Dr. NAKSHAB CHOUDHRY Versus PROVINCE OF PUNJAB through Chief Secretary, Government of the Punjab, Lahore
TARIQ SALEEM SHEIKH, J.--- The Petitioner, Dr. Nakshab Chaudhry, Dean of Basic Medical Sciences and Chairman of the Department of Biochemistry at King Edward Medical University (hereinafter referred to as "KEMU" or "the University"), challenges the authority of the Government of the Punjab to appoint teaching faculty at the University through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution").
2. The Petitioner submits that KEMU was established through the King Edward Medical University Lahore Act, 2005 ("KEMU Act"), by reconstituting King Edward Medical College, Lahore, and is now an autonomous institution. He states that under clause (ix) of section 14(4) of the KEMU Act, the Vice-Chancellor is the Competent Authority for making appointments to posts in BPS-1 to BPS-18. For teaching and other posts in BPS-19 and above, clause (xvii) of section 25 of the Act vests this authority in the Syndicate of the University (the "Syndicate"). However, appointments to positions equivalent to BPS-17 and above are required to be made on the recommendations of the relevant Selection Board.
3. The Petitioner further submits that the University framed the KEMU (Terms and Conditions of Service of Teaching Staff) Rules, 2014 ("Rules") under section 30 of the KEMU Act. Part-III of these Rules stipulates the eligibility requirements for appointments to teaching posts, mandating that such appointments be made from eligible candidates through "direct appointment" or "promotion." The Petitioner contends that the Punjab Government, specifically Respondent No.2, has no role in these appointments under the KEMU Act or its Rules, and it cannot fill these posts by transfer or other means. Despite this, Respondent No.2 has unlawfully appointed individuals to various KEMU posts from outside the University Cadre. The Petitioner asserts that these actions render the KEMU Act redundant.
4. The Petitioner asserts that section 20(2) of the KEMU Act deemed the existing employees of the college to be employees of the University unless they opted for retention in the Government within sixty days. He argues that section 20(2) was a transitory provision. It is no longer relevant and cannot be invoked to justify the actions of Respondent No.2. The Petitioner seeks a permanent injunction restraining the Punjab Government from interfering in KEMU's affairs, particularly regarding appointments, transfers, and postings of its employees.
5. The Respondents have vehemently opposed this petition. They have raised a preliminary objection regarding its maintainability, arguing that the Petitioner does not qualify as an "aggrieved person" under Article 199(1)(a) of the Constitution. Additionally, they contend that since he is currently serving at KEMU as the Dean of Basic Medical Sciences and Chairman of the Department of Biochemistry (a position within the University Cadre), and the Government is not making appointments to University Cadre posts, he has no locus standi to file this petition.
6. On the merits of the case, Respondents Nos.1 and 2 contend that the Petitioner's case is based on incorrect and misleading assertions. They clarify that appointments at KEMU are made through two distinct modes: University Cadre posts and Sanctioned New Establishment (SNE) posts. The SNE posts, established by the Specialized Healthcare and Medical Education Department (SHC&ME) with approval from the Finance Department, are separate from the University Cadre and are regulated by an independent administrative framework. They do not contravene the KEMU Act.
7. Respondents Nos.1 and 2 assert that under clause (xv) of section 25 of the KEMU Act, the Syndicate is vested with the authority to create and abolish teaching posts and to determine their terms and conditions - a right fully recognized by the Government. The Syndicate has accordingly created its own cadre of teaching posts. Simultaneously, section 20 of the KEMU Act empowers the Government to appoint or transfer faculty to SNE posts, which helps provide additional teaching resources to the University. The Respondents argue that this arrangement allows the Government to support KEMU's operations without undermining its institutional autonomy.
8. Respondents Nos.1 and 2 maintain that the University and its authorities do not dispute or object to the Government appointing teachers to SNE posts. Disrupting this arrangement, such as withdrawing Government-appointed faculty, would adversely impact KEMU's operations.
