Judgment Sheet IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Writ Petition No.4406-P of 2019

Jawad Ahmad Mir Vs. Prof. Dr. Imtiaz Ali Khan & others

JUDGMENT

Date of hearing: 20.09.2019

Mr. Ali Azim Afridi, Advocate for petitioner.

Mr. Kamran Hayat, A. A.G. for official respondents

Ahmad Ali, J. - The petitioner through the present constitutional petition has called in question the authenticity of notification dated 31.07.2019 whereby respondent No.1 was authorized to look after the affairs of the office of Vice-

Chancellor, Women University, .

2. Brief facts of the case are that Women University,

Swabi was founded in the year 2016 and Prof. Dr. Khanzadi

Fatima Khattak, was appointed it's Vice-Chancellor for a period of three years w.e.f. 27 th July 2016, and upon expiry of her tenure the matter for the appointment of Vice-Chancellor is in process through Academic Search Committee. However, Government of vide Notification

No.SO(U-IV)/HE/3-4/ASC/2019 dated 31 st July 2019, authorised Prof. Dr. Imtiaz Ali Khan, Vice-Chancellor,

University of Swabi, to look after the affairs of the office of

Vice-Chancellor, Women University, Swabi till arrival of regular V.C. Petitioner aggrieved of the notification dated 31 st

July 2019 filed present writ petition. Comments have been filed by respondents No.1& 5

3. Counsel for the petitioner argued that there is no provision in the Khyber Pakhtunkhwa Universities Act, 2012, which may support the impugned notification. He maintained that under subsection (3) of Section 12A of the ibid Act of

2012, upon expiry of the tenure of Vice-Chancellor the Pro-

Vice-Chancellor shall be deemed to be the Acting Vice-

Chancellor, therefore, impugned notification is liable to be cancelled.

4. Learned. Addl. A.G. while appearing on behalf of official respondents has argued that the Women University of

Swabi is in an embryonic state and all the employees of the university are serving on contract basis. There is no Pro-Vice-

Chancellor, regular Dean, Director, Chairperson, Registrar or any other regular faculty member who may be appointed as

Pro Vice-Chancellor or Acting Vice-Chancellor. Therefore, respondent No.1, who is already Vice-Chancellor of the

University of Swabi, has been authorised to look-after the office of the Vice-Chancellor the Women University of Swabi as a stopgap arrangement. He argued that as there is no regular officer of the university therefore, in the absence of the Vice-

Chancellor, all the business of university will be collapsed.

That keeping the post of Vice-Chancellor vacant at the cost of future of students is not a justified act, therefore, an immediate step as stopgap arrangement was taken to keep-up the management and other affairs of the university. In the last, he vehemently expressed his objection on the maintainability of the writ petition on the ground that respondent No.1 has no locus standi to challenge the impugned notification.

5. Arguments heard and record gone through.

6. The main objection of respondents is with regard to the maintainability of writ of mandamus hence the preliminary objections of maintainability is taken first for discussion. As the brief resume of facts unveiled, a look at the relevant provisions of Article 199(1) of the Constitution of

Islamic Republic of is necessary, which provides as under:

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 ,— (a) on the application of any aggrieved party, make an order— (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do; or (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; or (b) on the application of any person, make an order — (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (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; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.

7. The petitioner through the present constitution petition has prayed to declare the impugned Notification as void ab initio, Coram non-judice and without lawful authority.

The tone and tenor of the prayer bespeaks that the same, for all intent and purposes, is a writ of mandamus falling within the ambit of Article 199(1)(a)(ii) of the Constitution for which the party invoking such jurisdiction must be an aggrieved party.

Mandamus demands some kind of activity on the part of the body or person to whom it is addressed. Thus, when a body omits to do an act for which it is bound to do, it can be commanded to do the same. Where the Government denies to itself a jurisdiction which it has under the law or where an authority vested with the power improperly refuses to exercise it, mandamus can be issued. Thus, writ of mandamus cannot be issued unless the petitioner has a legal right to the performance of legal duty of a public nature and the party against whom the writ is sought is bound to perform that duty. The rule of Locus

Standi is strictly followed while issuing writ of mandamus.

The petitioner has to prove that he has a right to enforce public duty in his favour. Discretion of constitutional jurisdiction could not be exercised in favour of a petitioner who could not himself take benefit of order given by the Court. Reliance is placed on the case of Peshawar University Teachers

Association & others Vs. Govt. of Khyber Pakhtunkhwa & others, reported in 2015 CLC 265 (Peshawar) and the case of

Brig (R.) Aziz Muhammad Khan Vs. Secretary Ministry of

Defence, Govt. of Pakistan reported in 2003 CLC 1057

(Lahore).

8. In the case of Hafiz Hamdullah Vs Saifullah Khan and others, reported in PLD2007 Supreme Court52 , it was held as under:-

(a) Constitution of Pakistan (1973)------Art. 199(1)(a)---Constitutional jurisdiction of High Court---Scope--- "Aggrieved person"---Connotation--- Constitutional jurisdiction of High Court, under Art. 199(1)(a) of the Constitution, can be invoked by an aggrieved person, which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused to him something which he was legally entitled to- -- Further requirement is that the person invoking Constitutional jurisdiction under Art.199 of the Constitution has to establish that any of his legal or fundamental rights guaranteed under the Constitution has been violated resulting in legal loss. 9. Counsel for the petitioner during arguments has argued that the present writ has been filed in the nature of quo warranto for which grievance is not necessary. In this regard, we may observe that the fundamental basis of the proceeding of Quo Warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. It is, however, a discretionary remedy which the Court may grant or refuse according to the facts and circumstances of each case.

