2003 PLP (C (PLC(CS))

ABDUL, RAUF LUGHMANI, J.‑‑‑As authorised by the Senate in its meeting held on 21‑5‑1998, the Vice Chancellor, University of Peshawar constituted a committee consisting of the following to examine tide appointment of Principals of Constituent Colleges/Schools in the light of the University of Peshawar Act and the Statutes and the Terms of Reference:‑‑‑ (1) Prof. Mrs. Chand Rahman Convener (2) Prof. Dr. Nasir‑ud‑Din Member (3) Prof. Dr. Ihsan Elahi Member (4) Prof. Ahmad Ali Member (5) Prof. Dr. Hidayatullah Member (6) Prof. Dr. Fazlur Rahman Sethi Member (7) Prof. Dr. Mah Nazir Riaz Member TERMS OF REFERENCE: (I) The Principal of College or School should be appointed for three years tenure (extendable on satisfactory performance) or should he hold the post on permanent basis? (ii) If the decision is taken in favour of tenure of Principals, would it be applicable to the present incumbents? (iii) If the decision is applicable to the present incumbents then from what date? (iv) If the application of the tenure is from the retrospective effect, then what legal consequences would be involved therein? (v) Is it wise to restrict the choice to the senior most teachers? (vi) Should all Principals be treated at par? The Committee, besides other recommendations, on question No.III referred to, it suggested as under:‑‑ (iii) "Since the implementation of the recommendations will not be from retrospective date there is no question of any legal consequences. In addition the adoption of these recommendations for tenure posts for Principals of Colleges of the University does not involve any legal implications because according to the Statutes the appointment of the Principals (who are treated as heads of administrative matter and the Acts, Statutes, Regulations and Rules prescribe no qualification for their selection/appointment. However, in Schools where appointments of Principals have been made through Selection Boards against permanent posts of Principals or Vice‑Principals a modification/amendment in the existing Statutes regarding the nature of the posts and mode of appointment should be made for the recommendations to come into force and in this case once the changes/modifications are made in the Acts and Statutes the appointment of Principals of schools on tenure posts will also get legal cover. " The Committee, also recommended the necessary amendments in the University Act and the Statute, be taken up with the concerned quarters to facilitate the earlier implementation of the report.

2. The Syndicate of the Peshawar University in its meeting held on 3rd and 17th January. 1998 proposed the following addition/amendment in the first Statute of the Peshawar University Act, 1974:‑‑ "3(2)(i). The Principal of a constituent College or a School shall be appointed by the Syndicate on the recommendation of the Vice- Chancellor from amongst the three most senior Professors and Associate Professors in the case of a College, and three most senior teachers in the case of a school for a period of three years."

3. Finally the Senate in its meeting held on 18‑1‑2000 approved the following amendment in the University of Peshawar School Teachers NPS Statutes, 1976:‑‑ 15(a)"The Principal/Vice‑Principal shall be appointed by the Syndicate on the recommendation of the Vice‑Chancellor for a period of three years. He shall hold the office during the pleasure of the Vice ‑Chancellor. Tenure of the incumbent will be extendable for another term of three years with the approval of the Syndicate. (a) The addition of clause 15(a) in the University of Peshawar Employees (School Teachers) National Scales of Pay Statutes, 1970 shall be applicable on the present principal of the schools."

