1998 PLP 308 (CLC)

2. Mrs. Shereen Nawaz, Associate Professor. 23‑11‑1998.

3. Miss Rashida Mazhar, Associate Professor. 30‑4‑2000.

4. Dr. Muhammad Suleman, Associate Professor. 19‑1‑2008.

5. Dr. Muhammad Arshad Associate Professor. 31‑12‑2002."

2. The case was considered by the Syndicate and owing to lack of consensus amongst the members the matter was put to a vote. The petitioner and Dr. Muhammad Saleem Pirzada obtained 4 votes each while Miss Rashida Mazhar, respondent No.4 herein, obtained 6 votes. Consequently, the latter was appointed as Chairperson for a term of three years with effect from 25‑1‑1995. The decision was, however, not notified and the matter was again brought before the Syndicate pursuant to the representations made by the petitioner and members of the faculty. The syndicate in its meeting held on 4‑6‑1995 decided the matter in the following terms.‑‑‑ "Appointment of Chairman/Chairperson Department of Zoology.

Regarding the appointment of Chairman/Chairperson, Department of Zoology, some members were of the opinion that the Syndicate should have decided the matter on 25‑1‑1995 in the light of section 3(2) of the Schedule of the First Statutes of the University of Peshawar Act, 1974, instead of resort to voting on the issue. Others were in favour of implementing the Syndicate decision already taken on 25‑1‑1995. It was also suggested to authorise the Vice‑Chancellor for resolving the matter. It was finally decided to implement Syndicate decision dated 25‑1‑1995 regarding the appointment of Miss Rashida Mazhar as Chairperson, Department of‑ Zoology, University of Peshawar. In case of any representation on this decision, the item will be brought back to the Syndicate later."

3. The above decision of the Syndicate dated 4‑6‑1995 was forwarded for information and necessary action to all concerned including the Assistant Registrar (Estt) by the Assistant Registrar (Acad) vide his letter dated 20‑6‑19.95. Meanwhile, Mrs. Shereen Nawaz filed the writ petition in hand wherein she challenged both the decisions of the Syndicate as also the communication dated 20‑6‑1995 mainly on the ground that they offended against the mandatory provisions of section 3(2) of the First Statutes of the University of Peshawar Act, 1994, hereinafter referred to as the Statutory Provision, and prayed that the same may be declared to be without lawful authority and of no legal effect and the Syndicate be directed to appoint the Chairperson of the Zoology Department strictly in accordance with the Statutory Provision.

4. Mr. Yahya Khan Afridi, learned counsel for the petitioner, contended with vehemence that under the Statutory Provision the Chairman of a Teaching Department is appointed by the Syndicate on the recommendation of the Vice-Chancellor but while appointing the respondent Miss Rashida Mazhar as the Chairperson the Syndicate, had overlooked these glaring facts that the Vice-Chancellor had neither recommended her name nor placed before it a panel of three senior teachers having her name for appointment of one of them as the Chairperson and the appointment of the petitioner as the Acting Chairperson amounted to the requisite recommendation. In addition to this fundamental contention it was urged that in the absence of a formal notification the appointment in question was meaningless and in any case the scenario had changed as a result of promotion of the petitioner to BPS‑20 on 25‑4‑1996.

5. As against the above contentions Barrister Jehanzeb Rahim, learned counsel for Miss Rashida Mazhar, argued that the impugned decisions were in line with the Statutory Provision as the appointee was one of the three senior teachers, her name was included in the list of the senior teachers placed before the Syndicate through the Registrar for appointment of one or them as the Chairperson and it was clearly provided in Rule 11 of the Rules of Business of the Syndicate that all matters shall be decided by a simple majority of votes of members. He further argued that the implementation of the decision of the Syndicate by means of a Notification was withheld due to the stay order issued by this Court on 22‑6‑1995. It was lastly argued that the writ petition was not maintainable because in view of the explicit provisions of section 39 of the University of Peshawar Act, the petitioner was obliged to avail the alternate remedy of filing an appeal before the Chancellor.

6. Mr. Abdus Sattar Khan, learned counsel for the University of Peshawar etc. adopted the arguments advanced by the learned counsel for Miss Rashida Mazhar.

