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DR. AURANGZEB versus PROVINCE OF PUNJAB

Our Fourth Schedule - Items / Entries in the Federal Legislative List - Interpretation and Scope - When translating entries or items into the Federal Legislative List, they should be interpreted in the broadest possible sense and should be binding, narrow and not. Should be given. Pedantic Meaning - Entries in the Federal Legislature List were the broad areas that define the articles of legislation and should be interpreted independently [Page 187] A&B

PLD 2017 Lahore 164

Before Shahid Karim, J

Dr. AURANGZEB ALAMGIR and others—Petitioners versus

PROVINCE OF PUNJAB and others—Respondents

Writ Petition No.37411 of 2015, decided on 1st December, 2016.

(a) Constitution of Pakistan—

—Fourth Sched.—Items/Entries appearing in the Federal Legislative list—Interpretation and scope—While interpreting Entries or Items in the Federal Legislative List, the same were to be interpreted in the broadest possible sense and should not be given any restrictive, narrow or pedantic meaning—Entries in the Federal Legislative List were broad areas defining the subjects of legislation to be done and must be interpreted liberally. [p. 187] A & B

ICC Textile Ltd. and others v. Federation of Pakistan and others 2001 PTD 1557 ref.

(b) Higher Education Commission Ordinance

—Ss. 10(l)(q) & 21—Punjab Higher Education Commission Act, 2014 (I of 2015), S. 10—Constitution of Pakistan, Fourth Sched. Part II, Item No. 12—Government of Punjab, Higher Education Department Notification No.>SO(Univ.) 5-3/09, dated 7th April, 2015*—Public sector universities—Vice Chancellors—Appointment criteria—

Provincial Higher Education Department issued a notification setting out the criteria for appointment to post of Vice Chancellors for public sector universities—Constitutionality and legality—In view of Entry 12 of Part II of Fourth Schedule to the Constitution, the power to determine standards in institutions of higher education and research, scientific and technical institutions laid with the Parliament to the exclusion of the Provincial Assemblies—Such power to determine standards was all-encompassing and included the laying down of eligibility criteria for appointment of Vice Chancellors in public sector universities—Provinces could not be allowed to read anything into the Higher Education Commission Ordinance, 2002 so as to carve out for themselves the power to prescribe criteria for appointment of Vice Chancellors of public sector universities—Notification whereby Provincial Higher Education Department laid down the qualification, experience and other criteria for the post of Vice Chancellors of public sector universities was an action extra juris and was accordingly struck down—High Court directed that the Higher Education Commission should lay down criteria for appointment of Vice Chancellors to public sector universities by specifying concrete and clear terms of the said criteria, and that the Provincial Government should initiate a fresh process for appointment of Vice Chancellors—Constitutional petition was allowed accordingly.

Entry No. 12 of Part II of Fourth Schedule to the Constitution dealt with “standards in institutions for higher education and research, scientific and technical institutions”. Said Entry had to be construed as encompassing all that could conceivably be included in the words “standards in institution for higher education and research”. Question as to what was comprised in the term ”standards4 was not. to be lent a narrow and austere interpretation, [p. 187] C

Gujarat University v. Krishna Ranga Nath Mudholkar AIR 1963 SC 703; State of T.N Adhiyaman Educational and Research Institute (1995) 4 Supreme Court cases 104 and Osmania University Teachers Association v. State of A.P (1987) 4 Supreme Court cases 671 ref.

In view of Entry 12 of Part II of Fourth Schedule to the Constitution, the power to determine standards in institutions of higher education and research, scientific and technical institutions laid with the Parliament to the exclusion of the Provincial Assemblies. This power to determine standards was all-encompassing and included the laying down of eligibility criteria for appointment of Vice Chancellors in the public sector universities, [p. 215] O

Mere fact that the subject of education had devolved on the

Provinces did not confer on the Provinces the power to legislate with regard to the standards in institution for higher education and research, which included the criteria regarding appointment of Vice Chancellors as it was a concomitant part of the whole process of determining standards, [p. 188] D

Appointment of the Vice Chancellor was to be made by the Provinces but the criteria and the qualifications of the Vice Chancellors to be appointed was covered by the subject of Entry No. 12 in Part II of Fourth Schedule to the Constitution and had to be laid down by the Higher Education Commission, [p. 194] J

Hassan Aamer Shah v. Province of Punjab through Chief Secretary and 5 others 2012 PLC (C.S) 290 distinguished.

