P L D 2004 Supreme Court 285 (PLP)

The word "practice" when used in connection with the were "daily", suggesting the idea of doing a thing regularly, and signifying a habit or regular conduct. Deatley v. Grand Fraternity, 78 A. 874, 875, 2 Boyee, Del.

267. The word "practice" within an instruction referring to the practice of a particular business, is a synonym for "usage" and "custom", though there is a distinction between a usage and a custom; the latter being a part of the common law, while a usage is the law of the particular case governing the parties. U.S. Shipping Board Emergency Fleet Corp. v. Levensaler, 290 F 297, 300, 53 App. D.C. 322. "Practice" means, in general, method of conducting litigation involving rights and corresponding defences. Cates v. Heffernon, 1.8 So.2d 11, 14, 15, 154 Fla.

422. The words "practice" and "procedure" together include mode of proceeding by which legal right is enforced. King v. Schumacher, 89 P.2d 466, 472, 32 C.A.2d 172. "Practice" means the method of conducting litigation involving rights and corresponding defences. Skinner v. City of Eustis, So.2d 116, 117,135 A.L.R.359, 147 Fla. 22. "Practice" and "procedure" include the mode of proceeding and the formal steps by which a legal right is enforced. Bascom v. District Court of Cerro Gordo County, 1 N.W. 2d 220, 222, 231 Iowa, 360. "Practice" means those legal rules which direct the course of proceeding to bring parties into Court, and the course of the Court after they are brought in. People v. Clark, 119 N.E. 329, 331, 283 111, 221. "Practice" in law means that which regulates the formal steps in a judicial proceeding; the legal rules which direct the course o1 proceeding to bring parties into the Court, and the course of the Court after they are brought in. Hoffman v. Paradis, 102 N.E. 253, 254, 259 I11.

111. Bouvier defines the word "practice" as "the form, manner, and order of conducting and carrying on suits or prosecutions in the Court, through their various stages, according to the principles of law, and the rules laid down by the respective Courts". Fleischman v. Walker, 91 I11. 318, 321; According to this definition, the word "practice" means the rules adopted by every Court to facilitate the transaction of the business before it in a proper and orderly manner. Butler v. Young, C.C. Ohio, 4 Fed. Cas. 916, 917. "Practice" in its larger sense, is defined in Anderson's Law Dictionary to be "the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or declares the right". The word `practice' as used in Rev. St. C.45, 10, Smith‑Hurd Stats, c. 45,10, providing that the rules or pleading and practice in other actions shall apply to actions of ejectment so far as they are applicable and except as otherwise provided, means the rules of practice in other actions applicable to actions of ejectment, which are those legal rules which direct the course of proceeding in acquiring jurisdiction of parties, and the course adopted by the Courts whereby rights are effectuated by application of the proper remedies, and where it is nor otherwise provided in actions of ejectment. "Practice" in its larger sense like procedure, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives and defines the right. State of Seraikella v. The Union of India, 1951 SCR 474, 1951 SCJ 425. "Practice", this term is sometimes applied, in an unfavourable sense, to signify fraud bad practice‑‑Tomlins. "Practice" in its larger sense like procedure; denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives and defines the right. (AIR 1951 SC 253). "Practice" means the same thing as procedure. (AIR 1957 SC 444). "Practice" according to Webster's New International Dictionary means "exercise of any profession or occupation." (AIR 1958 ` SC 72)."

6. We have also adverted to the question that what does the term "rule" mean:‑‑ "A `rule' is not properly original process in a case, but is ancillary, and for the facilitating of jurisdiction already acquired. Schuettler v. Maurer, 46 A.2d 586, 588, 159 Pa. Super.

110. A "rule" is not original process, but is auxiliary arid for the purpose of facilitating jurisdiction already acquired, except where it is authorized by statute to be used as original process. Petition of West Moreland County Com'rs, 38 A.2d 709, 710, 155 Pa. Super.

