Level and the Chief Minister at the Provincial Level. This could have a
destabilizing effect on democracy. It goes to the eternal credit of those who
amended these provisions by the Eighteenth Amendment that the options available
to the two important Constitutional functionaries i.e. the President (under
Article 48) and the Governor (under Article 105) were made time bound. Although
the consequences of non-compliance with these timelines are not provided in the
amended provisions, yet this Court has to give a purposive interpretation to
make the Constitution a living document. One may imagine the consequences on
the affected institutions, if the legislative intent is not given effect to.
Unfortunately one of our national banes has been that we tend to live in
history but do not learn from it. Friction between the President and the Prime
Minister [with reference to enforcement of Article 48(1) of the Constitution]
or between the Governor and the Chief Minister [with reference to Article
105(1) of the Constitution] has been a recurrent theme of our Constitutional
history and one of the causes of political instability. Societies grow and
nations progress by strict adherence to the rale of
law. Judges have nothing to do with shades of public opinion which the holders
of public office may represent or with the passions of the day which sway
public opinion. Their task is to tenaciously and fiercely uphold and implement
the Constitution and the law. In the words of Lord Justice Lawton:--
"Their
function is to decide whether a minister has acted within the powers given to
him by statute or the common law. If he is declared by a Court, after due
process of law, to have acted outside his powers, he must stop doing what he
has done until such time as Parliament gives him the powers he wants. In a case
such as this I regard myself as a referee. I can blow my judicial whistle when
the ball goes out of play; but when the game restarts I must neither take part
in it nor tell the players how to play.[2]"
31. Blowing a "judicial whistle" is a Constitutional mandate which a Judge can neither shun when
it is time to blow, nor can do so without a just cause.
32. The deadlock between two important holders of
public offices evidenced in this case is not merely a political issue. It has
wider ramifications which may not be difficult to fathom. It is adversely
affecting the working of various institutions and in this particular case an
important educational institution i.e. the University and consequently the
quality of education.
33. Right to education is a fundamental right as
it ultimately affects the quality of life which has nexus with other
Fundamental Rights guaranteed by the Constitution under Articles 4 and 9 of the
Constitution of Islamic Republic of Pakistan. Awareness of rights and duties,
growth of civic consciousness in a society, enjoyment of Fundamental Rights
guaranteed under the Constitution and legal empowerment of
people depend to
a great extent
on the quality
of education. People cannot be free in the real sense unless they are
properly educated. In Ahmed Abdullah v. Government of the Punjab (PLD 2003
Lahore 752 at 791), a case decided by a Full Bench of the Lahore High Court and
wherein one of us (Tassaduq Hussain
Jillani, J.) authored the judgment, it had been held
as under: --
“26. The
fundamental right of "right to life" recognized in the entire
civilized world and enshrined in Article 9 of our Constitution has been given
expanded meaning over the years. With the passage of time the role of the State
has become more pervasive. Its actions, policies and laws affect the
individuals in a variety of ways and the Courts have accordingly given a more
comprehensive and dynamic interpretation of the fundamental rights including the
right to life. Right to life is no longer considered as merely a right to
physical existence or a right not to be deprived of life without due process of
law. It means a sum total of rights which an individual in a State may require
to enjoy a dignified existence. In modern age a dignified existence may not be
possible without a certain level of education and the State has to play a role
in ensuring by positive action that the citizens enjoy this right. In Brown v.
Board of Education (1953) 98 Law Ed. 873, the US Supreme Court acknowledged
this right and held as under:--
"Today,
education is perhaps the most important function of State and Local Governments
... ... ... ... it is required in the
performance of our most basic responsibilities, even service in the Armed
Forces, it is the very foundation of good citizenship. Today, it is the
principal instrument in awakening the child to cultural values, in preparing
him for later professional training, and in helping him to adjust normally to
his environment'. In these days, it is doubtful and child may reasonably be
expected to succeed in life if he is denied the opportunity of an
education."
34. Universities are seats of learning and centres of excellence. They not only enable the future
generations to equip themselves with degrees/practical tools to earn
livelihood, but also enrich them with learning, with wisdom and with visions
for practical lives. To achieve its objects, the University functions besides
the Chancellor and Vice Chancellor through its various institutions i.e. the
faculty, the Senate, the Syndicate and
Board of Studies.
