P L D 1964 (W (PLP)

SHAKIRULLAH JAN, J.‑This is a petition by Sheikh Abdur Rahim, son of Sheikh Abdur Rahman, Dean of the Faculty of Architecture and Planning, resident of 76, Montgomery Road, Lahore Cantonment, against (1) the Chancellor of West Pakistan University of Engineering and Technology, Lahore, (2) Dr. A. G. Asghar, Vice‑Chancellor of West Pakistan University of Engineer ing and Technology, Lahore, (3) Mr. Ikram‑ul‑Haq, Registrar, West Pakistan University of Engineering and Technology, Lahore, and (4) Dr. Asghar Hameed, Professor of Mathematics; West Pakistan University of Engineering and Technology, Lahore, under Article 98 (2) (a) of the Constitution of the Republic of Pakistan, 1962, for the issue of "a writ of mandamus" directing respondent No. 1 to cancel and withdraw his order dated the 9th of November 1963 by virtue of which respondent No. 4 was appointed Dean of the Faculty of Architecture and Planning and the petitioner was removed from the said office. He further requested that respondent No. 4 be directed to refrain from acting as Dean of the aforesaid Faculty and respondents Nos. 2 and 3 be directed to allow the petitioner to continue to work as Dean of the said Faculty and giving him the special pay and to declare that the action of respondent No. 1 is without lawful authority and is of no legal effect.

2. Briefly the facts giving rise to this petition are that the petitioner, Sh. Abdur Rahim, was appointed Professor of Town Planning of the West Pakistan University of Engineering and Technology on the 26th of January 1962, at a salary of Rs. 2,150 per mensem besides other allowances and privileges. On the basis of a letter dated the 15th of November 1962 from the Registrar addressed to the petitioner (copy Annexure `A'), the petitioner was appointed Dean of the Faculty of Architecture and Planning in addition to his own duties for a period of two years with immediate effect. As Dean of the Faculty, he was to get an additional pay of Rs.

250. Subsequently, the above mentioned order was modified as the Chancellor fixed the tenure of the Dean for one year only commencing from the 1st of July each year till the 30th of June by a letter (copy Annexure `C') which was issued on the 9th of November 1963, to the petitioner informing him that the Chancellor was pleased to approve his appointment as Dean of the Faculty of Architecture and Planning from the 15th of November 1962 to the 30th of June 1963 in addition to his own duties. By another order dated the 9th of November 1963 (Annexure 'B'), respondent No. 4, Dr. Asghar Hameed, was appointed Dean of the said Faculty in addition to his own duties with immediate effect till the 30th of June 1964. He was directed to take over charge of this post from Professor S. A. Rahim (petitioner) immediately. It is against this order that the petitioner has filed this writ petition.

3. Respondent No. 3, the Registrar of the University of Engineering and Technology, In his written statement submitted that the petitioner was appointed Professors Town Planning in the University of Engineering and Technology and subse quently Dean of the Faculty of Architecture and Planning on the 15th of November 1962. In para. No. 10 it was urged that under Statute 4 (3) of the University each Faculty consists of :‑ (i) the Dean of the Faculty to be appointed by the Chancellor, (ii) all Professors, Readers and other Heads of the attached departments within the Faculty, and (iii) three other teachers dealing with the subjects concerned, nominated by the Academic Council. Statute 4 (5) of the University provides that the term of office of a nominated member shall be two years. The Dean of the Faculty is not one of the nominated members and has to be appointed by the Chancellor. The term of office of the Dean of the Faculty has not been prescribed by the Statute. It was further urged that initially the Chancellor was of the opinion that the appointment of Dean of a Faculty should also be for two years in keeping with the term of office of the nominated members. On further consideration, however, as a matter of policy he decided that the Dean of a Faculty under the University should be appointed every year commencing from the 1st of July for one year only. In para. 12 he urged that the Dean of the Faculty is appointed, and not nominated, by the Chancellor in exercise of the powers vested in him under Statute 4 (3) (i) of the Schedule attached to the Ordinance No. XXVI of 1961. Under section 14 (iii) of Ordinance No. XXVI of 1961 two Deans nominated by the Chancellor are ex officio members of the Syndicate. The other respondents also resisted the petition.

4. The points that arise for determination in this writ petition are these: (i) What is the statutory tenure of the Dean of the Faculty under Ordinance No. XXVI of 1961 (the West Pakistan University of Engineering and Technology Ordinance, 1961, hereinafter referred to as the Ordinance)? (ii) After the Chancellor had once fixed the tenure of two years and having appointed the petitioner, could he reduce the period to one year by modifying the previous order? (iii) If he could do so, when an academic period had begun, would the petitioner be not entitled to continue for the residue of the academic year?

