2021 PLP 718 (CLC)

LUBNA SALEEM PERVEZ, J.

Through this petition, the Petitioner has invoked the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the appointment of Respondent No. 2 as Acting Vice Chancellor (hereinafter referred to as Acting VC) of Federal Urdu University of Arts and Science Technology (hereinafter referred to as the University), seeking following prayer:- "In view of the above submissions, it is respectfully prayed that an appropriate writ may kindly be issued against the respondents and the 43rd meeting of senate of F.U.U.A.S.T. may be quashed and impugned Notification No. F. No. 3-13/2020-IC-II dated 17th September, 2020 issued by respondent No. 4 may kindly be set aside. The respondents Nos. 1 and 5 may kindly be directed to initiate the fresh process of appointment of Acting VC strictly in accordance with law and rules and appoint most senior dean/eligible candidate as per law. It is further prayed that transfer/additional charge notifications issued by respondent No. 2 may very kindly be suspended with immediate effect.".

2. Brief facts of the case are that the Senate of the University in its 43rd meeting, decided to appoint Respondent No. 2 as Acting VC of the University and issued Notification F.No. 3-13/2020-IC-II dated 17.09.2020, for his appointment. The petitioner in the present petition has challenged the 43rd meeting of the Senate as well as notification dated 17.09.2020 for the appointment of Respondent No.2 as Acting Vice Chancellor.

3. Learned counsel for the petitioner submitted that since, 43rd meeting dated 18.08.2020 of the Senate, has been held in violation of the Rules and Regulations of the University, therefore, decision of appointment of Respondent No.2 as Acting VC of the University is also illegal; that respondent No. 1, by appointing Respondent No. 2 as Acting VC of the University, has violated the eligibility criteria, rules, law and principle of transparency and fairness; that as per law, senior most Dean should have been appointed as Acting VC and Professor Dr. Muhammad Zia-ud-Din, being the senior most Dean, deserves to be appointed as Acting VC instead of Respondent No. 2; that Respondent No. 2 has been appointed as Acting VC despite the fact that she does not fulfill the requisite criteria of lecturer, however, she; that her appointment as Acting VC is without any merit rather based on the pick and choose policy and is in violation of rights of other eligible persons; that Respondent No. 2 is not eligible to be a Professor as the requirement of publication of 15 research papers has not been fulfilled by her; that as per eligibility criteria of teaching staff, the lecturer should hold 1st Class Master's degree, whereas, Respondent No 2, being 3rd divisioner is not eligible for appointments as Acting VC. He also submitted that the Hon'ble Division Bench of this Court has accepted I.C.A. No. 191/2019 by holding that the candidate must fulfill the criteria laid down by HEC for appointment to the post of Vice Chancellor. Learned counsel for the petitioner relied on the Office Order dated 01.09.2014, whereby senior Dean was appointed Acting VC to look after the affairs of the University, Notification dated 23.05.2013, whereby senior most Dean was given charge during the Ex-Pakistan leave of Vice Chancellor and Notification dated 02.12.2009, whereby, Dean, Faculty of Arts was nominated as Acting VC to look after the affairs of the University during the leave period of the VC. He, therefore, submitted that the settled precedents have been violated while appointing Respondent No. 2 as Acting VC and senior most Dean is deprived of his right for becoming the Acting VC. He submitted that after her appointment as acting VC, she is appointing her favorite persons on the key posts and has appointed Respondent No. 5 as Acting Registrar on the same date of her appointment i.e. 17.09.2020. He submitted that the notification dated 17.09.2020, whereby Respondent No. 2 was appointed as Acting VC is liable to be quashed.

