01/02/2018
2018 lhc34
1. Stereo. H C J D A 38. Judgment Sheet IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT Case No: W.P. No.114962/2017 JUDGMENT Date of hearing: 16.01.2018 Petitioner by: Mr. Muhammad Ahsan Bhoon, Advocate. Malik Muhammad Awais Khalid, Advocate in connected matter. Respondents by: Mr. Anwaar Hussain, Additional Advocate General, Punjab. Ms. Asma Jahangir, Advocate for the Applicants in C.M. No.4/2017 Mr. Saad Rasool, Advocate assisted by Shan Saeed Ghumman, Advocate for the applicants. Mr. Irshad Ali, Law Officer, Agriculture Department. Dr. Ghazanfar Ali Khan, Additional Secretary, Agriculture Punjab. Muhammad Aslam, Assistant Registrar, University of Agriculture, Faisalabad. Mirza Haseeb Baig, Assistant Registrar, Pir Mehr Ali Shah, Arid Agriculture University. Ishtiaq Ahmad, Section Officer (Universities)/DS (QEC) Higher Education Department. Syed Mansoor Ali Shah, CJ:- This judgment shall decide the instant case, as well as, connected matters bearing W.P. No.112839/2017, W.P. No.113006/2017 and W.P. No.113014/2017 as all the cases involve common questions of law and facts. 2. Brief facts are that the petitioner applied for the post of Vice Chancellor, University of Agricultural, Faisalabad, pursuant to an advertisement dated 23.08.2016. The grievance of the petitioner is that Prof. Dr. Zafar Iqbal Versus Province of Punjab, etc.
2. W.P. No.114962/2017 2 the process adopted for appointment of the Vice Chancellor is not according to the law laid down by this Court in Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others (PLD 2017 Lahore 489), in as much as, the entire process for the appointment of Vice Chancellor ought to have been initiated after the constitution of the Search Committee as per the aforesaid judgment. 3. Learned counsel for the petitioner submits that Search Committee in this case was admittedly constituted on 18.08.2017, however, the process of advertisement for the appointment of Vice Chancellor was initiated on 23.08.2016. He contends that fresh advertisement had to take place under the supervision of the Search Committee as envisaged in the aforesaid judgment. His second contention is that the Search Committee for the purpose of specialized universities as in the present case has to have subject expert and the appointment of Dr. Akmal Hussain as an agricultural expert on the Search Committee is illegal because Dr. Akmal Hussain has no experience relating to agriculture. He prays that fresh Selection Committee be constituted in the light of aforesaid judgment of this Court and the process of appointment be re-initiated. 4. Learned law officer alongwith Departmental Representative submit that aforesaid reported judgment of this Court has been complied with in letter and spirit, despite the fact that the aforesaid judgment was not passed in the case of the instant University. He submits that the principles settled in the said judgment have been followed and Search Committee as per the mandate of the judgment was constituted on 18.08.2017 including subject specialist in Agriculture i.e., Dr. Akmal Hussain. They submit that domestic and international advertisements were put out in August, 2016 and as a result 59 candidates have applied for the post of Vice Chancellor including the petitioner. All the candidates have been interviewed by the Search Committee and the names of the three shortlisted
3. W.P. No.114962/2017 3 candidates has been put up before the Chief Minister, for the selection of one candidate, as the Vice Chancellor and awaits the decision of this Court to finalize the same. 5. Learned Law Officer has placed on record the resume of Dr. Akmal Hussain to show that he has extensive experience in the field of agriculture. 6. Ms. Asma Jahangir, Advocate for the applicant in C.M. No.4/2017, one of the prospective candidates for the post of Vice Chancellor supports the contentions of the learned Law Officer. 7. I have heard the parties and gone through the record of the case. 8. The mainstay of the argument of the petitioner is that directions given in Punjab Higher Education Commission case by a Division Bench of this Court have not been complied with, inasmuch as, the newly constituted Search Committee should have advertised the post of Vice Chancellor and the earlier advertisement made by the University prior to constitution of the Search Committee cannot be relied upon. They relied on para 41 of the aforesaid judgment which is reproduced hereunder:- “41. The qualifications, experience, procedure and criteria determined by the Government and followed by the Search Committee shows substantial compliance of the law. The HEC Guidelines developed under the HEC Ordinance were strictly followed by the Search Committee. In future the Government is directed to consider these Guidelines or any other minimum standards framed by HEC under the law and as a matter of process include them as part of the Notification under section 14(4) of the Act. We are, however, not inclined to interfere and put the efforts of the Search Committee at naught just on the pretext that the criteria provided in the notification does not incorporate the above guidelines. We are satisfied that these Guidelines were fully complied with and followed by the Search Committee. For the future, we direct the Government to ensure that before the next selection and appointment of a Vice Chancellor in any public sector university, notification under section 14(4) must carry in detail the entire process and criteria to be followed by the Search Committee. During the course of the hearing, HED has presented the following procedure for streamlining the procedure of the Search Committee in future.