5. Learned counsel for the petitioner referred to section 14 of the Ordinance, which is as under :‑ "Syndicate.‑The Syndicate shall consist of the following members, namely :‑ (i) the Vice‑Chancellor (Chairman) ; (ii) the Education Secretary to the Government of West Pakistan ; (iii) two Deans to be nominated by the Chancellor ; and (iv) seven persons to be nominated by the Chancellor." Sub‑statute (2) of Statute 3 of the Statutes of the University at page 191 of P L D 1962, Statutes Part, lays down that the term of office of the members of the Academic Council other than ex officio members shall be two years. Statute 4 dealing with the Faculties is as under: "

4. The Faculties.‑ (1) There shall be the following faculties, namely :‑ (i) Faculty of Engineering ; (ii) Faculty of Architecture and Planning ; and (iii) such other Faculties as may be constituted by Statutes. (2) The subjects in each Faculty shall be prescribed by University Ordinances. (3) Each Faculty shall consist of‑ (i) the Dean of the Faculty‑to be appointed by the Chancellor who shall, in the absence of the Vice‑Chancellor, preside at the meetings of the Faculty ; (ii) the Professors, Readers and other Heads of Teaching Departments within the Faculty ; and (iii) three other Teachers dealing with the subjects concerned, nominated by the Academic Council. (4) The Vice‑Chancellor shall be ex officio member of each Faculty, and shall, if present, preside at the meeting of the Faculty. (5) The term of office of nominated members shall be two years. (6) The quorum for the meetings of a Faculty shall be one- third of the total number of members, a fraction being counted as one. (7) The following shall be the functions of each Faculty, that is to say‑ (i) to co‑ordinate the work of the Boards of Studies com prised within the Faculty ; (ii) to scrutinise the courses of studies and syllabuses prepared by the Boards of Studies and forward them to the Academic Council for approval or refer them back to the Board concerned for reconsideration ; and (iii) to consider and report on any other matter referred to it by the Vice‑Chancellor, the Syndicate or the Academic, Council."

6. Relying upon sub‑statute (2) of Statute 3, learned counsel for the petitioner contended that the term of the office of the members of the Syndicate other than the ex officio members was two years, from which it was obvious that the tenure of a Dean who is a member of the Syndicate must be for two years. In support of this contention he relies on Annexure 'A', addressed by the Registrar to the petitioner, informing him that he was appointed Dean of Faculty of Architecture and Planning in addition to his own duties for a period of two years with Immediate effect and in view of this letter and the provisions of Sub‑statute (2) of Statute 3 the period of two years had been fixed and there was no condition that it was till further orders and the appointment was made, in the view of the learned counsel, under Statute 4 (3) (i). Learned counsel urged that once a period had been fixed and determined, it could not have been reduced or modified to the detriment of the petitioner. Learned counsel contended that the order Annexure `A' had become effective because the petitioner had started functioning as Dean and, therefore, this order could not be withdrawn. In support of this contention he relied upon Shahbaz v. The Crown (P L D 1956 F C 46). Briefly, the facts of the above‑mentioned case are that Shahbaz was convicted of murder and sentenced to death on the 5th of February 1953. On appeal the High Court of Lahore upheld the conviction but reduced the sentence to transportation for life on the 6th of May 1953. Towards the end of 1953 the brother of the appellant moved the Government of the Punjab for the remission of the appellant's sentence and early in August 1954 the Punjab Govern ment passed orders remitting the sentence of the appellant unconditionally with the direction that he should be released on the Independence Day, i.e., 14th of August 1954. But this order was cancelled on the 13th of August, with the result that the appellant was not released on the Independence Day. Thereupon an application was filed on his behalf for the issue of a writ in the nature of habeas corpus which was dismissed by the High Court of Lahore. On appeal, their Lordships of the Supreme Court held: "This brings us to the question whether the first order in the present case had been given effect to by the time the order of cancellation was passed. We are unable to accept the con tention that the order came into effect on the date of its issue. The original order in this case remitted no doubt the unexpired portion of the sentence, but there was a definite direction that it should come into effect on the 14th August. Detention till the 14th was lawful and it would have become unlawful only after that day, but before that day arrived the order of cancellation was received." Their Lordships, therefore, did not find any reason to interfere and dismissed the petition. The decision cited above shows that the Government was competent to cancel the original order before it had become effective, but we are unable to consider it an authority for the proposition that in the present case the Chancellor could not modify his original order merely because the petitioner had begun to function as Dean.

