UNIVERSITY OF THE PUNJAB, LAHORE and 2 others vs Ch. SARDAR ALI

' SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine whether the appellate Bench of the Lahore High Court by its judgment, dated 9-6-1981 correctly interfered with the judgment of the learned Judge in chambers.

2. The facts leading to this appeal are that the respondent was appointed as a Lecturer in Law against a permanent post in the Punjab University Law College. He took over on 29-9-1976. By an order dated 23-8-1979, his period of probation was extended w.e.f, 29-9-1978 so as to expire on 28- 9-1979. On 27-8-1979, the Vice-Chancellor terminated his services paying him a month's salary in lieu of notice which was approved by the Syndicate on 13-7-1980. The order of termination of services reads as hereunder:-- "Your attention is invited to the following condition of your appointment, as indicated in the appointment letter No,D/8327- 33/Est. Dated 30th September, 1976:- ' The appointment will be terminable on one month's notice, during the period of probation, and three months notice, after confirmation, from either side or pay in lieu thereof, as the case may be.'

' During the period of probation, your work and conduct have not been satisfactory. It has, therefore, been decided to pay you one month's pay in lieu of notice and to terminate your services with immediate effect. A crossed cheque No,CEA-964577 dated 27th August, 1979 for Rs,1,330 (Rupees one thousand three hundred and thirty only) is enclosed herewith, the receipt of which may please be acknowledged."

' The Minutes of the Syndicate are as hereunder:-- "Ch. Sardar All was appointed as Lecturer in P.U. Law College on two years' probation with effect from 29 September, 1976. The Vice-Chancellor, in anticipation of the approval of the Syndicate extended the period of probation for the third year.

' Keeping in view the confidential reports written by the Principal and Dean, Faculty of Law, the Vice- Chancellor terminated the services of Ch. Sardar Ali with effect from 27-8-1979 and paid him one month's pay in lieu of notice, as per terms of his appointment.

' Action taken by the Vice-Chancellor may be approved.

' Confirmed by the Syndicate vide paragraph 2 of its proceedings dated 13-7-1980."

3. The respondent challenged the action taken against him by a Constitution petition raising a number of grounds mostly legal. The learned Judge in Chambers, however, dismissed the petition in limine, holding as hereunder:-- "(i) This petition appears to be hit by the rule laid down by the Supremt Court in R.T.H. Janjua v.

National Shipping Corporation PLD 1974 SC 146.

(ii) Confirmation does not follow automatically after the expiry of the initial period of probation nor an order of extension of probation was required to be passed before the expiry of initial period of probation.

(iii) The termination of a probation service for unsatisfactory work and conduct does not violate any of his vested rights.

(iv) Considering that the period of probation in respect of the petitioner was due to expire at a time when the syndicate was not in existence, the action of the Vice-Chancellor would appear to be covered by the said subsection."

4. An appeal was preferred by the respondent. The findings of the appellate Bench were as hereunder:--

(i) That the respondent 'stood confirmed as a lecturer on the expiry of the original two years probation period'.

(ii)The very order of extension of probation and termination of service of the respondent was without lawful authority as there was no such emergency as could justify the invocation of that power by the Vice-Chancellor.

(iii) Unsatisfactory conduct constitutes stigma and required proper inquiry and opportunity to the respondent to explain.

' On these findings, the appeal was accepted and necessary declaration granted.

5. One of the jurisdictional questions on which the Constitution Petition had failed before the learned Judge in chambers and which was raised in contesting the Constitution petition, namely the non-maintainability of a Constitution Petition was not at all adverted to by the appellate Bench of the High Court. The result is that we had to hear the arguments on that aspect of the matter and also to get it supplemented by written arguments from the parties. After R.T,H. Janjua's case PLD 1974 SC 146 on which reliance has been placed by the learned Judge in chambers, there have been given two decisions by this Court of importance to the subject and relevant to the issue under consideration. These are the decisions in the Principal, Cadet College, Kohat and another v.

Muhammad Shoab Qureshi PLD 1984 SC 170 and Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194.

6. Section 31 of the University of the Punjab Act, 1973 (Punjab Act No,IX of 1973 -- hereinafter referred to as the Act) contains the following.

"31. Statutes.--- (1) Subject to the provisions of this Act, Statutes may be made to regulate or prescribe all or any of the following matters:---

(a) the constitution of pension, insurance, gratuity, provident fund and benevolent fund for University employees; ,

(b) the scales of pay and other terms and conditions of service of officers, teachers and other employees of the University,

(c) efficiency and discipline of University employees."

' Proviso (iii) to subsection (2) of section 31 was introduced by Punjab Act XIII of 1975 in the Act in the following words:- "The Syndicate or the Senate shall not have the power to make any Statutes concerning efficiency and discipline of officers, teachers and other employees of the University and such Statutes may be made by the Chancellor."