4. Conversely, learned Additional Attorney General, at the outset, raised the preliminary objection regarding maintainability of the present petition. He submitted that petitioner has challenged Notification dated 17.09.2020, whereby Respondent No. 2 has been appointed as Acting VC, therefore, the present writ petition is in the nature of writ of certiorari and not writ of quo-warranto; that in writ of certiorari, the person seeking relief must be an aggrieved person and has to show the grievance and injustice caused to him due to order of the authority. He submitted that in present case Notifications dated 17.09.2020, issued in pursuance of 43rd meeting of Senate for appointment of Acting VC and Acting Registrar cannot be said to have caused any injustice to the petitioner thus, the present petition is liable to be dismissed for being non-maintainable. He further submitted that the present writ cannot said to be writ of quo-warranto as the Respondent No. 2 has only been given an acting charge till the time the regular VC is appointed; that writ of quo-warranto can be invoked when an ineligible person is appointed on permanent basis to hold public office. The acting charge of the post does not come under the ambit of "holding of public office" amenable to writ of quo-warranto, under Article 199 of the Constitution; that 43rd meeting of the Senate has been lawfully conducted in accordance with the provisions of FUUAST Ordinance, 2002, thus the allegation of the petitioner that the meeting has been conducted in violation of law is not sustainable; that the allegation is of general nature and no specific provision of Ordinance, 2002, has been cited which according to the petitioner has been violated by conducting the 43rd meeting of the Senate; that the powers of the Senate have also not been challenged by the petitioner. He submitted that the petitioner is not the aggrieved person and has no locus standi to invoke writ jurisdiction to assail the appointment of Respondents Nos. 2 and 5 on acting charge basis.

5. Learned counsel for respondent University endorsed the submissions of the learned Additional Attorney General and further submitted that petition is not maintainable as the petitioner is not an aggrieved person to invoke Article 199 (1)(a)(i) & (ii) of the Constitution; that the language and tenor of the petition makes it a writ of certiorari and mandamus as he has challenged the decision of the Senate made under section 12(7) of the Ordinance, 2002, whereby it was decided that the functions of Vice Chancellor shall be performed by Respondent No. 2; that writ of quo-warranto lies against any public office holder, he, therefore, contended that holding the post for a period of six months or till the appointment of regular Vice Chancellor, cannot be said to be holding a public office assailable before the High Court for issuance of writ of quo-warranto; that Section 7 of the Ordinance, 2002, provides for list of Officers of the University which does not include Acting VC as its officer; that the petitioner though impugned 43rd meeting of the Senate, however, has failed to refer any law and rule which has been violated by the Senate by convening the said meeting; that the allegations of the petitioner are vague and he has utterly failed to substantiate his allegation during the course of arguments; that 43rd meeting of the Senate was convened in exercise of powers under section 12(7) of the Ordinance, 2002, to make arrangements for performance of the duties of the Vice Chancellor as the office was lying vacant; that the provisions of Ordinance, 2002, clearly demonstrate that there are no fetters upon or required qualifications for the Senate while making arrangements under this provision for selecting any Acting VC. The petitioner has also not mentioned any rule or regulation which he alleges to have been violated while convening this meeting i.e. 43rd meeting of Senate; that reliance of the petitioner on the office orders produced during arguments that only senior most Dean of the university can be given charge of Acting VC instead of Respondent No. 2 is flawed and misplaced as office orders do not lay down any guideline and policy for selecting Acting VC under section 12(7) of the Ordinance, 2002; that perusal of the office orders relied upon by the petitioner reveals that it was issued by the permanent Vice Chancellors under section 11(5)(a) of the Ordinance, 2002; that Senate is the supreme authority in the hierarchy of the authorities under the Ordinance, 2002; that section 17 of the Ordinance, 2002, provides for formation of Senate and the Chancellor is Chairperson of the Senate; that under section 18 of the Ordinance, 2002, the Senate holds the Vice Chancellor accountable to the functions of the University; that vide section 18(2)(i) of the Ordinance, 2002, the Senate have the power to annul the proceedings of any authority or officer of the University; that the Senate while selecting respondent No.2 Acting VC has kept into consideration the principle of seniority among the professors; that the claim of petitioner that Dr. Muhammad Zia-ud-Din had to be appointed as Acting VC, being senior most Dean, is ill-found as he is at serial No.4 of the seniority list of the professors; that the post of Dean is not a substantial or permanent post, whereas, the post of professor is a substantial and permanent post and, therefore, seniority list is determined according to the seniority amongst the professors; that section 13 of the Ordinance, 2002, provides that there should be a registrar of the university to be appointed by the Senate on the recommendations of the Vice Chancellor on such terms and conditions as may be prescribed; that statute, which governs the appointment of Registrar, clearly provides that the experience of an individual on educational side would be a valid experience for making him eligible for the post, provided that he meets the other criterion and there is no bar on the teachers to apply for the post of Registrar; that as there are no permanent regular incumbents on these posts, therefore, the Acting VC has to assign the acting charge for administrative functions of these offices to the suitable officers; that thus the orders issued by the Acting VC whereby certain officers have been assigned additional duties of the office of Registrar and Treasurer are very much in line with the directions of the Senate recorded in 43rd meeting and are, therefore, very much legal and in accordance with law.