9. Respondents Nos. 1 and 2 further argue that educational autonomy, recognized in various jurisdictions, dictates that educational institutions should have the independence to manage their internal affairs without external interference. This includes the freedom to make decisions on academic policies, curricula, disciplinary matters, and administrative governance. This concept is rooted in the belief that institutions of higher learning possess the expertise and specialized knowledge necessary to address these areas effectively. Respondents submit that the Supreme Court of Pakistan, in Sundas and others v. Khyber Medical University and others (2024 SCMR 46) and Hafza Habib Qureshi and others v. Amir Hamza and others (PLD 2024 SC 780), has acknowledged and upheld the principles of educational autonomy. The Supreme Court ruled that courts must exercise utmost restraint in matters concerning the academic affairs of educational institutions, emphasizing that judicial non-interference is the rule, and deviation from it is the exception. Furthermore, the courts should not substitute their findings for those of academicians when addressing academic matters. Based on these principles, the Respondents contend that this Court should refrain from intervening in the matter raised by the Petitioner. They maintain that neither KEMU nor the Government has acted unlawfully, and any direction by this Court regarding KEMU's faculty or teachers would constitute an unwarranted intrusion into the University's internal affairs.
10. Respondents Nos. 3 and 4 fully support the stance of Respondents Nos.1 and 2. They emphasize that the two streams of appointments and postings at the University - the University Cadre and SNE posts - operate harmoniously without conflict or overlap. This arrangement is based on financial and administrative exigencies and serves the University's best interests. It is neither contrary to the letter of the applicable law (the KEMU Act) nor does it undermine the spirit of the law. Given the distinction between SNE posts and University Cadre posts, the terms and conditions of service for civil servants of the Government of Punjab apply to the former, while the KEMU (Terms and Conditions of Service of Teaching Staff) Regulations (the "Regulations") govern the latter. The Government makes appointments exclusively for SNE posts, whereas KEMU independently manages appointments and postings for University Cadre posts. The service structures of these two categories are entirely separate, including provisions for promotions and other terms and conditions of service. Thus, the SNE posts created by the Government are specifically identifiable and distinct from University Cadre posts in every respect.
11. Respondents Nos.3 and 4 state that the Pakistan Medical and Dental Council Act, 2020 (PMDC Act), has established the Pakistan Medical and Dental Council (PMDC), which is responsible for setting and approving accreditation standards and granting recognition to medical and dental institutions in Pakistan. Section 20 of the PMDC Act requires universities to ensure that their affiliated institutions comply with and maintain the prescribed accreditation standards. The Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admission, Accreditation Standards) Regulations, 2012 (PMDC Regulations), framed under section 33 of the Medical and Dental Council Ordinance, 1962, and retained under the PMDC Act, mandate the attachment of hospitals with a minimum of 500 beds and a specified number of teaching posts as prerequisites for admitting 300 to 350 medical students. KEMU is similarly obligated to secure recognition and accreditation from the PMDC. To comply with the standards stipulated in the PMDC Act and Regulations, the Government has ensured the affiliation of teaching hospitals with KEMU and created SNE teaching posts within the University. These measures support KEMU in fulfilling the accreditation requirements and maintaining the standards prescribed by the PMDC.
12. The Additional Advocate General explained that KEMU operates under a collaborative framework where the University Cadre and SNE posts function in parallel. While the attached hospitals remain under government control, the University benefits from the human resources provided by the Government, drawing from a broader and more diverse talent pool while retaining its independent right to create and appoint staff to its own posts. This dual system facilitates the integration of academic and healthcare functions, enhancing KEMU's national and international reputation. He further elaborated on the functioning of KEMU and its relationship with its attached hospitals. Although the hospitals remain under government control, the University exercises teaching jurisdiction over them. Doctors appointed to teaching posts within the University are required to perform clinical duties in these hospitals, and for teaching purposes, both within the University and the hospitals, these doctors work under the University's authority. Consequently, Professors, Associate Professors, and Assistant Professors serving in the teaching hospitals must be appointed by the University. The Additional Advocate General clarified that KEMU's autonomy extends to its academic affairs, including policies, curricula, discipline, and degree awards, which the University manages without government involvement. The KEMU Act, particularly its preamble and section 5, grants the University the authority to establish necessary academic bodies, such as the Board of Faculty, Deans, and Boards of Studies, free from government interference.