138. A "rule" is a definite regulation prescribed as a law of conduct. Watts v. Holland, 56 Tex. 54, 60. "Rule" is that which is prescribed or laid down as a guide to conduct; that which is settled by authority or custom; a regulation; a prescription; a minor law; a uniform course or thing. South Florida R. Co. v. Rhodes, 5 So. 633, 635, 25 Fla. 40, 3 L.R.A. 733, 23 Am.St.Rep.506, citing Webster. The word "rule" as used in common parlance has a double meaning. It may refer to a express formula of conduct promulgated by some one having authority to prescribe or command, or to a course or practice pursued generally by one or more persons. Schaufele v. Central of Georgia Ry. Co., 65 S.E. 708, 710, 6 Ga‑App.660. The word "rules" is synonymous with Ordinances, regulations, and by‑laws. State ex rel. Krebs v. Hoctor, 120 N.W. 199, 200, 83 Neb.690. The meaning of the word "rule" is of wide and varied significance, depending upon the context; in a legal sense it is synonymous with "laws". City of Los Angeles v. Gager, 102 P. 17, 18, 10 Cal. App.

378. While the words, "rule", "regulation" and "order" are frequently used as synonyms, they do not always mean the same thing and are not interchangeable at will. In determining their exact meaning when used in a statute, much depends upon the context. Atlantic Coast Line R. Co. v. State, 74 So. 595, 601, 73 Fla.

609. A "rule" is a device in words and phrases for the control and direction of those who have something else given them to do. A regulation is a rule of late, by which some right is to be exercised. They are words of a like import and import a partial restriction which does not wholly prohibit, and imply uniformity in operation, not discrimination. Borough of Belmar v. Prior, 79 A. 1032, 1033, 81 N.G.L,

254. Rule.‑‑(1) A, regulation, for the management or Government of a society and binding on the members, (2) a point of law settled by authority, (3) orders regulating the practice of Courts, (4) orders made between parties to a suit. Rule.‑‑Rule may be defined in several different ways; it can be a regulating principle for the ordering and control of a social group and imposing obligatory obedience upon the individuals o, that group; it can be legal dictum issued by a Court, of law; a can be regulation governing Court habits. Ordinarily the making and promulgation of a rule should be attended by certain formalities, e.g., publication in a Government Gazette. It is not enough that there is no express rule relating to a point to confer upon any existing office instruction that there may be, the status and validity of a statutory rule. Therefore a document which has hot been published in official Gazette cannot be treated as rules (PLD 1962 Kar, 505). "The Dictionary meanings of the word `rule' are principle to which action or procedure is intended to conform. " Mir Muhammad Sharif v. AJ&K Government (PLD 1986 SC (AJ&K) I 87). In terms of Civil Servants Act, 1973, the word "rule" is defined as meaning rules made or deemed to have been made under the Act. In the context of section 17, Civil Servants, Act, 1973, word "rule" has relevance to all such rules which deal with the fixation of pay of a civil servant. Civil Service Regulations and its Regulation 526, was one such rule as envisaged by section 17, Civil Servants. Act, 1973. Federation of Pakistan v. Maj. (Retd.) Wazir Ahmad 1991 SCMR 2284".

7. The term "rule" was also examined in Pakistan v. Abdul Hamid (PLD 1961 SC 105) and it was held that:‑‑ "A statutory rule has certain visible characteristics which must be looked for and cannot be dispensed with, when the question arises of claiming upon the basis of such rule, a right in law. A rule requires to be expressed with precision and yet to possess generality so as to be capable of application to a large number of cases. If it leaves scope for discretion, that should be expressly provided for. Ordinarily, it is necessary also that the making and promulgation of a rule should be attended by certain formalities e.g., publication in a Government Gazette. It is not enough that there is no express rule relating to a point to confer upon any existing office instruction that there may be the status and, validity of a statutory rule."

8. After having, scrutinized the above mentioned term of "practice" vie are of the considered view that "practice" is combination of the following ingredients:‑‑ (i) Uniformity. (ii) Continuity. (iii) Succession of acts of similar kind. (iv) Customs or usage. (v) Customarily performance of act. (vi) Certain degree, of regularity. (vii) Course of action. (viii) Mechanism for the enforcement of legal rights. At the best "practice" can be considered as the mode of proceedings by which a legal right is enforced. The prevalent practice could render assistance to the case of petitioners subject to availability of legal right. There is no cavil with the proposition that appointment to a particular post is not a vested or legal right hence the question of its enforcement through "practice" does not arise.

9. In sequel to above mentioned discussion it could be inferred safely without incurring, the, risk of rebuttal that "practice" and "rule" are not interchangeable terms in view of the difference between their ingredients, components and characteristics. It is worth mentioning that even by efflux of time the "practice" cannot attain the status of "rule". The "practice" in fact has no binding element being not static and subject to change having no consequences unless some mala fide is established for deviation. The rules on the other hand are framed by a Competent Authority in exercise of powers conferred under some statute, law legislation or enactment having binding effect which cannot be violated/deviated unless otherwise provided.