The Vice Chancellor is its
institutional head and enjoys a pivotal position. Being the executive and
academic head of the University, it is for him to ensure that the University's
Statute, Regulations and Rules are faithfully observed. He presides over the
meetings of various bodies of the University and affiliated colleges. In
matters of urgent nature, it is he who takes remedial steps; it is he who creates
temporary posts when the urgency requires; he sanctions expenditures provided
for in the approved budget, re-appropriates amounts not exceeding a certain
amount; he convenes meetings of the Senate and the Syndicate. He is the bridge
between the executive and academic wings of the University. It is this multi¬dimensional role of the Vice Chancellor which
requires that the person who occupies this office should be imbued with values
and character traits of integrity, of academic excellence and administrative
ability. It is because of this that the search for Vice Chancellor the world
over has been an exercise driven by higher principles. In our own country, the
University Grants Commission has laid down a procedure for appointment of Vice
Chancellor which inter alia requires the constitution of a Search Committee.
The said Search Committee comprises of eminent individuals having distinction
in various disciplines. The Search Committee is to recommend a panel of three
candidates out of which the competent authority has to appoint one as Vice
Chancellor.
35. The afore-referred description of the role of
the Vice Chancellor under the Act would show how the delay in appointment of
such an important functionary would adversely affect the working of the
University and would make the institution almost dysfunctional and would
thereby adversely affect inter alia the quality of education.
36. Adverting to the validity of the judgment
under challenge, the submissions of petitioners' learned counsel qua the
maintainability of petition before the High Court have been considered by us.
However, we find that the impugned judgment even if having some element of
jurisdictional defect has been passed in aid of justice and any interference
would not be in accord with the canons of equity. Because Respondent No. 1's
grievance was that the principles of natural justice and due process had been
violated when he was called for the interview but not considered. It is not
denied that in terms of the qualifications prescribed as reflected in
advertisement, Respondent No. 1 was qualified to compete for the post in
question and the only Ph.D. in the subject among the shortlisted candidates. He
was sent a letter to appear for interview, was called in on the day of
interview by the Selection Committee but was not put any question and
practically was not interviewed. In the minutes of the Selection Committee, no
reason was recorded as to why he was not interviewed nor any
reason was conveyed to him. The plea taken by the respondent-University
before the Court that the Committee did not deem it proper to interview him
because an enquiry was pending appears to be an afterthought and even otherwise
in absence of any penalty, he could not have been condemned. In refusing to
interview Respondent No. 1 without assigning any reason, the Selection
Committee acted arbitrarily in the exercise of the discretion vested in it.
Dilating on the principles which weigh with the Courts while exercising the
power of judicial review, S.A. de Smith in his book `Judicial Review of
Administrative Action' (3rd Edition) at page 452 adverts to this aspect as
follows:--
"The
relevant principles formulated by the Courts may be broadly summarised
as follows. The authority in which a discretion is
vested can be compelled to exercise that discretion, but not to exercise it in
any particular manner. In general, a discretion must
be exercised only by the authority to which it is committed. That authority
must genuinely address itself to the matter before it: it must not act under
the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported
exercise of its discretion it must not do what it has been forbidden to do, nor
must it do what it has not been authorised to do. It
must act in good faith, must have regard to all relevant considerations
(emphasis supplied) and must not be swayed by irrelevant considerations, must
not seek to promote purposes alien to the letter or to the spirit of the
legislation that gives it power to act, and must not act arbitrarily or
capriciously (underlining is ours). These several principles can conveniently
be grouped in two main categories: failure to exercise a
discretion, and excess or abuse of discretionary power. The two classes
are not, however mutually exclusive. Thus, discretion may be improperly
fettered because irrelevant considerations have been taken into account; and
where an authority hands over its discretion to another body it acts ultra vires. Nor, as will be shown, is it possible to
differentiate with precision the grounds of invalidity contained within each
category."
37. In Federation of Pakistan v. Charsadda Sugar Mills Limited (1978 SCMR 428), this Court
was called upon to consider a judgment of the High Court whereby relief was
granted against an order passed by the Central Board of Revenue which reflected
arbitrariness, absence of conscious application of mind and for considerations
other than law. The Court observed as follows: --
"It is
self-evident that the Central Board of Revenue in allowing the partial
abatement was satisfied that the shortfall in the production capacity was
substantial and beyond the control of the respondent but to the extent of
855.53 tons only. In disallowing the shortfall for the remaining 2,643.16 tons
of sugar claimed by the respondent the Board merely relied on its own formula
by applying the 10$ cut on the total production capacity of 26,000 tons per
annum. It has failed to even consider the case set up by the respondent in its
application made under Rule 4 of the Rules. In doing so the Board acted almost
mechanically and failed to exercise the discretion vested in it under the law.
It was the duty of the Board to have acted justly, fairly and reasonably having
full regard to the facts and circumstances of the case before it. The Board did
not even weigh and examine the merits of the claim pleaded by the respondent.