Thus, it may be refused when it is vexatious or where it would be futile in its result or where the petitioner is guilty of laches or where there is an alternative remedy for ousting the usurper.

Although, vast powers are vested with the Judiciary to control an administrative action when it infringes the fundamental rights of the citizens or when it goes beyond the spirit of the

Constitution. It ensures the Rule of Law and proper check and balances between the three organs of the democratic system.

10. While evaluating the case of petitioner on the yardstick of quo warranto , it transpires that after the cancellation of impugned notification, there would be no one to hold the office of Vice-Chancellor of the Women University

Swabi as all its staff is working on contract basis which fact is evident from the lettersNo.WUS/Estt/2019/2806 dated 17 th

July 2019 and No.WUS/Estt/2019/2827 dated 23 rd July 2019 issued by the Deputy Registrar of Women University, Swabi, and annexed with the comments. Section 11 of the Khyber

Pakhtunkhwa Universities Act, 2012 (Act No. X of 2012) provides:

11. Vice-Chancellor. ---(1) There shall be a Vice-Chancellor of a University who shall be a person of eminence having proven ability and leadership skills, and has made significant contribution to higher as teacher, researcher and academic administrator and shall possess such qualification and shall be appointed in accordance with the procedure as provided in the Schedule-II.

(2) The Vice-Chancellor shall be the Chief Executive and Principal Accounting Officer of the University responsible for all administrative, academic and financial functions of the University and for ensuring that the provisions of this Act, Statutes, Regulations and Rules are faithfully observed in order to promote the general efficiency and good order of the University. The Vice-Chancellor shall have all powers prescribed by Statutes, Regulations and Rules for this purpose, including administrative control over the Officers, Teachers and other employees of the University excluding those mentioned in section 8 of this Act.

Whereas, according to Section 12A of the K.P. Universities Act, 2012 provides:

12A. Pro-Vice-Chancellor.---(1) There shall be a Pro-Vice-Chancellor of a University to be appointed by the Chancellor from amongst the three senior- most Deans or Teachers, for a period of two years to act as officiating Vice-Chancellor or Acting Vice-Chancellor, as the case may be, in accordance with this section.

(2) The Pro-Vice-Chancellor shall be deemed to be the officiating Vice- Chancellor to look after the office of the Vice-Chancellor only when the regular Vice-Chancellor is on leave for an academic visit abroad or any other purpose, duly granted by the Chancellor or when the post is vacant due to any reason which does not require appointment of regular Vice- Chancellor. (3) The Pro-Vice-Chancellor shall be deemed to be the Acting Vice-Chancellor to perform all the functions and powers of the Vice-Chancellor, in case of expiration of the tenure of the regular Vice-Chancellor or any other case which requires appointment of regular Vice-Chancellor. The Acting Vice-Chancellor shall remain in office till appointment of regular Vice-Chancellor under this Act.

11. As the tenure of previous Vice-Chancellor has already been expired and there is no Pro-Vice-Chancellor to act as Acting Vice-Chancellor, therefore, the absence of the

Vice-Chancellor would not only create numerous complications and cause hurdles in the smooth administrative and financial business of the University but also have an adverse impact on the running academic sessions. Thus, impugned notification cannot be cancelled at the cost of the future of students of the University. Moreover, the respondent

No.1 is Vice-Chancellor of the University of Swabi who was appointed as such in accordance with the provisions of the Act-

X of 2012and as such he meets the criteria to hold the office of

V.C. in another University. Presently, respondent No.1has been assigned duties to look-after the office of Vice-

Chancellor, Women University Swabi till arrival of the regular

Vice-Chancellor; hence, this type of arrangement is no doubt a stopgap arrangement where process for appointment of a regular incumbent is in progress before Academic Search

Committee. Looking after the office of V.C. of Women

University by the respondent No.1, who otherwise is competent and meet the criteria to hold the office of VC, cannot be termed as usurp of the said office in Women

University rather such an arrangement is beneficial for the general public and in particular for the students studying there.

Undoubtedly, the purpose of the impugned notification is to safeguard the public interest which is an exception as the object of constitutional jurisdiction is to enforce and protect a

‘vested right’ and same is not for the establishment of a right.

Right to be enforced under Art. 199 of the constitution must not only be an existing right but for seeking remedy under the said Articles the infringement of such vested right must be there. Reliance is placed on the case of ‘Abdul Khalique Vs.

Federation of Pakistan etc’ reported in 2016 PLC (C.S.) 530.

12. In view of above, this writ petition is held not maintainable and devoid of merits, and as such dismissed with no order as to costs.

Announced. 20.09.2019.

JUDGE

JUDGE

DB Hon’ble Mr. Justice Ishtiaq Ibrahim & Hon’ble Mr. Justice Ahmad Ali