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.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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