4. Malik Naz, Principal, University Public School, University of Peshawar, took exception to the amendment and has filed this writ petition challenging the amendment as being mala fide, illegal and without lawful authority. He claims that the amendment was conceived in malice and aimed at frustrating the decision of the Courts of law as according to him, he was transferred in 1994 by the Syndicate and posted as Associate Professor (English) in Islamia College of Peshawar which he challenged before the Chancellor of the University. The Chancellor not only suspended the transfer order but issued show‑cause notice to the Vice‑Chancellor and the Syndicate as to why the proceedings may not annulled. The respondents, on the receipt of the notice, reinstated him on 28‑8‑1994. Sadly on the following day, i.e. 29-8-1994 appointed him as O.S.D. in the office of respondent No.2 (Vice -Chancellor). He once again knocked at the door of the Chancellor, who after the perusal of the reply of respondent No.2 and consulting the Law Department, took action and issued notice as to why their order dated 29‑8‑1994 be not vacated. Ultimately, the Chancellor set aside the order and reinstated him as a Principal of University Public School Peshawar. Thereafter, he was again transferred which compelled him to file civil suit challenging his transfer order. The Civil Judge suspended the order of transfer which order was maintained upto the Supreme Court of Pakistan. Ultimately the Civil Court declared the transfer order illegal, void and of no legal effect, vide judgment dated 31‑8‑2000. The respondent were bent upon co remove him from the post of Principal and for this purpose planned his ouster by amending the rules. Further, plea of the petitioner is that no meeting of the Syndicate was held and the Senate could not passed the amendment. The amendment is also in conflict with the provisions of the University of Peshawar Act, 1974.

5. Syed Muhammad Anwar Shah and Muhammad Iqbal, Senior Master (B‑19), both of Islamia Collegiate School, University of Peshawar have filed Writ Petition No. 1392 of 2000 praying for direction to respondents Nos. 1 to 4 (Vice Chancellor, Registrar, University of Peshawar, the Senate and Syndicate) to give immediate effect to the newly‑added statute 3(2)(1) of the First Statute of the Peshawar University and clause 15(a) of the University of Peshawar Employees (School Teachers) NPS Statute, 1976. Similarly, Syed Karamat Ali Shah and Mian Asghar Shah, both senior teachers (B‑19) of the University Public School, have filed Writ Petition No. 1393 of 2000 praying for directing the respondents to immediately implement the newly‑added clauses.

6. We propose to dispose of these three Writ Petitions Nos. 1120, 1392 and 1393 of 2000 by this single judgment.

7. Mr. Jehanzeb Rahim, Bar‑at‑law, appearing for the petitioners, contended with reference to the various provisions and documents placed on record that proper procedure for the amendment was not followed and the impugned amendment is also to conflict with the provisions of the University of Peshawar Act, 1974.

8. On the other hand, the learned counsel for the respondents, Syed Safdar Hussain and Mr. Muhammad Latif Khan, Advocate defended the amendment by saying that the same was a valid piece of legislation.

9. The crucial point for consideration is regarding the validity or otherwise of the amendment Principal has been defined as head of a College and includes the head of an Academy or Institute constituted by or affiliated to the University by clause (m) of section 2 of the Peshawar University Act, 1974. University Public School is a constituent College of the Peshawar University and the petitioner is Principal of the said College. There are various authorities of the University of Peshawar but for talc purpose of the present controversy, the Senate, Syndicate and Selection Board are relevant. These organs of the University have to work in accordance with the provisions of University of Peshawar, 1974 and their powers, duties, functions have also been described. The Syndicate has the power to appoint teacher and other officers on the recommendations of the Selection Board in B‑17 and above. This body can propose amendment in the Statute by virtue of section 27(2) of the University Act. 1974 which states that the draft of the statement shall be proposed by the Syndicate to the Senate which may approve it, or passes it with such modification as the Senate may think fit, or refer it back to the Senate for reconsideration or reject, provided the Syndicate shall to propose amendment affecting constitution or powers of any authority of the University until such authority has given an opportunity of expressing an opinion in writing on the proposal. It is well established proposition of law that by way of delegation g legislation, the provisions of the Principal legislation cannot be rendered the ineffective. Similarly, delegated legislation must not be in conflict with the main Act. What we find, in the instant case, is that appointment of the post of Principal of the constituent Colleges is to be regulated in accordance with section 22(r) of the University Act, 1974 which makes it obligatory that the appointment of staff in Grade‑17 and above is to be made by the Syndicate but on the recommendations of the Selection Board. The Senate (respondent No.4) while disposing of item No.8 relating to appointment of Principal of constituent Colleges in its meeting held on 18‑1‑2000 considered re Committee report and the appointment proposed by the Syndicate and approved the following amendment in clause 3(2) of the First Statutes of 1974:‑‑ "3(2)(1). The Principal of a Constituent College shall be appointed by the Syndicate on the recommendation of the Vice Chancellor for a period of three‑years. He shall hold the office during the pleasure of the Vice Chancellor. Tenure of the incumbent will be extendable for another term of three years with the approval of the Syndicate. (a) The addition of Clause 3(2)(1) in the First Statutes shall be applicable on the present Principal of the College. (b) The implementation of Clause 3(2)(1) shall come into force with immediate effect after obtaining the assent of the Chancellor. (c) The qualification and experience for the post of Principal of the College shall be as under:‑‑ BPS-2 Master's degree with 20 years teaching experience to the University. (d) The post shall be open to the eligible teachers of the University only and to this effect internal advertisement shall be made. As required under clause 20(a) of the University of Peshawar Act, 1974 the case is placed before the Senate for consideration. "