Opinion of the Court
13. The Government has objected to the maintainability of this petition. I must address this issue first.
14. Article 199 of the Constitution confers original jurisdiction on the High Court, subject to the limitations specified. The High Court must be moved by an aggrieved party in respect of the matters mentioned in clauses (i) and (ii) of Article 199(1)(a), while any person may approach it for an order under clauses (i) and (ii) of Article 199(1)(b). As for the matters falling within the ambit of Article 199(1)(c), it can exercise jurisdiction only on the application of an aggrieved person. It is important to note that Article 199 has used two expressions: "aggrieved party" and "aggrieved person". The rule of interpretation is that when the legislature uses two different terms, the intention is to convey distinct meanings.
15. James L.J. defined the term "person aggrieved" in ex parte Sidebotham (1880) 14 Ch.D. 458, which is widely accepted. He wrote: "A person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused him something, or wrongfully affected his title to something." On the other hand, he added, "in order to be an 'aggrieved party', it would be imperative for a party to show that any of his proprietary or personal rights, as recognized by the laws of the country, has been invaded or denied to him. 'Right' and 'remedy' are no doubt complementary concepts because right without remedy would be meaningless just as it would be inconceivable to think of a remedy without a corresponding right. 1
16. In Fazl-e-Haq, Accountant-General, West Pakistan v. The State [PLD 1960 SC (Pak) 295], the Supreme Court held that the extraordinary jurisdiction relating to a writ could only be exercised by the High Court when moved by a party whose legal rights have been denied. In Associated Cement Companies Limited v. Pakistan (through the Commissioner of Income Tax, Lahore Range) and others (PLD 1978 SC 151), while interpreting Article 98 of the Constitution of 1962 (which parallels Article 199 of the Constitution of 1973), the Supreme Court of Pakistan held that to qualify as an "aggrieved party," one must show that a personal or proprietary right, recognized by law, has been violated or denied. If no right has been infringed, there is no cause of action, and the party cannot claim to be "aggrieved". The Court further stated that Article 98 of the 1962 Constitution does not create substantive rights but offers an additional remedy to protect existing legal rights when violated. In Asdullah Mangi and others v. Pakistan International Airlines Corporation and others (2005 SCMR 445), the Supreme Court held that the object of proceedings initiated under Article 199 of the Constitution is the enforcement of a right and not the establishment of a legal right. Therefore, the right sought to be enforced must be clear and complete, and there must be an actual infringement of that right. 2
17. As regards the expression "aggrieved party", Justice Fazal Karim writes:
"The word 'party' seems to assume that the action in question has arisen out of some previous proceeding, administrative or judicial, to which the judicial review petitioner was or might have been a party. The word 'party' can therefore assume importance in cases in which there had been proceedings under the relevant statute to which the applicant under Article 199 was not a party, as it did in Haji Adam v. Settlement and Rehabilitation Commissioner PLD 1968 Kar. 245. But the word 'party' as used in Article 199, clause (1)(b) means one who is competent to maintain an action (Anjuman Arain v. Abdur Rashid PLD 1973 Lah. 500, 511); and a person not a party to the proceeding under the relevant statute can seek relief under Article 199, if he shows that the decision is directed against him or his property in the sense that the enforcement of the decision would involve special, immediate and in its effect a direct injury to his interest. [Tariq Transport Company case PLD 1958 SC (Pak) 437]." 3
18. Justice Fazal Karim observes that in simple cases, it may become apparent at an early stage that the individual seeking judicial review is not an aggrieved person, or had no interest at all, or does not have sufficient interest to support the application. In such instances, denying leave to apply at the outset would be appropriate. However, in more complex cases, this approach would not suffice. In these situations, it becomes necessary to examine the legal powers or duties of the party against whom relief is sought, the applicant's position in relation to those powers and duties, and the alleged violations. In other words, the question of locus standi, in such cases, cannot be considered in isolation or abstract terms; it must be assessed within the broader legal and factual context. 4
19. The Petitioner, serving as the Dean of Basic Medical Sciences and Chairman of the Department of Biochemistry at KEMU, alleges interference with the University's autonomy and statutory framework, which directly impacts his professional responsibilities. This establishes his locus standi as an aggrieved person. The Respondents' contention that the Petitioner cannot be considered aggrieved because the Government is appointing individuals to SNE posts rather than University Cadre posts is unfounded. His grievance extends beyond specific appointments to concerns about statutory compliance with the KEMU Act, which directly relates to his position and professional responsibilities. Hence, the petition is maintainable as it arises from a legal right protected under the KEMU Act.
