2005 PLP (C (PLC(CS))

Respondent No.3, who was appointed as Registrar, University of the Punjab Lahore by the Vice-Chancellor under Section 15(3) and (4)(vi) of the University of Punjab Act, 1973 on contract basis for a period of six months with effect from 1-11-2000 and continued to hold that post as such, his appointment has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which is primarily in the nature of quo warranto calling upon him to show under what authority of law he is holding the post of Registrar University of the Punjab Lahore. Report and parawise comments were called, whereafter the writ petition was admitted to hearing and written statement has also been filed by the respondents.

2. It is contended by the learned counsel for the petitioner that an advertisement for the post of Registrar University of the Punjab Lahore had been published in the daily Jang dated 15-6-2000 and applications were invited for the same but instead of completing that process respondent No.3, was appointed as Registrar vide Office Order dated 31-10-2000 with effect from 1-11-2000 on contract basis for a period of six months, which appointment was illegally made. According to the learned counsel similar orders were repeated thereafter and same arrangement was continued for years till the filing of the present petition. It is contended that such appointment was wholly unwarranted and illegal, in view of In re: Abdul Jabbar Memon and others (1999 SCMR 1349) and Pakistan Railways through G.M. Lahore and another v. Zafarullah, Assistant Electrical Engineer and others (1997 SCMR 1730). It is contended that when the law prescribes a mode of doing a thing in a particular manner, it is to be done in that manner alone and not otherwise.

3. The learned counsel for the respondents has made reference to section 17 of the University of the Punjab Act, 1973 to contend that power to appoint a Registrar of the University vests with the Syndicate who has since made the appointment of respondent No.3, in its 1660th meeting held on 30-10-2004, the writ of quo warranto is liable to be dismissed summarily as the said respondent is holding the post on the strength of the order of appointment passed by the competent authority. It is further contended that the appointment of Registrar, University of the Punjab could be made either by selection or directly and that in making appointment of respondent No.3, the Syndicate has not violated any law. Reference in this context has been made to page 462 of the University Calendar, relating to terms and conditions of service of University Employees.

4. There is no cavil that when a vacancy occurs in a public office the same has to be filled in the manner prescribed and the conditions/procedure laid down for the same are to be adhered to. There is also no cavil that adhoc appointments cannot be extended for indefinite length of period and the regular appointments should be made strictly in accordance with law. In the instant case reference to the relevant provisions of the University of the Punjab Act, 1973 would show that there are certain designated officers of the University, which include the Registrar , section 10(1)(ix) of the Act, 1973 may be referred for that purpose. Under section 17 of the Act, the Registrar is supposed to be a whole time officer of the University and shall be appointed by the Syndicate on such terms and conditions as may be determined by it. (underlined by me). It also lays down the duties and functions to be performed by him. There is envisaged a Syndicate , composition whereof is mentioned in section 25 of the Act, 1973. Under section 26(1) the Syndicate is the Executive body of the University. In view of section 26 (2)(s) of the University of the Punjab Act, 1973 it has the power inter alia to appoint University Teachers and other Officers on the recommendations of the Selection Board for Teaching and others posts in the initial pay of Rs.450 per mensem or above . The statute of the University of the Punjab 6(1) envisages a Selection Board whose functions as per statute No.7 include the making of recommendations for Teaching and other posts (after consideration of the applications received in response to the advertisement) to the Syndicate. The method of appointment of Registrar laid down in University Employees terms and conditions of service page 462 of the University Calendar is by Selection or by direct appointment, footnote No.1, on the said page empowers the Vice-Chancellor to decide whether the post be filled in by promotion or by direct recruitment vide paragraph No.2 Chancellor s Committee dated 3-12-1973 . The provisions mentioned above would show that the Registrar of the University has been considered as a category apart from the Teachers and other Officers in the matter of appointment. He is to be appointed by the Syndicate on such terms and conditions as may be determined by it, in view of the provisions of section 17 of the Act. In contradistinction to other appointments envisaged by section 26(2)(s) of the Act, the said provision does not make mention of recommendations of the Selection Board. It is thus evident that decision to fill up the vacancy of the post of Registrar i.e. by promotion or by direct recruitment lies with the Vice-Chancellor of the University whereas the power of appointment vests with the Syndicate.