This indeed, tantamount to the refusal on the part of the Board to exercise
quasi-judicial discretion vested in it under the law. We, therefore, find that
the judgment delivered by the High Court is unexceptionable and hereby dismiss
this petition."
38. Lord Denning expressed similar views on
exercise of discretionary authority (in his book `The Closing Chapter') when
relying on a judgment of Court of Appeals of
"Again, if
a public authority is entrusted, as part of its public law function, with the
exercise of a discretion, it must take into account
all relevant considerations. It must not be influenced by any irrelevant
consideration. And its discretion must be exercised reasonable--in this sense,
that it must not be so unreasonable that no reasonable authority could have
reached it."
39. This Court would not interfere in the
judgment of the High Court on yet another salutary principle of equity i.e. if
in the exercise of Constitutional jurisdiction it has passed an order to remedy
a manifest wrong. In Messrs Norwich Union Fire Insurance Society Limited v. MuhammaJ Javed Iqbal (1986 SCMR 1071), it was observed as follows:--
"In this
view of the matter, as laid down in Raunaq Ali v.
Chief Settlement Commissioner PLD 1973 SC 236, the High Court was within its
power to refuse relief in writ jurisdiction, where the impugned order before it
had the effect of fostering justice and righting a wrong, even though the
authority concerned had acted clearly without jurisdiction. The High Court
having acted in consonance with this higher principle of justice laid down by
this Court, there is no justification for taking exception to the impugned
judgment. The other question of law need not, therefore, be examined."
40. The respondent-University though did not
challenge the impugned judgment, yet its Registrar has submitted a
report/written statement dated 17-9-2011 to the effect that the Enquiry
Committee entrusted with the task of inquiring into the charge of misconduct
against Respondent No. 1 has submitted its finding and the same would be placed
before the Syndicate whenever its meeting is convened, for consideration. The
findings of the Enquiry Officer dated
(1) Dr. Minhaj
Ahmad Khan remained absent from his duty without approval of leave from the
competent authority.
(2) The unauthorized absence from duty is
considered misconduct in view of the provision of PEEDA Act, 2006 and hence Dr.
Minhaj Ahmad Khan is found to be guilty in this
context.
(3) The absence from duty period is less
than one (1) year, hence, in view of the provision of
PEEDA Act, 2006 penalty should be of minor degree. It should be not more than
withholding one annual increment without any cumulative effect. "
41. We would not like to comment on the
afore-referred findings as it is for the Syndicate, at appropriate stage, to
consider and decide about the matter in accordance with law. However, the fact
remains that on the date when he was shortlisted and called for interview on
42. It was also brought to our notice that
another seat of Assistant Professor Computer Sciences for which the parties had
competed is available and without disturbing the petitioners, Respondent No. 1
could be accommodated. This factual position was not specifically controverted by the respondent-University. If that be so,
the direction for fresh interview would be confined to Respondent No. 1 and if
he gets selected, the inter se seniority shall be redetermined
as if respondent was interviewed along with the petitioners. If no fresh seat
is available, the entire exercise would be carried out afresh strictly in terms
of the impugned judgment.
43. So far as withholding of salary of Respondent
No. 1 is concerned, there is nothing on record and even in the report submitted
by the Registrar before this Court to indicate that there is any order passed
by the competent authority to withhold his salary. In these circumstances, the
same is without any lawful authority and respondent-University is directed to
release his salary and arrears, if any, forthwith.
44. For what has been
discussed above, we hold, declare and direct as under:--
(i) that
notwithstanding the powers under the Constitution where the Governor may act in
his discretion, the Governor while acting as Chancellor is a statutory
functionary in terms of Section 11(1) of the Bahauddin
Zakariya University Act and in the performance of his
functions under the Act, he is to act and is bound by the advice tendered by
the Chief Minister in the manner provided in Section 11(8) of the Act read with
Article 105 of the Constitution of Islamic Republic of Pakistan;
(ii) that the Chancellor of the
University/Governor of Punjab is bound by the timeline given in proviso to
Article 105 of the Constitution
which stands incorporated in the
Act by legislative reference i.e.