20. Although this petition primarily stems from the Petitioner's personal statutory grievance under the KEMU Act, the Court also recognizes that the underlying issues raised in this case have significant public importance. Public Interest Litigation (PIL) principles permit the Court to address such issues when the matter transcends individual rights and affects the public at large. PIL has been described as a mechanism for protecting the rights of those who cannot effectively represent themselves or for addressing systemic failures in governance. While the Petitioner has approached the Court as an aggrieved person under Article 199(1)(a), this Court alternatively observes that the petition could also be entertained as PIL, given the broader implications of the Government's actions on the University's autonomy. Therefore, this petition is held maintainable on this ground as well.
21. There is no cavil that courts should exercise judicial restraint and refrain from intervening in the internal decision-making of educational institutions. However, this principle does not extend to shielding statutory violations or administrative overreach from judicial scrutiny. In the present case, the Petitioner does not challenge KEMU's discretionary academic decisions or internal policies. Rather, the grievance pertains to alleged statutory violations, specifically the Respondent No.2's direct appointments and transfers to teaching positions at KEMU in contravention of the KEMU Act. Therefore, the principle of judicial restraint does not preclude this Court from examining the legality of the impugned actions.
22. Let's now turn to the merits of the case. KEMC was established through Act V of 2005 (the KEMU Act) by reconstituting King Edward Medical College, Lahore, one of the country's oldest and most prestigious medical education institutions. According to the Act's preamble, the objective was to grant university status to the college and to impart "better medical education, encouraging and arranging extensive research and publications in the field of medical sciences, holding examinations, and awarding medical degrees." The Act was later amended through the King Edward Medical University Lahore (Amendment) Act, 2012.
23. Section 3(2) of the KEMU Act stipulates that KEMU shall consist of the Chancellor, the Pro-Chancellor, the Vice Chancellor, the Pro-Vice Chancellor and members of the Senate, the Syndicate, the Academic Council, and other authorities. Section 3(3) of the Act states that the University shall be a body corporate and shall have perpetual succession and a common seal. It may sue and be sued by the said name. Section 4 of the Act outlines the University's functions. Clause (j) of section 4 empowers it to create jobs of Professors, Associate Professors, Assistant Professors, and Demonstrators and other posts for research, publication, extension, administration, and other related purposes and to appoint persons thereto.
24. Section 8 of the KEMU Act, read in conjunction with section 20, lists the officers of the University, while section 21 specifies its authorities. Section 14(1) of the KEMU Act designates the Vice-Chancellor as the chief executive of KEMU, responsible for controlling all offices, teachers, and employees and enforcing the provisions of the Act, Rules, and Regulations. Clause (ix) of section 14(4) grants the Vice-Chancellor the authority to make appointments to posts in BPS-1 to BPS-18. However, appointments to positions in BPS-17 and BPS-18 require recommendations from the Selection Board. Section 23 declares the Senate as the highest administrative and executive body of the University and describes its functions. Section 25 defines the Syndicate's powers, including appointing honorary visiting faculty (clause xiv), creating or abolishing posts for teaching, administrative, and research positions (clauses xv and xvi), and appointing teachers and officers for posts equivalent to BPS-19 or above (on the recommendations of the Selection Board), determining their terms and conditions, including pay (clause xvii). Clause (xviii) empowers the Syndicate to appoint a Professor Emeritus under prescribed terms.