5. Although, belatedly yet the Syndicate had in its 1653rd meeting held on 23-8-2003 recorded the proceedings that Chief Justice (Retd.) Sardar Muhammad Iqbal pointed out that Registrar and his staff was so efficient that they did never commit even a petty mistake while preparing agenda and recording minutes. He states that all the anticipatory orders regarding appointment of the Registrar and subsequent extension in his term of appointment passed by the Vice-Chancellor to date under section 15(3) of the University of the Punjab Act, 1973, on behalf of the Syndicate may be confirmed. This was unanimously agreed to. This was so even before the filing of this writ petition. In the 1660th meeting held on 30-10-2004 the appointment of respondent No.3, as Registrar came to be considered again when after lengthy deliberation, despite a dissenting note by petitioner No.1, the Syndicate took the decision that the Syndicate confirmed the anticipatory orders passed by the Vice-Chancellor regarding appointment of Col. (R) Masud-ul-Haq as Registrar, University of the Punjab, Lahore upto 31-10-2004 on contract basis. Additionally, the Syndicate further appointed Col. (R) Masud-ul-Haq as Registrar for a further period of one year commencing from 31-10-2004. Even if it be assumed for a moment that there was some lacuna in the appointment of respondent No.3, the same stood removed and ratified with the approval and decision of the Syndicate who as mentioned above was the competent authority in view of section 17 of the Act in the matter of appointment of Registrar of the University.

6. Insofar as the observations appearing in Capt. (Retd) Muhammad Naseem Hijazi v. Province of Punjab through Secretary. Housing and Physical Planning and 2 others (2000 SCMR 1720), relied upon by the learned counsel for the petitioner that The invalidity of appointment may arise not only from one of qualifications but also from violation of legal provision for appointment are concerned, the same are undoubtedly entitled to highest respect and regard. But as noticed above in the instant case the appointment of respondent No.3, eventually received blessing and approval of the Syndicate. The decision of Syndicate does not suffer from any procedural or other legal flaw and infirmity. Suffice it to observe that aim and object of a writ in the nature of quo warranto is to pose a question to the person holding public office to show his authority as to under what law he claims to hold such office and if it proved that public office is being usurped then the writ may be issued by the Court. It is settled law that in order to succeed in a petition of quo warranto it is to be shown that such a disqualification to hold a public office must exist and persist not only on the date of institution of the petition but also at the time of decision by the Court. The principle well-settled qua a writ of quo warranto is that a writ of quo warranto is not issued if it is found that the issuance of such a writ will be futile. If the holder of public office is ineligible for appointment to that office and remains ineligible up to the date of the hearing of the writ petition he is undoubtedly a usurper and the principle of futility of writ would not be attracted. However, in Hari Shankar Prasad v. Sukhdeo Prasad (AIR 1954 Allahabad 227 (FB) the principle of futility of issue of a writ of quo warranto was applied and the writ of quo warranto was refused as the holder of the office though not qualified on the date of his appointment thereto acquired the necessary qualification during the pendency of the petition. This principle was followed and applied by the Full Bench of the Delhi High Court in P.L. Lakhanpal v. Ajit Nath Ray, Chief Justice of India, New Delhi and others (AIR 1975 Delhi 66) wherein the appointment of Chief Justice of India had been assailed on the ground that the appointment of Mr. Justice A.N. Ray was in Violation of the principle of seniority but writ of quo warranto was refused. Similar principle is deducible from Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan (PLD 1970 SC 98) and Sardar Asseff Ahmad Ali v. Mr. Muhammad Khan Junejo and others (PLD 1986 Lahore 310). In Halsbury s Laws of England, Fourth Edition paragraph No.177 of Volume-1, it has been dealt as follows:-- An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The Court would inquire into the conduct and motives of the applicant, and the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results. It may be observed that in Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42), it was observed by their Lordships that a writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinair approach . Since the respondent has shown from decision taken by the Syndicate, that his appointment was in conformity with the provisions of the Act and the University statutes, there is no justification to issue a writ of quo warranto. The reliance of the learned counsel for the petitioner on a Division Bench judgment dated 22-12-2004 in I.C.A. No.582 of 2000 is inapt inasmuch as that the precedent case was not that of writ of quo warranto and in that case it was found as a fact on the petition of an aggrieved party that the appointments were made on the intervention of Prime Minister Secretariat in violation of the merit. The ratio deducible from the precedent case is not attracted to the present case. The above view taken by the Court is based purely on consideration of the existing provisions as have been brought to the notice of the Court but it need to be observed that though the power to make appointment of the Registrar vests with the Syndicate and for that matter the Selection Board does not come into the picture, it would be appropriate that the University lays down a criteria and procedure for making appointment to the post of Registrar reflecting transparency and fairness, in order to ward off any insinuation or allegation of arbitrariness. In view of the above, this petition is dismissed with no order to costs. S.A.K./M-893/L Petition dismissed.