ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

C.P. No. D-4469  of  2013

 

 

Prof.Dr.Masood Hameed….v………Governor of Sindh

Khan                                                 & others

 

C.P. No. D-4526  of  2013

 

 

Dr.Shershah Syed……….v…………  Province of Sindh

                                                          & others

 

C.P. No. D-4885  of  2013

 

Prof.Surgeon Dr.Ata-ur-…….v……Province of Sindh

Rehman                                            & others

 

                    Present: Mr.Justice Muhammad Ali Mazhar

                                   Mr.Justice Shahnawaz Tariq

------------

 

Date of hearing 06.05.2014.

 

 

Dr.Muhammad Farogh Naseem, Advocate for the petitioner in C.P.No.D-4469/2013 and for the respondent No.4 in C.P.No.D-4526/2013

 

Mr.Haider Waheed, Advocate for the petitioner in C.P.No.D-4526/2013

 

Mr.Zeeshan Adhi, Advocate for the petitioner in C.P.No.D-4885/2013

 

Mr.Sibtain Mehmood, AAG

 

 

Muhammad Ali Mazhar J.  This common judgment will dispose of the following Constitution Petitions:-

 

(1)            C.P.No.D-4469/2013. In this Petition, Professor Dr.Masood Hameed Khan has challenged the amendment made under Section 12(1) of the Dow University of Health Sciences Act, 2004. He has also challenged the proviso added in the above section through Sindh Universities Laws (Amemenment) Act 2013, which provides that the Vice Chancellor, who has remained Vice Chancellor of the University for more than two terms shall, on commencement of this Act, cease to hold the office. The petitioner has also filed injunction application M.A No.28635/2013. While Advocate General has filed M.A No.29949/2013 for vacation of injunction.

 

(2)           C.P.No.D-4526/2013. Dr.Shershah Syed has filed this petition in which he has arrayed Professor Dr.Masood Hameed as respondent No.4 and prayed that the respondent No.4 has ceased to hold the office of Vice Chancellor of Dow University of Health Sciences from 19th August 2013 when the law was amended through Sindh Universities Laws (Amendment) Act, 2013. Petitioner has also filed injunction application M.A NO.28904/2013.

 

(3)            C.P.No.D-4885/2013. In this petition, Dr.Ata-ur-Rehman has prayed that the respondent No.4 Professor Dr.Masood Hameed has ceased to hold the office of the Vice Chancellor  of Dow University of Health Sciences from 19th August, 2013 when the Government promulgated Sindh Universities Laws (Amendment) Act, 2013. The petitioner has also filed injunction application M.A No. 30458/2013.

 

 

2. The brief facts of the case as narrated in the CP.No.D-4469/2013 are that the petitioner (Dr.Masood Hameed) was appointed Vice Chancellor of the Dow University of Health Sciences, Karachi first time in the year 2004. After expiry of his first term he was again appointed Vice Chancellor in the year 2008. After completion of his eight years tenure (two consecutive terms) as Vice Chancellor, he again applied for the same position and appeared before the Selection Committee not only his case was recommended but the Governor Sindh was pleased to appoint him third time as Vice Chancellor of the Dow University of Health Sciences Karachi vide Notification dated 19.12.2011 which was made effective from 4.1.2012. By virtue of Sindh Universities Laws Amendment Act, 2013, various amendments were made in the different Acts governing different universities of the Province of Sindh. In the Dow University Health Sciences  Act 2004 under Section 12 a  proviso has been added that the Vice Chancellor who remained Vice Chancellor of the University for more than two terms on commencement of the amendment Act ceased to hold the office.

 

3. Dr.Farogh Naseem, learned Advocate for the petitioner in C.P.No.D-4469/2013 argued that amendments made through Sindh Universities Laws (Amendment) Act, 2013 are  mala fide, unconstitutional  and against the fundamental rights of the petitioner. The amendment was made in a hasty manner and the assent was taken from the Acting Governor of Sindh. He further argued that the basic purpose of making amendment in the statute to single out the petitioner as there was no exigency to pass the impugned statute. He further argued that before making  amendment under the law the petitioner had already acquired a vested right as Vice Chancellor till 14.1.2016 and now the matter of his appointment has become a past and closed transaction which cannot be altered or changed through a proviso added under the law to oust him. He further argued that the extension or the appointment as Vice Chancellor made through Notification dated 19.12.2011 is a contract between the petitioner and respondents which cannot be nullified. Learned counsel made much emphasis that after 18th Amendment, the due process clause is a fundamental right in terms of Article 10-A of the Constitution and no legislation can be made with retrospective effect. In fact through the impugned legislation the fundamental rights of the petitioner have been severely infringed. Learned counsel further argued that being a Vice Chancellor the petitioner has developed many institutions with his sheer dedication and hardworking. He further argued that though in the present situation the third tenure as Vice Chancellor has been wiped out but the case of present petitioner is not an extension, but it is a fresh appointment made in pursuance of advertisement. The legislation was made with retrospective effect but the vested rights cannot be affected. Learned counsel further argued that the anticipated termination of the petitioner amounts to  lowering or disparaging his dignity. In support of his arguments, he relied upon the following case law:-