4. W.P. No.114962/2017 4 PROCEDURE AND CRITERIA TO BE FOLLOWED BY THE SEARCH COMMITTEE: Search Committee shall oversee the entire process of selection of Vice Chancellor and follow the following procedure and criteria: (i) Preparation and approval of required advertisement to be published by the Department concerned in national or international press, as the case may be, for the post of Vice Chancellor in accordance with the required qualification, experience and other requirements notified by the Government in official Gazette. (ii) Preparation of proforma and formula for short-listing of candidates in accordance with approved quantifiable criteria of the Government. (iii) Short-listing of candidates in accordance with prescribed proforma and formula. (iv) Conduct interviews of the short-listed candidates in accordance with the criteria notified by the Government for the interviews. (v) Search Committee will ensure that adequate time is give to each candidate appearing for the interview and each candidate is treated fairly without any bias or discrimination. (vi) After the interview of each candidate, the convener shall invite the opinion of each member. The Convener shall take the average of all members' score which is then assigned to each candidate on the basis of performance in the interview. (vii) In case of any difference of opinion, the Convener shall ask each member to explain their view point and efforts will be made to arrive at a consensus. In rare cases where consensus is not possible, majority view point shall be considered for final allocation of interview score. (viii) The Search Committee shall recommend to the Government, in alphabetical order, a panel of three persons who, in its opinion, are suitable for the appointment as Vice Chancellor. (ix) Each member of the Search Committee will disclose before the start of the interviews that he/she has no conflict of interest in assessing any candidate. (x) The Search Committee shall maintain a strict level of confidentiality to protect the privacy of the candidates and to reserve the integrity of the search process." Government is directed to include this process in the future Notification under section 14(4) of the Act.” The second contention of the learned counsel for the petitioner is that the Search Committee has not been constituted in accordance with the aforesaid judgment, inasmuch as, the subject/field expert has not been
5. W.P. No.114962/2017 5 correctly selected. It is submitted that Dr. Akmal Hussian does not qualify as a subject expert in Agriculture. 9. Punjab Higher Education Commission case lays down selection process of the members of the Search Committee for the appointment of Vice Chancellor in the following manner: “47. During the course of the hearing HED and PHEC have frankly made suggestions to further improve the selection process of the members of the Search Committee in the following manner: Suggestions of HED i. Government appoints a Search Committee for selection of Vice Chancellors for the public sector universities. ii. There are five members of the Committee. There are three non-official members with strong credentials in building/managing academic institutions and are outstanding academics or senior executives with experience of selecting leaders in the corporate sector and two ex-Officio Members comprising Chairperson Punjab Higher Education Commission and Secretary Higher Education Department. iii. The decision about non-official members rests with the Government which ensures that each member enjoys impeccable integrity and character. iv. Mandate of the Search Committee is to oversee the entire process of selection of Vice Chancellors. v. The Committee recommends a panel of three persons for each university. The panel is recommended in alphabetical order. It has further been observed that most members of the Search Committee are time tested and enjoy impeccable character and integrity; hence most of the time, Search Committee appears uniform in its composition. The Committee catered to educational needs of each university and recommended such candidates to the Government for appointment which then brought reformatory changes in university culture. a) Search Committee shall comprise of not less than three and not more than five members. However, Committee so constituted may co- opt a maximum of two subject/field experts if so required. b) The Search Committee shall comprise of three non-official members with impeachable character and integrity and two ex-officio members. c) Secretary of the concerned Government Department shall be the ex-officio member and Secretary of the Committee.
