2003 PLP (C (PLC(CS))

Mr. Rehanul Hassan Farooqi, Advocate for the respondents argued the matter at great length. He firstly narrated the past history of the litigation between the appellant and the respondents. He argued that C.P. 1641 filed by the appellant before the Hon. High Court of Sindh was dismissed 'in limine', which prima facie amounted to denial of the relief (s) claimed by the appellant. He further submitted that the Hon. Supreme Court of Pakistan held that the civil appeal had abated due to the amendment of the Sindh Service Tribunals (Amendment) Act, 1994 and had only directed Sindh Service Tribunal to decide this service appeal in accordance with law. He referred to the appointment of the appellant as Vice‑Chancellor of N.E.D. University vide Notification dated 18‑11‑1991‑ Part II of the said notification which reads as follows:‑ "The Governor Sindh/Chancellor N.E.D. University of Engineering and Technology, in exercise of powers vested in him under section 27(1) of the N.E.D. University of Engineering and Technology Act, 1977 is further pleased to order the appointment of Prof. Dr. Muhammad Munir Hasan, as Vice‑Chancellor, N.E.D. University of Engineering and Technology with immediate effect for a period of four years during the pleasure of the Chancellor on usual terms and conditions." He contended that the 'specific' terms and conditions of the appointment were never notified and therefore, no violation thereof can be alleged by the appellant. He argued that the crucial words in the appointment order were during the pleasure of the Chancellor' hence it was entirely within the powers of the Chancellor to terminate that appointment before the expiry of 4 years, without specifying any reasons thereof. He also pointed out that the said appointment order was issued on 18‑11‑1991. The stipulated period of 4 years expired on 17‑11‑1995, and therefore. Sindh Service Tribunal in 1998/1999 according to him could not order the reinstatement of the appellant as this appeal has now become infructous'. He strongly contended that Sindh Service Tribunal had no powers, to order for the reinstatement of the appellant now, which by passage of time had become 'fate accomplied'. He argued that, if the appellant felt aggrieved with the impugned order dated 17‑4‑1994, perhaps the correct remedy tier him was to tile a suit for damages' or specific performance, as both are outside the jurisdiction and competence of Sindh Service Tribunal." He contended that in the absence of specific terms and conditions of the appointment of the appellant, the law applicable to him was that of 'Master and Servant'. He further elaborated that 'personal service' which can not be performed by the legal heirs of an employees is not enforceable at law, under section 21 of the Specific Performance Act. As such he contended that no reinstatement of the appellant could be ordered. He specifically referred to PLD 1961 S.C. page‑531 which according to him was precisely on this point i.e. no decree can be passed against an unwilling master. At the most, according to him, the relief that could be considered by Sindh Service Tribunal was 'Notice Pay'‑‑‑salary for reasonable period for search of (another) employment, as held in P.L.D. 1962‑ page 899 (of late Justice Waheeduddin). When his attention was drawn to the famous case of Anisa Rehman involving the same relationship of 'Master and Servant' wherein it was held by the Hon. Supreme Court of Pakistan that even such persons' services could not be terminated without a show cause/departmental inquiry, he said that the latest judgment on this subject was 1998 SCMR page 60 by the same author, wherein it was held again that no decree can be passed against an unwilling master‑ in the case of Habib Bank employees. A.A.‑G. adopted the arguments of Mr. Farooqi. He, however, submitted that grant of images' is outside the jurisdiction of Sindh Service Tribunal. Nevertheless the Tribunal could order for the payment of the salary of the remaining period which was within the competence of this Tribunal. We have gone through the arguments of either side, carefully and dispassionately, perused the record, documents and citations quoted. In our opinion, there are three issues in this appeal viz:‑ (i) Whether the impugned order dated 17‑4‑1994 issued by the respondent No. 1 is legal and valid? (ii) if otherwise, should it be set aside or modified and to what extent? (iii) What appropriate remedy the appellant is entitled to (within the competence of Sindh Service Tribunal)? We would like to point out that Pakistan is an Islamic State where the Sovereignty vest in Allah only. The concept of an 'Omni potent' human being is beyond Islam. Further the accepted principle of Islam is ﷲﺍ ﻢﮑﺣﻟﺍﻭ ﷲﺍ ﮏﻠﻤﻠﺍ Allah alone is the absolute owner of all propriety and the absolute Law Maker. The law framing authority of human beings of Qur'an and Sunnah as re‑affirmed in opening paragraph of 'Preamble' of the Constitution of the Islamic Republic of Pakistan, 1973 which reads as follows:‑ "Whereas sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;" It is also the spirit of Article 203‑D. (Powers, Jurisdiction and Function of Shariat Court) that any law or provision of law if found, repugnent to the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet, (p.b.u.h.) ceases to have effect on completion of mechanism provided under Article 203‑D(a) and (b). The established tradition of 'Kulfa‑i‑Rashedeen' the "Rightful Caliphs' is also that no human being. including the Caliph the Amirul Momineen is above the laws of Allah and legislation made thereunder. There are score of Qur'anic verses about dispensation of justice without fear and favour also embodied in western accepted maxims of law such as equality before law, none to be condemned unheard i.e. without affording him a chance to defend himself, the guilt of the accused being proved beyond doubt in short recognized as principles of natural justice, fair-play and equity, also guaranteed as fundamental rights in our Constitution. It is, therefore, not possible for us to subscribe to the idea that the Chancellor's 'pleasure is 'absolute' or 'unfettered' specially when it involves the question of dispensation of the services of a Vice‑Chancellor‑‑his next in command. The entire mechanism of 'democracy' is based on the theory of 'checks and balances' and absolute powers are 'undesirable' in public administration also because such powers invariably lead to misuse of powers. Justice demands that all powers even discretionary powers must be exercised judiciously, bonafidely and not mala-fidely. Without going into details of alleged mala fides and denial thereof in this appeal for which the most appropriate forum is a suit for 'damages' suffice it to say that the impugned order dated 17‑4‑1994 is a non‑speaking order, considered bad in law, all over the civilized world and against the principles of natural justice, fair-play and equity. Since no show‑cause notice was issued to the appellant, nor any inquiry held against him nor a personal hearing given to trim before 'he ceased to hold office under the impugned notification dated 17‑4‑1994 it cannot be upheld in our considered view. We may point out here that the words "during the pleasure" is a legacy (and a bad too) of the past colonial era, whereunder all appointments were made at the 'pleasure of the Crown'. After independence, and adoption of Government of India Act, 1935 these were substituted with 'the pleasure of the Governor‑General (or Governor)' and remained up till 1956 i.e. riming of the 1st Constitution of Pakistan, whereunder these were again substituted with 'the pleasure of the President (or the Governor)'. After the framing of 1973 Constitution, the terminology, by and large became redundant and stands dropped in the notification regarding appointments, promotions, transfer and administrative actions. However, it continues to be used 'off and on' for want of coinage of an appropriate, substitute terminology ‑‑‑ main reason being it is more suited for various exigencies, though undesirable. The law requires use of 'specifics' and not vague, ambiguous and indefinite terminologies. The word "pleasure" is related to 'aesthetic' sense and cannot be defined in specific words. If there were any reasons, whatsoever to dispense with the appointment of the appellant, justice, demanded that these should have been communicated to him in writing, he should have been provided a proper opportunity to defend himself and a judicious order should have been passed in the matter, after affording him a proper personal hearing. Undoubtedly this was not done. Consequent to the conclusion that the impugned order cannot be maintained in law, the 2nd issue is whether the impugned order be set aside or modified and if so upto what extent? In our opinion if the impugned order is set aside, the appellant would be entitled to be reinstated w.e.f. 1994, which is neither desirable nor feasible administratively or financially as the post is occupied by the present incumbent. Besides heavy financial implications in present day financial crises all over the country, well‑known to all, it will not be just and fair to the present incumbent, whose services may have to be dispensed with for fault of his own resulting in yet another round of litigation. It would also open a Pandora's Box for the N.E.D. University about the legality and validity of all administrative, financial and academic decision taken by the successor (s) in office of the appellant/incumbent Vice‑Chancellor during the intervening period. We are lit agreement with the counsel for the respondents that no decree can be passed against an unwilling master, as per decision of the Hon'ble Supreme Court reported in 1998 SCMR

