Dr. SHAKEELA Versus UNIVERSITY OF SINDH through Vice-Chancellor/Chairman Selection Board University of Sindh Jamshoro
KHADIM HUSSAIN SOOMRO, J.--- Through captioned petition, petitioner has sought following relief(s): a. That this Honorable Court would graciously be pleased to declare that the decision of Selection Committee of rejecting the petitioner is illegal, unlawful, without any lawful justification. b. That this Honorable Court would graciously be pleased to appoint the commission to investigate and inquire the recruitment and appointment process of Professor (BPS-21) or to direct the respondent No.10 to review the decision of Selection Board and after addressing the grievance of petitioner, submit its report before this Honourable Court. c. That this Honorable Court would graciously be pleased to declare the Selection Committee null and void being constituted in violation of Code of the Authority and suspend the process of appointment of Professor (BPS-21) and directions may kindly be given to respondent No.1 to carry out the same in accordance with criteria settled by Higher Education Commission-HEC. d. Any other relief(s) which this Honourable Court deems fit, just and proper in favour of the petitioner.
2. Learned counsel for the petitioner submits that presently petitioner is serving as Assistant Professor in Faculty of Education, University of Sindh; that vide advertisement dated 31.02.2021 respondent-University announced various posts including the post of Professor in the Department of Distance Continuing and Computer Education University of Sindh (subject post); that petitioner having required qualification and experience applied for the subject post, and subsequently vide letter dated 25.05.2023 petitioner was called to appear before the Selection Board for interview held on 29.05.2023; that petitioner appeared before the Selection Board and her interview remained good, however, she was rejected without assigning any reason; that she moved review application before the Chairman, Syndicate of the University but no order has yet been passed on such review application, Although the review applications, submitted by individuals who had also been rejected, were considered and they were hired for different positions. Learned counsel prayed for aforesaid relief(s).
3. Learned counsel, representing the University, while referring to the minutes of the meeting of the Selection Board at Agenda Item No.2, argued that no suitable candidate for the subject post was found eligible; as such, the Selection Board resolved it that subject post would be re-advertised at the earliest, and the said decision has been endorsed by the Syndicate in its meeting held on 01.10.2013. He argued that the petition is not maintainable as the petitioner has levelled allegations of nepotism and favouritism.
4. Learned Additional A.G Sindh adopted the same arguments as advanced by learned counsel for the University.
5. We have heard the learned counsel for the parties and have perused the material available on record.
6. The record shows that through the same recruitment process, certain persons have been appointed against various posts, whereas for the subject post, no compatible/suitable candidate was found eligible by the Selection Board; as such, it was resolved that said post would be re-advertised, and the Syndicate has approved the said decision in its meeting held on 01.10.2023. However, in prayer clauses (a) and (c) ibid, the petitioner has sought a declaration of the entire recruitment process/decision of the Selection Board as illegal without joining the persons appointed against various other posts as a party, though the petitioner has no concern with other posts. Irrespectively, no observations can be given against any person without hearing them, and the instant petition is not maintainable to the extent of prayer clauses (a) and (c) for want of misjoinder and non-joinder of necessary parties.
7. However, upon reviewing the minutes of the meeting of the Selection Board dated 29.05.2023, it is evident that the Board noted in Agenda Item No.2 that a suitable candidate for the subject post was not found. However, no specific reasons were provided by the Selection Board, whereas it is a well-settled law that every decision should be based on cogent reasons and rationale in consonance with the sanction of the law/rules. Moreover, the award of marks cumulative by members of the selection board has also not been brought on record, and a candidate appearing in an interview cannot be selected or rejected arbitrarily without reasoning and without award of marks as per the yardstick laid down for selection.
8. The doctrine of legitimate expectation suggests that individuals may have a justifiable anticipation of receiving specific treatment from administrative authorities due to a consistent practice or a clear commitment made by the relevant authority. Indeed, a valid anticipation arises as a result of a commitment, guarantee, or custom by or on behalf of the government or a public entity. When a legitimate expectation is violated, it provides a legal basis to contest the administrative action. In cases where there is no substantive right, a legitimate expectation may enable an individual to pursue judicial review of a wrongdoing. When determining the legitimacy of the expectation, the Court may assess whether the decision made by the public authority has violated the legitimate expectation. If this is proven, the Court has the authority to invalidate the decision and direct the relevant authority or individual to comply with the legitimate expectation. This doctrine serves as a mechanism for monitoring the conduct of administrative authorities and puts responsibilities on all public entities to maintain fairness, equity and impartiality in all situations pertaining to legitimate expectations. The Supreme Court in 2022 SCMR 694 (Re. Uzma Manzoor and others v. Vice-Chancellor Khushal Khan Khattak University, Karak and others has held that:
12. The doctrine of legitimate expectation connotes that a person may have a reasonable expectation of being treated in a certain way by administrative authorities owing to some uniform practice or an explicit promise made by the concerned authority. In fact, a legitimate expectation ascends in consequence of a promise, assurance, practice or policy made, adopted or announced by or on behalf of government or a public authority. When such a legitimate expectation is obliterated, it affords locus standi to challenge the administrative action and even in the absenteeism of a substantive right, a legitimate expectation may allow an individual to seek judicial review of a wrongdoing and in deciding whether the expectation was legitimate or not, the courts may consider that the decision of public authority has breached a legitimate expectation and if its proved then the Court may annul the decision and direct the concerned authority/person to live up to the legitimate expectation. This doctrine is basically applied as a tool to watch over the actions of administrative authorities and in essence imposes obligations on all public authorities to act fair and square in all matters encompassing legitimate expectation. This Court expatiated the doctrine of legitimate expectation in the "Judges Pension case" reported in PLD 2013 SC 829 with the observation that the rule of legitimate expectation is not a part of any codified law, rather the doctrine has been coined and designed by the Courts primarily for the exercise of their power of judicial review of the administrative actions. As per Halsbury's Laws of England, Volume 1(1), 4th Edition, paragraph 81, at pages 151-152, it is prescribed that "A person may have a legitimate expectation of being treated in certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise from a representation or promise made by the authority including an implied representation or front consistent past practice." In the case of R. v. Secretary of State of Transport Exporte Greater London Council (1985) 3 ALLER 300, it is propounded that "Legitimate, or reasonable, expectation may arise from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. The expectation may be based of some statement or undertaking by or on behalf of the public authority which has the duly of taking decision." Whereas in the judgment reported as Union of India v. Hindustan Development Corporation (1993) 3 SCC 499, it was held that "The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or established procedure followed in regular and natural sequence. It is also distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense."
9. Without indulging in factual controversies, which is beyond the scope of Article 199 of the Constitution of Pakistan, 1973, the case for appointment for subject post is remanded to the Selection Board of the University, who is hereby directed to assess de novo the suitability of petitioner for the post she applied for, and recommend her selection or rejection to the University Syndicate based upon cogent reasons and clear yardstick for selection or rejection within a period of two months.
10. We also observe the multiplicity of litigations emanating from the Universities functioning in the Sindh Province due to one reason or the other; therefore, Secretary Universities and Boards, Government of Sindh is hereby directed to issue necessary directions, in accordance with the law, to all the public sector Universities of the Province to adhere with rules of business for conduct of meetings of statutory bodies of the Universities and make speaking recommendations/decisions based on cogent reasons.
11. In view of the above petition stands disposed of along with pending applications with no order as to cost.
MQ/S-47/Sindh Order accordingly.