 

(1)    PLD 1970 S.C. 514 (Province of East Pakistan v. Sharafatullah & others).   Statute not to be read in such a way as to change accrued rights title to which consists in transaction past and closed. Statute passed altering existing law to apply to a state of facts coming into existence after Act unless language of Act expressly to contrary.

 

(2)    1983 CLC 1585 (Ghulam Hyder Shah & others v. The Chief Land Commissioner Sindh & others).  Competency of Legislature to enact laws retrospectively and to provide that they will also affect vested rights and transaction which are past and closed, held, cannot be doubted but in order to produce that effect, statute must be expressed in language capable of only one meaning and in case it is capable of being interpreted in two ways one preserving vested rights and obligations and other impairing them. Courts will adopt construction which preserves vested rights and lean against construction which impairs vested rights and affect transactions which are past and closed.

 

(3)    1988 SCMR 715 (The Chief Land Commissioner, Sindh v. Ghulam Hyder Shah & others). Every statute is deemed to be prospective, unless by express provision or necessary intendment it is to have retrospective effect. Court has to determine whether law as amended will also be applicable to past and closed transactions.

 

(4)    2005 PTD 259 (Gulshan Spinning Mills Ltd. & others v. Government of Pakistan). In absence of express words used by legislature, retrospectivity to any law was not to be given so as to reopen the past and closed transactions.

 

(5)    1991 SCMR 1041 (I.A.Sharwani & others v. Govt. of Pakistan). Article 25(1). All citizens are equal before law and entitled to equal protection of law. State, however, is not prohibited to treat its citizens on the basis of a reasonable classification. However, the above clause does not prohibit treatment of citizens by a State on the basis of a reasonable classification.

 

(6)    PLD 2013 Lahore 621 (Ch.Nazir Ahmad v. Government of Punjab & others). Section 2, 14 and 16. Constitution of Pakistan, Article 199 Constitutional Petition. University. Appointment of Vice Chancellor validating legislation, retrospective effect of. The amendments in the University     of the Punjab Act, 1973 envisaged that a person may be  appointed as Vice Chancellor prior to attaining the age of sixty-five years. Vice Chancellor, in the present case, was reappointed as a result of a fresh selection process Public Sector Universities (Amendment) Act, 2012 contained a validation clause, whereby it could operate retrospectively, and it was a curative and remedial law which operated retrospectively to correct omissions and mistakes that were the subject matter of pending proceedings like the present case.

 

(7)    PLD 2010 S.C. 265 (Dr.Mobashir Hassan & others v. Federation of Pakistan). Principle is that law should be saved rather than be destroyed and the court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments, unless ex facie, it is violative of a constitutional provision.

 

(8)    PLD 2002 S.C. 46 (Fida Hussain v. The State). Article 25 and 4. Equality before law. Rule of consistency must be followed in order to maintain balance and the doctrine of equality before law.

 

 

4. Mr.Sibtain Mehmood, learned AAG referred to the prayer clause of the petition and argued that it is clear that the petitioner has not challenged the vires or constitutionality of the law but he has simply prayed that the proviso should not be made effective with retrospective effect as according to him he has accrued vested rights as Vice Chancellor for the third term which the legislature has curtailed through proper legislation. He further argued that a bare look to the Amendment Act, 2013 makes it quite visible that the amendments were made to maintain uniformity. He further argued that on the day when the amendment came into effect the petitioner immediately ceased to hold the office. He further argued that it is within the competence of provincial legislature to amend the laws. He further referred to Article 141 and 142 of the Constitution and argued that the amendment made under the parent Acts of the different universities is a valid piece of legislation. So far as the allegation of malafide is concerned, he argued that mere mentioning the word mala fide does not amount to be correct unless the party alleging the mala fide demonstrates and proves it properly. He further argued that the petitioner (Professor  Masood Hameed) has already enjoyed eight years period as Vice Chancellor and he has been again appointed for further period of four years but in order to maintain harmony and to avoid any disparity in the term of Vice Chancellor of different universities, the amendment was made to ensure uniformity. In support of his arguments, the learned AAG relied upon the following case law:

