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 peti tioner 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 and 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 yea rs 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 perso n, by a 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" ---To establish 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 ---Petitioner had waived his alleged right by his
conduct ---Constitution al petition was also hit by laches as the terms and conditions of his
appointment had been questioned 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 invited 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 petitioner stated that the petitioner was appointed by the
Chancellor by exercising power under section 12(1) of the University of Balochistan Act
1996, which presc ribes the tenure of the Vice -Chancellor as four years, therefore, the period
of two years mentioned 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 remaining,
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 challeng e the notification, as he by his conduct
accepted the terms and conditions including the tenure 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 well, 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 pur suant to the referred notification, the Chancellor approved the terms and
conditions of the post 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 two 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 co ntract 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 N abi,
Vice Chancellor"
In response to the above letter, the Chancellor UoB issued a notification, 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 Uo B 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 t he appointment of a
regular Vice -Chancellor on the recommendation of the Search Committee (under 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 Chan cellor
constituted a Search Committee for the recommendation of three suitable candidates for the
appointment 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 appointed 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 accepte d. It is proved that on completion of his two years period, he
voluntarily relinquished the charge as permanent Vice -Chancellor, consequently, the earlier
notification dated 7th May, 2010 and its terms and conditions ceased to exist, which amounts
to waive r on his part. The word waiver has been defined in the Black Law Dictionary as
under: --
"The voluntary relinquishment or abandonment ---express or implied ---of a legal right or
advantage; FORFEITURE."
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