10. The prevalent practice could have been changed in the interest of University and good governance determination whereof could only be made by the Competent Authority. It is not the case of the petitioners that the appointments have been made in violation of para. 16 of the University of Peshawar Service Statutes, 1977, hereinafter referred to as the University Statutes, which, inter alia, provides that "all appointments shall be made on the basis of efficiency and merit, through the appropriate Selection Board, seniority being taken into consideration only when merit, in the opinion of the appointing authority, is equal". No bar whatsoever has been imposed upon the appointing authority qua appointment except that such appointments shall be made on the basis of efficiency and merit through the appropriate Selection Board. It was never argued that either the appointing authority or Selection Board has transgressed its authority by making the appointments in violation of para. 16 of the University Statutes which is the only relevant section to be considered for the purpose in hand. It is worth mentioning that by virtue of para. 5 of the University Statutes the terms and conditions of service of a University employee shall be as provided under these Statutes and such rules as may be made by the Syndicate. It is noteworthy that the factum of "practice" as pressed time and again by the learned Advocate Supreme Court on behalf of petitioners does not find mention either in the Act or University Statutes or rules made thereunder but on the contrary "regular appointment" means an appointment made in accordance with the prescribed procedure (NOT PRACTICE) against a clear vacancy. There is no ambiguity in para. 4 (f) of the University Statutes. It is to be noted that even "ad hoc appointments" are to be made in accordance, with the prescribed manner of recruitment and para. 4(1) of the University Statutes does not find any place for "practice."

11. The legislation in its wisdom has assigned sufficient powers and authority to the Vice‑Chancellor enabling him' to deal with all sorts of such eventualities to run the University in a befitting manner. Section 13 of the Act is reproduced hereinbelow to remove all sorts of doubts regarding the powers and duties of Vice‑Chancellor:‑‑ "13. (1) The Vice‑Chancellor shall be the principal executive and academic officer of the University and shall ensure that the provisions of this Act, the Statutes, the Regulations and the Rules are faithfully observed in order to promote the general efficiency and good order of the University. He shall have all powers necessary for this purpose including administrative control over all officers, teachers and other employees of the University. (2) The Vice‑Chancellor shall, in the absence of the Chancellor, preside at the Convocation of the University and the meetings of the Senate and shall, if present, preside at the meeting of the authorities of which he is the Chairman and be entitled to attend and preside at any meeting of any other authority or body of the University. (3) The Vice‑Chancellor may, in an emergency which in his opinion requires immediate action, take such action as he may consider necessary and shall, as soon thereafter as possible, report his action to the officer, authority or other body which in the ordinary course, would have dealt with the matter. (4) The Vice‑Chancellor shall also have the powers:‑‑ (i) to create and fill temporary posts for a period not exceeding six month: (11) to sanction all expenditure provided for in the approved budget, and to re-appropriate funds within the same major head of expenditure; (iii) to sanction by re-appropriation an amount not exceeding five thousand rupees for an unforeseen item not provided for in the budget, and report it to the Syndicate at the next meeting; (iv) to appoint paper setters and examiners for all examinations of the University after receiving panels of names from the relevant authorities;, (v) to make such arrangements for the scrutiny of papers, marks and results as he may consider necessary; (vi) to direct teachers, officers and other employees of the University to take up such assignments in connection with teaching, research, examination, administration and such other activities in the University as he may consider necessary for the purpose of the University; (vii) to delegate, subject to such conditions, if any, as may be prescribed, any of his powers under this Act to an officer or officers of the University; (viii) to exercise and perform such other powers and functions; and (ix) to appoint employees in NPS‑1 to 16. "

12. Besides that the Vice‑Chancellor has been empowered to designate the "Competent Authority" provided under para. 4(a) of the University Statutes. If all the above discussed provisions are kept in view the accumulative effect thereof would be that Vice‑Chancellor is fully competent to make such appointments. No fresh Statute was ever frames by the Vice‑Chancellor without having the prior approval of the Chancellor. The learned High Court has dilated upon and set the controversy at naught after having taken into consideration all the relevant laws, statutes and rules made thereunder. The conclusion as arrived at by the learned High Court being unexceptionable does not admit interference. The Competent Authority could abandon the previous practice by evolving a new method of selection in consonance with the provisions as laid down in the University Act and University Statutes. The petition being meritless is dismissed and leave declined. M.H./I‑85/S Petition dismissed.