 

(1)    PLD 1983 S.C. 457 (Fauji Foundation v. Shamimur Rehman). When a Court which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or to such other limitations as are in the constitution, and while declaring a legislative instrument as void, “it is not because the judicial power is superior in degree or dignity to the legislative power” but because it enforces the constitution as a paramount law either where a legislative instrument is in conflict with the constitutional  provision so as to give effect to it or where the legislature fails to keep within its constitutional limits. Judicial review does not extend to prying into affairs of legislature.

 

(2)    2004 SCMR 1903 (Ghulam Mustafa Insari v. Government of the Punjab & others).  Courts, generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the constitution.

 

(3)    PLD 2004 S.C. 191 (Ch.Shabbir Hussain v. Registrar, Lahore High Court Lahore). Allegation of mala fide. Such allegation can be easily made than proved. Allegation of mala fide requires proof of a high order owing to its serious nature and the burden of proof lies heavily on the person who makes it.

 

(4)    1989 SCMR 1892 (Pakistan Burmah Shell Ltd. v. Mrs.Nasreen Irshad & others). Where the law takes notice of a particular situation and makes a provision of it, then the legislative intent must be given effect to and respected.

 

 

5. Mr.Haider Waheed, learned counsel for the petitioner in C.P.No.D-4526/2013 argued that once the law was promulgated, on the very same day Professor Masood Hameed ceased to hold the office of the Vice Chancellor but he is continuing unlawfully his office and also holding different meetings of syndicate etc. due to indefinite and such a long tenure of the Vice Chancellor many other doctors and competent persons are suffering who are otherwise eligible to be appointed as Vice Chancellor but they are unable to apply.  He further argued that during his tenure as Vice Chancellor, Professor Masood Hameed appointed various doctors who are his favorites without following merits and procedure which is an act of nepotism and the same is the case regarding promotion of professors and other teachers and only those persons are being promoted who are in his good book.

 

6. Mr.Zeeshan Adhi, learned counsel for the petitioner in C.P.No.D-4885/2013 argued that the legislature can take away vested right and this can be done even retrospectively. No vested right was created in favour of respondent No.4. He further argued that there was no question of past and close transaction which should only be permitted when a matter is over and attained finality when the statute was promulgated, the respondent No.4 was continued to be Vice Chancellor so this is an ongoing transaction and not a past and close transaction. He further argued that there is no question of any discrimination. By virtue of amendment made in the Act, maximum two terms of the Vice Chancellor office have been fixed in all universities and any person who is holding office for more than two terms shall cease to hold the office in view of the amendment. He further argued that reasonable classification is permitted by the law when it is not arbitrarily or violative of equality. He further argued that mala fide cannot be attributed to the legislature. The legislative act cannot be struck down on the ground of mala fide. In this case the legislature has acted within its powers so the law should be implemented in its letter and spirit. No legislation can be struck down on the ground that it has taken away the vested rights. In support of his arguments, he relied upon the following case law:-

 

(1) PLD 2012 SC 923 (Baz Muhammad Kakar v. Federation of Pakistan). The literal rule of interpretation of the Constitution and statutes, also known as the golden rule of interpretation, is that the words and phrases used therein should be read keeping in view their plain meaning.

 

(2) 2011 SCMR 1537 (Yar Muhammad v. Secretary, Finance Department Govt. of Punjab). Legislature has authority to take away or affect any vested right of a person retrospectively.

 

(3)    1993 SCMR 1905 (Molasses Trading & Export (Pvt.) Ltd. v. Federation of Pakistan & others). It is agreed on all hands that the well-settled principles of interpretation of statutes are that vested right cannot be taken away save by express words or necessary intendment. It also cannot be disputed that the legislature, which is competent to make a law, has full plenary powers within its sphere of operation to  legislate  retrospectively or retroactively. Therefore, vested rights can be taken away by such a legislation and it cannot be struck down on that ground.

