2023 PLP (C (PLC(CS))

SHUJAAT ALI KHAN, J.

Unnecessary details apart, the Higher Education Commission of Pakistan (HEC) introduced Overseas Ph.D Scholarship under the Faculty Development Programme (the Scholarship Programme), in the year 2005. Respondents Nos.5 and 6, who were working as Deputy Registrar (Network) and Deputy Registrar (System) in the University of the Punjab (the University) respectively, were also given benefit of the Scholarship Programme. On completion of their Ph.D Degrees, respondents Nos.5 and 6 rejoined the University in the year 2011/2012 where-after they were appointed as Assistant Professors in the department of Electrical Engineering on ad-hoc basis. Further, through Office Order, dated 18.11.2014, the appointment of respondents Nos.5 and 6 was actuated w.e.f. 30.12.2006. As a result, they became senior to the petitioners. Being aggrieved of grant of benefit of the Scholarship Programme to respondents Nos.5 and 6 and Office Order, dated 18.11.2014, the petitioners have filed this petition.

2. Learned counsel for the petitioners submits that since respondents Nos.5 and 6 were serving as Deputy Registrars on administrative side, they, being not part of the faculty, were not entitled for the Scholarship Programme; that when the very basis of nomination of respondents Nos.5 and 6 for the Scholarship Programme was against policy of HEC they could not take premium of any achievement on the basis thereof; that mala fide conduct of respondent No.5 is evident from the fact that in addition to his duties he also succeeded to get additional charge of Additional Registrar-I and while acting so, he managed to get issued the impugned Office Order, dated 18.11.2014; that a complete mechanism has been provided under the University of the Punjab Act, 1973 (the Act, 1973) and University Calendar for appointment against the post of Assistant Professor which having not been followed in the case of respondents Nos.5 and 6, their appointment was illegal.

3. Malik Muhammad Awais Khalid Advocate, representing the University submits that since the petitioners are equipped with alternate remedy of revision under section 43 of the Act, 1973, instant petition is not maintainable; that instant petition suffers from laches, thus, no effective order can be passed; that presently respondents Nos.5 and 6 are working as Professors, hence, this petition challenging their position as Assistant Professors has become infructuous and that since terms and conditions of service of the petitioners as well as that of respondents Nos.5 and 6 were governed under non-statutory service rules, instant petition is not maintainable.

4. Mr. Khurram Saeed Advocate, representing respondent No.5, has withdrawn his power of attorney as respondent No.5 has opted to address the Court himself.

