2024 PLP 1410 (MLD)

Anwaar Hussain, J.

Through the present constitutional petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution"), challenge has been laid to summary dated 14.06.2019 as well as notification dated 16.12.2019 as a result of which respondent No.6 has been appointed as the Dean, Faculty of Agriculture Sciences and Technology (hereinafter "the Faculty"), Bahauddin Zakariya University, Multan (hereinafter "the respondent university") while ignoring the petitioner who admittedly scored higher marks than respondent No.6.

2. Brief facts of the case, as narrated in this writ petition, are that in response to letter dated 18.03.2019 issued by respondent No.2, the petitioner, respondent No.5 and respondent No.6 submitted their respective applications, CVs and evaluation performas, for appointment as the Dean of the Faculty of the respondent university. The petitioner obtained 86 marks whereas 84 marks were secured by respondent No.6, however, respondent No.4, on direction of the Chancellor (hereinafter "the Competent Authority"), appointed respondent No.6 vide impugned notification dated 16.12.2019 as Dean of the Faculty without any lawful reason on the basis of the impugned summary dated 14.06.2019.

3. Learned counsel for the petitioner submits that the appointment of respondent No.6 as the Dean of the Faculty through notification dated 16.12.2019 is against law, facts and violative of merit inasmuch as respondent No.6 was below in merit on the basis of the criteria envisaged by the respondents themselves, by securing 84 marks as opposed to the petitioner who was on top slot in the panel of three names sent for appointment as the Dean, by securing 86 marks. Asserts that appointment has been made in violation of Section 2(2) of First Statutes of the Bahauddin Zakariya University (hereinafter "the First Statutes") forming part of Schedule to the Bahauddin Zakariya University, Multan Act, 1975 (hereinafter "the Act"). Further contends that the petitioner was in Grade-22 whereas respondent No.6 was not in Grade-22 and does not fall under the category of three senior most professors of the Faculty and hence, the summary dated 14.06.2019 is against law. Further contends that the petitioner is on the verge of retirement and has been deprived unlawfully and arbitrarily from being appointed as the Dean of the Faculty and in absence of service in capacity of the Dean, the petitioner cannot apply for the post of Vice Chancellor of any university and in this manner his fundamental rights qua future employment and professional progression have been jeopardised. Concludes that the appointment of respondent No.6 is also in violation of dicta laid down in "Dr. Iqrar Ahmad Khan v. Dr. Muhammad Ashraf and others" (2021 SCMR 1509) wherein the Hon'ble Supreme Court of Pakistan has held that when a panel of three persons is placed before the Competent Authority for appointment, the person securing the highest marks should not be ignored without plausible reasons, which are conspicuously missing in the instant case.

4. Conversely, learned counsel for the respondent-university submits that when the recommendations for appointment of the Dean of the Faculty, in the form of summary, were made on 14.06.2019, the petitioner was not in Grade-22, hence, all the recommended candidates were the senior most professors in Grade-21 and no violation has been made by the respondent university. Argues that even otherwise, Grade-22 was acquired by the petitioner when a committee of the respondent-university, headed by the petitioner, adopted the time scale promotion notification dated 19.04.2019 issued by the Government of the Punjab to upgrade the post of professors in Grade-22, as one time dispensation and after approval of the same upon its adoption, the petitioner got issued a notification, in Grade-22 in his favour, with retrospective effect and hence, his placement in Grade-22, before the appointment of respondent No.6 as Dean of the Faculty is result of mala fide. Qua non provision of reasoning for the appointment of respondent No.6 who obtained two less marks than the petitioner, learned counsel submits that the difference in number was not significant and hence, the Competent Authority has exercised the discretion vested with it in favour of respondent No.6 and in this regard, places reliance on "Munir Khan Khatak v. Chancellor, the University of Agriculture, Khyber Pakhtunkhawa" [2017 PLC (C.S.) Note 10]. Concludes that reliance placed upon case of Dr. Iqrar supra is misplaced inasmuch as the post and method of recruitment/appointment in the said case is entirely different from that of the instant case as the referred case relates to appointment of Vice Chancellor requiring advertisement of the said post in both the national as well as international dailies inviting candidates from general public whereas the appointment of the Dean of the Faculty is required to be made on the basis of seniority of serving professors of the Faculty and evaluation done by the department itself through a designated performa issued at the direction of the Competent Authority.

5. Learned counsel for respondent No.6 has adopted the arguments put forth by learned counsel for the respondent university.

6. Arguments heard. Record perused.

7. The legal question which requires opinion of this Court is to examine whether the post of the Dean of the Faculty in the respondent university can be filled by the Competent Authority by picking up any one of the three candidates amongst the panel forwarded to him ignoring the one who has obtained highest marks and that too without assigning any reasons.

