P L D 1967 Dacca 435 (PLP)

(4) "The Chancellor may require the Syndicate or the Governing Body of an affiliated College, as the case may be, to submit to him record of proceedings against any person initiated under subsection (2) above and pass any orders hereon as he may think fit, provided that no punishment shall be enhanced unless the person proceeded against has been given an opportunity to show cause before the Chancellor. (5) "The Chancellor may on his own motion, take such actions the Syndicate or the Governing Body might have taken under subsection (2) above and pass such order or take such disciplinary action as the Syndicate or the Governing Body might have passed or taken." The petitioner in this application under Article 98 of the Constitution has challenged the provisions of section 24 mainly on two grounds. Before, however, taking up these points, we feel it convenient to consider some objections which have been raised regarding the maintainability of this application. Mr. Asrarul Hossain has argued that as the case of the petitioner is that the terms and conditions of his service are embodied in a contract and he wants a declaration that no new term and condition can be added to the terms to be found in the contract without his consent, the petitioner has virtually asked for enforcing a contract of service, and therefore, his application is not maintainable. We are not impressed by this argument. The petitioner has not asked for enforcement of any contract. His prayer is that a declaration be made that the new terms could not be added to the existing terms on the authority of the provisions of the Dacca University Ordinance of 1961, It has been contended that as section 45 of the Dacca University Act, 1920 provided that any dispute arising out of a contract between the University and any Teacher of the University was to be resolved by reference to a Tribunal of Arbitration, the present application is not maintainable. We must observe that this objection has no legs to stand upon. The petitioner is not trying to have any dispute arising out of his contract of service settled by this Court. The last objection that has been raised is that the present) application is premature as by mere services of a copy of the) Memo. issued by the Registrar enclosing a copy of the new statute, no right of the petitioner has been affected, and therefore, the application is not maintainable. The provision in the new statute is as we have already seen that any person who contravenes any of the conditions of service as mentioned in the Statute shall be liable to disciplinary action including disciplinary action by way of removal from his post, by order of the Appointing Authority on proceedings initiated against him. It is, therefore, clear that if the petitioner had contravened any of the provisions of the statute, he would have rendered himself liable under the provisions of the Statute and therefore, in challenging the Statute before any1 contravention, he has not come to the Court earlier than contemplated by law. It will be seen that the appointment of the petitioner was by a contract as contemplated by section 44 of the Dacca University Act, 1920. This section inter alia laid down that every salaried Officer and Teachers of the University shall be appointed on a written contract. When the petitioner was appointed in 1938, the position, therefore, was that the terms and conditions of a Teacher appointed in the University were to be provided for in a contract. Section 26 of the Act which authorised the University to frame Statutes did not contain any provision regarding terms and conditions of service of a Teacher. In 1953 by Ordinance IV of 1953, section 45‑A was added to the Act of 1920. This section laid down inter alia that an employee of the University shall not take part or subscribe in aid of or assist in any political movement, or any activities tending directly or indirectly to excite disaffection against the Government as by law established or to promote feelings of hatred or enmity between different classes of Pakistani subjects, or to disturb the public peace. It also laid down that he shall not canvass or interfere or use his influence or stand as a candidate in any election to a Legislative Body in Pakistan. This provision stood repealed when the Act of 1920 was repealed by the present Ordinance, which came into force on the 29th June 1961. Section 30 of the Ordinance lays down that subject to the provisions of the Ordinance the Statute may provide for any of the matters mentioned in the said section including conditions of service of Teachers and Officers. This provision, it has been rightly contended on behalf of the petitioner, cannot govern the case of the petitioner who was appointed in 1938. There is nothing to indicate in this section that it will have retrospective operation. We on the other hand find that the terms and conditions of service of the petitioner which had the Sanction of section 44 of the Act of 1920 have been saved by section 54 of the Ordinance notwithstanding the repeal of the Dacca University) .pct, 1920, as there is no provision in the Ordinance of 1961 which is inconsistent with the same. Mr. Asrarul Hossain in this connection has drawn our attention to section 49 of the Ordinance which provides that notwithstanding anything to the contrary contained in any contract entered into by the University, every salaried officer and teacher of the University shall be appointed on such terms and conditions as may be prescribed by the appointing authority and shall