Vice-Chancellor, University of Balochistan, Quetta V. Chancellor, University of Balochistan, Quetta and another,
Bench: Jamal Khan Mandokhail
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This case involved a dispute over how long a university's Vice-Chancellor was entitled to serve. The petitioner had been appointed Vice-Chancellor of the University of Balochistan in May 2010 under a notification that fixed his term at two years, and he agreed to these terms. Near the end of that two-year period, a Search Committee was formed to find a replacement, and the petitioner himself wrote to the Chancellor acknowledging that his contract was expiring. He was then asked to serve temporarily as Acting Vice-Chancellor while a permanent replacement was chosen, and he accepted this role too. He later filed a petition arguing that under Section 12(1) of the University of Balochistan Act, 1996, a Vice-Chancellor's term should legally be four years, so the two-year limit in his appointment notification was illegal, and he should be allowed to serve out the remaining two years.
The Balochistan High Court rejected his petition. It found that although the law allowed for a four-year term, the petitioner had voluntarily accepted a two-year term, never objected during his tenure, and even acted as caretaker after it ended. By his conduct, he had waived any right to challenge the shorter term. The court also noted he raised the issue too late, after already completing his two years, which amounted to unreasonable delay (laches).
This ruling matters because it reinforces that a person who knowingly accepts and acts under certain contractual terms cannot later challenge those terms once they no longer suit him, especially after significant delay.
یہ مقدمہ اس تنازع سے متعلق تھا کہ ایک یونیورسٹی کے وائس چانسلر کو کتنی مدت کے لیے خدمات انجام دینے کا حق حاصل تھا۔ درخواست گزار کو مئی 2010 میں یونیورسٹی آف بلوچستان کا وائس چانسلر مقرر کیا گیا تھا، اور اس تقرری کے نوٹیفکیشن میں ان کی مدت ملازمت دو سال مقرر کی گئی تھی، جس پر انہوں نے رضامندی ظاہر کی تھی۔ اس دو سالہ مدت کے اختتام کے قریب، ایک سرچ کمیٹی ان کا متبادل تلاش کرنے کے لیے تشکیل دی گئی، اور درخواست گزار نے خود چانسلر کو خط لکھ کر تسلیم کیا کہ ان کا معاہدہ ختم ہو رہا ہے۔ اس کے بعد ان سے کہا گیا کہ مستقل متبادل کے انتخاب تک وہ عارضی طور پر قائم مقام وائس چانسلر کے طور پر خدمات سرانجام دیں، اور انہوں نے یہ ذمہ داری بھی قبول کر لی۔ بعد ازاں انہوں نے ایک درخواست دائر کی جس میں یہ موقف اختیار کیا گیا کہ یونیورسٹی آف بلوچستان ایکٹ 1996 کی دفعہ 12(1) کے تحت وائس چانسلر کی قانونی مد
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2012 M L D 1597
[Balochistan]
Before Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ
VICE -CHANCELLOR, UNIVERSITY OF BALOCHISTAN, QUETTA --Petitioner
Versus
CHANCELLOR, UNIVERSITY OF BALOCHISTAN, QUETTA and another Respondent
Constitutional Petition No. 356 of 2012, decided on 21st June, 2012.
(a) University of Balochistan Act (III of 1996) ---
----S. 12(1) ---Constitution of Pakistan, Art. 199 ---Constitutional petition ---Educational Institution ---Tenure of office of Vice -Chancellor ---Petitioner was appointed Vice -Chancellor, for a period of two years ---Petitioner had agreed to the terms and conditions of the appointment --- Contention of the petitioner was that under S. 12(1) of the University of Balochistan Act, 1996; tenure of the office of Vice -Chancellor was prescribed as four years, therefore, the period of two years mentioned in the notification of his appointment was illegal and void ---Validity --- Petitioner, in the present case, had agreed to do the job only for a period of two years an d did not challenge the notification during his tenure and acted as an Acting Vice -Chancellor after his tenure ---Petitioner had , on completion of his two years tenure, voluntarily relinquished the charge as permanent Vice -Chancellor, and the notification of his appointment and the terms and conditions therein, ceased to exist, which amounted to waiver on the petitioner's part ---"Waiver" meant that when a person, by a conduct, had the intention to waive a right, or when a person had a choice between relinqu ishment and enforcement of a right, and did not claim it, and opted for lapsing of a right, expressly by declaration or by a conduct, the same amounted to a "waiver" --- To establish waiver by conduct, it must be shown that a person entitled to a right had t he knowledge of breach thereof and that he had acquiesced or failed to act accordingly ---Petitioner had waived his alleged right by his conduct ---Constitutional petition was also hit by laches as the terms and conditions of his appointment had been questio ned after a lapse of two years --- Constitutional petition was dismissed.
(b) Waiver ---
----Concept and connotation ---"Waiver" meant that when a person, by conduct, had the intention to waive a right, or when a person had a choice between relinquishment and enforcement of a right, and did not claim it, and opted for lapsing of a right, expressly by declaration or by a conduct, the same amounted to a waiver.
Black Law Dictionary and Principle of Justice of Law of Evidence rel and quoted.
Gohar Yaqoob Yousafzai for Petitioner.
Amanullah Kanrani for Respondents.
