PLJ 2013 Islamabad
Present: Shaukat Aziz Siddiqui, J.
Dr. ASMATULLAH,
etc.--Petitioners
versus
INTERNATIONAL
ISLAMIC UNIVERSITY, etc.--Respondents
W.P. No. 2942 of
2012, decided on 6.3.2013.
Constitution of Pakistan
----Art.
199--Constitutional jurisdiction of High Court--Appointment on contract without
publication of posts through open advertisement--Violation of notification of
H.E.C.--Held: Transparency and rule of law are only mechanisms through
objectives for which they were established--If caliber and eminence of
university was so high and of great standard, then university authorities would
not had been afraid to put employee in competitive process--Mannerism in which
employees were inducted cannot be termed less than dubious and
sham--Appointment was declared as illegal non-transparent, offensive to
constitution--Petition was allowed. [Pp.
220 & 221] A & B
Syed Javed Akbar, Advocate for Petitioners.
Barrister Sardar Umer Aslam,
Advocate for Respondents No. 1 to 6.
Date of hearing:
6.3.2013.
Order
Petitioner
invoked the constitutional jurisdiction of this court by way of filing instant
writ petition with the following prayer:--
"Wherefore,
it is most respectfully prayed that this Hon'ble Court
2. Grievance of the petitioners is that
Respondent Nos.4 to 6 have been appointed on contract
without publication of posts through open advertisement which is against the
fundamental principles of law. It is contended that appointment of Respondent
No. 4 is in blatant violation of the Notification dated 04.11.2010 of the
Higher Education Commission, which is regulatory and supervisory authority of
the University. The said Notification, which was addressed to the head of all
the Universities of the country inter alia, says:
"Retired
faculty members should not be appointed at academic or other administrative
positions."
Whereas,
Respondent No. 5 has no qualification whatsoever to be appointed as Consultant/Assistant
Professor (BPS-19) as Editor of Fikr-o-Nazar as he is an M.A 2nd Division in Political Science and
B.Sc 3rd Divion. For the
post of Assistant Professor (BPS-19) one should be either Ph.D
in the relevant field or should have Foreign Master's Degree or MS/M.Phil equivalent degrees awarded after 18 years of
education and 04 years of research experience in a recognized university in the
relevant field, moreover, Respondent No. 5 is also employed full time with
Respondent No. 7 (PTV) as Host/anchor (Current Affairs) on contract basis and
he cannot hold both the positions simultaneously.
Likewise, having
no education in Islamic Studies and Arabic Language, Respondent No. 6 is not
qualified to be Assistant Editor of Islamic Studies, which is also recognized
by the Higher Education Commission and which is an internationally peer
reviewed research journal in Islamic, published by Islamic Research Institute,
Islamabad, Pakistan since 1962.
3. Respondents No. 1 to 3 filed the report and para wise comments and prayed for dismissal of instant writ
petition, inter alia on the grounds that Respondent No. 4 has been appointed as
Adhoc Judge, Shariat,
Appellate Bench, Supreme Court of Pakistan vide notification dated 19.10.2012,
hence petition to his extent has become infructuous.
Respondent No. 5 was appointed as a consultant and not as Assistant Professor
and the qualifications for appointment as a consultant were notified vide
office order dated 13.10.2011, in exercise of power vested under Section
13(3)(b) of IIU Ordinance 1985, which reads as under:
"At least
second class masters degree in the relevant field from
and HEC recognized University/Institution"
It is contended
that infact, Respondent No. 5 was appointed as a
consultant on contract in Shariah Academy IIU on
14.03.2011 and his services were placed at disposal of IRI w.e.f
26.07.2011, notified on 20.01.2011. He was not appointed in IRI directly rather
it was a transfer from one department to another, notified on 26.07.2011. As
far Respondent No. 6 is concerned, she was appointed on daily wages, until
further arrangement considering her father's long meritorious service in IRI
who is now sick and bed ridden. His daughter was thus accommodated on daily
wages who possesses a Masters degree in English
Literature and Masters Degree in business administration.
I have heard the
learned counsel for the parties and perused the documents annexed with the
pleadings.
4. It is an admitted fact that Respondent Nos. 4
to 6 inducted against respective posts without adhering to the competitive
process as none of the posts, presently occupied by them was ever advertised.
Learned counsel for respondents failed to point out any reason/ circumstance on
the basis of which, such departure may be condoned. It is beyond the imagination
that culture of favoritism and nepotism would prevail in the educational
institution like IIU.
5. The superior courts have held time and again
that, transparency and rule of law are the only mechanisms through which
Institutions can be run, to achieve the objectives for which they are
established. If caliber and eminence of Respondent Nos.4 to 6 is so high and of
great standard, then University authorities should not have been afraid to put
Respondent Nos.4 to 6 in the competitive process. Unfortunately, the mannerism
in which Respondent Nos.4 to 6 have been inducted cannot be termed less than
dubious and sham.
6. Latest dictum laid down by court of apex is
lightship on the issue as guidelines have been provided through judgment passed
in the Constitutional Petition Nos. 11 & 23 of 2012. For convenience same
are being reproduced herein below.
"22. The principles of
law enunciated herein above can be summarized as under:--
(i) Appointments,
Removals and Promotions.--Appointments, Removals and Promotions; must be made
in accordance with the law and the rules made there-under; where no such law or
rule exists and the matter has been left to discretion, such discretion must be
exercised in a structured, transparent and reasonable manner and in the public interest
(ii) Tenure, posting and transfer.--When the
ordinary tenure for a posting has been specified in the law or rules made there
under, such tenure must be respected and
cannot be varied, except for compelling reasons, which should be
recorded in writing and are judicially reviewable.
(iii) Illegal Orders.--Civil servants owe their
first and foremost allegiance to the law and the Constitution. They are not
bound to obey orders from superiors which are illegal or are not in accordance
with accepted practice and rule-based norms; instead, in such situations, they
must record their opinion and, if necessary, dissent.
(iv) OSD.--Officers should not be posted as
OSD except for compelling reasons, which must be recorded in writing and are
judicially reviewable. If at all an officer is to be posted as OSD, such posing
should be for the minimum period possible, and if there is a disciplinary
inquiry going on against him, such inquiry must be competed at the
earliest".
In this view of
the matter, instant petition is allowed,
appointment/induction of Respondent Nos.4 to 6 is declared as illegal,
non-transparent, offensive to constitution and besides the dictums laid down by
the superior courts, therefore, is set aside.
University
authorities are directed to evolve competitive process and fill the vacancies
after advertisement.
(R.A.) Petition
allowed