 

(4)    2011 SCMR 848 (NWFP Public Service Commission v. Muhammad Arif & others). Article 25 of the Constitution enjoins that all citizens are equal before law and are entitled to equal protection of law, i.e. all persons subjected to a law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. The equality should not be in terms of mathematical calculation and exactness. The equality has to be between persons who are placed in the same set of circumstances. It must, however, be kept in view that though the persons similarly situated or in similar circumstances are to be treated in the same manner but the equality clause particularly the provision about the equal protection of the law does not mean that all citizens shall be treated alike under all set of circumstances and conditions both in respect of privileges conferred and liabilities imposed.

 

(5)    PLD 1983 S.C. 457 (Fauji Foundation v. Shamimur Rehman). Judicial power cannot overreach the legislative department so as to enable an inquiry to be initiated into the motives of legislation.

 

 

7.  Heard the arguments. The Sindh Universities Laws (Amendment) Act, 2013  promulgated on 16.9.2013 while  on 19.12.2011 Notification was issued  by the Chancellor whereby he appointed Professor Dr.Masood Hameed  as Vice Chancellor for a period of four years w.e.f. 14.1.2012, when this notification was issued, the Vice Chancellor was at the verge of completion of his second term, which means the completion of his eight years tenure but vide Notification dated 19.12.2011, he was re-appointed for further period of four years.

 

8. What we comprehend that by virtue of Sindh Universities Laws (Amendment) Act, 2013, the legislature has made amendments in the laws of thirteen Universities/Colleges to maintain uniformity in the organization, management in Control of Public Sector Universities and decree awarding institutes in the Province of Sindh. The amendment expresses vociferously that the Vice Chancellor shall be appointed by the Chancellor on the recommendation of the Government for a period of four years, which may be extended for one more term on such terms and conditions as the Chancellor may determine. We have also noticed that at least in four universities i.e. NED, Mehran, Dow and Shaheed Mohtarma Benazir Bhutto Medical University, Larkana, they have added a proviso which reads as under :-

 

“Provided that the Vice Chancellor who has remained the Vice Chancellor of the University for more than two terms shall, on commencement of this Act, cease to hold office.”

 

 

9. The intention of the legislature is clearly manifesting from the amendment that they have decided to curtail the tenure of Vice Chancellor to the extent of two terms only. Hence, in order to effectively enforce the amendment Act they have added proviso in four universities/institutions to curtail the tenure of the office of Vice Chancellor for the third term. If the third term is allowed to be completed, the total tenure of Vice Chancellor in one or the same institution would be twelve years period.

 

10. Learned counsel for the petitioner Dr.Farogh Naseem argued that on issuance of Notification for the third term a vested right accrued in favour of the petitioner to continue his third term also which at the time of promulgation of the amendment Act had become a matter of past and closed transaction. We do not find it appropriate to hold that the philosophy or standpoint of past and closed transaction is applicable in the case of appointment of Vice Chancellor who has served eight years but for the third term also he is claiming the Vice Chancellorship as a vested right. The legislature has made amendment to ensure that nobody would be able to enjoy the third term as Vice Chancellor. If a person will be allowed to continue as Vice Chancellor for a period of twelve years it will create frustration and exasperation amongst the persons who are also eligible to be appointed Vice Chancellor, but in the present case the Vice Chancellor does not want to leave the position for his successor in interest. Such elongated and lengthened tenure of a person to a particular post or office usually bring to a standstill and or immobilize the avenue and forthcoming prospects of other eligible and suitable persons. It is not the case of the petitioner that legislature was not competent to make the amendment but much emphasis was made that this amendment will not affect office of the petitioner because he was appointed for the third term prior to making the amendment in the law. In our view the appointment for the third term cannot be considered as past and closed transaction when the legislature within its competence and powers has incorporated specific proviso to handle the situation and it is not the petitioner only whose appointment was negated through proviso but the same amendment was made in other universities also in which the Vice Chancellors were given the appointment or extension for the third term.

 

11. Learned counsel for the petitioner relied upon the case of Ghulam Hyder Shah (supra) in which competency of legislature was discussed to enact laws retrospectively. The ratio of the judgment is that the vested right cannot be taken away unless it is expressed in the statute in language capable of only one meaning and in case it is capable of being interpreted in two ways one preserving vested rights and obligations and other impairing them. Courts will adopt construction which preserves vested rights. In the impugned amendment the curtailment of Vice Chancellor’s third tenure is expressly mentioned without any doubt or ambiguity in a language which is capable of being interpreted only in one way. In the case of Chief Land Commissioner, Sindh the hon’ble Supreme Court held that statute is deemed to be prospective unless by expressed provision or necessary intendment it is to have retrospective effect. Again we would like to hold that amendment made in the law has the implication and effect of curtailing the third term of the office of Vice Chancellor which means that on the date of amendment with the addition of this proviso, all such Vice Chancellors enjoying the third term cease to have the effect. The ongoing or uncompleted tenure for the third term cannot be treated as past and closed transaction. The legislature is competent to make the laws to maintain and create harmony among all institutions so we repelled the contention of the learned counsel for the petitioner. The third term of the Vice Chancellor cannot be claimed as a vested right. Even otherwise, appointment letter clearly expresses that the petitioner was appointed for a period four years or till the pleasure of chancellor which means that the appointment was made in the nature of revocable contract which cannot be specifically enforced.

