2014 P L C (C.S.

) 265

[Peshawar High Court]

Before Malik Manzoor Hussain and Ikramullah Khan, JJ

Pro. Dr. M. ISLAM GOUHAR

Versus

UNIVERSITY OF PESHAWAR through Registrar and 5 others

Writ Petition No.296-P of 2013, decided on 28th August, 2013.

Constitution of Pakistan---

----Arts. 9, 25 & 199---Constitutional petition---Civil service---Appointment---Discrimination---

Equal treatment to similarly placed employees---Scope---Petitioner and his other similarly placed
colleague was respectively posted as Director and Chairman, to look after the affairs of Pashto
Academy and the Department of Pashto of the University of Peshawar---Subsequently, the
University only appointed similarly placed colleague/private respondent as Director on
permanent basis and the petitioner was ignored---Validity---Petitioner could not be discriminated
without any cogent reason by violating the provisions of Art.25 of the Constitution and they
were bound to protect the rights of the petitioner as enshrined in Art.9 of the Constitution---
Where the aggrieved party had alleged discrimination, the Court could not over-look the
implication thereof---Equal treatment of all similarly situated was the basic principle which
rested justice under the law---If even-handed justice was not administered, same could have
many adverse and negative effects on the society and could cause discontentment and frustration
in the social set up and there could be no denial that social justice was an objective and was
enshrined in the Constitution---University authorities were directed to issue proper notification in
respect of services of the petitioner, as was done in the case of his similarly placed colleague---
Constitutional petition was allowed.

Mehr Muhammad Nawaz v. Managing Director Small Business Finance Corporation

2009 SCMR 187 rel.

Neelam A. Khan for Petitioner.

 Waseem-ud-Din Khattak for Respondents.

Date of hearing: 29th August, 2013.

JUDGMENT

MALIK MANZOOR HUSSAIN, J:--- The petitioner, through instant Constitutional

petition, questions the legality and propriety of notification dated 6-11-2012, issued by the
Registrar University of Peshawar.

2. Briefly, facts of the case are that the petitioner was appointed as Director, Centre of
Pashto Language and Literature, University of Peshawar, for a period of three years vide
notification dated 11-8-2010. Thereafter, through notification dated 23-11-2011 merger of Pashto
Academy and the Department of Pashto Centre of Pashto Language and Literature was
withdrawn, thus independent status of both the institutions was restored. Dr.Salma Shaheen and
the petitioner were directed to look after the affairs of Pashto Academy and the Department of
Pashto as Director and Chairman, respectively till further order. With the approval of Vice-
Chancellor, Dr. Salma Shaheen through notification dated 26-5-2011,was appointed as
Director Pashto Academy for a period of 3 years whereas no order was made in respect of the
petitioner. Thereafter, vide notification dated 6-11-2012, the syndicate in its 412th meeting held
on 15-9-2012, confirmed the notification dated 26-5-2011 in respect of Dr. Salma Shaheen and
with respect to the petitioner it was mentioned that he should be approved as Chairman "for 3
years for the remaining period". Impugned Notification was issued vide No.214/Acad-I dated
6-11-2012 and being aggrieved, the petitioner seek redressal through the instant Constitutional
Petition.

3. The learned counsel for the petitioner vehemently contended that the joint posting order
of respondent No.5 i.e. Dr.Salma Shaheen, as Director Pashto Academy, University of Peshawar
as well as that of petitioner as Chairman, Department of Pashto was made to look after the affairs
vide order dated 25-3-2011. Thereafter, the permanent posting order of Dr. Salma Shaheen as
Director Pashto Academy for a period of 3 years was made vide notification dated 26-5-2011,
whereas the appointment orders in respect of petitioner was not notified as in case of respondent
No.5. The petitioner made a representation to the Vice-Chancellor and Chairman of Syndicate
through Dean for review of order dated 25-3-2011, but despite the fact that the matter was placed
before the Syndicate, no action was taken in its meeting held on 15-9-2012. He further contended
that notification dated 6-11-2012 is not only discriminatory but speaks of its own mala fide.

4. Conversely, the learned standing counsel appearing on behalf of the respondents

contended that the review/appeal is still pending disposal before the Syndicate and also before
the Chancellor, thus the present petition is pre-mature.

We have heard the learned counsel for the parties and perused the record.
5. From perusal of the record, it reveals that vide notification dated 25-3-2011, the charge of
Director, Pashto Academy was entrusted to Dr.Salma Shaheen, while the petitioner was
entrusted the charge of Chairman Department of Pashto to look after the affairs till further order.
Later on, through a proper notification dated 26-5-2011, the Vice-Chancellor issued appointment
order of Dr.Salma Shaheen, as Director, Pashto Academy for a period of 3 years, whereas no
proper notification was issued about the appointment of the petitioner as Chairman, Department
of Pashto, University of Peshawar. He was entrusted with the responsibility to look after the
affairs of Pashto Department. Though his appeal/representation was pending disposal before the
Vice-Chancellor and the Syndicate from April, 2011, but for the reason best known to the
respondents, no heed was paid to respond the same. The appointment order of Dr. Salma
Shaheen has been confirmed, whereas no decision was taken with respect to
appoint/regularization of the petitioner. We have noticed that in respect of Director, Pashto
Academy notification was issued for a period of 3 years with effect from 26-5-2011,
whereas through the same notification in respect of Chairman Department of Pashto, it was
inserted as 26-5-2011 (for the remaining period).

6. Although, the review petition was pending disposal before the Vice-Chancellor for
forwarding the same, to be submitted before the Syndicate and the same was forwarded by the
Dean vide entry dated 22-4-2011, but after a lapse of more than 1-1/2 years when the meeting
was held on 15-9-2012, no action was taken on the review/appeal of the petitioner and
notification was issued with the remarks that the services of petitioner are confirmed for the
remaining period. The petitioner was only authorized, vide notification dated 25-3-2011, to look
after the affairs of Pashto Department and no formal notification, for his appointment was issued.

7. So far as the objection taken by the learned counsel for respondents that the appeal is
pending disposal and the petition is pre-mature, we do not agree with this contention. Beside
reminders, appeal/review was not considered for a long period of two years, without any
justification by the respondents. Present is a case of sheer discrimination and against the
Constitutional guarantee of service, and equality of citizens provided to the petitioner. Petitioner,
in circumstances, could not be discriminated without any cogent reason by violating the
provisions of Article 25 of the Constitution and it was the duty of the respondents to protect his
rights, enshrined in Article 9 of the Constitution. While dealing with the case where the
aggrieved party had alleged discrimination, the Court could not overlook the implication thereof.
Equal treatment of all similarly situated was the basic principle which rested justice under the
law. If even handed justice was not administered, same could have many adverse and negative
effects on the society and could cause discontentment and frustration in the social set up and
there could be no denial that social justice was an objective and enshrined in the Constitution.
Reliance is placed on Mehr Muhammad Nawaz v. Managing Director Small Business Finance
Corporation (2009 SCMR 187).

Under the circumstances, this petition is allowed and the notification dated 6-11-2012 in
respect of petitioner to the extent of entry "for the remaining period" is declared unlawful,
unjustified, discriminatory and ineffective upon the rights of the petitioner. The respondents are
directed to issue a proper notification in respect of services of the petitioner, as is done in the
case of Director/respondent No.5.

JJK/534/P Petition accepted