P L D 1999 Lahore 235 (PLP)

This interim order was challenged in Intra‑Court Appeal No. 1007 of 1997 which was admitted to regular hearing and the operation of the impugned order of the learned Single Judge was suspended. Appellant No.3 thereupon went to the Supreme Court of Pakistan by filing a petition for special leave to appeal in which the august Supreme Court of Pakistan was pleased to direct that pending the decision of the Constitutional petition before the High Court, status quo shall be maintained.

2. The respondent's Constitutional petition was partly allowed by the learned Single Judge on 20‑3‑1998. He declared the appointment of appellant No.3 as being without lawful authority but refused to direct that the respondent be appointed as Vice‑Chancellor in his place. This judgment and order of the learned Single Judge has been assailed in this appeal.

3. Mr. Muhammad Raza Farooq, appellants' learned counsel has contended that the learned Single Judge has failed to consider that the rule of seniority‑cum‑fitness was not applicable for the appointment to the post of Vice-?Chancellor which was within the sole discretion of the Chancellor and in past many outsiders were appointed as Vice‑Chancellors. According to the learned counsel, this consistent practice is binding on the department. Reliance has been placed on Nazir Ahmad v. Pakistan and others PLD 1970 SC 453, K.F. Shaifta v. Settlement and Rehabilitation Commissioner, Lahore and others 1974 SCMR 465 and Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353.

4. The learned counsel for the respondent has, on the other hand, defended the impugned judgment and order by arguing that appellant No.3 had succeeded in obtaining the appointment through misrepresentation and fraud by showing that he was senior most employee of the University of Punjab and if this statement had not been made, the Chancellor would not have been persuaded to appoint appellant No.3.

5. A perusal of the impugned order of the learned Single Judge shows that the appointment of appellant No.3 has been nullified on the same ground which has been urged by the learned counsel for the appellants before us namely that in the summary sent to the Chancellor there was a misstatement that Dr. Khalid Hameed Sheikh was senior most. The learned Single Judge observed that the possibility could not be ruled out that the Chief Minister had been misled into recommending the name of appellant No.3.

6. Having heard the learned counsel for the parties at length and perused the available record, we regret our inability to agree with the views taken by the learned Single Judge that the appointment of appellant No.3 suffers from any infirmity muchless an illegality.

7. The power to appoint Vice‑Chancellor lies with the Chancellor under section 14(1) of the University of Punjab Act, 1973 which reads as under:‑‑ "(1) The Vice‑Chancellor shall be appointed by the Chancellor on such terms and conditions as the Chancellor may determine and shall hold office during the pleasure of the Chancellor for a term not exceeding four years. (2) At any time when the office of the Vice‑Chancellor is vacant, or the Vice‑Chancellor is absent or is unable to perform the functions of his office due to illness or some other cause, the Chancellor shall make such arrangements for the performance of the duties of the Vice?-Chancellor as he may deem fit. "

8. From the above‑quoted provision it is obvious that the appointment is left to the discretion of the Chancellor and nobody can claim to have a vested right either to be appointed or to be considered for appointment to the post of Vice‑Chancellor merely on the basis of his being in service or even senior most. It is a matter of common knowledge that many eminent persons from outside the 'University of Punjab like the retired Judges of this Court, Army Generals, prominent educationists in the past have been appointed as Vice‑Chancellors. Consequently, the fact whether the respondent was senior to appellant No.3 is neither of any relevance nor significance.

9. Be that as it may, even on merits it is not denied that appellant No.3 joined the University of Punjab on 20‑3‑1980 while the respondent joined on 27‑7‑1982. However, appellant No.3 has gone on deputation and under some decision taken by the Syndicate while extending period of his deputation a condition was attached that he could not claim seniority on the basis of the period of his service abroad. This condition would be of relevance in case of any contest between the appellant and another for some post where seniority was one of the criteria. It, however, has no applicability to the situation where even an outsider could be appointed. Mr. Muhammad Raza Farooq, learned counsel for the appellants has placed on record sufficient material to show that at the time when Allama Alau Din Siddiqui and Dr. Kharait Ibne Rasa were appointed as Vice‑Chancellors, there were other persons senior to them serving in the University.

10. It is also to be noticed that summary was prepared and put up by the relevant quarters in the department itself for approval to the Governor of Punjab and appellant No.3 was in no way concerned with its preparation or approval. Even if there was some misstatement in the summary, appellant No.3 cannot be blamed. It is also to be noticed that if under section 19 some provision of the Contract Act, 1872 are applied, contract obtained by fraud or misrepresentation B by one person is not void but is voidable at the option of the other party which can be availed of by it by exercising that option. It, however, does not lie with a third party to raise any cudgel in that behalf. Even when full fact came to the knowledge of the Governor of Punjab, no action was taken by him to recall or set aside the appointment of appellant No.3, who was otherwise fully qualified for appointment. That being so, no writ in the nature of quo warranto could be issued against him. In view of what has been said above, we allow this appeal, set aside the judgment and order of the learned Single Judge and dismiss the Constitutional petition filed by the respondent. There shall be no order as to costs. M.B.A./C‑19/L? ????????????????????????????????????????????????????????????????????????????????? Appeal allowed.