6. Arguments heard. Record perused.

7. Learned Additional Attorney General (hereinafter referred to as Addl. AG) and learned counsel for the respondents have challenged the maintainability of petition by raising preliminary objections, therefore, it is considered appropriate to decide the issue of maintainability first, before going into the merits of the case.

8. Learned Addl. AG submitted that the instant writ petition is writ of certiorari and not quo-warranto as the petitioner has assailed the Notification dated 17.09.2020, issued by Respondent No. 4, to notify Respondent No. 2 as Acting VC of the respondent University in pursuance of approval of minutes of 43rd meeting by the Chancellor/President of Pakistan. Whereas, the contention of the petitioner is that he has filed this writ petition as a writ of quo-warranto to challenge the appointment of Respondent No. 2 as an Acting VC of the respondent University. Petitioner's case is that the Respondent No. 2 did not possess required qualification and cannot meet eligibility criteria to be appointed as Acting VC thus her appointment is unlawful, in violation of rules and regulations as well as made in a non-transparent and unfair manner.

9. Vide Article 199(1)(b)(ii) of the Constitution of Pakistan, 1973, High Courts have been vested with jurisdiction to issue writ of quo-warranto against the holder of public office if it is satisfied that the post is held by a person who is incompetent and does not possess the required qualification for the post and has been appointed in violation of procedure prescribed in statutes. Article 199 (1)(b)(ii) for ready reference is reproduced below:- "

199. Jurisdiction of High Court.

1. Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law. (b) on the application of any person, make an order- (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office. ".

10. The Hon'ble Courts have interpreted the provisions of Article 199(1)(b)(ii) of the Constitution in plethora of case laws, wherein it has been established that any person from the public at large can invoke jurisdiction of the High Court seeking writ of quo-warranto against the person who is illegally and unauthorizedly occupying the public office. Reference in this regard is made to the following:- "Capt. (R) Naseem Hijazi v. Province of Punjab (2000 SCMR 1720): any person can move the High Court to challenge the unauthorised occupation of a public office on any such application Court is not only to see that the incumbent is holding the office kinder the order of a competent Authority but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office, the Court has: also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from one of qualifications but also from violation of legal provision for appointment. Munawar Ali Pathan v. Province of Sindh [2011 PLC (C.S.) 785]: The first point to note is that any person can apply for a writ of quo warranto, and he need not be an aggrieved person or party. The writ is directed against a person holding, or purporting to hold public office, and every member of the public at large is regarded as having an interest in ensuring, and/or demanding that a public office is, or be, held only by a person having lawful authority to do so. Secondly, the writ is discretionary, i.e., the Court is not bound to grant the relief sought even if the petitioner makes out a case and may withhold the writ in appropriate circumstances. Thirdly, the authority purporting to appoint the respondent to the public office need not be a party to the proceedings for the writ to issue. Muhammad Iqbal Khattak v. Federation of Pakistan [2011 PLC (C.S.) 65]:

21. A writ of quo warranto is more in the nature of a public interest litigation where the undoing of a wrong or vindication of a right is sought by an individual not for himself but pro bono publico. In the present case also, the petitioner seeks no relief for himself as his writ petition is only directed at the appointment of respondent No.6's which he regards as unlawful.