7. The preliminary objection in regard to maintainability of the writ petition due to the failure of the petitioner to avail the alternate remedy of filing an appeal before the Chancellor cannot prevail for the simple reason that the appeal envisaged by section 39 of the University of Peshawar Act, 1974 can be preferred only against an order passed by the Syndicate punishing any Officer, Teacher or an employee or altering or interpreting to his disadvantage the prescribed terms or conditions of his service whereas the impugned orders of the Syndicate have neither imposed any punishment on the petitioner nor have any nexus with the prescribed terms and conditions of her service. .

8. In order to appreciate the arguments advanced by the learned counsel for the petitioner it is necessary to reproduce the Statutory Provision. It reads as under:‑‑ "(2) The Chairman of a Teaching Department or a Director of an Institute shall be appointed by the Syndicate on the recommendations of the Vice‑Chancellor from amongst the three most Senior Professors and Associate Professors of the Department for a period of three years: Provided that in Department in which there is no Professor or Associate Professor, the Department shall be looked after by the Dean of Faculty with the help and assistance of the most senior teacher of the Department."

9. The first point for determination is whether recommendations with regard to appointment of the Chairperson, Department of Zoology were made by the Vice‑Chancellor within the contemplation of the statutory Provision. It is true that a formal recommendation was not made by the Vice‑Chancellor but the omission does not imply that he had not made any recommendation at all. It is evident from the minutes of the meeting of the Syndicate held on 25‑1‑1995 that the case of appointment of the Chairperson, Department of Zoology was included in the Agenda as Item No. 15 and the accompanying list of teachers contained the names of three senior teachers including the petitioner and Miss Rashida Mazhar. The placement of the names of three senior teachers before the Syndicate for appointment of one of them as the Chairperson amounted to the requisite recommendation inasmuch as the Statutory Provision is silent about the mode of recommendations, therefore, the Vice‑Chancellor can specifically recommend a person from amongst the three senior teachers for appointment as the Chairperson or place the names of three senior teachers before the Syndicate for appointment of one of them as the Chairperson or seek the approval of the Syndicate with regard to the appointment made by him as a stop‑gap arrangement. Besides, in view of Rules 3 and 5 of the Rules of Business of the Syndicate it goes without saying that the agenda was prepared and the meeting of the Syndicate was notified by the Registrar, who is also the Secretary of the Syndicate, with the approval of the Vice‑Chancellor who being the Chairman of the Syndicate had presided over the meeting.

10. This brings us to the next contention raised by the learned counsel for the petitioner that the Notification regarding the appointment of the petitioner as Acting Chairperson ought to have been treated by the Syndicate as a specific recommendation of the Vice‑Chancellor. It is difficult to accept the contention because the Vice‑Chancellor instead of seeking the approval of the Syndicate with regard to the appointment of the petitioner as the Chairperson had placed the names of three senior teachers before the Syndicate for appointment of one of them as the Chairperson and the Syndicate had decided the matter by simple majority of votes of members on the strength 'of Rule 11 of the Rules of Business of the Syndicate framed under section 30(1) of the University of Peshawar Act, 1974. As mentioned earlier the mode of recommendations adopted by the Vice‑Chancellor is unexceptionable.

11. The contention that the respondent Miss Rashida Mazhar was not recommended by the Vice‑Chancellor in any manner is more imaginary than real because her name figures at Serial No.3 of the list of senior teachers placed before the Syndicate.

12. Coming to the Notification‑related contention raised by the learned counsel for the petitioner it would suffice to say that non‑issuance of a Notification cannot nullify the decision of the Syndicate or render it unenforceable. The impugned decision of the Syndicate would stand implemented as and when the Notification is issued by the competent Authority. The learned counsel for the respondents have attributed the omission to the stay order issued by this Court on 22‑6‑1995 but it appears that the Notification was not issued by the Registrar on account of the representation made by the petitioner on 18‑6‑1995 in the light of the observations made in the decision of the syndicate dated 4‑6‑1995 that in case of any representation on the decision the item will be brought back to the Syndicate later on. The comments furnished on behalf of the University of Peshawar etc. make it manifest that the petitioner has filed a representation which will be laid before the Syndicate in its next meeting.

13. It is hardly necessary to mention that in case the representation of the petitioner is turned down by the Syndicate the decision of the Syndicate dated 4‑6‑1995 will be duly notified and till the issuance of a Notification the petitioner shall continue as the Acting Chairperson of the Department of Zoology, University of Peshawar. With these observations the writ petition is dismissed. Parties to bear their own costs. A.A./2225/P Petition dismissed.