8. Two-fold challenge has been laid to the appointment of respondent No.6 by the petitioner. Firstly, that respondent No.6 was not in Grade-22 when he was selected as the Dean and hence, Section 2(2) of First Statutes was violated and therefore, the summary dated 14.06.2019, containing the name of respondent No.6 is liable to be set-aside. Secondly, that the petitioner was ignored in violation of dicta laid down in case of Dr. Iqrar supra and therefore, notification dated 16.12.2019 is liable to be set aside.

9. As regards the legality of the summary dated 14.06.2019, suffice to hold that the objection of the petitioner is of not much help to him inasmuch as the petitioner was not in Grade-22 when the evaluation process was started through letter dated 18.03.2019 and the petitioner and others were required to submit their CVs and claims and later concluded on 14.06.2019 in the shape of summary, which was sent to the Competent Authority. It is well settled that the eligibility of a candidate is to be determined as it existed on the closing date for applications and the change in the grade of the petitioner in no manner will render the said summary void. In a nutshell, the petitioner as well as respondents Nos. 5 and 6 were in Grade-21 and senior most professors of the Faculty on the closing date of submission of the summary dated 14.06.2019 and he was rightly considered as such at the time of appointment of the Dean irrespective of the change of his Grade at a later stage, therefore, the summary dated 14.06.2019 does not suffer from any infirmity and to this extent the prayer of the petitioner is misconceived, and hence, cannot be allowed.

10. In-fact, it is the second ground of challenge to the appointment of respondent No.6, which is the nub of the controversy as it relates to the exercise of discretion by the Competent Authority ignoring the petitioner who admittedly secured highest marks during the evaluation process. It is settled law that this Court in exercise of constitutional jurisdiction neither superimpose nor substitute its opinion/decision, which the legislature has vested within an executive body. Thus, generally in the exercise of power of judicial review, the Courts are reluctant to upset a decision reached by executive merely on the ground that another view/decision could have been reached at as this Court in exercise of its constitutional jurisdiction of judicial review does not sit as a court of appeal to ascertain the merits of the decision reached at by the executive domain of the State rather this Court is deeply concerned with the decision-making process particularly where discretion has been vested in the executive in reaching such a decision so as to ascertain whether the decision has been reached at through due process and fair exercise of discretion in a structured manner. It is well entrenched principle of law that where the executive wing of the State has been vested with the discretion to make appointments, such discretion is to be exercised in a manner that is fair, transparent and in accordance with law as the fair and transparent process to public office forms the foundational stone of good governance as vesting of discretion as its inherent attribute commands its exercise in an honest and structured manner and the exercise of discretion in an unstructured and arbitrary manner in itself renders the process tainted lacking constitutional underpinnings. "Tariq Aziz-ud-Din and others: In re Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P and 14306-G to 14309-G of 2009" (2011 PLC (CS) 1130 and "Malik Munsaf Awan, Advocate, Chairman, Pakistan Justice Party, Lahore v. Federation of Pakistan through Secretary, Law and Justice Islamabad and others" (PLD 2021 SC 379) are referred in this regard. The Hon'ble apex Court in case reported as "Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others" (2015 SCMR 630), has held as under: "9. ..The exercise of any discretionary power must be rational and have a nexus with the objective of the underlying legislation. Arbitrariness is the antitheses of the rule of law. The legislature, when it confers a wide-ranging power, must be deemed to have assumed that the power will be, firstly, exercised in good faith, secondly, for the advancement of the objects of the legislation, and thirdly, in a reasonable manner. Section 24 A of the General Clauses Act, 1897, reiterates the principle that statutory power is to be exercised "reasonably, fairly, justly and for the advancement of the purposes of the enactment" and further clarifies that an executive authority must give reasons for its decision. Any action by an executive authority which is violative of these principles is liable to be struck down. No other view is permissible." In view of the above settled legal position qua exercise of discretion, the appointment of Respondent No.6 has to be seen within the parameters of settled jurisprudence with regards to exercise of such discretion vested in Competent Authority under Section 2(2) of the First Statutes of the Act. It vests discretion in the Competent Authority to appoint Dean of the Faculty amongst the three senior most professors of the Faculty. This wide-ranging discretion to appoint the Dean from amongst the three senior most professor has been structured through evaluation process. It is an admitted position and has not been challenged that such evaluation was carried out by the respondent university, through the performa duly issued, by the office of the Competent Authority, vide letter dated 29.12.2008, to all Public Sector Universities in Province of Punjab, for appointment of the Deans of the Faculties in the said Universities whereby marks are awarded to all the three candidates based upon requisite qualification/qualities envisaged thereunder. For facilities of reference, the letter dated 29.12.2008 is reproduced hereunder: "GOVERNOR'S SECRETARIAT PUNJAB Subject: APPOINTMENT OF DEANS OF THE FACULTIES IN THE UNIVERSITIES BY THE GOVERNOR/CHANCELLOR The existing Ordinances / Acts and Statues of the Punjab Sector Universities in the Punjab do not provide for any specific criteria for the appointment of Deans of Faculties by the Governor /Chancellor. At times this causes difficulty in selecting the most suitable candidate for appointment as a Dean.