25. Section 5 of the KEMU Act is pivotal to the controversy raised in this case. It specifies the nature, scope, and extent of KEMU's jurisdiction. It reads:
5. Jurisdiction.---The University shall exercise the powers conferred on it by or under this Act within its jurisdiction and in respect of its teaching jurisdiction in its attached hospitals:
Provided that the hospitals so attached under clause (x) of section 2 shall be under the administrative control of the Government.
26. The expressions "hospital", "teacher", and "teaching department" are defined in section 2, 5 while section 7(1) of the KEMU Act explains "teaching". 6
27. Section 5 of the KEMU Act grants the University exclusive authority to carry out academic functions, such as admitting students, formulating courses, conducting examinations, awarding degrees, and overseeing its affiliated institutions. To achieve these objectives, the Act provides for the establishment of various academic bodies, including the Board of Faculty for each faculty, Deans, Teaching Departments, the Board of Studies, and the Advanced Studies and Research Board. Section 5 further grants KEMU exclusive jurisdiction over teaching in its attached hospitals. However, the administrative control of these hospitals remains with the Government.
28. The appointment of the officers referred to in sections 8 and 20 of the KEMU Act is not the subject matter of this writ petition. Similarly, the constitution of the authorities specified in section 21 has not been questioned. The issue raised in the petition concerns the posts of teachers as defined in clause (xxv) of section 2 of the Act. 7 Admittedly, teachers are not the authorities for the purpose of section 21 of the Act and are also not officers within the meaning of section 8. They would most appropriately be covered by section 20.
29. The KEMU Act does not include any provisions regarding SNE posts or their appointments. The Government justifies its actions on two grounds: first, reliance on the proviso to section 20(2) of the Act, and second, the necessity of meeting Pakistan Medical and Dental Council (PMDC) accreditation criteria by providing resources and financial support to KEMU.
30. Section 20(2) of the KEMU Act is reproduced below for ready reference:
(2) The existing government employees of the King Edward Medical College, Lahore, shall be deemed to be the employees of the University unless they opt for their retention in the Government within sixty days of the order made under section 3 :
Provided that the terms and conditions of service of all persons serving in connection with the affairs of any institution, institute, or teaching department in any capacity where transferred or so transferred to the University shall be determined by the Government in the manner as may be prescribed.
31. There is no dispute that the main part of section 20(2) was enacted for the transition of the medical college to the medical university. However, the Government construes the proviso to section 20(2) to mean that it not only deals with those employees who, at the time of the commencement of the Act, opted for retention in the Government but also the future transfers of those employees of the University. To appreciate this contention, it is necessary to examine the principles dealing with the construction of proviso in the statutes. Craies on Statute Law has enumerated the following principles: "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing it to that effect." 8 In Pakistan Match Industries (Pvt.) Ltd. and others v. Assistant Collector, Sales Tax and Central Excise Mardan, and others (2019 SCMR 906), the Supreme Court of Pakistan explained that provisos "are intended to qualify the main part of the provision and carve out an exception from the same, taking out (as it were) something that but for the proviso would be included therein. Such provisos were generally referred to as 'true' provisos. Sometimes a proviso was construed to be a substantive clause that operated in its own right; however, such instances were rare, and for a proviso to be so construed, the language of the provision must be clear." In Collector of Customs Appraisement v. Gul Rehman, Proprietor Messrs G. Kin Enterprises (2017 SCMR 339), the Supreme Court stated that "generally a proviso was an exception to or qualified the main provision of law to which it was attached. Proviso was to be strictly construed and applied only to that particular provision to which it was appended. Proviso was limited to the provision that immediately precedes it. The purpose of a proviso was to qualify or modify the scope or ambit of the matter dealt with in the main provision, and its effect was restricted to the particular situation specified in the proviso itself. Before a proviso could have any application, the section or provision itself must apply." In The State v. Ghulam Rasool and others (1991 MLD 1923), it was stated that "proviso excepts and deals with a case which otherwise would have fallen within the language of main enactment; that for the purpose of its construction the whole of the Act is to be taken into consideration and a strict' construction is to be accorded to proviso which should keep it within the ambit of substantive provisions."
