2019 PLP (C (PLC(CS)N)

AMIN-UD-DIN KHAN, J.

Through this ICA appellant has challenged the order dated 14.6.2018 passed by the learned Single Judge whereby Writ Petition No. 217977 of 2018 filed by the appellant was dismissed.

2. After hearing learned counsel for the appellant on 2.7.2018 we issued notice to the respondents for today. Respondents are present and represented.

3. We have heard learned counsel for the parties at length and gone through the record appended with this appeal as well as writ petition.

4. The case of the appellant that he was appointed as Pro-Vice Chancellor vide order of the Governor/Chancellor dated 9.5.2017 in accordance with section 15-A of the University of Agriculture Faisalabad Act, 1973 (hereinafter referred to be "the Act") being one of the three senior most Professors of the University and the condition "for a period of 03 years or till the date of his superannuation whichever is earlier" is against the law. The writ petition was filed on 5.6.2018 whereas his date of superannuation was 14.6.2018 and on superannuation he has been retired from the service.

5. Learned counsel for the appellant argues that the condition imposed through notification issued by the Governor against section 15-A of the Act ibid is nullity in the eye of law. States that it was a tenure post. Relies upon "Nazir ul Hasan and 2 others v. Syed Anwar Iqbal and others" (2014 SCMR 1827), "Begum Nusrat Ali Gonda v. Federation of Pakistan and others" (PLD 2013 Supreme Court 829), "Professor Alaud Din Akhtar, Chairman Punjab Textbook Board v. Government of the Punjab through the Chief Secretary, Punjab, Lahore and another" (PLD 1979 Lahore 324) and "Waris Ali and 5 others v. The State" (2017 SCMR 1572). Prays for setting aside the order passed by the learned Single Judge and that it be declared that the appellant is entitled to be reinstated and to work as Pro-Vice Chancellor for three years from the date of his appointment.

6. On the other hand, learned counsel for the University/respondents Nos. 3 to 5 argues that the order was passed on 9.5.2017 and appellant is the beneficiary of the order impugned through the writ petition and the acceptance of the post of Pro-Vice Chancellor through the same order is an acquiescence of the appellant now the part of the said order. While referring Section 41 of the Act states that the age of retirement has been provided in this section. Admittedly for a Professor or Pro-Vice Chancellor age of 60 years is mentioned in subsection (ii) of section 41 and it is also an admitted fact that after attaining the age of 60 years he has been retired. Argues that if sections 15-A and 41 of the Act do not reconcile with each other then later provision will prevail. While relying upon "Mst. Sakina Bibi v. Crescent Textile Mills Ltd. and others" (PLD 1984 Supreme Court 241) further states that section 41 of the Act does not contain a non-estentate clause. States that conduct of appellant is also important when he sent a summary to the Chancellor with the name of three most senior Pro-Vice Chancellor on 14.6.2018 for nomination as Pro-Vice Chancellor. Further that he has not stated even in the writ petition that he accepted the impugned notification under protest though in the ICA he has pleaded otherwise. With regard to estoppal relies upon "Combined Investment (Pvt.) Ltd. v. Wali Bhai and others" (PLD 2016 Supreme Court 730) and on the point of laches relies upon "Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another" (PLD 2016 SCMR 183), "Badar Munir v. Federation of Pakistan through Secretary Finance Ministry of Finance and 2 others" (2015 PLC (C.S.) 1528) and "Ghulam Aulia v. Federation of Pakistan through Secretary and 2 others" (2015 PLC (C.S.) 1149). With regard to tenure post relies upon "Pakistan v. Fazal Rahman Khundkar and another" (PLD 1959 Supreme Court 82) and "Dr. Abdul Rahman Chaudhry, Chairman, Punjab Textbook Board, Lahore v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and another" (1998 PLC (C.S.) 419). Prays for dismissal of the appeal.

7. Learned Additional Advocate General states that an expired letter has been challenged which cannot be challenged.

8. Section 15-A of the Act, ibid, is reproduced as under:- "(1). The Chancellor shall nominate the Pro-Vice Chancellor of the University, from amongst three senior most Professors of the University, for a term of three years. (2). The Pro-Vice Chancellor shall perform such functions as may be assigned to him under this Act, Statutes or Regulations. (3). The Syndicate or the Vice Chancellor may assign any other functions to the Pro-Vice Chancellor in addition to his duties as Professor." When we minutely scrutinize Section 15-A of the Act, which postulates that the nomination of Pro-Vice Chancellor amongst the three senior most Professors. Therefore, it is not appointment against a tenure post as claimed by the appellant. When confronted with the learned counsel for the appellant whether the appellant will remain a professor as per his version till the expiry of three years from the date of his nomination as Pro-Vice Chancellor even if he was retired after attaining the age of superannuation, the answer was not in clear words but was that he can remain a professor. We are further fortified in our view through subsection (3) of section 15-A of the Act, which is reproduced above. It is clear now that a Professor who is nominated as Pro-Vice Chancellor remains a Professor and his appointment as Professor does not vanish upon nomination as Pro-Vice Chancellor as it has been stated in the above subsection that the Syndicate or the Vice Chancellor may assign any other functions to the Pro-Vice Chancellor in addition to his duties as Professor. This nomination is at the most for additional duties only and similarly when a Professor who is nominated as Pro-Vice Chancellor is no more a Professor on superannuation is also no more a Pro-Vice Chancellor. We are clear in our mind that it is a nomination and not an appointment upon a tenure post, therefore, the stance of the appellant is absolutely worthless. Further the legal hurdles are also in his way that he accepted the impugned notification issued by the Chancellor and enjoyed the nomination as Pro-Vice Chancellor for a period of about one year and thereafter the condition mentioned in the notification has been challenged by the appellant without any prior protest or objection by the appellant. The principle of laches is also in the way of the appellant. In this view of the matter, the case law referred to by learned counsel for the appellant is not applicable to the facts of this case. Even otherwise on the point that if there is any contradiction between the two provisions of the Statute the later will prevail i.e. section 41 and not section 15-A. In the light of "Mst. Sakina Bibi v. Crescent Textile Mills Ltd. and others" (PLD 1984 Supreme Court 241) even in our view there is no contradiction between the two provisions of law. Resultantly, for what has been above, no case for interference is made out, therefore, this ICA stands dismissed. ZC/M-117/L ICA dismissed.