2. To make the process for selection of Dean transparent and merit-based, the Governor's Secretariat has evolved a multi-factor criteria, a copy of which is enclosed for guidance.

3. The Governor/Chancellor has been pleased to direct that in future all cases for appointment of Professors as Deans of the Faculties may be submitted by the Vice Chancellors of the Public Sector Universities in accordance with the enclosed criteria.

4. I am directed to request you to kindly take further necessary action accordingly. Sd/ (RIAZ AHMAD TAHIR) DEPUTY SECRETARY (ADMN.) Vice Chancellors of All the Public Sector Universities in Punjab No.GS (UNIV)3-13/2005-821 Dated: 29.12.2008" (Emphasis supplied) The perfroma evolved by the Competent Authority, reads as under: "CRITERIA FOR APPOINTMENT OF DEAN OF A FACULTY S.No Parameters to be considered Maximum marks Sub parameters (if any) Maximum marks Distribution of marks

1. Length of Service 10 marks 10 Marks 10 marks for each year of professorship

2. Research Publications 20 marks Publications in HEC recognized local journals 10 marks 2 Marks for each publication Publications in HEC recognized foreign journals 10 marks 3 marks for each publication

3. Academic performance 40 marks No. of M. Phils produced 10 marks 2 Marks per M. Phil No. of Ph.Ds produced 10 marks 2 marks per Ph.D Research Grant Awards as the Principal Investigator (other than the research grant given by the parent University) 10 marks 5 marks per Research Grant Award National Awards (Civil/ President) 4 marks 2 marks per award International Awards/ Honors 4 marks 2 marks per awards HEC Best Teacher Award 2 marks

4. Annual Confidential Reports (for the last five years) 10 marks Excellent 4 marks Very good 3 marks Good 2 marks Average 1 mark

5. Educational Administration 20 marks Dean 8 marks 3 marks per year Principal Chairman/ Director 8 marks 3 marks per year Others 6 marks 3 marks per year

11. The purpose of the above quoted letter as well as the perfroma is self-explanatory inasmuch it clearly aims at making the process of selection of the Dean in a transparent manner and it is based on the said performa that the respondent university, vide letter dated 18.03.2019, invited application for the appointment of the Dean of the Faculty. Through the said performa, the evaluation of all the three candidates was carried out and the candidates were accorded marks respectively. The criteria envisaged through the performa followed by allocation and award of marks on the basis of such proforma is not disputed by any of the parties. As a result, the petitioner was awarded highest marks i.e., 86 whereas the respondent No. 5 and 6 obtained 70 and 84 marks respectively, however, admittedly, the Competent Authority appointed respondent No. 6 without assigning any reason to demonstrate what prevailed with the Competent Authority to prefer respondent No.6 over the petitioner having obtained highest marks as per the evaluation parameters envisaged and settled by issuance of the performa. In this regard, the comments on behalf of respondent No.4 (Higher Education Department, Government of the Punjab) and the respondent university are put in a juxtaposition in the following manner: Para 1 of Writ Petition Reply by HED Reply by respondent University

1. That through the instant writ Petition Petitioner invokes extraordinary jurisdiction of this Hon'ble Court against the illegal appointment of Respondent No.6 as Dean, faculty of Agriculture Sciences and Technology, Baha-ud-Din Zakriya University, Multan, being illegal, void ab initio, without lawful authority and contrary to law, rules and Act of the University and the decision taken by the Respondent No.1 and in consequence thereof, appointment Notification dated 12-12-2019 be declared illegal and be set aside.

1. Denied. "Three most senior" does not imply that appraisals must be of equal status, rather from top three persons falling in order of seniority."