32. Bearing these principles of construction in mind, I proceed to examine the proviso to section 20(2) of the KEMU Act. By its plain language, the proviso allows the Government to transfer employees who opted to remain with the Government back to the University, subject to terms determined by the Government. This mechanism was intended to address transitional exigencies and does not grant the Government perpetual or unrestricted power to make appointments or transfers beyond the scope of the initial transition. The principles of statutory interpretation, particularly the doctrine of noscitur a sociis 9 (a word is known by the company it keeps), reinforce that the proviso must be read in conjunction with the main clause of section 20(2). It should be understood as addressing the specific circumstances of employees during the establishment of the University rather than as a general or ongoing power. Furthermore, the principle of expressio unius est exclusio alterius (the express mention of one thing excludes others) suggests that the statute, by explicitly granting limited transfer powers to the Government under this proviso, excludes any broader authority to interfere with the University's appointments or affairs. Finally, the interpretation must align with the overarching purpose and scheme of the Act, which prioritize university autonomy. Any interpretation that permits unrestricted or perpetual Government intervention would contradict the legislative intent and conflict with sections 25 and 30 of the KEMU Act, which vest appointment and administrative powers exclusively in the Syndicate and Vice-Chancellor. Therefore, the proviso should be construed as a narrowly confined exception intended to address transitional cases, not as an enabling provision for open-ended Government appointments or transfers. Hence, I hold that section 20(2) cannot be relied upon to justify ongoing appointments or transfers by the Government.
33. KEMU faces financial constraints that significantly limit its ability to independently recruit and retain the teaching staff required for its diverse faculties and disciplines. Attracting highly qualified professionals already employed in other institutions, particularly those in secure Government positions, is an additional challenge. In these circumstances, the Government's assistance is essential to ensure the University's continued operational and academic success. However, such support must align strictly with the statutory framework of the KEMU Act to uphold the University's autonomy and statutory objectives. The most effective approach would be to provide direct financial assistance, enabling KEMU to create and fill posts within its cadre. Alternatively, any appointments or transfers must follow a transparent process initiated by the University through its Syndicate in compliance with sections 25(xv) and 25(xvii) of the Act.
34. The Petitioner sought two reliefs in this petition: first, a declaration that the Government's appointments through transfers to teaching positions are unlawful and beyond its jurisdiction, and second, the transfer and appointment orders of the individuals concerned be annulled, and they may be repatriated to their parent departments.
35. Direct transfers or appointments by the Government to teaching posts in KEMU, without requisition or approval by the Syndicate, contravene section 25(xv) of the KEMU Act. Such actions constitute unlawful interference in the University's affairs, compromise its autonomy, and violate the objective and structure of the Act. The Petitioner has appended with this petition various notifications/orders issued by Respondent No. 2, making transfers, postings, and appointments in KEMU. Nothing on the record suggests that the Syndicate requisitioned these doctors or otherwise approved it. Perhaps there was not even any consultation. In view of what has been discussed above, such notifications/orders are patently unlawful.
36. The second prayer cannot be granted. The past appointments/ transfers cannot be declared void because the Petitioner has not impleaded the concerned doctors as respondents in this case. They have no notice of these proceedings, and it would be against the principles of natural justice to condemn them unheard. Even otherwise, it is well settled that the jurisdiction of the High Court under Article 199 of the Constitution, except in habeas corpus cases, is discretionary. In exercising this discretion, the court must consider a range of factors, including the facts of the case, the urgency for exercising its discretion, the potential consequences of granting the writ, and the nature and extent of the wrong or injury resulting from a refusal of the writ. 10 In this case, issuing an order to nullify the SNE appointments and repatriate the appointees would adversely impact KEMU's operations and disrupt students' studies.
37. In view of the above, this petition is disposed of with a direction to the Government to ensure that all future appointments or transfers comply with the provisions of the KEMU Act. Any deviation from the statutory framework will be subject to judicial review.
MH/N-5/L Order accordingly.