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PUNJAB HIGHER EDUCATION COMMISSION versus DR. AURANGZEB ALAMGIR

"Education" - Meaning, the meaning of legislation and the scope of "education" are generally defined by the teaching process.

P L D 2017 Lahore 489

Before Syed Mansoor AShah, C.J. and Shujaat Khan, J

PUNJAB HIGHER EDUCATION COMMISSION—Appellant

versus

Dr. AURANGZEB ALAMGIR and others—Respondents

i-C.A. No. 1766 of 2016, decided on 27th April, 2017.

(a) Words and phrases—

“Education ”—Meaning, legislative connotation and scope— Education” is defined as the process of teaching and learning, usually <*t school, college, or university; and was therefore an expansive and wde-ranging legislative subject, including all tiers of education, which included higher education and standards in education at all level [p. 505] A

Longman dictionary of contemporary English, 6th Edition, Third Printing, 2015 by Pearson Education Limited, at page. 568; The Chambers Dictionary, 12th Edition, 2011 by Chambers Harrap  Wishers Ltd, at page 490 and Oxford Dictionary of English rel.

(b) Constitution of Pakistan—

—Preamble & Part V [Arts. 141 to 159]—Federal system of Government—Concept of federalism” generally, and under the Constitution of Pakistan—Federal and Provincial authority and distribution of legislative authority—Structure, distribution and redistribution authority under the “Federal Principle” of the Constitution and concept of cooperation, as part of the

Constitution—Features of *federalism ”, extensively explained.

[pp. 505, 506, 507] C, D, E, F & G

The Oxford Handbook of Indian Constitution, edited by Sujit Choudhry Madhav Khosla & Pratap Bhanu Mehta. Oxford University Press ® 2016 Federal Scheme- Chapter 25; A K Brohi- Fundamental Law of Pakistan -1958. p 56-58; Guy Regimbald Si Dwight Newman- The Law of the Canadian Constitution (Lexis Nexis) p.97-98 and Zubair Faisal Abbasi- Federalism, Provincial Autonomy and Conflicts. Centre for Peace and Development Initiatives. Friedrich Naumann Stiftung. 2010. p.2 rel

(c) Constitution of Pakistan—

—Arts. 142 & 143—"Federal Principle"—Concept of Federalism in the Constitution—Relations between Federation and Provinces— Distribution of Legislative Powers—Overlap of legislative competence between Provinces and Federation—Reading exclusivity of Federal legislative competence under Art. 142(a) of the Constitution in situations where there was vertical sharing of legislative power between Federation and Province(s)—Cooperative/participatory federalism, concept of—Cooperative federalism as an intrinsic part of the Constitution of Pakistan—Horizontal and vertical sharing of Legislative powers between the Provinces and Federation—Concept of cooperative federalism prevails over and dilutes legislative exclusivity in Art. 142 of the Constitution into a workable and Constitutionally compliant inclusivity—Nature, scope and extent of legislative exclusivity of Art. 142 of the Constitution—Application of Art.143 of the Constitution in situations where Federal and Provincial Legislatures were locked in an unavoidable and ineluctable direct conflict—Concept of cooperative / participatory federalism, in the context of legislative powers of the Federation and the Provinces, extensively discussed, [pp. 507, 508, 509, 510] F, G, H, I, J,K,L& M.

International Conference on Cooperative Federalism , National Perspectives and International Experiences. New Delhi. Conference Booklet, 2016. p. 1; https://definitions.uslegal.com/rn/marble-cake-federalism/;Theories of Federalism, Ademola Ariyo, Adhoc Expert

Group Meeting, 2003. Economic Commission for Africa. United Nations; Philip J Weiser - Federal Common Law, Cooperative

Federalism and the Enforcement of Telecom Act. New York University Law Review -2011. vol.76 1692. At 1692/1697/1732; Reference re Securities Act, [2011] SCJ No. 66 and Madav Khosla, The Indian Constitution, Oxford 2012 Chapter 2 rel.

