Revisional Powers of Chancellor and Advice of Chief Minister

Revisional Powers of Chancellor and Advice of Chief Minister Case Laws Constitutional Law Interpretation of Statutes Knowledge - Constitutional Law Larger Bench Litigation & Arbitration Public & Admin Law Quasi Judicial Solutions - Constitutional Law Supreme Court Mr. Justice Amir Hani Muslim in his judgment has decided the issue regarding revisional powers of Chancellor and advice of Chief Minister in Civil Appeal No. 359 of 2013.

1. This Appeal, by leave of the Court, is directed against judgment dated 15.01.2013, passed by the Lahore High Court, Lahore, whereby the Writ Petition filed by the Respondent No.1 has been allowed.

2. The facts necessary for the present proceedings are that on 29.04.2005, the University of Punjab got published an advertisement in the press, inviting applications to various positions including the post of Associate Professor in Social Work Department. The Appellant, amongst others, applied for the said post which he was offered. Through Office Order dated 07.11.2007, the Vice Chancellor of the University, in anticipation of the approval of the Syndicate and upon the recommendations of the Selection Board, exercised the powers vested in him under Section 15(3) of the University of the Punjab Act 1973, and appointed the Appellant to the said post on one year’s probation.

3. The Respondent No.1 challenged the appointment of the Appellant made through Office Order dated 07.11.2007, before the Lahore High Court by filing Writ Petition No.319 of 2008, which was disposed of with the direction to the Syndicate of the University to decide the issue of appointment of the Appellant. Accordingly, the Syndicate of the University in its 1689th meeting held on 29.10.2011 considered the appointment of the Appellant and decided to cancel the said appointment. The Appellant filed Petition under Section 11-A of the University of the Punjab Act 1973, before the Chancellor challenging the order dated 29.10.2011 of the Syndicate of the University. The Petition was allowed by order dated 06.06.2012, and the appointment of the Appellant was restored with all consequential benefits.

4. Feeling aggrieved, the Respondent No.1 filed Writ Petition before the Lahore High Court challenging the order dated 06.06.2012 of the Chancellor, which was allowed by the impugned judgment dated 15.1.2013, and consequently the order dated 06.06.2012, restoring the Appellant to his previous position, was set aside. The Appellant filed Civil Petition No.202 of 2013 for Leave to Appeal before this Court in which leave to Appeal was granted on 15.04.2013.

5. During the hearing of the aforesaid Appeal on 18.11.2013 by a two member Bench, it was noticed that the issue raised required hearing by a larger Bench and the Honourable Chief Justice of Pakistan was requested to constitute a five member Bench. The relevant portion of the order dated 18.11.2013 by the said Bench is reproduced hereunder:

“On one of the last dates of hearing the question of interpretation and applicability of Section 11(8) of the Act came up for consideration obviously in the context of Article 105 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), as also other relevant provisions of the Act, including Section 11-A and Section 43 therefore, thus a notice was issued to the learned Advocate General, Punjab, to appear in person and to answer the queries in relation thereto. During the course of hearing, the Acting Advocate General, Punjab has placed reliance upon the judgment reported as Rana Aamer Raza Ashfaq and another Vs. Dr. Minhaj Ahmad Khan and another (2012 SCMR 6) to argue, that according to the enunciation of law therein, the functions/powers of the Governor even if acting as Chancellor are regulated in terms of Article 105 of the Constitution, but when queried, he has stated that in the judgment supra the earlier law on the subject having close nexus to the issue in hand reported as Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad Vs. Muhammad Tariq Pirzada and others (1999 SCMR 2189) seemingly it has eluded the attention of this Court; besides for the exercise of the functions of the Chancellor/the Governor specified in the Act, especially Section 11-A and Section 43, which are the relevant provisions, need deeper examination if such functions/powers are subject to the provisions of Article 105 of the Constitution. Moreover, the impact of the eighteenth amendment in the Constitution should also be taken into account which was not adverted to in the case of Rana Aamer Raza Ashfaq (supra). We think, that these propositions, which have emerged during the course of hearing, are of considerable importance and may in the given circumstances of the case need some elucidation of the Rana Aamer Raza Ashfaq’s case (supra) and/or reconsideration of the law enunciated therein, therefore we feel expedient that the matter be brought to the notice of the Hon’ble Chief Justice of Pakistan for considering the desirability of constitution of a larger bench.”

6. The larger Bench comprising of five members was constituted by the Honorable Chief Justice to resolve the issues raised in these proceedings. The Bench issued notices to the Attorney General for Pakistan and Advocate Generals of all four provinces under Order 27-A Rule 1, CPC, as well as appointed Messrs Makhdoom Ali Khan and Khawaja Haris ASCs as Amicus Curiae to assist this Court on the proposed issues which have far reaching effect.

7. Mr. Sardar Muhammad Aslam learned ASC for the Appellant commenced his arguments by contending that the Chancellor of a Province, while exercising his functions under the University of the Punjab, Lahore Act 1973 (the “University Act”), is not required to act on the advice of the Chief Minister. The learned ASC for the Appellant referred to Articles 45, 49, 51, 54, 56, 57, 59, 75, 89, 100, 145(2), 200, 208, and 234 of the Constitution and submitted that the said provisions enumerate the powers and functions vested in the President under the current constitutional set up. He contended that the functions that the President exercised under the foregoing provisions are those which require the President to act on the advice of the Prime Minister. While placing reliance on a judgment of this Court in the case of Federation of Pakistan vs. Muhammad Tariq Pirzada and others, (1999 SCMR 2189), the learned ASC submitted that it has been held by this Court that the President of Pakistan, when hearing appeals from the decision of the Wafaqai Mohtasib, exercises quasi judicial powers and is, therefore, not required to seek the advice of the Prime Minister. He submitted that, similarly, the Governor of a Province / Chancellor of a University, in exercise of his functions under Section 11A of the University Act, also exercises quasi-judicial functions. He contended that if the Chancellor whilst exercising his revisional / appellate powers under the Act was required to seek the advice of the Chief Minister then it would loose all semblance of an independent application of judicial mind.

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