10. The Senate also approved amendment in the University of Peshawar, Schools Teachers NPS Statute of 1976 so as to make clause of 15‑A Applicable to the petitioners. The Syndicate proposed amendment in its meeting held on 4‑9‑1999 in the University of Peshawar Schools Teachers NPS Statute of 1976, only to the following extent:‑‑ "The Principal/Vice Principal shall be appointed by the Syndicate on the recommendation of the Vice‑Chancellor for a period of three years. He shall hold the office, during the pleasure off the Vice‑Chancellor. Tenure of the incumbent will be extendable for another term of three years with the approval of the Syndicate. "

11. The Syndicate never recommended its application to the present holders of post or qualification etc. The Senate was aware of the problem and for this very reason suggested that advice of the University Legal Advisor be sought regarding clause 27(2) of the University of Peshawar Act, 1974, as to whether or not without proposal of the Syndicate, the Senate can of its own adopt the amendment. Even if we go by the proviso to section 27(2) of the University of Peshawar Act, 1974, it appears that no opinion of Selection Board was sought. The impugned amendment approved by the Senate is also in conflict with section 22(r) which gives powers of recommendation to the Selection Board for appointment in B‑17 and above. By the impugned amendment the post of Principal is. to be filled by appointment, by the Senate on the recommendation of Vice‑Chancellor whereas the requirement of law is that such appointment is to be made on the recommendation of the Selection Board. We are; thus clear in our mind, that firstly the procedure given in section 27(2) of the University Act, 1974 has not been followed and secondly the amendment in the statute is in conflict with section 22(r) of the University of Peshawar Act.

12. Syed Safdar Hussain, learned counsel for the petitioner in Writ Petition No. 1393 of 2000 also raised objection to the appointment of the petitioner that he lacked the requisite qualification. The petitioner went through proper selection procedure and was appointed Principal of UPS on probation for a period of one year with effect from 14‑7‑1992 and after the expiry of one year was confirmed with effect from 14‑7‑1993. Before his appointment, he was acting as Associate Professor (English) to Islamia Collegiate Peshawar. There was civil litigation between the petitioner and the University Authority and judgment and decree of the Civil Court dated 3‑7‑2000 as well. The petitioner in Writ Petition No. 1393 of 2000 kept mum and did not bother to challenge well in time with the result that principle of laches is applicable and they cannot be permitted to raise this issue following the principle of laches.

13. As a result, this petition is accepted and the amendment impugned is declared as null and void. Needless to mention that any amendment can be made in accordance with the procedure but the amendment must not be in conflict with the University of Peshawar Act, 1974. The Writ Petitions Nos.1392 and 1393 of 2000 are accordingly, dismissed. Q.M.H./M.A.K./559/P Order accordingly.