P L D 1980 Peshawar 158 (PLP)

MUHAMMAD KHURSHID KHAN, J.-By this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan (1973), Mr. Sirajul Islam seeks an appropriate writ for having the order, passed by the Syndicate, University of Peshawar, on the 10th of April 1978, and communicated to him by the Registrar under his office No. 474/Estt., dated 22-4-1978, for his adjustment against the post of Sub-Divisional Officer in National Pay Scale 17 on work charged basis, vacated. Briefly stated, the important ones .of the relevant facts are these. The petitioner was appointed as an Overseer, Islamia College, Peshawar, by the Vice-Chancellor, University of Peshawar, at an initial pay of Rs. 205 per mensem in the time scale of Rs. 175-15-325/15-400, by an order dated the 1st April 1969, Annexure A. Consequent upon the recommendations of the Selection Committee, he was, by an order dated 25th September 1971. Annexure II, appointed as Sub-Divisional Officer at an initial pay of Rs. 450 per mensem in the time scale of Rs. 450-50-1,000, for the supervision of projects at the campus, maintenance of buildings and supervision of stores of the Buildings Department. In consequence of the promotion of Fazal-Sattar Khan, a confirmed Sub-Divisional Officer, Islamia College, Peshawar, to the post of Director of Works (X.E.N.) the Syndicate, University of Peshawar, in its meeting held on April, 15, 1976, approved the appointment of the petitioner as Sub-Divi sional Officer on regular basis against the post vacated by Fazal Sattar Khan with effect from 10th January 1976, and placed him on probation for a period of one year with effect from the same date. On the recommenda tion of the Finance and Planning Committee, the Syndicate, in its meeting convened on 10th April 1978, created a post of Sub-Divisional Officer in National Pay Scale 17 on work charged basis, payable from Development Budget, with effect from 1st of July 1977, and adjusted Siraj-ul-Islam as Sub-Divisional Officer against the said post from the same date. This arrange ment was necessitated by the reversion of Fazal Sattar Khan to his substantive post of Sub-Divisional Officer. This order is now being com plained of before us. In the written statement put in on behalf of the University of Peshawar, and the Syndicate, who are shown as respondents Nos. 1 and 2 in the petition, the impugned order was sought to be defended on the grounds that it was perfectly legal and within the competence of the authority making it and that it was necessitated by the reversion of -Fatal Sattar Khan to his substantive post of Sub-Divisional Officer and was passed purely in the exigency of service. A preliminary objection was also raised in the written reply. It was stated that the writ was liable to be dismissed on the ground that the University of Peshawar being an Autonomous Body the petitioner could not invoke the writ jurisdiction of this Court. Before we enter upon a discussion of the merits of this petition, we have to deal with the preliminary objection raised in the written statement. Under Article 199 of the Constitution of the Islamic Republic of Pakistan, High Court of a Province may, provided the other conditions are satisfied, make an order directing a person performing in the province functions in connection with the affairs of the Federation, the Province or a local authority, to refrain from doing that which he is not permitted by law to do or to do, that which he is required by law to do, or declare that any act done or proceeding taken in the Province by such a person or local authority has been done or taken without lawful authority and is of no legal effect. It is evident that in exercise of the powers so conferr ed on the High Court, it may intervene on the application of an aggrieved party in case the functionaries under this Article have acted or are likely to act in ex cess of the law or failed to act as required by the law. There can be no doubt, in view of those provisions, that all orders passed in excess of lawful authority, whether by judicial, quasi judicial, or non judicial functionaries including functionaries of the Corporations and Autonomous Bodies, are equally liable to be declared as being of no legal effect. The members of the Syndicate and the Vice-Chancellor of the University of Peshawar undoub tedly perform functions in connection with the affairs of the Province, which appertain to their office and are in the nature of a public duty. There is ample authority for the view that functionaries of the Univer sities and other statutory authorities are amenable to the writ jurisdiction of the High Court. There are large number of authorities of the Superior Courts supporting this position, which we are aware of. We, however, need do no more than refer to three of them only, namely, in the cases of, Fazal Karim Cherry v. The Punjab University (P L D 1955 Lah. 404), S. M. Saleem v. The Vice-Chancellor of the University of Karachi and Chancellor of University of Karachi (P L D 1958 Kar. 297) and Messrs East & West Steamship Co. v. Pakistan and 2 others (P L D 1958 S C (Pak.) 41) In the first of these cases, the petitioner, Fazal Karim Chaudhry, had appeared in the Final Professional Bachelor of Veterinary Science Exami nation held in December 1953. He was placed in compartment in "subject No. 1, Part II, written", wherefore he was required to re-appear, not alone in Part II, but in the entire Subject No. 1 in May 1954. He challenged this order before the High Court in its writ jurisdiction. One of the conten tions raised on behalf of the respondents in the High Court was that the matter not being of a public nature, the Court had no power to issue a writ to the University authorities. Repelling all the contentions so raised, their Lordships held that the functionaries of the University were not immune from the writ jurisdiction and that the petitioner has also a good case to succeed. Consequently, a writ of mandamus was issued to the Punjab University to declare the result of the petitioner, in accordance with the correct interpretation, as found by the Court, of Regulation 40, relating to the required pass percentage of marks 'in the written and practical tests respectively of the subject as distinguished from each paper of the subject. The second was a case where Twenty-Five Posts on the Senate of the Uni versity of Karachi were