within fifteen (15) days he may require the Chief Minister or the Cabinet, as
the case may be, to reconsider the advice and if such a reference/advice is
tendered after reconsideration by the Chief Minister, he is bound to act within
ten (10) days of having received it;
(iii) that the Chief
Minister had sent the summary for appointment of Dr. Syed
Khawaja Alqama as Vice
Chancellor on
(iv) that as the Chancellor/Governor of Punjab
was to act on the reconsidered advice within ten (10) days and as more than
three months have elapsed since the tendering of reconsidered advice, the same
shall be deemed to have been acted upon and the concerned department may issue
requisite notification accordingly;
(v) that since Respondent No. 1 was the only
Ph.D. among the shortlisted candidates for appointment as Assistant Professor
Computer Sciences and despite having been called for interview, he was not
considered, the interference by the learned High Court and direction for a denovo exercise of selection from amongst the shortlisted
candidates has not been found by us to be against the canons of equity and no
case for interference except partial modification of the impugned judgment is
made out; and
(vi) that the meeting
of the Selection Committee shall be convened by the new Vice Chancellor
forthwith and he shall ensure that the matter is processed in terms of Paras 42 and 43 of this judgment.
The petition is
partly converted into appeal and allowed i.e. the impugned judgment is modified
in terfns noted above.
Sd/-
Tassaduq
Hussain Jillani, J.
Sd/-
Mahmood
Ahtar Shahid Siddiqui, J.
I agree and am
attaching herewith a separate note of my own.
Sd/-
Asif
Saeed Khan Khosa, J.
Announced
in
Sd/-
Tassaduq
Hussain Jillani, J.
Asif Saeed Khan Khosa, J.--The
proposed judgment authored by my learned brother Tassaduq
Hussain Jillani, J. is
quite comprehensive and I fully endorse the same but there are certain aspects
of the relevant constitutional issue which I would like to highlight and
explain through the present note.
2. By virtue of sub-section (1) of Section 11 of
the Bahauddin Zakariya
University Act, 1975 the Governor of the Punjab is ex officio to be the
Chancellor of that University and, thus, the said statute adds another function
to the many other constitutional and statutory functions to be performed by the
Governor. In terms of clause (1) of Article 105 of the Constitution of the
Islamic Republic of Pakistan, 1973 "in the performance of his functions,
the Governor shall act on and in accordance with the advice of the Cabinet or
the Chief Minister" and the said constitutional provision does not
recognize any distinction between the Governor's functions under the
Constitution and his functions under any statute.
3. It is generally accepted that the position of
a Governor in a Province is by and large similar to that of the President in the
Federation and clause (5) of Article 105 of the Constitution makes such
similarity explicit. In the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993
SC 473) it had been made abundantly clear by this Court that the President has
no other powers except those which are expressly conferred upon him by the
Constitution. In this view of the matter any attempt to expound or advance any
distinction between the President/Governbr's
constitutional powers or functions and his powers or functions under any
statute runs contrary to the law so clearly (declared by this Court. It had
been held by this Court in that case as under:--
"Unfortunately,
this belief that he enjoys some inherent or implied powers besides those
specifically conferred on him under Articles 46, 48(6), 101, 242(1 A) and
243(2)(c) is a mistaken one. In a Constitution contained in a written document
wherein the powers and duties of the various agencies established by it are
formulated with precision, it is the wording of the Constitution itself that is
enforced and applied and this wording can never be overridden or supplemented
by extraneous principles or non-specified enabling powers not explicitly
incorporated in the Constitution itself. In view of the express provisions of
our written Constitution detailing with fullness, the powers and duties of the
various agencies of the Government that it holds in balance there is no room of
any residual or enabling powers inhering in any authority established by it
besides those conferred upon it by specific words.
Our
Constitution, in fact, is designed to create a parliamentary democracy. The
President in this set-up is bound to act, in the exercise of his functions, in
accordance with the advice of the Cabinet or the Prime Minister [Article 48(1)]
and the Cabinet in its turn is collectively responsible to the National
Assembly [Article 91(4)] though the Prime Minister holds office at the pleasure
of the President. However, the President cannot remove him from his office as
long as he commands the confidence of the majority of the members of the
National Assembly [Article 91(5)]. In view of these provisions, the system of
Government envisaged by the Constitution of 1973 is of the Parliamentary type
wherein the Prime Minister as Head of the Cabinet is responsible to the
Parliament, which consists of the representatives of the nation.
It is manifest, therefore, that in
the scheme of our Constitution the Prime Minister in administering the affairs
of the Government is neither answerable to the President nor in any way
subordinate to him. In formulation of the policies of his Government and in the
running of its affairs, the Prime Minister is answerable only to the National
Assembly and not to the President. Indeed, it is the President who is bound by
the advice of the Prime Minister or the Cabinet in all matters concerning
formulation of policies and administration of the affairs of the Government and
not the other way about, as appears to have been mistakenly understood.
