1998 PLP (C (PLC(CS))

(iii) Two Members of the Senate to be elected by the Senate; (iv) One Dean to be nominated by the Vice-Chancellor; (v) One Professor or Associate Professor to be elected by the teachers of the University from amongst themselves; (vi) One Assistant Professor or Lecturer to be elected by the teachers of the University from amongst themselves; (vii) Two nominees of the Chancellor; (viii) The Chairman or a member of the Public Service Commission to be nominated by the Chairman; (ix) Education -Secretary and Director Public Institution, Punjab, Lahore; (x) One Principal and one Teacher of the Affiliated Colleges to be elected by the Principals and Teachers of such Colleges from amongst themselves; and (xi) Two student representatives of the students Unions, that is one from the Presidents of the Unions of the Affiliated Colleges to be elected from among them selves and one from the University Students' Unions. (2) Members of the Syndicate, other than ex officio members shall hold office for three years. (3) The quorum for a meeting of the Syndicate shall be on behalf of the total number of members, a fraction being counted as one. " Section 25 (ibid) relates to powers and duties of Syndicate and as sub-clauses) is only relevant for our purpose so the same is reproduced as follows: "to appoint University Teachers and other Officers on the recommendation of the Selection Board for teaching and other posts in the initial pay of Rs.500 per mensem or above."

9. As appointment in question is to be made by the Syndicate on the recommendation of Selection Board, so we have to see what Selection Board means and this we find in sub-clause (vii) of section 2 of Islamic University Bahawalpur Officers (Appointment) Statutes, 1977, which reads as follows: "'Selection Board' means the Selection Board constituted under Statute 6 of the Schedule appended to the Islamia University of Bahawalpur Act, 1975."

10. Now the question arises, if the impugned order of appointment has been made by Syndicate on the recommendation of Selection Board, as required by law governing such appointment. A perusal of appointment order of respondent No.3 dated 13-4-1996 reveals that the said order has been passed by Vice-Chancellor on the recommendation of Selection Committee. Thus, the very appointment order has not been passed in accordance with statutory Rules.

11. The stand of learned counsel for the respondent is that it is long standing practice of Islamia University, Bahawalpur that such appointments are made by the Vice-Chancellor on the recommendation of Selection Committee and he produced a list of about 34 such appointments. He submitted that this practice of making such appointment by Vice-Chancellor on the recommendation of Selection Committee is being followed, since long and its deviation is also not permissible. In support of his contention, he relied upon Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453), in which it has been held: "Where the departmental practice has followed a course in the implementation of the relevant rule whether right or wrong; it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by a long and consistent course by the practice. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the department. 'As regards Departmental construction', that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules Crawford, thus, observes: 'Where the executive construction has been followed for a long time an element of estoppel seems to be involved: Naturally placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities." This very authority has been relied upon Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 353), wherein the question involved related to interpretation of certain expression for the purpose of assessing customs duty. Both the authorities relied upon by the learned counsel are not applicable to the facts in hand, as the question involved is very simple and does not involve the question of interpretation, but it involves the question of implementation. He next argued that even if it is assumed that appointment order has been issued in violation of procedure laid down for appointment, it involves violation of non-statutory rules, which cannot be enforced through Constitutional petition and has placed reliance on 1993 MLD 1038. In the instant writ, violation of statutory rules is involved and not that of non-statutory rules, as such, the said authority is also not applicable to facts in hand.

12. It is also pertinent to point out that a Notification No. 618/M & R, dated 11-7-1994 has been produced by the learned counsel for the respondents, whereby Syndicate has delegated its powers of appointment of employees in BS-1 to 16 to the Vice-Chancellor and Registrar. He has also brought on record photo copies of letters pertaining to University of Agriculture, Faisalabad, University of Engineering and Technology, Lahore, University of the Punjab and Bahauddin Zakaryya University, Multan to prove that power of appointment of employees in BPS-1 to 16 is being exercised by the Vice-Chancellors of respective Universities. If the stand of respondents is accepted as correct that such powers vest with Vice Chancellor, then why appointments shown at Serial Nos. 31 to 34, dated 25-4-1996 have been made by Vice-Chancellor on the recommendation of Selection Committee. Thus, it is clear that power of appointment of employees of BPS-1 to BPS-16 still vests with Syndicate, who is to act on the advice/recommendation of Selection Board. A flagrant violation and a deliberate disregard of law and relevant Rules would attract power of judicial review vesting in Superior Courts. I am fortified in this respect by illuminating observation made in PLD 1985 Lahore 394, which is as under: "Under Article 9 of the Provisional Constitution Order, 1981 as also under Article 4 of the Constitution of Pakistan, 1973, every act of the Government is required to be exercised lawfully and every individual has to be dealt with in accordance with law, as to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen."

13. As discussed above, act of respondents Nos. 1 and 2 in appointing respondent No. 3 is tainted with mala fide and is prompted with malice/mala fide, as such, this Court has inherent power to interfere and the bar contained is not applicable to the facts of this case.

14. Articles, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 provide equality of citizens before law. While dealing with this aspect of equality of citizens before law, it has been propounded in an illuminating judgment, reported in PLD 1997 SC 342, as follows: "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concept of fair play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise. Wile discharging official functions, efforts should be made to ensure than no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. "

15. For what has been stated above, I accept this writ petition, set aside the impugned order dated 13-4-1996 about the appointment of Rana Dilbar Khan respondent No. 3 as Assistant Librarian and direct that Muhammad Jawwad Ali petitioner shall be appointed as Assistant Librarian forthwith. This order shall be executed within a period of 15 days by respondents Nos. l and 2 under intimation to the Additional Registrar of this Court. It means that Rana Dilber Khan is no more Assistant Librarian from tomorrow (28-5-1997) on the basis of impugned order dated 13-4-1996, which has been set aside. It is, however, made clear that benefits of Assistant Librarian shall be available to Muhammad Jawwad Ali petitioner from the date of his appointment, as such, on the basis of this judgment and it is further clarified that this judgment hall not affect other appointments. A.A./M-570/L Petition accepted.