to be filled in 1957 from the Constituency of the Registered Graduates. The petitioner, S. M. Saleem, was one of the candidates for the electron. The election was held in November, and the 24th of Novem ber 1957 was fixed for the scrutiny of the Ballot papers. The Committee appointed by the Syndicate to scrutinize and count the votes, scrutinized the Ballot Papers, prepared the list of the candidates showing the number of votes secured by each one of them and submitted its report through the Registrar; which was received by Vice-Chancellor on the 25th of November 1957. Almost immediately after the receipt of the report by the Vice-Chancellor, Mr. M. A. Naqvi who was one of the candidates saw the Vice-Chancellor in his office and within 15 minutes of the meeting, Mr. Nurul Hassan Advocate submitted a representation to him on behalf of Mr. Naqvi. The representation contained some objections to the vali dity of the election. On the basis of these objections, it was requested that the result of election should be withheld and an inquiry should be instituted into the alleged irregularities by a Committee consisting of "persons of integrity and impartiality" The Vice-Chancellor referred the objections to a Committee of five persons with the directive that pending an objec tion raised on behalf of Mr. Naqvi, the result of the election may be with held. The Committee submitted its report in due course. After receiving the report, the Vice-Chancellor referred the matter to the Chancellor. The latter took a decision, which was communicated to the Registrar. The peti tioner challenged the procedure adopted by the Vice-Chancellor, by invok ing the writ jurisdiction of the High Court. One of the objections taken on behalf of the respondents was that writ against the Chancellor was not competent. This objection was overruled by their Lordships holding that the writ against the Chancellor was competent. In the case of Messrs East and West Steamship, the prayer was for the issuance of writs of mandamus and prohibition against the Government of Pakistan, the Shipping Authority functioning under the Control of Shipping Act, 1947, and the District Magistrate, Karachi, on the ground that certain prosecutions under the Control of Shipping Act launched by the Shipping Authority against the petitioners were void and unconstitutional inasmuch as they were in contravention of some fundamental rights guaranteed by Constitution to the citizens of Pakistan. One of the questions, which came up for decision before their Lordships of the Supreme Court was whether a writ can issue to a statutory functionary. It was held that where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. It will be seen that it has all along been the consistent view of superior Courts that the Universities and Corporations are amenable to the writ jurisdiction of the High Court. There is thus no substance in the objection that the University of Peshawar and its functionaries are not amenable to the writ jurisdiction of this Court. Having disposed of the preliminary objection, we will now proceed to deal with the merits of the case. In the main, the learned counsel for the petitioner contended that the petitioner having successfully completed his period of probation for one year as Sub-Divisional Officer, had become a confirmed against that post, and, therefore, the impugned order to remove him from this post was in flagrant disregard of the mandatory provisions of the rules. When asked to produce such rules, the learned counsel expressed his inability to do so. The above reasoning of the learned counsel does not, to our minds, fully recognise that the appointment to a post on regular basis and confirmation of the incumbent against that post are two different things. The petitioner, in the instant case, was, no doubt appointed to the post of Sub-Divisional Officer on regular basis but he could not be confirmed because of the fact that his predecessor-in-office, namely, Mr. Fazal Sattar Khan, retained his lien on the said post till the latter was reverted from the post of Director of Works. The counsel for the petitioner seems to have been unaware of the position that so long as an employee retains his lien on a post against which he is confirmed, the other incumbent of that post cannot possibly be confirmed no matter he is appointed on regular basis. In this view of the case, there can be no doubt that the petitioner was not a confirmed Sub-Divisional Officer with the result that his reversion from the said post which was in the normal course of service, cannot be described as being in contravention of any rules muchless can the impugned order be described as one in flagrant dis regard of the mandatory provisions of rules. It was next argued with vehemence that it was obligatory upon the departmental authority to issue a show-cause notice to the petitioner before the passing of the impugned order. The learned counsel for the petitioner did not specifically assert that the impugned order was in viola tion of the doctrine of audi alteram partem (no one can be condemned unheard), though his arguments appear inclined to give that impression. The argument that it was obligatory upon the departmental authority to issue a show-cause notice to the petitioner is founded on a misconception. As indicated already, the petitioner had not been, nor could he be, con firmed in the post of Sub-Divisional Officer because of the lien of Mr. Fazal Sattar Khan on the said post. In this state of things, all that ca be said is that the petitioner had been working as Sub-Divisional Office in an officiating capacity. Since the impugned order was necessitated the reversion of Fazal Sattar Khan to his substantive rank of Sub-Divisional Officer, it was not in the least necessary, either in law or in equity, to issue a show-cause notice. It will not be out of place to point out here that the doctrine of audi alteram partem cannot be attracted to this case for the short and good reason that there was no question of condemning the petitioner as the order of his reversion was made in the exigency of service and in the circumstances explained above. There is no warrant for the view that in such circumstances, a show-cause notice would be necessary. For these reasons, we would dismiss this petition. There will, however, be no order as to costs. M. Y. M. Appeal dismissed.