(d) Constitution of Pakistan—

—Arts. 142 & 143—Relations between Federation and Provinces— Distribution of Legislative Powers—Overlap of legislative competence between Provinces and Federation—Nature, scope and interpretation of Arts. 142 & 143 of the Constitution—Cooperative federalism as a tool for interpretation of the Constitution—Subject-matter of Federal and Provincial laws—Inconsistency between Federal and Provincial Law— Legislative overlap, resolution of—Cooperative / participatory

federalism—Scope—Cooperative Federalism, being an intrinsic part of Constitutional design, was also an effective and potent interpretative tool for the courts—Overlap in legislative space between the Federation and the Province and the limits of exclusivity under Art. 142 of the Constitution could be resolved through purposive interpretation with said Constitutional purpose in mind—Article 142 of the Constitution opened with words, “subject to the Constitution, ” which meant that while interpreting said Article, other provisions of the Constitution and foundational Constitutional principles envisaged in the Constitution would take preference over Art. 142 of the Constitution—Legislative subjects where there was overlap, had to be contextualized within the Constitutional architecture of Federalism and made to coexist under principles of cooperative federalism—Courts must, therefore, favour functional coexistence of the Federal and Provincial statutes in cases where there was vertical sharing or an overlap of legislative powers— Cooperative federalism flowing through the Constitution helped prevail over and dilute ike exclusivity of Art. 142 into a more workable and Constitutionally compliant inclusivity; giving both the Legislatures space to co-exist and only in cases of irreconcilable inconsistency between the Federal and Provincial statutes, Art. 143 of the Constitution provided a solution, but only as a last recourse, fp. 509] L

Husky Oil Operations Ltd. v. Minister of National Revenue [1995] 3 R.C.S. 453, Para 162 and Attorney General for Saskatchewan v. Lemare Lake Logging [2015] 3 R.C.S. 419, para 21, 22 and 23 rel.

(e) Constitution of Pakistan—

•—Arts. 142, 143, 141 Preamble & Fourth Sched. Part 11, Item No.12—Cooperative/participatory federalism—Overlap of legislative

competence between Provinces and Federation—Standards in institutions for higher education and research, scientific and technical institutions—Question before the High Court was "whether legislative power to set standards in education was exclusivity in the federal legislative domain, or whether subject of “education” falling also in the unwritten Residuary list, empowered Provinces to legislate on the subject"—Held, that while standards in institutions of higher education was a federal legislative subject, it also, indubitably, fell within the larger Provincial legislative subject of “education” and there was therefore an overlap of legislative competence in the area of education and standards of higher education between the Federation and the Provinces—Principle of “cooperative federalismn led to an understanding of Entry No. 12 of the Fourth Schedule to the Constitution—Federal or national standards by design would always be the baseline minimum national standards, reflective of national integrity and unity and such overarching national architecture of minimum standards provided a baseline for institutions of higher education—Provincial public sector universities and provincial governments exercising their legislative power under the Residuary List were fully empowered to go beyond these minimum standards by setting their own higher standard of excellence and Federation could not stifle or stunt the progress of higher education in the Provinces—In case of vertical power sharing, as in the case of education, federalism encouraged cooperation and interdepartmental coordination, which took the fÓrm; of participatory or cooperative federalism—Federation could set standards in institutions of higher education, however, they would always pass as minimum or mean standards as they cater to all the public sector universities in the country and simultaneously, the Provinces were fully empowered to develop their own standards in institutions of higher education as long as they were not below the federal standards, which limitation supported national unity and the *federal principle [pp. 505, 511, 512] B, N, O & P

Professor Yashpal and another v. State of Chhattisgarh and others AIR 2005 SC 2026 distinguished.

Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others AIR 2016 SC 2601 rel.

(f) Higher Education Commission Ordinance (LIU of 2002)—

—S. 10—University of the Punjab Act (IX of 1973), Ss. 14(2) & 14(4)—Public Sectors Universities (Amendment) Act (LX of 2012), Ss. 2 & Preamble—Constitution of Pakistan, Fourth Sched. Part II, Item No.I2 & Arts. 142, 143 & 199—Government of Punjab, Higher

Education Department Notification No.SOfUniv.) 5-3109, dated 7th April, 2015—Law RefÓrm;s Ordinance (XII of 1972) S. 3—Public sector universities—Vice Chancellors—Appointment criteria—Nature of guidelines issued for said appointments under Higher Education Commission Ordinance, 2002 — Competence of the Provincial

