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Judgment Sheet in the PESHAWAR HIGH COURT, PESHAWAR

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Judgment Sheet in the PESHAWAR HIGH COURT, PESHAWAR 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, Swabi. 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 Khyber Pakhtunkhwa 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 Pakistan 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 law,— (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 education 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.
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