Shahid Mehboob Rana v. Province of Punjab through Secretary and 2 others 2010 PLC (S.C) 769 ref.

Criteria for appointment of a Vice Chancellor was an important plank of the standards of higher education as the post of a Vice Chancellor was of pivotal standing and was at the forefront of those standards. Vice Chancellor guided the way and his vision shaped the future of not only the academia but the students too and in turn of the nation as a whole. It was his leadership role that determined and ensured the sustenance of those standards, [p. 191] E

Provinces could not be allowed to read anything into the Higher Education Commission Ordinance, 2002 so as to carve out for themselves the power to prescribe criteria for appointment of Vice Chancellors of public sector universities, [p. 197] K

Power of legislating on all facets of standards of higher education resided in the Parliament and was delegated to Higher Education Commission by the Higher Education Commission Ordinance, 2002. Prudence demanded that it should be exercised by the Higher Education Commission in order to instil the same standard in all public sector universities across the country, whether federal or provincial. This would help to attain the objects of federalism and harmony. Fixing of criteria of appointment of a Vice Chancellor was included in the standards of higher education, [p. 200] M

Professor Yashpal and another v. State of Chhattisgarh and others (2005) 5 Supreme Court cases 420 ref.

Kalyani Mathivanan v. K.V. Jeyaraj (2015) 6 Supreme Court Cases 363 held to be erroneous, and not to be relied upon.

Notification whereby Provincial Higher Education Department

laid down the qualification, experience and other criteria for the post of Vice Chancellors of public sector universities was an action extra juris and was accordingly struck down. [p. 218] T

High Court directed that Higher Education Commission should lay down criteria for appointment of Vice Chancellors to public sector universities by specifying concrete and clear terms of the said criteria, preferably in terms of section 21 of the Higher Education Commission Ordinance, 2002; that if the same was not possible, the eligibility criteria ought to be laid down under the current dispensation and the procedure prescribed by the Higher Education Commission Ordinance, 2002; that the Higher Education Commission shall take care to issue the eligibility criteria as elaborately and extensively as possible by taking into account such criteria which was prevalent internationally and the standards which the universities all over the world were obliged to follow; that during the interregnum while the process for the appointment of the Vice Chancellors was being undertaken, the most senior professor in terms of length of service shall be appointed by the Provincial Government as Vice Chancellors for the public sector universities in respect of whom the appointments had to be made; that the same shall apply to the Universities in which the tenure of the Vice Chancellors had come to an end and the Vice Chancellors were continuing in office on an acting-charge basis under the directives of the Chancellor, and that the Provincial Government shall, after the criteria had been settled by the Higher Education Commission and search committees constituted, initiate fresh process for appointment of Vice Chancellors for the public sector universities. Constitutional petition was allowed accordingly, [pp. 218, 219] U & W

(c) Higher Education Commission Ordinance (LIII of 2002)—

—S. 10(l)(q)—University of the Punjab Act (IX of 1973), Ss.14(2) & 14(4)—University of Engineering and Technology Act (V of 1974), Ss. 13(2) & 13(4)—Bahauddin Zakariya University Act (III of 1975), Ss.14(2) & 14(4)—Islamiya University Bahawalpur Act (IV of 1975), Ss.14(2) & 14(4)—University of Engineering and Technology