 

12. Learned counsel for the petitioner also relied upon the case of I.A.Sharwani in which the hon’ble Supreme Court held that all citizens are equal before the law and entitled to equal protection of law.  However, the State is not prohibited to treat its citizens on the basis of a reasonable classification. In this parlance, we would like to hold that ousting of third tenure of Vice Chancellor in the entire Province of Sindh cannot be treated discriminatory to the petitioner rather it is a reasonable classification in the entire province, so nobody would be able to hold the third term as Vice Chancellor in the  university/institution. We do not feel that the amendment is in any way discriminatory nor it has violated the equal protection of law. In the case of Ch.Nazir Ahmad, the Vice Chancellor was reappointed as a result of a fresh selection process under Public Sector Universities (Amendment) Act, 2012 which contained a validation clause to operate retrospectively, so the court observed that it was a curative and remedial law which operated retrospectively to correct omissions and mistakes. Facts and circumstances of this case are distinguishable. In fact in this case the petitioner’s counsel challenged the retrospectivity of law, while in the above case the legislation made with retrospective effect was found to be correct as a curative and remedial law. Counsel for the petitioner also referred to the cases of Dr.Mobashir Hassan and Fida Hussain (supra) in which the hon’ble Supreme Court held that law should be saved rather than be destroyed and the court must lean in favour of upholding the constitutionality of legislation unless  the legislative enactments is violative of a constitutional provision. There is no cavil to the well settled guidelines expounded by the hon’ble Supreme Court in the above judgments, but in this case we do not find the amendment ex facie or violative of any constitutional provisions.

 

13. Learned AAG referred to the cases of Fauji Foundation  and Ghulam Mustafa Insari in which the apex court held that when a court is creature of the Constitution itself its powers are limited to examine the legislative competence. Judicial review does not extend to prying into affairs of legislature. It was further held that the courts, generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the constitution. In the case of Pakistan Burmah Shell Ltd. it was held that where the law takes notice of a particular situation and makes a provision of it, then the legislative intent must be given effect to and respected. In the present case also the legislation took the notice of the unlimited term of the office of Vice Chancellor so they have curtailed the tenure of the office for the two terms only, which cannot be declared violative of any provision of the constitution.

 

14. Mr.Zeeshan Adhi, learned counsel also referred to various  case laws  viz. Baz Muhammad Kakar, Yar Muhammad, Molasses Trading & Export (Pvt.) Ltd., NWFP Public Service Commission and Fauji Foundation (supra). The cumulative effect of all aforesaid dictums do show that the golden rule of interpretation, is that the words and phrases used therein should be read keeping in view their plain meaning. Legislature has authority to take away or affect any vested right of a person retrospectively. The legislature, which is competent to make a law, has full plenary powers within its sphere of operation to legislate retrospectively or retroactively. Therefore, vested rights can be taken away by legislation and it cannot be struck down on that ground. So far as the plea of discrimination is concerned it was held that Article 25 of the Constitution enjoins that equality should not be in terms of mathematical calculation and exactness but it must be amongst the equals. The equality has to be between persons who are placed in the same set of circumstances. The equality of citizen does not mean equality and all laws must apply to all the subjects or that all subjects must have the same rights and liabilities.

 

 

15. As a result of above discussion, we find no merits in the Constitutional Petition No.D-4469/2013 which is dismissed, consequently, Prof.Dr.Masood Hameed Khan is ceased to hold the office of Vice Chancellor with immediate effect in view of the amendments made in the Dow University of Health Sciences Act 2004. The Constitutional Petitions C.P.NO.D-4526/2013 and C.P.NO.D-4885/2013 are also disposed of in the above terms along with all pending applications in the aforesaid petitions. 

 

 

Judge

                                                           Judge

Karachi:

Dated. 12.6.2014.