6. W.P. No.114962/2017 6 d) Convener and Members of the Search Committee shall be persons of eminence having credible experience in Policy development, institution building, management and governance, research and development and are outstanding academics or senior executives with experience of selecting leaders in public and corporate sector. e) The co-opted subject/field experts, preferably PhDs, should possess demonstrated experience in teaching and research and through understanding of issues and challenges of higher education sector. f) The Department concerned shall identify a pool of professionals with above-mentioned attributes with the help of Punjab Higher Education Commission and seek their willingness to serve on the Search Committee. g) The Department concerned shall recommend a panel containing eight names to the Government for consideration and nomination of not less than three and not more than five members on the Search Committee. h) The Government shall constitute Search Committee separately for each University. Suggestions of PHEC Responsibilities of Specialized Search Committees: i. Proactively reach out by email, letter and telephone to peers, subject matter experts, international organizations and Pakistani mission abroad for nominations of qualified potential candidates ii. Prepare a separate announcement for print and electronic media for each university (national/international) keeping in view unique requirements iii Review and assess all applications/nominations using the agreed upon evaluation criteria, notified by the Chancellor for short- listing candidates and conducting interviews iv. Recommend to the Chancellor a panel of three persons, in alphabetical order, who in its opinion are suitable for appointment as the Vice Chancellor v. Maintain a strict level of confidentiality to protect the privacy of the candidates and to preserve the integrity of the search process 4. The PHEC will serve as the Secretariat for the Search Committees and will facilitate it in the ex*****on of its responsibilities including specialized announcements, short-listing of eligible candidates and the interview process for all the position of Vice Chancellors in Punjab. PHEC's Act provides mandate for all public sector HEIs and its composition of Commission members includes Secretaries of Agriculture, Health, Higher Education and Finance Departments.
7. W.P. No.114962/2017 7 Currently, there are 11 position of Vice Chancellor to be filled in 2017. (Annex-A) 5. Proposed panels for Chairpersons and expert members to be co- opted for the specialized Search Committees (IT/CS, Medical/Health, Agriculture, Women, and General) are placed at Annex B. The Specialized Search Committees will be constituted and notified by the Chancellor, separately for each institution according to its category, comprising members approved by the Chief Minister from amongst the proposed panels or any other persons he deems fit. 6. A short-listing and evaluation criteria for the position of Vice Chancellor in a public sector university taking into account the assessment criteria developed by the Federal HEC and the previously announced criteria of the Government of the Punjab is placed at Annex C. 7. The summary is submitted to the Chief Minister for his perusal and approval of the composition of the Specialized Search Committees and the short-listing and evaluation criteria for the position of Vice Chancellor in public sector universities of Punjab. We, therefore, direct the Higher Education Department, Government of the Punjab to consider the above recommendations.” It is an admitted position that in pursuance to the above judgment, University of Agriculture, Faisalabad vide notification dated 18.08.2017 set up a Specialized Search Committee, comprising, inter alia, subject/field expert namely Dr. Akmal Hussain. 10. As far as the earlier national and international advertisements for the post of Vice Chancellor dated 23.08.2016 are concerned, I see no illegality in relying on this process, as long as, the candidature of the applicants is processed by the new Search Committee. The substantive part of the process is the scrutiny by the Search Committee and not the act of advertisement, unless and until it is shown that the advertisement was deficient in material particulars. The contention of the petitioner also loses its significance when the petitioner is also a part of the pool of applicants who applied pursuant to the said advertisement. I am, therefore, not inclined to interfere in the appointment process of the Vice Chancellor on this score.