5. Respondent No.5 submits that the Scholarship Programme was not confined to faculty members only as HEC clarified in its second meeting, held on 08.11.2006, that the Scholarship Programme was not confined to faculty members only; that HEC Overseas Ph.D Scholarship Committee (the Selection Committee) recommended his name as well that of respondent No.6 and petitioner No.9 which decision was endorsed by the Selection Board, thus, his nomination along with respondent No.6 was strictly in accordance with law; that when the recommendations of the Selection Committee, dated 01.12.2006 and 02.12.2006, were approved by the Vice Chancellor of the University and were notified vide Office Order, dated 28.12.2006, issued by the Registrar of the University and were forwarded to the Selection Board which also concurred with the recommendations of the Selection Committee, the petitioners were estopped to challenge his eligibility as well as that of respondent No.6 for nomination against the Scholarship Programme; that his name as well as that of respondent No.6 was recommended after fulfillment of requisite criteria, including lengthy interview conducted by the Selection Board just for the reason that they were not members of regular faculty and the Selection Board vide its decision, dated 18.04.2007, found him as well as respondent No.6 eligible for the said post, hence, no adverse opinion can be formed at this stage; that he, along with respondent No.6, filed a representation regarding unnecessary condition in their nomination for the Scholarship Programme which was referred to the Legal Advisor for opinion and condition stipulated in their nomination was score off in the light of the opinion of the Legal Advisor; that according to the Policy of the University, in vogue at the relevant time, the employees of the University with Ph.D Degrees were to be appointed as Assistant Professors on ad-hoc basis, thus, no mala-fide or ill-will can be attributed to the respondents on account of his appointment as well as that of respondent No.6 as the said appointments were purely in line with policy decision of the Syndicate taken in its 1696th meeting, held on 06.04.2013; that the impugned Office Order, dated 18.11.2014, having been issued pursuant to the representation filed by respondents Nos.5 and 6, no interference is called for by this Court; that since he, along with respondent No.6, applied for appointment as Assistant Professors, on the basis of their eligibility in the year 2006, they were entitled for appointment against the said post on ad-hoc basis from the date when 120-days expired after issuance of the advertisement and no order regarding their appointment was passed; that since order regarding appointment of respondents Nos.5 and 6 as Assistant Professors, w.e.f. 30.12.2006, was based upon the decision of the Syndicate taken in its meeting held on 11.11.1991 the petitioners were debarred to challenge the same; that since he, along with respondent No.6, duly fulfilled the criteria laid down by HEC for appointment against the post of Assistant Professor, no illegality has been committed by the University authorities by appointing them against the said post; that since he, along with respondent No.6, has been appointed directly as Professors, their eligibility as Assistant Professors cannot be questioned at this stage; that his as well as appointment of respondent No.6 was also validated as earlier their eligibility to participate in the elections of the Syndicate was challenged but the committee constituted under Statute No.7 of the Act, 1973 dismissed the said representation and held that respondents Nos.5 and 6 being validly appointed as Assistant Professor were eligible to participate in the elections. To sum up, respondent No.5 submits that since all the petitioners have already been adjusted in other institutions, they have no grievance against the petitioners rendering this petition infructuous.

6. Mr. Asif Nazir Awan, Advocate, representing respondent No.6, in addition to adopting the arguments advanced by Malik Muhammad Awais Khalid Advocate, representing the University, as well as those advanced by respondent No.5, submits that since not a single complaint has been received against the work and conduct of respondent No.6, the petitioners have no cheeks to challenge their eligibility to hold the post of Assistant Professors.

7. Mr. Salman Faisal Advocate, representing HEC, while referring to report and parawise comments submitted on behalf of his client, submits that according to the documents, appended with the report and parawise comments as Annexure-B the Scholarship Programme was not confined to faculty members only rather non-faculty members, fulfilling the eligibility criteria, were also entitled to avail the same. To fortify his contention, learned counsel has referred to the advertisement got published by HEC regarding the Scholarship Programme.

8. Mr. Shahzad Shaukat, Advocate, representing the petitioners, while exercising his right of rebuttal, submits that since appointment of respondents Nos.5 and 6 was made without adopting due procedure, in particular, publication of advertisement, the same cannot be endorsed by this Court; that section 26 of the Act, 1973 defines powers of the Syndicate and any order passed in derogation to that provision renders it coram-non-judice; that mere completion of Ph.D Degree did not render respondents Nos.5 and 6 eligible for appointment against the post of Assistant Professor; that since respondent No.5 succeeded to manage a favourable opinion from the Legal Advisor, by exerting political pressure, same could not be made a ground to validate appointment of respondents Nos.5 and 6; that the Apex Court of the country in the judgment reported as Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institution (EOBI) through President of Board, Board of Trustees and others (2014 SCMR 949) has held that appointment against posts in government departments should be strictly in line with the prescribed procedure and in case of any violation the incumbent has no right to stay against the said post.

9. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition, as well as the case-law cited at the bar.

10. It is admitted position that the Scholarship Programme was offered by HEC by floating a public advertisement in daily Jang, dated 09.10.2005 and last date for submission of applications was fixed as 25.10.2005. Copy of the advertisement, got published by HEC, is imaged below:- A bird s eye view on the afore-imaged advertisement renders it crystal clear that the same was not confined to faculty members only rather staff members of universities, who otherwise were eligible, could avail the Scholarship Programme. Considering from another angle, University also invited applications for the Scholarship Programme pursuant to decision of HEC and there was no mention that the same was meant for faculty members only. The advertisement, got published by the University, is imaged below:- In this backdrop, the assertion of learned counsel for the petitioners that the Scholarship Programme was meant for faculty members only, being contrary to the record, cannot be given any weightage.