60. Moreso, because Sindh Service Tribunal has no powers to direct the Chancellor to re‑appoint the appellant‑‑ Governor `Sindh being the ex‑officio Chancellor of the said University. We are strengthened in our thinking by the provisions of Articles 101 to105, Part IV, Provinces, Chapter I, The Governors of 1973 Constitution, whereunder the only two things binding on a Governor are:‑ (a) Directives of the President under Article 101(5) and; (b) The Advice of the Cabinet (or the Chief Minister) under Article 105(1). Therefore, we are of the considered view that the correct/feasible relief to the appellant is to amend the impugned order dated 17th April, 1994 to the extent of grant of appropriate 'Notice Pay' for search of another job as enunciated in PLD 1962 Page (W.P.) Kar.

899. We may point out here that before his appointment as Vice Chancellor, the appellant retired from service (of NED University after completion of 26 years of qualifying service, as per Resolution No.SYN‑74.8 Annexure 'D' of the written statement of the respondent No.2). After Administrative Reforms of 1973 in the country there is no provision for extension in service of a retired civil servant ‑‑‑ but he can be re‑employed for specific period ‑‑‑ on such terms and conditions as may be notified by the employer. One of the usual terms and conditions of such re‑employment is notice period of 30 days or one month from either side or payment/deposit of the salary of the notice period, in lieu thereof. Had the respondents taken care of this aspect and notified proper terms and conditions of appellant's appointment instead of the using the vague words 'on usual terms and conditions', unnecessary litigation in this appeal with consequent unnecessary expenditure to either side could have been avoided. Since the period for which the appellant was technically re‑ employed is of four (4) years, this notice period in our considered opinion cannot be more than 90 days or three months from either side with payment of salary/deposit of salary in lieu thereof. We, therefore, modify the impugned order to the extent that the appellant shall be entitled to 3 months' salary in lieu of notice. We are in agreement with the counsel for the respondents that grant of 'damages' if any is outside the jurisdiction of Sindh Service Tribunal and lies within the domain of appropriate civil Court. However, the appellant undoubtedly incurred unnecessary substantial, financial expenditure for the omission of the respondents to notify the 'specific' terms and conditions of his re‑employment/re‑appointment as Vice‑Chancellor of the said University particularly the omission of notice clause from either side, resulting in the 1st round of litigation before the Hon'ble High Court of Sindh and Supreme Court of Pakistan and therefore order the payment of Rs.1,00,000 (Rupees one lac only) as costs by the respondent No.2 to the appellant. Undoubtedly it was the duty of the ministerial officers of the respondent particularly the Registrar of the said University to get prepared an appropriate draft of the exact terms aid conditions of the appointment of the appellant as Vice- Chancellor of the said University and get it approved/notified accordingly. Undoubtedly it was not so done. Announced in open Court this 29th day of January, 1999, at Karachi. H.B.T./25/K(S. Trib) Order accordingly.