Doctor MUHAMMAD NISAR UL HAQ Versus VICE-CHANCELLOR, KARAKORUM INTERNATIONAL UNIVERSITY
MALIK HAQ NAWAZ, J.--- The petitioner Dr. Muhammad Nisar ul Haq son of Muhammad Zia ul Haq, resident of House No.NE-3882, Street No.29, Chah Sultan, Rawalpindi has filed the instant writ petition under Article 71(2) of Self Governance and Empowerment Order, 2009, with the enabling provisions of Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-
"In view of the above submission, it is most humbly prayed that the impugned order of petitioner's repatriation dated 29.06.2016 may please be set-aside and the petitioner may kindly be restored in service against the post he was working before repatriation i.e. Deptt. Coordinator/Assistant Professor BPS-19, as per decision of Senate at KIU Skardu Campus with all back benefits.
Any other relief not specifically prayed for but otherwise available in the circumstances and deemed appropriate by this Hon'ble High Court."
2. The brief facts which gave rise to the controversy between the petitioner and the respondents is that petitioner, is Ph.D, in Education from International Islamic University Islamabad. The petitioner applied for the post of Assistant Professor (Education) BPS-19 and he was selected and appointed on 07-05-2012 vide notification No. KIU-Admin-1(15)/2011 dated 07-05-2012. The letter of appointment of even date contain certain terms and conditions and one of the condition at Sr. No.3, which is reproduced for the purpose of convenience:
1. xxxxxx xxxxxx xxxxxx xxxxxx xxxxxxx xxxxxxx xxxxxxx xx
2. xxxxx xxxxxx xxxxxx xxxxxx xxxxxx xxxxxxx xxxxxxx xxxx
3. Contract period:- One year effective from the date of joining (extendable as per TTS criteria/requirement).
3. 15th meeting of Selection Board was held on 07-01-2016, where review case of the petitioner was taken up as item No.1, and for the purpose of ready reference the same is reproduced as under:-
Item 1. Review case of Dr. Nisar-ul-Haq, Assistant Professor, Skardu.
The house approved recommendations of the University Selection Board as:-
The University will adjust his services as Assistant Professor in BPS-19 from the date of initial joining the KIU through Selection Board and offer him appointment on TTS from the date of this Selection Board, with the conditions:
1. He will reimburse the difference between the BPS and TTS salaries for the period between his date of initial joining and the date of this Selection Board.
2. He will resign from his previous service from the date of acceptance of TTS at KIU.
3. His status at the KIU under the TTS will be "new inductee" and will not claim benefits entitled to regular faculty opting for TTS.
4. The respondents vide Notification No.KIU-Senate-11/2016/28286 dated nill approved the recommendations of the Selection Board, which was held on 07-01-2016 as stated supra.
5. In the meanwhile the respondents issued notification No.KIU-Admin-1(12)/2011/28586 dated nil which read as under:-
Notification
No.KIU-Admn-1(12)/2011/28586. In exercise of the powers vested under section 10 subsection (2) of the University Order 2008, the University Senate in its 11th meeting held on 10th January, 2016 on the recommendations of University Selection Board made in its 15th Selection Board meeting held on 7th January, 2016, the Vice-Chancellor has been pleased to accord ex-post facto approval of Dr. Muhammad Nisar ul Haq as Assistant Professor Department of Educational Development (Skardu Campus) with the following terms and conditions:
1. The appointment is made on BPS-19 with effect from initial date of joining at KIU i.e. May 13, 2012 to January 6, 2016.
2. He will reimburse the difference between the BPS and TTS salaries for the period between his date of initial joining at KIU and the date of 15th Selection Board i.e. January 7, 2016.
3. He would be transferred from BPS to TTS from the date of 15th Selection Board meeting, whereas he has to resign from his parent department i.e. "Government Faiz ul Islam High School No.2 Shakrial Tehsil and District Rawalpindi" from the date of TTS appointment i.e. January 7, 2016.
If the above terms and conditions are accepted, please sign where indicated below and return one original copy of the notification to the under signed.
Sd/xxx
(Signature Authority)
Registrar
6. On 29-06-2016, the respondent No. 2 issued notification No.KIU-EHS-2(3)/2014/29297 dated 29-06-2016 and the services of the petitioner were repatriated to his parent department. It is interesting to mention here that in the presence of decision of Senate to adjust the services of petitioner against the post of Assistant Professor (BPS-19) from the date of his joining, and even after implementation of decision by adjustment of the petitioner in BPS-19 as an Assistant Professor w.e.f. 15.05.2012 to 30.06.2016 and it is crystal clear from the 15th minutes of meeting of Senate, that the petitioner was offered the appointment of TTS and in case he opted for TTS, he will fulfill the following 3 conditions:-
1. The appointment is made on BPS-19 with effect from initial date of joining at KIU i.e. May 13, 2012 to January 6, 2016.
2. He will reimburse the difference between the BPS and TTS salaries for the period between his date of initial joining at KIU and the date of 15th Selection Board i.e. January 7, 2016.
3. He would be transferred from BPS to TTS from the date of 15th Selection Board meeting, whereas he has to resign from his parent department i.e. "Government Faiz ul Islam High School No.2 Shakrial Tehsil and District Rawalpindi" from the date of TTS appointment i.e. January 7, 2016
7. A bare reading of the decision taken by Senate in its meeting leaves no ambiguity that the offer was always subject to acceptance. To clarify the ambiguity the definition of "offer" as given in Black Law Dictionary seventh Edition is as under:-
Offer.
1. The act or an instance of presenting something for acceptance<the prosecutor's offer of immunity> 2. A promise to do or refrain from doing some specified thing in the future; a display of willingness to enter into a contract on specified terms, made in a way that would lead a reasonable person to understand that an acceptance, having been sought will result in a binding contract.
8. There was sweet discretion of the petitioner either to continue his services as Assistant Professor (BPS-19) or to go on TTS, and the petitioner was not bound to accept the offer and the Senate being a supreme body did not lay down any such condition that in case of non acceptance, the petitioner will have to face such consequences, and he will lose his service, which he acquired after going through a hard and a tough process.
9. The learned counsel for the respondents when confronted with the above factual/legal proposition and their implication, he very rightly in a fair manner stated at bar that the decision of 15th meeting of Senate held on 07-01-2016 is binding and will hold the field. We appreciate his conduct.
10. In view of the discussion, we are of the view that the notification bearing No.KIU-Estt-2(3)/2014/29297 dated 29.06.2016 being against the concept of Senate decision, hence is illegal and without lawful authority, which is set aside. Consequently Writ Petition No.105/2016 filed by the petitioner is allowed. The petitioner is entitled to continue his services as Assistant Professor (BPS-19) with back benefits.
11. The writ petition is disposed of as above.
ZC/21/GB Petition accepted.