Legislature to legislate, expand and improve upon such guidelines— Constitutional structure of federalism and cooperative federalism— Scope—Appellant impugned order of High Court whereby Ss. 14(2) & 14(4) of the University of the Punjab Act, 1973 along with other similar provisions in statutes of various public universities, were struck down inter alia on the ground that per Entry No. 12 of Part II of the Fourth Schedule read with Arts. 142 & 143 of the Constitution, standards in institutions for higher education was within the exclusive domain of Federal Legislative Subject, on which the Provinces could not legislate—Validity—Impugned judgment over-emphasized on

exclusivity of the federal legislature, sidelining the overarching constitutional structure of federalism and cooperative federalism, which prevailed over Art. 142 of the Constitution—Scheme of the Higher Education Commission Ordinance, 2002 provided for minimum guidelines and standards, giving leeway to the Province to improve on these standards exercising its own legislative and executive power—No conflict existed between Higher Education Commission Ordinance, 2002, setting minimum standards and S. 14 of the University of the Punjab Act, 1973 providing for qualifications, experience and criteria for appointment of a Vice Chancellor—Province, in the present case, had fully applied the minimum guidelines issued by the Higher Education Commission without objecting to its directory nature and view of the impugned judgment that setting standards in institutions of higher education fell within the exclusive domain of the federal legislature due to said Item 12, was not sustainable for the reason that Higher Education Commission Ordinance, 2002 itself provided for minimum guidelines which were non-binding—Constitutional scheme of cooperative federalism gave space to both the federation and the province to have a functional co-existence—High Court observed that even if the Higher Education Commission Ordinance, 2002 provided standards (as opposed to minimum standards) in institutions of higher education, they would be contextualized in the Constitutional scheme and interpreted in a manner to promote cooperative federalism so that the federal and provincial standards smoothly co-existed and only in case of inescapable conflict between the two, would recourse be made to Art. 143 of the Constitution to give pre-emptive status to the federal law—Impugned judgment declaring S.14(2) and (4) of the Act to be unconstitutional was therefore not sustainable in law as the same amounted to depriving federal Constitution of its new found vitality post eighteenth Constitutional Amendment and was set aside—

Intra-court appeal was allowed, accordingly, [pp. 512, 513, 514, 515, 517, 518, 542] P, Q R ,S, T, U & X.

Kaiyani Mathivanan v. K.V. Jeyaraj and others 2015 (6) SCC 363; Haji Nasir Mehmood v. Mian Imran Masood and others PLD 2010 SC 1089; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabd and others PLD 2012 SC 132 and Miss Benazir Bhutto v. Federation of Pakistan and another PD 1988 SC 416 ref.

Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others AIR 2016 SC 2601; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328; Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 and Suo Motu Case No.13 of 2007 (PLD 2009 SC 217) rel.

Professor Yashpal and another v. State of Chhattisgarh and others AIR 2005 SC 2026 distinguished.

(g) Constitution of Pakistan—

—Arts. 154, 153, 142, 143 & Fourth Sched. Part 11—Cooperative/ participatory federalism—Council of Common Interest (CCI)— Constitutional role and importance of the CCI under Art. 154 of the Constitution over matters falling in Part-11 of the Federal Legislative List—Scope—Legislative subjects under Part-II of the Federal Legislative List required a coordinated and intergovernmental policy and the CCI was to fÓrm;ulate and regulate policies in relation to matters in Part-11 of the Federal Legislative List and to exercise supervision and control over related institutions—CCI also acted as an intergovernmental forum to avoid conflict and dysfunctionality between the policies of the provinces and the federation under vertical sharing of power and encouraged cooperative federalism and strengthened provincial autonomy—CCI could also fÓrm;ulate and regulate policies in respect of matters in Part-II of the Federal Legislative List and Constitutional wisdom behind this was to embed and mainstream participatory and cooperative federalism in national governance—Such policies, with Constitutional fiat behind them, may be considered by the Legislature while legislating on subjects falling under Part-II of the Federal Legislative List so that the footprint of Provincial autonomy and Federalism was visible in a proposed legislation which was also a constitutional requirement as Art. 142 of the Constitution had been made subject to the Constitution, [pp. 541, 542] V & W

Messrs Gadoon Textile Mills and 814 others v. WAPDA and

others 1997 SCMR 641; Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad and others v. United Sugar Mills Ltd., Karachi PLD 1977 SC 397; Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another PLD 1992 SC 646; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 and Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Kar. 1 rel.

(h) Higher Education Commission Ordinance (LIU of 2002—

—S. 10—University of the Punjab Act (IX of 1973), Ss. 14(2) & 14(4)—Public Sectors Universities (Amendment) Act (LX of 2012), S.2 & Preamble—Constitution of Pakistan, Fourth Sched. Part U, item No. 12 &. Arts. 142, 143, 154 199—Government of Punjab, Higher

Education Department Notification No.SOfUniv.) 5-3/09, dated 7th April, 2015—Law RefÓrm;s Ordinance (Xll of 1972), S.3—Public sector universities—Vice Chancellors—Appointment criteria—

Directions and declaration of the High Court in respect of, inter alia, legislative competence of the Provincial Legislature in the subject of higher education, appointment of Vice Chancellors, nature of guidelines issued by Higher Education Commission Ordinance, 2002 and role of the Council of Common Interest (CC1).