Undoubtedly, the President may require the Cabinet or the Prime Minister, as
the case may be, to reconsider any advice tendered to him but the President is
bound to act on the advice tendered, even if it be the same, after
consideration. "
(italics have been supplied for emphasis)
In a recent case
of Shahid Orakzai V.
Pakistan through Secretary Law, Ministry of Law, Islamabad (PLD 2011 SC 365) an
Hon'ble former Judge of this Court had been appointed
by the President of Pakistan as Chairman, National Accountability Bureau without
the advice of the Prime Minister under an impression that the power derived for
such appointment from the National Accountability Ordinance, 1999 was a
statutory power of the President and not a function of the President
conditioned by the Constitution to be performed upon an advice of the Prime
Minister but upon the initiative of the learned counsel for the Federation of
Pakistan the President had cancelled the notification of appointment and a
fresh appointment of the Chairman was made upon the advice of the Prime
Minister. Maulvi Anwarul Haq, the learned Attorney-General for Pakistan, had
appeared before this Court in that case as well and in the present proceedings
he was reminded of that case and he had no other option but to concede that in
that case the understanding of the Federation of Pakistan was that even in the
matter of exercise of powers derived from a statute the President is to act on
the advice of the Prime Minister or the Cabinet. It has already been observed
by me above that the position of a Governor in a Province is by and large
similar to that of the President in the Federation and, thus, the impression
entertained by the Governor of the Punjab in the present case about any
distinction between his powers or functions under the Constitution and his
powers or functions under a statute may be, in the words of the judgment
rendered by this Court in the case of Mian Muhammad Nawaz Sharif (supra), "mistaken" and I observe so
with respect to the exalted office that he holds.
4. In his Concise Statement submitted before
this Court the Governor of the Punjab, in his capacity as the Chancellor, has
maintained that he may be bound by the provisions of Article 105 of the
Constitution in his functions exercised as the Governor but when it comes to
exercise of his powers or functions as the Chancellor of the relevant
University the provisions of Article 105 of the Constitution do not remain
relevant. This stance of the Governor/Chancellor, however, overlooks the fact
that any doubt in this regard was removed by the relevant legislature itself
through insertion of sub-section (8) in Section 11 of the Bahauddin
Zakariya University Act, 1975 through an amendment
Act of 1975 and the added provision reads as under:
"In
performance of his functions under the Act the Chancellor shall act and be
bound in the same manner as the Governor of the Province acts and is bound
under Article 105 of the Constitution of the Islamic Republic of
Pakistan."
I understand
that the Governor of the time, who had already ex-officio become the Chancellor
of the said University under the main Act, had assented to the amendment Act
without any demur and also that no Governor/Chancellor has so far challenged
the said amendment in the relevant law before any Court of law on any ground
whatsoever and, thus, the above mentioned amendment is still very much a part
of the relevant statute.
5. The issue at hand may also be addressed from
another angle and perspective. The Governor of a Province is generally
acknowledged to be a nominee, agent or representative of the Federation or the
Federal Government in the Province concerned. A Governor is appointed by the
President on the advice of the Prime Minister [Article 101(1) of the
Constitution], he holds his office during the pleasure of the President
[Article 101(3) of the Constitution], the President may make such provision as
he thinks fit for the discharge of the functions of a Governor in any
contingency not provided for in Part IV of the Constitution [Article 101(5) of
the Constitution] and a Governor enjoys the same discretionary constitutional
powers in his Province as are enjoyed by the President under the Constitution
[Article 105(5) of the Constitution]. A perusal of the Fourth Schedule of the
Constitution containing the Federal Legislative List shows that except for
"Education as respects Pakistani students in foreign countries and foreign
students in
6. Before entering upon his office a Governor of
a Province makes an oath, prescribed in the Third Schedule of the Constitution,
and solemnly swears, inter alia, "That as the Governor of the Province of
............., I will discharge my duties and perform my functions, honestly,
to the best of my ability, faithfully, in accordance with the Constitution of the
Islamic Republic of Pakistan, and the law ............." (italics have been supplied for emphasis). The constitutional
position regarding the issue at hand has already been clarified by this Court
in the case of Mian Muhammad Nawaz
Sharif (supra) and the same is being reiterated through the present judgment
and the legal position in respect of the issue before us is evident in no
uncertain terms from the provisions of sub-section (8) of Section 11 of the Bahauddin Zakariya University
Act, 1975 reproduced above and, therefore, it is expected that the worthy
Governor of the Punjab shall perform all his functions as Chancellor in
accordance with the Constitution and the law while adhering to the oath-of his
gubernatorial office.
(R.A.) Order
accordingly