11. Now reverting to the point as to whether respondents Nos.5 and 6 were selected for the Scholarship Programme after fulfilment of due process or they were given benefit by the relevant authority on account of some nepotism or political pressure, I have noted that the Selection Committee conducted proceedings for selection of suitable candidates for the Scholarship Programme on 16.12.2006 and recommended names of prospective participants for the said Programme including respondents Nos.5 and

6. The Notification regarding recommendations of the Selection Committee was notified by the Vice Chancellor through Notification, dated 28.12.2006, where-after respondents Nos.5 and 6 were called for by the Selection Board of the University to adjudge their suitability for the Scholarship Programme. The Selection Board held its meeting on 18.04.2007 and endorsed the findings of Selection Committee which was further approved by the Syndicate of the University in its 1672th meeting held on 18.05.2007. Upon conclusion of the selection process the names of recommendees for the Scholarship Programme were published through Notification, dated 26.05.2007. In the wake of such neat and clean process, it cannot be believed that respondents Nos.5 and 6 were nominated for Scholarship Programme on account of some nepotism or favourtism.

12. It is imperative to note that while issuing Notification regarding selection of respondents Nos.5 and 6 for Scholarship Programme, additional clarification was incorporated to the effect that respondents Nos.5 and 6 will avail the said Scholarship Programme as staff/non-teaching (support service) members. Upon coming to know about the said addition, respondents Nos.5 and 6 filed a representation with the plea that since no such condition was stipulated by the competent authority viz. the Syndicate the same cannot be introduced by the Registrar through Notification, dated 26.05.2007. The said representation was allowed and the disputed condition was scored off through impugned Office Order, dated 18.11.2014. The said fact also lends support to the plea of the respondents that they were fully eligible for the Scholarship Programme, along with faculty members.

13. At the cost of repetition, it is noted that the series of facts starting from submission of applications by respondents Nos.5 and 6, determination of their eligibility by the Selection Committee and Selection Board of the University and approval by the Syndicate stands proof of the fact that respondents Nos.5 and 6 were selected for the Scholarship Programme upon fulfillment of cumbersome procedure, thus, the petitioners have no cheeks to challenge their eligibility for nomination against the Scholarship Programme, in these proceedings.

14. Even otherwise, according to own showing of the petitioners respondents Nos.5 and 6 after completion of their Ph.D degrees have rejoined the University, thus challenge to their eligibility for nomination against the Scholarship Programme, at this stage, is immaterial.

15. Now taking up the question relating to eligibility of respondents Nos.5 and 6 for appointment against the post of Assistant Professor, I am of the view that eligibility criteria for the said post as per Part-V, Chapter-1, Section-II-Qualifications of the University of the Punjab Calendar, 2002, was as follows:- II. QUALIFICATIONS

2. The qualifications and experience for appointment and recruitment to various cadres of University teachers shall be as below :- (a) Lecturers: 1st class Master's Degree in Arts or Science/1st class B.Sc.(Engg.), First Class B. Pharmacy 1st class LL.B or equivalent qualifications. (b) Assistant Professors: (i) Educational qualification as in (a) above and 6 years' teaching/research experience in a recognized University or a post-graduate institution as a Lecturer or professional experience in a national or International Organization. OR (ii) Master's Degree from a foreign University or M. Phil. from a Pakistani University plus 4 years' teaching/ research experience in a recognized University as a Lecturer or professional experience in the relevant field in a national or International Organization. OR (iii) Ph.D. with 2 years' teaching/research experience in a recognized University or professional experience in the relevant field in a national or International Organization. According to the afore-quoted eligibility criteria persons having Master s Degree foreign or M.Phill (Pakistan) or equivalent degrees awarded after 18 years of education were eligible for appointment against the said post. Since, M.S. degrees are equivalent to M.Phill Degree, respondents Nos.5 and 6 were eligible for appointment against the said post.