8. W.P. No.114962/2017 8 11. The second contention whether Dr. Akmal Hussain passes as a subject/ field expert requires some deliberation. What is a subject expert? Expert is a person with a high degree of skill in or knowledge of a certain subject1 or having extensive skill or knowledge in a particular field.2 Para 47 (a) and (e) of the aforesaid judgment provide as under: “a) Search Committee shall comprise of not less than three and not more than five members. However, Committee so constituted may co-opt a maximum of two subject/field experts if so required. e) The co-opted subject/field experts, preferably PhDs, should possess demonstrated experience in teaching and research and through understanding of issues and challenges of higher education sector.” (emphasis supplied) A subject/field expert qualifies to be on a Search Committee, if he can establish his expertise in the specialized subject. Subject/field expert requires to hold the highest degree (preferably Doctorate) in the subject and must also have substantial and direct experience in the subject or field. An expert is different from a generalist. 12. I have gone through the resume of Dr. Akmal Hussain placed on the record by the University. While Dr. Hussain is a celebrated economist and has numerous scholastic achievements to his credit, he does not hold a degree in Agriculture. His Doctorate is in Development economics, which is a branch of economics which deals with economic aspects of the development process in low-income countries. Its focus is not only on methods of promoting economic development, economic growth and structural change but also on improving the potential for the mass of the population, for example, through health, education and workplace conditions, whether through public or private channels.3 This does not strictly pass for a degree in 1 American Heritage Dictionary of the English Language. 5th Edition- 2016 2 Collins English Dictionary-Complete and Unabridged, 12 Edition - 2104. 3 ^ Bell, Clive (1987). "development economics," The New Palgrave: A Dictionary of Economics, v. 1, pp. 818, 825.
9. W.P. No.114962/2017 9 Agriculture, inspite of the thesis on Impact of Agriculture Growth on the Agrarian Structure of Pakistan. 13. The second qualification is to have substantial and direct experience in the subject/field. The resume of Dr. Hussain does not show mainstream or direct involvement in Agriculture. His doctoral thesis on Impact of Agriculture Growth on the Agrarian Structure of Pakistan was in the year 1980 and since then the resume does not refer to any substantial, mainstream or direct work on Agriculture. Subject or field expert must hold the highest academic degree in the subject and also must have to his credit substantial, direct and contemporary experience in the subject/field. I am afraid, Dr. Hussain, who is otherwise a leading economist of the country, does not qualify to be subject/field expert in Agriculture, so as to sit in judgment over the selection process of a Vice Chancellor of the University of Agriculture, Faisalabad. 13. For the above reasons the constitution of the Search Committee to the extent of the subject/field expert is declared to be invalid. As a result the shortlisting of a panel of three candidates is also set aside. Government is directed to constitute a new Search Committee in line with the above definition of a subject/field expert and in the manner provided in the aforesaid judgment (mentioned hereunder). The pool of names tabulated in pursuance to the earlier advertisement shall be put through the new Search Committee, as directed in the aforesaid judgment, only if the new Search Committee is satisfied and approves the earlier advertisement. In case the Search Committee is not satisfied with the earlier advertisement, the Search Committee is free to restart the process of advertisement according to the directions give in the Punjab Higher Education Commission case.
10. W.P. No.114962/2017 10 14. The process of constituting a Search Committee is mentioned in para 47 of the aforesaid judgment in the following manner and must be adhered to while constituting the new Search Committee:- “We, therefore, direct the Higher Education Department, Government of the Punjab to consider the above recommendations and the following improvements in order to crease out wrinkles in the current process; i. Under section 14(3) of the Act, the process of appointment of the members of the Search Committee be brought out in the public domain. The Government can draw wisdom for the mechanism of appointment of the Members of Search and Scrutiny Committee constituted under the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014. Which provides as follows: 6. Constitution of the Search and Scrutiny Committee.--- (1) The first Search and Scrutiny Committee constituted under section 7, shall administer the process of the constitution and appointment of subsequent Search and Scrutiny Committee and Commissioners respectively. (2) Whenever any seat or position is laying vacant in the Search and Scrutiny Committee or where a position of Commissioner is vacant, the Search and Scrutiny Committee shall fill the position according to the criteria prescribed under this Act. (3) The Search and Scrutiny Committee shall comprise five (05) members of high moral integrity, repute and stature, and at least one of whom shall be a female: Provided that no person presently in service of Government or the office bearer of a political party shall be a member of the Search and Scrutiny Committee, unless such 9 person resigns one (1) year prior from such service or party office, as the case may be, at the time of appointment: (4) A person shall not be appointed as member of Search and Scrutiny Committee unless he: (a) is a citizen of Pakistan; (b) is the permanent resident of Khyber Pakhtunkhwa Province; (c) is an individual with reputation of high moral integrity and competency; (d) is sagacious, righteous, honest and a person with a good character; (e) is not less than forty (40) years and more than seventy-five (75) years of age during the year of selection; and (f) declare his assets as per law.