Ordinance (VII of 1994), Ss. 12(2) & 12(4)—Fatima Jinnah Women University, Rawalpindi Ordinance (VI of 1999), Ss.11(2) & 11(4)— Government College University, Lahore Ordinance (XLVIII of 2002), Ss. 12(2) & 12(4)—Lahore College for Women University, Lahore, Ordinance (XLIX of 2002), Ss.12(2) & 12(4)—University of Education, Lahore Ordinance (L of 2002), Ss. 13(2) & 13(4)—Government College University, Faisalabad Ordinance (LXX of 2002), Ss. 12(2) & 12(4)— University of Sargodha Ordinance (LXXX of 2002), Ss. 12(2) & 12(4)— University of Gujrat Act (IX of 2004), Ss. 13(2) & 13(4)—Women University, Multan Act (XV of 2010), Ss.11(2) & U(4)—Ghazi

University, Dera Ghazi Khan Act (XXIX of 2012), Ss. 11(2) & 11(4)— Constitution of Pakistan, Fourth Sched. Part II, Item No. 12—Public sector universities—Vice Chancellors—Appointment criteria-—Power of Provincial Government to determine the qualifications, experience and other relevant requirements for the post of the Vice Chancellor for public sector universities—Constitutionality—Power to lay down eligibility criteria for appointment of Vice Chancellors in public sector / universities laid with Higher Education Commission and not the Provincial Government—High Court accordingly held that subsection (2) of S.14 of the University of the Punjab Act, 1973 and the words “and criteria” in subsection (4) were unconstitutional and shall be/ struck down; that subsection (2) of S.13 of the University of

Engineering and Technology Act, 1974 and the words “arid criteria” in subsection (4), were unconstitutional and shall be struck down; that subsection (2) of S.14 of the Bahauddin Zakariya University Act, 1975, and the words “and criteria” in subsection (4), were unconstitutional and shall also be struck down; that subsection (2) of S.14 of the lslamiya University Bahawalpur Act, 1975, and the words “and criteria” in Subsection (4) were unconstitutional and shall also be struck down; that subsection (2) of S.12 of the University of

Engineering and Technology Act, 1994, and the words “and criteria” in subsection (4) were unconstitutional and shall be struck down; that subsection (2) of S. 11 of Fatima Jinnah Women University, Rawalpindi Ordinance, 1999, and words “and criteria” in subsection (4) were unconstitutional and shall be struck down; that subsection (2) of S.12 of the Government College University, Lahore Ordinance, 2002, and the words “and criteria” in subsection (4) were unconstitutional and shall also be struck down; that subsection (2) of S.12 of the Lahore College for Women University, Lahore, Ordinance, 2002, and the words “and criteria” in sub-section (4), were unconstitutional and shall be struck down; that subsection (2) of S.13 of the University of Education, Lahore Ordinance, 2002, and the words “and criteria” in subsection (4), were unconstitutional and shall also be struck down; z that subsections (2) of S.12 of the Government College University, Faisalabad Ordinance, 2002, and the words “and criteria” in subsection (4), were unconstitutional and shall be struck down; that subsection (2) of S.12 of the University of Sargodha Ordinance, 2002, and the words “and criteria” in subsection (4), were unconstitutional and shall be struck down; that subsection (2) of S.13 of the University of Gujrat Act, 2004, and the words “and criteria” in subsection (4), were unconstitutional and shall also be struck down; that subsection (2) of S.ll of the Women University, Multan Act, 2010, and the words “and criteria” in subsection (4), were unconstitutional and shall also be struck down, and that subsection (2) of S.ll of Ghazi University, Dera Ghazi Khan Act, 2011, and the words “and criteria” in sub-

section (4) shall also be struck down—Constitutional petition was allowed accordingly. [p. 216] S

(d) Constitution of Pakistan —

—Fourth Sched. Part II, Item No. 12—Constitution (Eighteenth Amendment) Act (X of 2010), S. 101(2)(ii)—Legislative List— “Standards of education”—Federal and Provincial Legislatures, domain of—Scope—Post Constitution (Eighteenth Amendment) Act, 2010, standards of ‘higher education9 were under the domain of Parliament, whereas standards of education at secondary and intermediate level could be legislated upon by the Provincial Assemblies—Constitution intended that the standards in institution for higher education and research in all its ramifications should be legislated upon by the Parliament, while greater leeway had been given to the Provincial Assemblies on all aspects of education including curriculum, syllabus, planning with regard to the primary, secondary and intermediate education—Matters relating to the standards in institution for higher education, research, scientific and technical education had been left to the Parliament—Although, the fÓrm;ation of a university and the setting up of institutions of higher education was within the domain of the Provinces, it was within the powers of the Parliament to lay down standards for such higher education institutions, [pp. 192, 194] F, G & I