be governed by this Ordinance, Statutes, the University Ordinance and Regulations. It is true that section 49 authorises prescription of terms and conditions of service of teachers by Statutes, but we do not see how the position of the petitioner is affected by this section. In this section also there is nothing to indicate that it will have retrospective operation so as to govern cases of persons who were appointed before the Ordinance came into force. In the absence of any clear indication that the section is retrospective in operation its provisions must be deemed to be prospective. With regard to future entrants the University is no doubt authorised to lay down by Statutes, terms and conditions of service of teacher, but such Statutes cannot affect the position of those who were already in service before the Ordinance itself came into force. Mr. Asrarul Hossain has then argued that though section 30 is not retrospective in operation, the action taken under it will affect the petitioner. The argument is that the action taken is prospective, and therefore, it affects all including those who were in service already. We do not see much force in this argument. The point that has been urged is that the terms and conditions of service of a person who had been appointed before the Ordinance came into force cannot be affected by Statutes framed under the Ordinance. Mr. Brohi has then argued that the Statute in question is in conflict with the provisions of the Political Parties Act, and therefore, invalid, our attention has been drawn in this connection to sections 3 and 4 of the Act. Section 3 provides that no political party shall be formed with the object of propagating any opinion, or acting in a manner, prejudicial to the Islamic ideology, or the integrity or security of Pakistan. No person shall form, organise or set up or convene a foreign aided party or in any way be associated with any such party. Section 4 lays down inter alia that subject to the provisions of section 3, it shall be lawful for any person to associate himself with political activities. Under the provisions of section 30 and 49 we have already noticed terms and conditions can be laid down for the employees of the University of Dacca. If on the authority of these provisions of Statute has been framed prohibiting participation of the employees of the University in political activities the provisions cannot be said to have gone counter to sections 3 and 4 of the Political Parties Act. The Statute prohibit ing such participation will govern the case of a person so long as he remains in service of the University. The requirements of a particular service may necessitate imposition of certain restric tions on the employees by the employer. Such employees cannot get rid of them only by showing that if imposed on some others who were not employees they would be invalid. We are, therefore, unable to accept this contention of the learned Advocate for the petitioner. Similarly his argument on the basis of Article 103 of the constitution which authorises addition of disqualifications by law to the disqualifications mentioned in that Article for election to an Assembly is not tenable. This is not a p question of disqualification as contemplated by Article 103 of the Constitution. We have already pointed out that what the University has sought to do by the new Statute is to impose certain restrictions on its employees with regard to political activities, and therefore, this is not a question of disqualification for being elected to any Assembly as contemplated by the Constitution. Mr. Brohi has referred to some Amercian authorities, particularly to United States Supreme Court Reports 97 Lawyers' Edition, page 218 to show how in that country "inhibition upon the free spirit of teachers" has been viewed with disfavour. We do not think it necessary for us to enter into a detailed discussion of these authorities in the present case in view of the findings already arrived at. We may just observe that the Statute has been framed on the authority of a Law and unless it is shown that the law is bad or is liable to be struck down or the Statute has been framed in contravention of the terms of the Law, we are unable to declare the Statute invalid. It has lastly been argued that the Statute which stands on the footing of a Bye‑law is unreasonable as it is not in conformity with the duties to be performed by the teachers of the University. The University as a matter of policy took a decision that the teachers should not take part in political activities. It is difficult to say that the policy enunciated in the Statute is so unreasonable that it is bad in the eye of law. In the result this Rule is made absolute to this extent that it is declared that section 24 of the "Second Statutes" purporting to impose certain conditions of service on the petitioner who was appointed in 1938 is declared to have been made without lawful authority, and as such, of no legal effect. We have given this declaration as we have found that the University by serving the Memo. of the Registrar of the petitioner wanted to convey to him that he came within the mischief of the Statute. Before giving such a declaration we asked Mr. Rafiqueul‑Huq who appears for the University as to whether he is prepared to concede that this Statute does not affect the petitioner. The learned counsel instead of admitting that contended that the Statute does affect the petitioner also. There will be no order as to costs in this case. SALAHUDDIN AHMED, J.‑I agree. K. B. A. Rule made partly absolute.