11. As against writ of quo-warranto, constitutional jurisdiction of the High Court is invoked under Article 199(1)(a)(ii), seeking writ of certiorari against any act done or proceedings taken without any lawful authority or of no legal effect by a person performing functions in connection with federal, provincial or as a local authority. Article 199(1)(a)(ii) is also reproduced below:- "

199. Jurisdiction of High Court.

1. Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law. (a) on the application of any aggrieved party, make an order- (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect. ".

12. This court in the recent judgments has explained the object and scope of writ certiorari in the following cases:- Muhammad Farooq v. Full Bench NIRC, Islamabad (2020 PLC 175):

11. In the petition at hand, the petitioners are seeking the issuance of a writ of certiorari. Certiorari is not a writ of right but one of discretion. Its object is to curb excess of jurisdiction, and to keep inferior Courts and Tribunals within their bounds. The High Court, while judicially reviewing the proceedings and judgments of the inferior Courts and Tribunals, cannot substitute its own decision with that of such inferior Courts or Tribunals. The grounds on which certiorari may be invoked is where there is an error of law apparent on the face of the record, and not every error either of law or fact which can be corrected by the appellate authority. It lies where the inferior Court or Tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law which they were meant to administer. It is also issued when the inferior Court or Tribunal acts illegally in exercise of its jurisdiction. Tredata Ireland Ltd. v. Federation of Pakistan (2020 PTD 1316): In the petition at hand, the petitioners are seeking the issuance of a writ of certiorari. Certiorari is not a writ of right, but one of discretion. Its object is to curb excess of jurisdiction and to keep inferior Courts and Tribunals within their bounds. The High Court, while judicially reviewing the proceedings and judgments of the inferior Courts and Tribunals, cannot substitute its own decision with that of such inferior Courts or Tribunals. The grounds on which certiorari may be invoked is where there is an error of law apparent on the face of the record, and not every error either of law or fact which can be corrected by the appellate authority. The High Court, while issuing a writ of certiorari, acts in exercise of a supervisory and not appellate jurisdiction. The High Court will not judicially review findings of fact reached by an inferior Court or a Tribunal unless there is manifest error apparent on the face of the proceedings, or where such findings are in disregard of the provisions of law. As regards the concurrent orders passed by respondents Nos.4 and 5, I am of the view that the essential prerequisites for issuing d writ of certiorari qua the impugned orders dated 15.09.2011 and 30.06.2011 do not appear to be satisfied in this case. The principles of writ certiorari has also been summarized by Hon'ble Balochistan High Court in the following case:- Haji Muhammad Naeem v. Siraj ud Din and others (PLD 2017 Quetta 65):

9. When the various precedents of the Hon'ble Supreme Court are critically analyzed, it can safely be concluded that the High Court issuing a writ of certiorari acts in exercise of its supervisory jurisdiction as envisaged under Article 203 of the Constitution but not under its appellate or revisional jurisdiction as provided by any other law or special statute. This seems to have been based on the principle that a court which has jurisdiction over the subject matter has jurisdiction to decide wrong as well as right. Therefore the principles for issuing a writ of certiorari in exercise of supervisory jurisdiction can be summarized in the following manner: (i) Any order passed by the courts subordinate to the High Court, against which remedy of appeal or revision has not been provided; (ii) A writ of certiorari can be issued for correcting gross error of jurisdiction when subordinate judicial or quasi-judicial forum has acted without jurisdiction, by wrongly assuming the jurisdiction or in excess of its jurisdiction, or acted in clear disregard of law or rules qf procedure and where there is no procedure specified, has acted in violation of principles of natural justice, which ultimately occasioned the failure of justice; (iii) When any judgment/order of the subordinate court has miserably failed to follow the direction of law or the rules of procedure framed thereunder. (iv) A writ of certiorari can also be issued when the Court or Tribunal acts illegally or in violation of the principles of natural justice. Failure on the part of statutory functionary or a Court to make a visible effect with diligent application of mind to adjective assertion or to strive in search of truth for dispensing justice, the same tantamount to failure to exercise jurisdiction.