1. That the contents of Para No.1 are incorrect, hence, denied. In reply to this para it is submitted that in terms of Statute-2(2) of the First Statutes of the Baha-ud-Din Zakariya University, Multan; the Dean of each Faculty shall be appointed by the Chancellor from amongst the three senior most-Professors in the Faculty for a period of three years and shall be eligible for re-appointment. Provided that if no Professor is available in Faculty, a Professor from some other Faculty may act as a Dean till a Professor of the Faculty itself is appointed. According to the above Statue -2(2), the Office of the Registrar sent the case of following three senior most Professors in the Faculty of Agricultural Sciences and Technology, B.Z. University, Multan for the appointment of Dean. The Faculty of Agricultural Sciences and Technology. The above quoted response from respective contentions of the parties on the main issue clearly reveals that no reason has been specified by the Competent Authority for ignoring the petitioner while exercising executive discretion except by relying on the term "three senior most" professors envisaged in Section 2(2) of First Statutes to the Act. There is neither any doubt in my mind nor there any cavil to the position that every decision or conclusion reached at by an executive body has to be through an order clearly showing the reasons, which led to a particular decision by such executive body/official. The purpose underlying the imposition of an obligation to reach a decision by assigning reasons through a speaking order is that the public, the parties to be affected by such decision as well as appellate forum, if any, is able to discern and determine as to what reasons prevailed with the executive body in reaching such a conclusion and/or decision absence whereof would render the decision monarchical and repugnant to the settled principle of rule of law. Reliance on Dr. Iqrar supra by learned Counsel the petitioner is apt inasmuch as the analogical guidance in this regard can be sought from the law laid down in the said case wherein the issue of appointment of Vice Chancellor of University of Agriculture, Faisalabad was involved and in pursuance of the invitation of applications and subsequent process, the appellant therein stood on top in the order of merit, however, the competent authority thereof appointed another candidate instead of the said appellant despite standing higher on order of merit. The august Supreme Court observed as under: "

22. From the facts and circumstances discernible from the record, it is evident that the Appellant was denied an appointment unlawfully and arbitrarily and reasons were contrived to furnish a basis for a predetermined decision which fail to stand the test of judicial scrutiny. It was precisely for this reason that in our order dated 28-04-2018, while retaining the discretion of the government to appoint a person lower on merit we had circumscribed and structured the exercise of discretion by making it obligatory on the authority to record cogent reasons with a rider that such reasons will be justiciable." Though not explicitly articulated, the argument of learned counsel for respondent university tried to create distinction between the case of Dr. Iqrar supra and the instant case on the ground that the post of Vice Chancellor is an initial recruitment/appointment from the general public whereas the appointment of the Dean is not an initial appointment rather is a selection from the three most senior professors already serving in the university. I might be in agreement with the contention of learned counsel for the respondent university on the ground that the facts of case of Dr. Iqrar supra are distinguishable from the facts of the instant case, however, such factual difference is more of superficial in nature and skin deep in comparison to the enunciation of principle of law in Dr. Iqrar supra, which is fully applicable to the instant case. The marks obtain by the candidates in the instant case bring them in pari materia to order of merit, which was required to be followed in case of Dr. Iqrar supra. The discretion to appoint as Vice Chancellor, any one out of the three recommended candidates protected by the august Supreme Court is also applicable in the instant case, however, the appointment of any candidate other than the one scoring the highest marks has to be through cogent reasons which are, indeed justiciable. In the instant case, admittedly, the appointment of respondent No. 6 in place of the petitioner has been made without assigning any reason. While the comments are totally silent in this regard, the reason put forth at bar by the learned counsel for the respondent university that the difference in number between the petitioner and respondent No.6 was negligible and hence, no reasoning was given is an inexplicable and unconvincing argument. As far as reliance of respondent on case of Munir Khan Khatak supra, suffice to state that the same is distinguishable both on factual as well as legal aspects from the present matter. In Munir Khan Khatak supra, no evaluation process seems to have been provided and carried for the appointment of the Dean. The learned Division Bench of Peshawar High Court merely protected the discretion of the executive to appoint any one of the three recommended candidates. The discretion of the Competent Authority in the instant case is also protected by this Court, however, the same has to be exercised in a structured manner and once candidates have been awarded marks pursuant to an undisputed evaluation process, the appointment of any candidate other than one on top of the score table has to be through cogent reasons. Even otherwise, case Munir Khan Khatak supra is incongruous to the dicta laid down in case of Dr. Iqrar supra to the extent of exercise of unstructured discretion.

12. The above mentioned analysis leads this Court to conclude that the petitioner was ignored and denied an appointment as the Dean of the Faculty in an arbitrary manner without specifying any reason, let alone containing any cogency and having repercussions to the future pursuits of his professional career and hence, not sustainable in the eye of law. In this view of the matter, the present constitutional petition is partly allowed to the extent that the impugned notification dated 16.12.2019 is set aside and the Competent Authority is directed to proceed in accordance with law on the summary dated 14.06.2019 provided there is no other impediment under the law.

13. Disposed of in above terms. JK/A-77/L Order accordingly.