(e) Constitution of Pakistan —

—Fourth Sched. Part II, Item No. 12—Constitution of India, Seventh Sched. List-I (Union List), Entry No. 66—Federal Legislative List— Subject of education—Similarity between Entry No. 12 of Part II of Fourth Schedule to the Constitution of Pakistan, and, Entry No. 66 of List-1 (Union List) of Seventh Schedule to the Constitution of India, 1956 stated, [p. 192] H

(f) Interpretation of Constitution —

—Interpreting the text of the Constitution required attention to linguistic context and structural analysis, [p. 197] L

American Constitution Law by Lawrence H. Tribe (Ch. 1: Approaches to Constitutional Analysis) and Intratextualism, by Akhil Reed Amar, 112 Harv. L. RW. 747 (1999) ref.

(g) Educational institution —

—“University”—Definition, functions and attributes of a university stated, [p. 212] N

Halsbury's Laws of England, Fourth Edition (Vol.15) and American Jurisprudence, 2d, 15A ref.

(h) Statute, vires of —

Provision in a statute which was unconstitutional, must be struck down and erased from the statute, [p. 215] P

(i) Punjab Higher Education Commission Act 2014 (I of 2015) —

—S. 10—Public sector universities—Vice Chancellors—Appointment process—Constitution of a Search Committee for the purposes of making recommendations for appointment of Vice Chancellors to all public sector universities—Legality and propriety—One Search Committee had been fÓrm;ed or constituted to undertake the search of a Vice Chancellor for all the public sector universities-—Certain public sector universities specialized in their fields and dealt with a specific area of learning, thus, it was imperative that the expertise of the Committee members would differ for each different genre of universities—One Search Committee should not have been constituted to undertake the search of a Vice Chancellor for all the public sector universities—Legal requirement was that separate Search Committee should have been constituted for each public sector university under the relevant law for that university—Search Committee should confÓrm; to the requirements of the particular university and the nature of academic activity that that university was required to impart under its statute—While constituting a Search Committee the majority of the members ought to have no connection with the Government so as to keep the process free of taint and nepotism—Notification whereby a single Search Committee was constituted to undertake the search of a Vice Chancellor for all public sector universities was non est and unlawful and was, therefore, set aside—High Court directed that the Provincial Government should initiate a fresh process for appointment of Vice Chancellors for public sector universities—Constitutional petition was allowed accordingly. [pp. 215, 216, 219] Q, R &V

For Petitioners

Saad Rasool, Muhammad Azhar Siddique, Aftab Ahmad Bajwa, Hafiz Abdul Rehman Ansari, Malik Ghulam Abbas Nissuana Anum Azhar, Aitzaz Aslam Ch., Waqas Asghar Jathol, Tahir Ishaq Butt, S.Perveen Mughal, Munir Ahmad, Mian Shabbir Asmail, Irfan Mukhtar, Humayun Faiz Rasul and Safdar Shaheen Pirzada.

For Respondents

Shakil ur Rehman Khan, Advocate General, Punjab.

Muhammad Jamal ud Din Mamdot and Anwar Hussain, Ahmad Hassain Khan, A.A.Gs.

Mrs. Shama Zia, Addl. Secretary, HEC.

Ali Zafar Syed and Iftikhar Ahmad Mian for Respondent Dr.Mujahid Kamran.

ss

Khurram Saeed and Malik Muhammad Awais Khalid for P.U. Sajid Ijaz Hotiana for HEC.

Amir Sohail and Mian Abdul Shakoor for PHEC.

Aurangzeb Rashid, for Respondent No.8 (in W.P.No 32719 of 2016).

Date of hearing: 14th November, 2016.

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