1991 PLP 334 (CLC)

‑‑‑‑Ss. 22 & 45‑‑‑Constitution of Pakistan (1973). Art.199‑‑‑Membership of Syndicate of University‑‑‑Dispute over membership‑‑‑Constitutional jurisdiction‑‑‑Competency‑‑‑Remedy provided under S.45, University of Karachi Act 1972, whether a bar to Constitutional remedy‑‑‑When question to be determined was whether any person was entitled to be a member of any Authority of University such matter would be referred to a Committee consisting of Vice‑Chancellor, Judge of the High Court and the senior most dean who were members of the Syndicate and decision of such committee would be, final and binding‑‑‑Provision of S.45, University of Karachi Act 1972 would not come in the way of petitioner in filing Constitutional petition because question referred in such petition was a question as to the interpretation of S.22, University of Karachi Act 1972‑‑‑Constitutional petition was allowed with declaration that respondent when promoted as Professor would cease to be a member of the Syndicate, because he was elected as an Associate Professor by the votes of Associate Professors from amongst themselves for the seat specified for the Associate Professors University. Ghulam Rasool Warsi for Petitioner. Azher Ali Siddiqui for Respondents. Date of hearing: 14th November, 1990. NASIR ASLAM ZAHID, J‑ The petitioner is an Associate Professor in the University of Karachi. Respondent No.3 Jamil Akhtar Khan was also an Associate Professor in the University. Section 22 of the University of Karachi Act 1972 provides for the composition of the Syndicate of the University and clause (viii‑a) of subsection (l) of section 22 provides that one member of the Syndicate shall be a Professor to be elected by the professors of the University from amongst themselves and clause (viii‑b) provides that one Associate professor tot be elected by the Associate Professors of the University from amongst themselves shall also be a member. About 2 years ago elections to fill up seats in the Syndicate took place and at that time respondent No.3 was an Associate Professor and was elected by the Associate Professors of the University as a member of the Syndicate. Similarly one Professor was also elected as a member of the Syndicate by the Professors of the University under clause (viii‑a) of section 22 of the Act. Respondent N o.3, however, was promoted as a Professor on 28‑6‑1989. The petitioner, who is an Associate Professor, has pleaded that consequent upon the promotion of the respondent No.3; he ceased to be a member of the Syndicate under clause (viii‑b) of section 22 (1) of the University of Karachi Act 1972 but his seat has not been declared as vacant. The petitioner has approached the University Authorities but according to the University, the respondent No.3 was to continue to remain a member of the Syndicate under clause (viii‑b) despite his promotion as Professor and shall complete his tenure of 3 years as provided in subsection (2) of section

22. The petitioner has challenged the membership of respondent No.3 of the Syndicate of the University of Karachi since 28‑6‑1989 when the respondent No.3 was promoted as a Professor and no longer remained an Associate Professor. The petition is contested by the respondents. We have heard Mr. Ghulam Rasool Warsi, learned counsel for the petitioner and Mr., Azhar Ali Siddiqui, who appears on behalf of the respondents including respondent. No.3.

2. In our view the contention on behalf of the petitioner that respondent No.3 ceased to be a member under clause (viii‑b) of section 22 (1) of the University of Karachi Act on his promotion as a Professor in the University on 28‑6‑1989 is correct. The provision in question appears to be unambiguous. The concerned member has to be an Associate Professor to be elected by the Associate Professors of the University from amongst themselves. Once such elected member is promoted as Professor, he ceases to be a member as Associate Professor. As for the representative of the Professors, there is a separate clause namely, clause (viii‑a) according to which one member has to be a Professor to be elected by the Professors of the University from amongst themselves.

3. Mr. Azhar Ali Siddiqui, learned counsel appearing for University and also for the respondent No.3, has submitted that there is, no provision in the Act which specifically provides that on an Associate Professor being promoted as a Professor, he will cease to be a member on his promotion, as a Professor and further under subsection 22 (2) the tenure of an elected member is 3 years and as such once respondent No.3 had been elected, he is entitled to complete his tenure of 3 years. He has also referred to an opinion of the Governor who is ex‑officio Chancellor of the University of Karachi according to which opinion respondent No.3 does not cease to be an elected member under clause (viii‑b) despite his promotion as a professor and that respondent No.3 shall complete his tenure of 3 years. Learned counsel for the respondents had also relied upon section 10 (6) of the Act according to which the Chancellor can remove any member from membership of any Authority if such person has become of unsound mind or has been incapacitated to function as member of such Authority, or has been convicted by a Court of law of an offence involving moral turpitude. Reference was also made by Mr. Azhar Ali Siddiqui, learned counsel for the respondents, to section 45 of the Act which makes provision regarding the disputes about membership of the Authorities. According to section 45, if a question arises whether any person is entitled to be a member of any Authority, the matter shall be referred to a Committee consisting of the Vice‑Chancellor and the Judge of the High Court and the senior most Dean who are members of the Syndicate and I the decision of this Committee shall be final and binding. 4.???????? We are unable to agree with the contentions advanced by Mr. Azhar Ali Siddiqui, learned counsel for the respondents. It may be reiterated that under clause (viii‑b) of section 22 (1) of the University of Karachi Act, 1972, concerned member has to be an Associate Professor to be elected by the Associate Professors of the University from amongst themselves. Once such elected Associate Professor ceases to be an Associate Professor, his seat becomes vacant and another Associate Professor has to be elected by Associate Professors of the University from amongst themselves. We have also observed that under section 22 (1) (viii‑a) another scat is reserved for a Professor to be elected by the Professors of the University from amongst themselves. As regards section 45, it may be observed that the said provision does not come in the way of the petitioner in filing the present Constitution petition under Article 199 of the Constitution. It may also be mentioned that the Governor who is ex‑officio F Chancellor of the University has already given an opinion against the contention raised by the petitioner. The present Constitution petition raises a question as to the interpretation of section 22 of the University of Karachi Act 1972 and in our view despite the provisions of section 45 the remedy under Article 199 of the Constitution was not barred. .

5. As a result this Constitution petitions is allowed and it is declared that respondent No.3 Jamil Akhtar Khan, ceased to be a member of the Syndicate of University of Karachi on his promotion as Professor of the University. There will be no order as to costs. AA./A‑975/K????????????????????????????????????????????????????????????????????????????????????? Petition accepted.