11. W.P. No.114962/2017 11 (5) Except for members of the first Search and Scrutiny Committee, who shall be appointed through procedure prescribed in section 7, the Search and Scrutiny Committee shall be responsible for initiating the process for appointment of successor member or members of Search and Scrutiny Committee six (6) months prior to end of tenure of members of the Search and Scrutiny Committee or immediately upon creation of a vacancy, as the case may be, and the process for nomination of Commissioners prescribed in section 8, shall apply mutatis mutandis to nomination and confirmation of members for the Search and Scrutiny Committee. (6) Members of the Search and Scrutiny Committee shall elect one amongst them as Chair, who shall discharge administrative responsibilities in relation to functioning of the Search and Scrutiny Committee in consultation with the members, and in case of any disagreement decisions will be reached by majority vote. (7) The Search and Scrutiny Committee may meet as often as necessary for the effective performance of its functions and two thirds of the members shall constitute a quorum for a meeting. (8) Members of the Search and Scrutiny Committee shall serve for one non-extendable term of four (04) years on an honorary basis and shall not be remunerated for their work: Provided that all expenses related to functioning of the Search and Scrutiny Committee shall be borne by the Commission, and the Commission shall also provide secretarial staff to the Search and Scrutiny Committee to assist its functioning. (9) A member of the Search and Scrutiny Committee may, by writing under his hand addressed to the Governor, resign from his position. (10) A member of the Search and Scrutiny Committee shall not be removed unless by three-fourth majority vote of members of the Legislative Committee on the ground of misconduct or for physical or mental incapacity upon such declaration being made by a Medical Board constituted by Government: Provided that the Legislative Committee shall afford such member the right to be heard prior to voting on his removal. 7. Appointment of the members of the first Search and Scrutiny Committee.--- (1) After the commencement of this Act, Government, within fifteen (15) days, shall nominate candidates as provided in subsection (3) of section 6, at least one of whom shall be a female, and send such list to Secretary and simultaneously publicly disclose the list of recommended candidates for scrutiny inviting comments and objections from the public against such nominees to be sent directly to Secretary within a period of six (06) days. (2) Within seven (07) days of receipt of the list of nominees for the Search and Scrutiny Committee, the Secretary shall circulate to members of the Legislative Committee the list of all nominated
12. W.P. No.114962/2017 12 candidates together with public comments and objections received in relation to such nominees. (3) Within seven (07) days of receipt of the nomination by members of the Legislative Committee, and in view of the public comments and objections received in relation to such nominees, the Legislative Committee shall confirm/reject the nominees by simple majority of the total membership: Provided that if the Legislative Committee neither confirms a nominee nor rejects him, such nominee shall be deemed to have been confirmed. (4) If a nomination is rejected by the Legislative Committee, it shall communicate its decision to Government and Government shall nominate another candidate within seven (07) days of such rejection and resubmit the name of such candidate to the Legislative Committee in accordance with the procedure hereinabove prescribed. (5) Not later than one (01) day of the confirmation or deemed confirmation of nominees, the Secretary, shall send the names of the nominees confirmed or deemed to have been confirmed to the Governor for appointment: Provided that if the Governor fails to make such appointments within a period of ten (10) days of receipt of the list of nominated candidates, such nominated candidates shall be deemed to have appointed and Government shall issue notification accordingly. (6) The provisions of subsections (6), (7), (8), (9) and (10) of section 6 shall apply mutatis mutandis to first Search and Scrutiny Committee, appointed under this section.” 15. Punjab Government is directed to expedite the process by ensuring that the Search Committee is re-constituted within a fortnight from the receipt of this judgment and shall also conclude the remaining process of appointment at the earliest. 16. This case, as well as, petitions mentioned in para 1 of this judgment are allowed in the above terms, with no order as to costs. (Syed Mansoor Ali Shah) Chief Justice Iqbal/M.Tahir* APPROVED FOR REPORTING
https://www.slideshare.net/princesssania7/2018-lhc34