' The Chancellor's position and his powers have been clarified in section 11 of the Act. Subsection (1) of section 11 of the Act has remained unamended throughout and it reads as hereunder:- "The Governor of the Punjab shall be the Chancellor of the University."

' It (section 11) had originally only six subsections dealing with the various powers of the Chancellor.

In 1975, two amendments were made in this section. By Punjab Act XIII of 1975, subsection (7) in the following words was added:- "Notwithstanding anything to the contrary contained in this Act, Statutes, Regulations or Rules, the Chancellor may---

(a) place the services of any of the officers, teachers or other employees of the University at the disposal of the Government or any other University or Institution, for such period and on such terms and conditions as may be determined by him; provided that such terms and conditions shall not be less favourable than those admissible to him immediately before his transfer; and

(b) make appointment to any post in the University whether as a teacher or otherwise from persons in the service of Pakistan or from officers, teachers or other employees of any other University."

' This subsection (7) of section 11 was, however, deleted by Ordinance No,XII of 1980.

' The other amendment made in 1975 and on which great reliance has been placed by the respondent was subsection (8) of section 11 of the Act,' introduced by the Punjab Act XVI of 1975, in the following words:-- "In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan."

7. By invoking this subsection (8) of section 11 of the Act, the contention of the respondent is that the appointment of the teachers and the control under the Efficiency and Discipline Rules of the Chancellor becomes that of the Governor and hence statutory. This contention suffers from three defects.

' Firstly, the scheme of the Act otherwise does not show that the Rules of Efficiency and Discipline or the conditions of service of the respondent are governed by the statutory rules. In the absence of it, subsection (8) of section 11 which relates to the manner in which the Chancellor shall act in the discharge of his duties, does not make the conditions of service of the employees statutory. All that subsection (8) of section 11 provides is that the Governor shall be bound by the advice of the Chief Minister as he is bound in discharge of his functions under Article 105 of the Constitution of the Islamic Republic of Pakistan.

' Secondly, such an incorporation by reference on the strength of a statutory provision of a constitutional provision does not raise the status of the statutory provision to that of a constitutional provision. It has been so held by this Court in Zainul Abidin v. Multan Central Cooperative Bank Limited Multan PLD 1966 SC 445 and the Lahore Central Cooperative Bank Ltd. v.

Pir Saifullah Shah PLD 1959 SC 210.

' Thirdly, the difference between the position of the Governor as the Chief Executive of the Province and as the Chancellor of a University has been well brought out in an Indian decision in Dr. S.C.

Barat and another v. Hari Vinayak Pataskar and others AIR 1962 Madhya Pradesh 73 in the following words:-- "When an Act confers powers on the Governor not qua Governor but in a different capacity held by him by virtue of his office as Governor, the powers and duties so conferred are not the powers and duties of the office of the Governor. They are the powers and duties of a different office which the Governor holds by virtue of his office as Governor. It is altogether erroneous to say that as the other office is held by the person who is the Governor of the State by virtue of his office as Governor, therefore the powers and duties he exercises or performs of that other office under the relevant Act are the powers and duties of his office as Governor .... Thus the powers and duties that the Chancellor exercises or performs under the Act are not any powers or duties conferred on the Governor qua Governor or of a capacity which he occupies by virtue of his office as Governor. They are the powers and duties of a public capacity held by the personage who is also the Governor.

The Chancellor's powers under the Jabalpur University Act are thus not the powers and duties of the office of the Governor and consequently the protection provided by Article 361(1) cannot be invoked by the Chancellor in respect of the exercise and performance of the powers and duties of his office as Chancellor under the Jabalpur University Act."

8. The respondent has also attempted on the strength of a notification dated 28th of September, 1976 made under subsection (1) of section 6 of the. Act to establish that for a period i.e,, upto 20th September, 1977, the University Law College, Lahore was detached from the Punjab University and placed under the control and management of the Law Department Government of Pakistan. In this manner, his services became statutory. .

' Even if this contention is accepted in its entirety as correct, it had its legal effect only for the period that such transfer continued and admittedly the restoration of the Law College to the University took place by notification dated 22nd September, 1977 restoring the earlier position doing away with the effect of subsection (2) of section 6 of the Act. The respondent's services stood restored to the Punjab University and continued to be governed thereafter under that Act.

9. It follows from these provisions of the Act that notwithstanding subsection (8) of section 11 of the Act, the appointment of the respondent, as judged in the light of decisions in the cases of Principal, Cadet College, Kohat PLD 1984 SC 170 and Anwar Hussain PLD 1984 SC 194 was non-statutory and a Constitution petition was not competent as held by the learned Judge in Chambers. Hence, this appeal is allowed. The judgment under appeal is set aside and that of the learned Judge in chambers restored. No order as to costs.