16. Now coming to the objection of the learned counsel for the petitioners that respondents Nos.5 and 6 could not be appointed as Assistant Professors, w.e.f. 30.06.2006. In this regard, it is observed that the Syndicate in its 1607th meeting, held on 11.11.1991 while taking decision against Deferred Agenda Item No.13, took the following decision:-

8. Deferred Item No.13: Approval of time-limit for completing the process of applications received in response to the posts advertised, in pursuance of the agreement with the Academic Staff Association sent to Pakistan/Foreign Referees within a period of 3/4 months respectively from the last date fixed for the receipt of the applications. The Vice-Chancellor explained that under clause 9 of the agreement between the representatives of the A.S.A. and the University Administration, it has been laid down as under:- "Processing of an advertised post sent to Pakistani Referees will be completed within three months from the last date fixed for the receipt of applications. In case the process is not completed within three months, the appointment of the selectee will be affective from the expiry of the period of three months. Processing of an advertised post sent to Foreign Referees will be completed within four months from the last date fixed for the receipt of applications. In case the process is not completed within four months, the appointment of the selectee will be effective from the expiry of the period of four months. He stated that he discussed the issue with the President of the Academic Staff Association, who agreed with him that the period for completion of the processing of the applications for the advertised posts be fixed as 4 months for both the categories; whether these are sent to the Pakistani or foreign referees. After some discussion it was resolved to accept the following proposals made by the Vice-Chancellor: i) the processes of the applications received in response to the posts advertised under the agreement, referred to Pakistani or Foreign Referees will be completed within 4 months from the last date fixed for the receipt of applications. ii) In case the process is not completed within 4 months the appointment of the selectee will be effective from the expiry of the period of 4 months. The Vice-Chancellor then invited the attention of the Syndicate towards clauses 1 and 2 of the agreement reproduced below:

1. Those temporary Lecturers who were selected through the Selection Board/Syndicate and have already put in more than two years' service, will be adjusted against permanent posts on regular basis and confirmed in anticipation of the approval of the relevant bodies subject to the condition that there is nothing against them on record.