7. Learned counsel also relied upon Dr. Mahboob Rabbani v. Government of West Pakistan (P L D 1963 Lah. 53). The facts of that case are that Dr. Mahboob Rabbani petitioner, who was a Professor of Pharmacology in the King Edward Medical College, Lahore, was to reach the age of superannuation on the 13th of September 1957 forenoon. On his query, the Accountant‑General by a letter dated the 1st of August 1957, informed him that he had 43 days leave to his credit. He applied to the Government on the 8th of August for this leave to be granted to him with effect from the 16th of August 1957. The acting Principal, by his letter dated the 10th of August 1957 addressed to the Director, Health Services West Pakistan, Lahore, remarked that the petitioner should not be granted leave as regular revision lectures, practical and tutorial classes were being carried on and no person could take his classes as the Assistant Professor was on vacation. The Director of Health Services, by his letter dated the 7th of September 1957, categorically stated that the petitioner could not be allowed to go on leave and he could be allowed to do so only with effect from the date the Assistant Professor reported back for duty. The petitioner retired on the 13th of September 1957 and on the 12th of September 1957, i.e., a day before his retirement, he applied to the Director of Health services to grant him his earned leave to be enjoyed by him after his retirement as provided under rule 8.22 of C. S. R. Volume I, Part 1, and 28 days' leave was sanctioned with effect from the 13th of September 1957 forenoon which was duly notified in the West Pakistan Government Gazette dated the 27th of September 1957. It was held: "Since the order became operative with effect from the 13th of September 1957, the order could not be withdrawn or cancelled subsequently on the 1st of June 1959, in exercise of the powers under section 21 of the General Clauses Act." This case is also not applicable since, whereas the leave granted to the petitioner with effect from the 13th of September 1957 had been availed of, in the present case even the first year of the original period of the petitioner's appointment as Dean had not expired, and no retrospective effect was given to the subsequent modification.

8. Learned counsel for the respondents, opposing the petition, contended that the term of office of the members of the Syndicate and of a Dean was not fixed at two years by the ordinance and the Statutes and the petitioner has, therefore, no case.

9. Learned counsel for the respondents made a reference to section 40 of the Ordinance which is as under :‑ "The Chancellor may, for the purpose of removing any difficulties in first giving effect to the provisions of this Ordin ance, particularly in relation to the first constitution or re constitution of any Authority, by order direct that such action be taken as he may deem to be necessary or expedient." In the opinion of the learned counsel this section empowers the B Chancellor to re‑constitute the order regarding the tenure of the office of the Dean. The Chancellor, in the interest of the University, modified the previous order contained in Annexure `A' and, therefore, the order by the Chancellor is protected under section 34 of the Ordinance which is as under: "No order made under this Ordinance or under any Statute, University Ordinance, Regulation or Rule made thereunder shall be called in question in any Court, and no suit, prosecution or other legal proceeding shall lie against any person for anything in good faith done or intended to be done under this Ordinance or any Statute, University Ordinance, Regulation or Rule made thereunder." Learned counsel frankly conceded that section 34 did not oust the extraordinary jurisdiction of this Court, but argued that the Governor, who is Chancellor of the University, has acted in good faith and in the interest of the University in modifying the order, which is consequently in no way illegal.

10. He next relied upon Articles 116 and 117 of the Con stitution and contended that according to sub‑Article (3) of Article 116 protection is given to the Chancellor, who is also the Governor. We, however, do not consider it necessary to express any opinion on this point.

11. Learned counsel for the petitioner urged that according to Sub‑statute (2) of Statute 3 the term of office of members of the Syndicate other than ex officio members shall be two years sand, therefore, the tenure of the term of the petitioner as a member of the Syndicate could not be modified. We do not agree with this contention of learned counsel because the petitioner became a member of the Syndicate by virtue of his appointment as Dean, and if he ceased to be Dean, he automatically ceased to be a member of the Syndicate. The continuance of the office of member of the Syndicate is dependable on the appointment as Dean and not vice versa. Since no statutory period was fixed for the tenure of the Dean, we are unable to hold that the Chancellor, in modifying the order contained in Annexure `A' in the interest of the University, acted illegally and so, finding no force in this writ petition, we dismiss it with costs. A. H. Petition dismissed.