Date of hearing: 7th June, 2012.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---Facts in brief are that the petitioner was appointed as Vice -Chancellor on 7th May, 2010, through a Notification No.SGB/1 -2/2010/1115 -22, subject to agreed terms and conditions, pursuant to which the tenure of the office was fixed for two years with effect from 7th May, 2010. On completion of two years prescribed tenure, a Search Committee was constituted, which invi ted application through the publication in different newspapers from the qualified persons for the appointment as Vice -Chancellor, University of Balochistan. The petitioner feeling aggrieved, preferred the instant petition.
The learned counsel for the pe titioner stated that the petitioner was appointed by the Chancellor by exercising power under section 12(1) of the University of Balochistan Act 1996, which prescribes the tenure of the Vice -Chancellor as four years, therefore, the period of two years ment ioned in the notification, issued on May, 2010 is void and illegal. He further stated that the tenure is fixed by the Act, therefore, with consent of the parties, it cannot be curtailed, hence, the petitioner is entitled to continue the office for the rema ining, two years.
3. On the other hand, the learned Advocate General opposed the contention and stated that the petitioner is estopped under the law to challenge the notification, as he by his conduct accepted the terms and conditions including the tenur e of the office, therefore, under the law, he is not entitled to file the petition. The learned A.G. further stated that the post of the Vice - Chancellor has been re -advertised and the petitioner is also one of the candidate, therefore by his conduct as wel l, he is not entitled to file the instant petition.
4. We have heard the learned counsel for the parties and have perused the record. It is to be noted that pursuant to the referred notification, the Chancellor approved the terms and conditions of the po st of Vice -Chancellor, for a period of two years from the date of appointment i.e. May, 7, 2010. The petitioner accepted the terms and conditions and started functioning as Vice - Chancellor, without any objection. He continued to hold his office for about t wo years, however, before the completion of his two years tenure he addressed a letter to the Chancellor which is as follow: --
"I wish to inform you that the contract period of the undersigned as Vice -Chancellor, University of Balochistan and Dr. Mehrab Baloch, Pro -Vice Chancellor, University of Balochistan is going to be expired on 7th May, 2012. A necessary action in this regard is requested.
Prof Dr. Abdul Nabi, Vice Chancellor"
In response to the above letter, the Chancellor UoB issued a notificat ion, which is as follows: --
"Dated Quetta the 7th May, 2012.
Notification:
No.SGB/1 -2/2012/575 -83, in exercise of powers conferred under section 12(2) of UoB Act 1996, the Hon'able Governor/Chancellor, University of Balochistan is pleased to direct Dr. Abdul Nabi, to continue to look after day to day affairs of the University as Acting Vice -Chancellor, University of Balochistan in stop gap arrangement, till the appointment of a regular Vice - Chancellor on the recommendation of the Search Committee (un der process).
By the Order of the Hon' able Governor/Chancellor UoB."
5. In view of the fact that the tenure of the petitioner had expired, the Chancellor constituted a Search Committee for the recommendation of three suitable candidates for the appoi ntment of the Vice -Chancellor, Pro -Vice Chancellor, University of Balochistan, which invited the applications and the petitioner also applied afresh. No doubt as per section 12(1) of the University of Balochistan Act 1996, the Vice -Chancellor shall be appo inted for a period of four years or more, but in the present case the petitioner himself agreed to do the job only for a period of two years and did not challenge the notification during his tenure. His tenure was to expire on 6th of May, 2012, therefore, at his request, the Chancellor asked the petitioner to act as an Acting Vice -Chancellor to look after the day to day affairs, which assignment he accepted. It is proved that on completion of his two years period, he voluntarily relinquished the charge as p ermanent Vice -Chancellor, consequently, the earlier notification dated 7th May, 2010 and its terms and conditions ceased to exist, which amounts to waiver on his part. The word waiver has been defined in the Black Law Dictionary as under: --
"The voluntar y relinquishment or abandonment ---express or implied ---of a legal right or advantage; FORFEITURE."
Similarly it has been defined in a book titled "The Principle of Justice of Law of Evidence" by Late Mr. Justice Munir as under: --
"The waiver is the int entional relinquishment of the non -vested right, or such conduct as warrants an inference of the relinquishment of such right, it implies consent to dispense or forego something to which a person is entitled. It is contractual and may constitute a cause of action. It is an agreement to release or not to assert a right."
6. The waiver means when a person by a conduct, has the intention to waive a right. OR, when a person has a choice between the relinquishment and enforcement of a right, did not claim it and opt lapsing of a right, expressly by declaration or by a conduct, amounts to waiver. To established the waiver by conduct, it must be shown that a person entitled to a right had the knowledge of breach thereof and that he had acquiesced or failed to act accordingly. The conduct of the petitioner shows that despite having knowledge of the term of his tenure and being cognizant of the relevant rule, the petitioner did not raise any objection on the terms and conditions during his tenure, thus, it would saf ely be presumed that he waived his alleged right by his conduct. Moreover, the petitioner claims his four years tenure on the basis of the notification, in terms of referred law. Admittedly, this petition has been filed after a lapse of the notification, t herefore, it cannot be enforced further, as it is a past and closed transaction.
7. Without prejudice to above, even otherwise, the notification and the terms and conditions were issued by the Chancellor in the month of May, 2010, and the same have been questioned through the instant petition, after a lapse of about two years, which is hit by a principle of laches. The petitioner did not request for the condonation of the delay, therefore, the present petition is otherwise incompetent, being barred by the limitation.
Thus, in view of what has been stated and discussed hereinabove, the petition is accordingly dismissed.
KMZ/64/Q Petition dismissed.