2. Those temporary Assistant Professors who were selected through the Selection Board/Syndicate and have already put in more than two years service, will be adjusted against permanent posts on regular basis and confirmed in anticipation of the approval of the relevant bodies subject to the condition that there is nothing against them on record. He stated that a period of 10 months had elapsed since the signing of the agreement. A few teachers were still unconfirmed as a consequence of which they are feeling frustrated. He, therefore, requested that he may be authorised to confirm the teachers (Lecturers and the Assistant Professors) falling under these clauses in anticipation of the approval of the relevant bodies, subject to the condition that there is nothing against themon record. Dr. Zafarullah Shaikh did not agree with the proposal of the Vice-Chancellor and in support of this contention he stated that that as most of the teachers falling in the above mentioned category have been confirmed through the regular process of Selection Board/Syndicate as specified in the relevant statutes, it would be unjustified if the remaining teachers were not required to go through that channel. If this were not done, it would cause heart burning to those teachers who were required to follow the prescribed procedure for the purpose of their appointment on confirmed basis. Dr. Zulfiqar Ali Malik agreeing with the views of Sh. Zafarullh stated that if the prescribed procedure was not followed, it would not be justified to those persons who had applied for the posts already advertised. Ignoring the prescribed procedure would invite a lot of criticism against the University administration. The Vice-Chancellor stated that the proposal made by him would not be tentamount to ignoring the procedure prescribed in the statutes in any case. He added that he will pass the orders of confirmation of the in-service teachers in anticipation of the approval of the relevant bodies and the decision thus taken would be placed before these bodies at the time when the applicants for the advertised posts would be required to appear for interview. It was, therefore, evident that his anticipatory orders would be subject to confirmation by the relevant bodies i.e. Selection Board and the Syndicate. Mr. Nadeem Manzoor suggested that since item under consideration was neither on the agenda nor the working papers pertaining to it had been placed before them, the matters should not be considered. After some discussion it was agreed that the proposal made by the Vice-Chancellor should be brought before the Syndicate as a regular item on the agenda in a subsequent meeting. Further, respondent No.4, in para 10 of his reply has clarified the position qua appointment of respondents Nos.5 and 6 retrospectively by inter alia averring as under:- That as regards the request of the Respondents Nos.5 and 6 to consider their appointments as Assistant Professors with effect from 30.12.2006, the stance taken is that being in service applicants on the closing date of advertisement i.e. on 30.8.2006, [i.e. working as Deputy Registrar (Networks) and Deputy Registrar (Systems) in BPS-18 and were otherwise eligible for appointments as Assistant Professors in BPS-18 as per University rules], the claim of Respondents Nos.5 and 6 for the grant of financial and seniority benefits from 30.12.2006 i.e. after 120 days from the closing date of advertisement i.e. 30.8.2006 were valid as per decision of the Syndicate taken in its meeting held on 11.11.1191 and 28.1.1999 A perusal of the afore-quoted decision of the Syndicate, coupled with para 10 of the report in reply of respondent No.4, affirms that firstly an advertisement was got published in national press and secondly it was resolved that in case recruitment process is not completed within four months of the last date of submission of applications and selection is finalized on some subsequent date the same would be made effective from the period starting from expiry of four months from the cut-off date. While dealing with such situation, the Syndicate in its meeting held on 02.03.2013 confirmed the anticipatory Office Order, passed by the Vice Chancellor under section 15(3) of the Act, 1973 in respect of appointments against various posts including those of respondents Nos.5 and

6. Thus, the petitioners have no cheeks to challenge appointments of respondents Nos.5 and 6 against the said post w.e.f. the year 2006.

17. While going through the file, I have noted that the petitioners, in Para No.8 of the Writ Petition have averred as under:-

8. To the utter surprise of the petitioners an Office Order No.D/836/R, dated 18-11-2014 has been issued thereby relegating this two non-teaching staff members as part of the teaching faculty and, thus, they have been accorded the status of Assistant Professors in the PUCIT and IQTM w.e.f. 30-12-2006. Resultantly these individuals have been made senior to the petitioners besides they have been extended all other financial benefits from the said date. The afore-quoted paragraph of the Writ Petition brings it to limelight that the petitioners being aggrieved of their seniority, due to issuance of Office Order, dated 18.11.2014 challenged eligibility of respondents Nos.5 and 6 to hold the post of Assistant Professor w.e.f. 30.12.2006. It is well settled by now that writ of quo-warranto is not maintainable in collateral proceedings as held by the Apex Court of the country in the case of Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853). Relevant portion from the said judgment is reproduced herein below:-