High Court declared and held as under:---

i. That Federation can set standards in institutions of higher education under Entry 12 of Part-II of the Federal Legislative List, however, they will always pass as minimum national standards, as they cater to all the public sector universities in the country and maintain national unity and federal compact. Simultaneously, the Province, under the legislative subject of “education” in the unwritten residuary legislative list is fully empowered to develop standards in institutions of higher education for the Province, these standards can be higher and more stringent as compared to the federal standards, but they cannot be below the federal standards.

ii, That the Higher Education Commission Ordinance, 2002, as it stands today, sets minimum and non-binding guidelines for the appointment of Vice Chancellors in public sector universities. Provincial legislature has the power to set standards i.e., procedures and criteria for selection of the Vice Chancellor, as long as, they are not below the minimum and baseline standards set by the Federation. If any future legislation under Entry 12 Part-II of the Federal Legislative List provides for mandatory minimum standards they will be binding on the Provincial

Government, but in no manner restrain the provincial government to develop standards higher than the federal standards in order to improve the quality of higher education in the Province.

iii. That section 14(2) and (4) of the University of the Punjab Act, 1973 and the corresponding provisions in the statutes of other public sector universities are intra vires the Constitution.

iv. That Notifications dated 3-3-2015 and 7-4-2015 issued by the Higher Education Department, Government of Punjab are valid and intra vires the Act subject to the directions (given above) and to be followed in future appointments to the post of Vice Chancellor.

v. That the role of CCI over the years has been disturbingly dormant. CCI is directed to review all the standards in institutions of higher education framed by HEC in order to make them constitutionally compliant in the next six months.

vi. that the Higher Education Commission, as well as, Federal Government was directed that in future, Higher Education Commission will work under the supervision and control of CCI and any policies or regulations prepared by the Higher Education Commission shall be routed through the CCI and will only be considered to be legally binding, if approved by CCI.

vii. The Government/Chancellor was directed to proceed with the appointment of the Vice Chancellors for the four public sector universities namely:

a. Lahore College for Women University, Lahore

b. University of Sargodha

c. University of the Punjab, Lahore, and .

d. Muhammad Nawaz Sharif University of Engineering and Technology, Multan; strictly on the basis of the recommendations of the Search Committee by considering a panel of three persons in the case of each University, however, all future appointments in the public sector universities in Punjab will be made in accordance with law settled in the present judgment. The provisional appointments made vide interim orders dated 19.12.2016 and 12.01.2017 shall come to an end when appointment of the regular Vice Chancellors is made in compliance of present judgment.

High Court observed that there has been slight confusion whether the impugned judgment has set aside the appointments made in the other seven public sector universities as cases of four public sector universities were before the Single Judge. Division Bench held as a

matter of clarification that impugned judgment was restricted to the (abovementioned) four universities and Division Bench could not upset or affect the appointments made in the other seven universities, which were valid and intact, [p. ] X

Appellant(s) by

Shakil-ur-Rehman, Advocate General, Punjab, assisted by Shan Gul, Anwaar Hussain and Barrister Qasim Ali Chowhan, A AGs.

Muhammad Amir Sohail for the appellant.

A.K. Dogar for the applicant/appellant in connected matter.

Ahmad Waheed Khan for the Applicant.

Taimoor Khan for the appellant in connected matter.

Ijaz Khalid Khan for the Applicant.

Khurram Saeed for the appellant in connected matter.

Respondents by:

Nasar Ahmad and Imran Aziz Khan, Deputy Attorneys General for Pakistan.

Sajid Ijaz Hotiana, Malik Awais Khalid, Saad Rasool and Shahzad Shaukat for the Respondents.

Nazeer Hussain, Director General-1, HEC, Islamabad.

Humayun Rasheed, Law Officer, HEC, Islamabad.

Ishtiaq Ahmad, Section Officer (Universities) Higher Education Deptt. Government of the Punjab.

Ms. Zia Batool, D.G. Q&R Accreditation, Punjab Higher Education Commission, PHEC.

Dr. Mubashir Nadeem, Director Training PHEC.

Dr. Zafar Iqbal Qureshi, Member Search Committee (on Courts call).

Research assistance by: v ;

Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Associates at LHCRC.

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