13. Thus, the dictums and principles laid down by the superior courts in above judgments in respect of quo warranto and certiorari, the apparent distinction between these two writs is that under Article 199(1)(b)(ii) of the Constitution, the person seeking writ of quo-warranto is not necessarily required to be an aggrieved person or an interested party; litigation under quo-warranto is a pro bono and a public interest litigation against a "public office holder" who is not qualified as per requirement of the post or is appointed in contravention of the law, rules and regulations. Whereas, under Article 199(1)(a)(ii) of the Constitution, no person other than an aggrieved person is competent to assail an order having been passed by an authority who has no lawful jurisdiction to pass such order. The person seeking writ of certiorari should be an aggrieved person who has been adversely affected by an act done or proceeding taken by a public functionary and High Courts under supervisory jurisdiction can judicially review the proceedings and judgments of the courts below to the extent of prima facie jurisdictional defect. The aggrieved person" is the significant distinctive factor in the writ under discussion as quo warranto can be moved by any person from the public at large inclusive of aggrieved person but only an "aggrieved person" is competent to seek declaration in ceritorari.

14. Aggrieved person has been defined in the Black's Law Dictionary as:- "Aggrieved (person or entity) having legal rights that are adversely affected; having been harmed by an infringement of legal rights." Following observations have been made by superior courts regarding aggrieved person:- M/s Hotel Summer Retreat, Nathiagali v. Government of N.W.F.P. through Secretary, C& W Department Peshawar (1999 MLD 2418): The explicit provisions of Article 199 of the Constitution make it manifest that in order to have the locus standi to invoke Mandamus/Certiorari jurisdiction the petitioner must be an aggrieved person. M. Ghulam Nabi Awan, Advocate v. Government of Pakistan (2003 MLD 90):

10. There is wisdom in the use of the word 'aggrieved' appearing in Article 199 of the Constitution because it helps in checking litigation for the sake of litigation by those who may not be aggrieved. So, that the Courts are confronted with real questions which should occupy their attention and not questions which are of an academic nature involving political issues and where the issuance of a writ is mere futile exercise. Reference in this connection may be made to the case of Tasbhai Motibhai Desai v. Roshan Kumar (AIR 1976 SC 578), where it was observed. "In order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an 'aggrieved person'. The expression 'aggrieved person' denotes an elastic, and to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him." English Biscuits Manufacturers (Pvt.) Ltd v. Monopoly Control Authority (2005 CLD 264): The expression 'aggrieved person' means a person who has got a legal grievance, i.e. M a person, is deprived of anything to which he is legally entitled and not merely a person, who suffered some sort of disappointment.

15. Another essential element which gives rise to invoke the jurisdiction of High Court for seeking writ of quo-warranto is "holding of a public office" by a person who either is not competent for the office or occupying the office unlawfully and without any authority. It has been observed in the judgment titled Sajid Hussain v. Shah Abdul Latif University, Khairpur (PLD 2012 Sindh 232) while defining public office that it means "an office which involves delegation of some sovereign functions of the government either executive, legislative or judicial to be exercised by the holder for public benefit." The Hon'ble Court in the said judgment deduced the following principles for issuance of writ of quo warranto with regard to holder of public office, in light of various judgments of the Hon'ble apex Court and High Courts. (a) Public office means an office which involves delegation of some of the sovereign functions of the Government either executive, legislative or judicial to be exercised by the holder for the public benefit. Unless his powers of this nature he is not a public officer. (ii) Both at the time of institution of the writ petition and on the date of decision it must be shown that the holder suffered from any disqualification to hold the public office. (iii) The Court may test bona fides of the relator to see if he has come with clean hands. Reference may be made to 2009 SCMR 1299. (iv) A writ of quo Warranto is not to be issued as a matter of course on sheer technicalities on a doctrinaire approach. (v) Every civil servant or every person in the service of Pakistan does not necessarily hold a public office. If the office is of a very petty the court may refuse to grant the writ (AIR 1952 Nagpur 330). (vi) In order to maintain a writ of quo warranto the petitioner need not to be an aggrieved person.