73. On 20th June, 2001, General Pervez Musharraf entered upon the office of the President and was administered oath of office provided in the Schedule to the C.E. Order No. 3 of 2001 by the then Chief Justice of Pakistan. Thereafter, General Pervez Musharraf has been performing the functions of the President. He has sworn in two Chief Justices of Pakistan. He has met foreign heads of the States as well as local politicians including many of the petitioners in his capacity as President of Pakistan. No challenge muchless effective was thrown to the assumption of office of President by him and even in these petitions the challenge has been made only peripherally and collaterally while challenging the Referendum Order. It is well-settled that a writ of quo warranto cannot be brought through collateral attack. Such a relief has to be claimed directly. We are fortified in this behalf by the judgment of this Court in Pir Sabir Shah's case (PLD 1994 SC 738). Not only in this case but also in other cases it was held that for orderly and good governance validity of the appointment of incumbent of public office cannot be impugned through collateral proceedings Further, the Hon ble Supreme Court of Pakistan in the matter of Muhammad Hanif Abbasi v. Jahangir Khan Tareen (PLD 2018 SC 114) while deprecating filing of writ of quo warranto by a person to settle his personal grudge has inter alia held as under:- 3.*****There can be no cavil with the principle that to grant the relief in the nature of quo-warranto is within the discretionary power of the superior Courts, it should not be allowed as a matter of course, rather the conduct and the bona fides of the relator, the cause and the object of filing such petition is of considerable importance and should be examined; it should be ascertained if the petition has been filed with some mala fide intent or ulterior motive and to serve the purpose of someone else. We are of the considered view that quo warranto remedy should not be allowed to be a tool in the hands of the relators, who approach the Court with mala fide intentions and either have their own personal grudges and scores to settle with the holder of the public office or are a proxy for someone else who has a similar object or motive .. Likewise, the Islamabad High Court in the case reported as Nisar Khan Khattak v. Haji Adam, Director General (Admn) PEMRA Headquarter, Islamabad (2021 PLC (C.S.) 140) while dealing with the question relating to maintainability of writ of quo warranto on behalf of a person who wants to get some personal benefit for himself has inter-alia observed as under:-

19. Granting relief in the nature of quo warranto is within the discretionary power of the superior Courts and this relief cannot be allowed as a matter of course, rather the conduct and the bona fides of the petitioner, the cause and the object of filing such petition is also of considerable importance, which is be examined. If the petition has been filed with some mala fide intent or ulterior motive and to serve the purpose of someone else, the remedy of quo warranto cannot be allowed to be a tool in the hands of the petitioner, who approached this Court with mala fide intentions and either had his own personal grudge and score to settle with the holder of a public office or is a proxy for someone else, who had a similar object or motive. The remedy of quo warranto should not be allowed to be used as a pressure tactic for purposes of restraining the respondent from performing functions and discharging their duties in accordance with the Constitution and the law. Writ of quo warranto can only be issued in exceptional cases. Relief of quo warranto should not be allowed as a matter of course, more so when the candidature of a candidate was duly scrutinized at the time of the scrutiny of his appointment to ascertain whether he was qualified or disqualified in terms of the Constitution and the law. The Court is not required to go into the merits of the case and should summarily dismiss the petition on the basis of lack of bona fides and extraneous motives of the petitioner and on account of the petition being frivolous. In the case in hand, the appointment of respondent No.1 was made on the recommendation of the Selection Board. If the conduct of the petitioners is adjudged while putting it in juxtaposition to the afore-referred cases, there leaves no ambiguity that since they want to settle their personal vendetta with respondents Nos.5 and 6 on account of relegation of their seniority, no interference is called for by this Court in these proceedings.

16. It is not out of place to observe that admittedly the petitioners are no more in service of the University, thus, their grievance regarding disturbance of seniority due to appointment of respondents Nos.5 and 6 as Assistant Professors is no more live, hence no interference is called for.

17. It is important to mention over here that respondents Nos.5 and 6 have already joined the post of Professors against direct quota, thus, for all intents and purposes the question as to whether they were eligible to hold the post of Assistant Professor has become irrelevant. It is not the case of the petitioners that respondents Nos.5 and 6 have been appointed against the post of Professor on account of seniority-cum-fitness from amongst the Assistant Professors.

18. Now coming to the case-law, cited by learned counsel for the petitioners, I am of the humble opinion that the same is inapplicable to the facts and circumstances of the present case for the reason that the ratio-decidendi of the said case is that appointments in public offices should be made strictly in accordance with the applicable rules and regulations whereas in the case in hand the relevant rules and decision of the Syndicate, referred Supra, stand proof of the fact that everything has been done in accordance with relevant rules, regulations and statute, thus, the referred case is of no help to the petitioners.

19. For what has been discussed above, I see no force in this petition which is accordingly dismissed with no order as to costs. MH/I-26/L Petition dismissed.