16. The present case has been examined in light of the above cited authoritative judgments of the superior courts whereby writ of quo-warranto and writ of certiorari have been explained, interpreted and distinguished. The petitioner in the memo of petition had acknowledged that the petition has been filed as a public interest litigation to highlight issues of allegedly bad governance, favoritism, corruption, fraud, nepotism and discrimination in the educational institutions and through this writ of quo-warranto, he has assailed notification dated 17.09.2020, whereby, Respondent No.2 has been appointed as Acting VC.

17. Perusal of the Notification dated 17.09.2020, shows that it has been issued with the approval of the President of Pakistan/Chancellor of the University, whereby Respondent No. 2 has been appointed as Acting VC for a period of six months of till the appointment of Vice Chancellor whichever is earlier, it is apparent from the text of notification that a temporary and stopgap arrangement has been made by assigning charge of Vice Chancellor by appointing respondent No. 2 as Acting VC for a period of six months or till the appointment of permanent Vice Chancellor whichever is earlier and it goes without saying that charge assigned on acting charge basis has a limited scope of exercising powers i.e. to the extent of regulating day to day administrative affairs of the University, which are necessary to be managed by Vice Chancellor under the Ordinance, 2002. It would not be out of place to cite the judgment of Hon'ble Supreme Court, titled as Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109) with reference to "acting charge" and it has observed as under:- "52. ............ And more importantly, the provisions envisaging appointments of acting incumbents are a mere stopgap arrangement meant to cater for emergencies and such-like provisions can never be allowed to be used to circumvent the law relating to the making of a regular appointment to such an office or to be used as a substitute for a regular appointment or to be abused to put an un-qualified person to hold a post which the law does not permit him to hold. Reference may be made to Al-Jehad Trust Case (PLD 1996 SC 324).

18. Perusal of the record revealed that in the 43rd meeting of the Senate of the respondent University chaired by the Chancellor, the other name of Professor Dr. Arif Zubair, who was the senior most Professor in the respondent University was also considered, however, due to certain objections over his nomination, the name of Respondent No. 2 who was at serial No. 2 in the seniority list of Professors was then unequivocally considered by the members of the Senate for her appointment as Acting VC.

19. In view of the above discussion and the law as interpreted by superior court the present writ petition do not qualify the test of writ of quo warranto, as such, same is not maintainable as Respondent No. 2 is holding the post of Vice Chancellor on acting charge basis i.e. as a temporary and stopgap arrangement on the post for performing necessary administrative and management affairs, thus, cannot be said to be holding a public a office, being necessary cause for invoking jurisdiction of this court seeking writ of quo-warranto under Article 199(1)(b)(ii) of the Constitution. The present writ cannot even be considered as writ of certiorari in view of the interpretation, vide judgments of superior courts as High Court in exercise of its supervisory jurisdiction under Article 199(1)(a)(ii) of the Constitution judicially review the judgments, orders and proceedings of the inferior courts to the extent of any illegality and excess of jurisdiction. Thus, notifications/office memorandums issued to manage and regulate the internal affairs of University by competent authority exercising powers provided by law is not amenable to jurisdiction of High Court for issuance of writ of certiorari. Moreover, it is also necessary for the person seeking writ of certiorari to be an aggrieved person who has been adversely affected by an act done or proceeding taken by a public functionary which is without lawful authority and of no legal effect. Under the facts and circumstances, petitioner is not an aggrieved person and has no locus standi to challenge the Notification dated 17.09.2020, issued in pursuance of decision taken in 43rd meeting of the Senate of the respondent University, lawfully convened under the Chairmanship of President of Pakistan/Chancellor who having been vested with power under section 12(7) of the Ordinance, 2002, to make such necessary arrangement for performance of duties of the Vice Chancellor in his absence or in case the office of the Vice Chancellor is vacant or he is unable to perform functions due to illness or some other cause.

20. These are the reasons of the short order dated 11.11.2020, whereby, the titled petition was dismissed as not maintainable along with all the listed applications. MH/195/Isl. Petition dismissed.