2022 P L C (C.S.) 770
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Nazeer Ahmed Langove, JJ
Dr. ILYAS and another
Versus GOVERNMENT OF BALOCHISTAN through Chief Secretary and others
Constitution Petition No. 379 of 2021, decided on 6th December, 2021.
(a) Bolan University of Medical and Health Sciences Act (VII of 2017)---
----S. 15---Constitution of Pakistan, Art. 105---Vires of S.15, Bolan University of Medical
and Health Sciences Act, 2017 ---Vice -Chancellor--- Appointment by Govern or/ Chancellor
without advice by Government/ Cabinet/Chief Minister---Scope ---Chancellors of universities
had to be bound in the same manner as the Governor of a province would act and was bound
under clause (1) of Art. 105 of the Constitution---Section 15(1) of the Bolan University of Medical and Health Sciences Act, 2017, was inserted in complete disregard of the spirit of 18th Amendment and in violation of Art. 105 of the Constitution---Contention that the Governor while working under a statute was not bound to act on the advice of the Provincial Government was devoid of force and had no legs to stand---Any attempt to expound or
advance any distinction between the Governors' constitutional powers/functions and his powers or functions under any statute would run contrary to the law ---Governor was bound
to act on the advice of Chief Minister in appointment of Vice -Chancellor of government
universities ---Constitutional petition was allowed and Cls. (1) & (2) of S.15 of the Act, 2017,
were struck down from the statute being violative of Art. 105 of the Constitution.
Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Sindh High
Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Aamir Raza Ashfaq v. Minhaj Ahmed Khan 2012 SCMR 6 rel .
(b) Constitution of Pakistan ---
----Fourth Schedule, Part II, Entry No. 12---Standards in institutions for higher education and
research, scientific and technical institutions ---Before the 18th Amendment, education as a
subject was placed at Entry 38, under Part I of the Concurrent List, which was moved to the
Federal Legislative List, Part II, as Entry 12---Joint jurisdiction of both the Provinces and the
Federation had been established over the subject ---Education was recognized as a right but
not a jus ticiable one, however, the 18th Amendment Act made the said right justiciable, i.e. it
could be enforced through Courts ---Eighteenth Amendment ensured autonomy for the
federating units and it was after the passage of the same that the subject of education fell under the exclusive domain of the provinces ---Federal Legislature could not enact legislation
in the provinces except in the matter pertaining to higher education, research and scientific
and technical institutions.
----Arts. 48 & 105---Advice of Prim e Minister and Chief Minister ---Strict construction ---
Scope ---Except otherwise so provided under the Constitution, the President and Governor are
bound by the advice tendered by the Prime Minister and the Chief Minister respectively and
in the manner presc ribed in the Constitution---Governor has no other powers except those
which are expressly conferred upon him by the Constitution.
Muhammad Ali Kanrani and Hazrat Ali Kakar for Petitioners.
Shai Haq Baloch, Addl. A.G. and Syed Iqbal Shah, D.A.G. for Official Respondents.
Khalid Sultan for Respondent No.6.
Date of hearing: 23rd November, 2021.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .---The instant Constitutional Petition,
filed under Article 199 of the Constitution of the Islamic Republic of Pakistan , 1973 ('the
Constitution'), carries the following prayer clause: --
"In view of above it is, therefore, accordingly prayed that this Hon'ble Court may graciously be pleased to exercise its power of Judicial Review and see the Act and its impugned provisions, if vires of the Constitution, with following prayer;
(a) To declare that the section 15(1) of the Act, with regard to appointment of Vice -
Chancellor by the Governor/Chancellor without advice by the
Government/Cabinet/Chief Minister, is violative of A rticle 105 of the Constitution, as
such, the section 15(1) of the Act be declared as vires of the Constitution and
superstructure raised over it shall also be declared to be of no legal effect.
(b) To further declare that the section 15(2) of the Act is a lso contrary to the Article
105 of the Constitution, hence is vires of the Constitution.
(c) To direct the respondents to make necessary amendments in impugned provisions
of the Act i.e. Bolan University of Medical and Health Sciences Act, 2017 and make
it in consonance with the provisions of the Constitution, keeping in view and in
adherence to the Article 105 of the Constitution.
(d) Any other relief deems fit by this Hon'ble Court, in the interest of equity, fair play and justice."
2. We have heard learned counsel for the petitioners, learned Deputy Attorney General
as well as Additional Advocate General and also perused the available record with their valuable assistance.
3. Once the renowned scientist Albert Einstein, when he was teaching at Oxford
University set a question paper, noted by his Assistant and very next year he once again set
the same question paper and on query of his assistant regarding similarity of question paper
with the previous one, he replied that though the questions are same but the answer have
been changed.
4. Similarly, the question raised in the instant petition is not a new one and the same
have repeatedly been answered by the superior Courts; however, after the 18th Amendment
passed in April 2010, its answer has been changed. The 18th Amendment has improved
transparency in the political system, minimized individual discretion, strengthened
parliament, increased provincial autonomy, ensured the independence of judiciary and
expanded fundamental rights and promoted good governa nce. It restored the parliamentary
character of the Constitution, redefined the Parliament -Judiciary relationship by proposing
parliamentary oversight on appointments of judges of the superior Courts and devolved
several important functions to Provincial G overnments while abolishing the concurrent
legislative list in the Constitution and amending the Federal Legislative List in order to
address the question of provincial autonomy. In view of 18th Amendment in the
Constitution, the Provincial Governments' am ended laws, established new institutions
frameworks, developed policies and strategies and built capacity to effectively discharge their newly acquired responsibilities and face the challenges.
5. Before going to dilate upon the issue, it would be relevant to mention here that before
the 18th amendment, education as a subject was placed at Entry 38, under Part I of the
concurrent list which was moved to the Federal Legislative List Part II, as Entry 12. Part II
of the Federal Legislative List had no entry related to education before the 18th amendment.
Entry 38 of the concurrent list contained provisions related to education as "curriculum,
syllabus, planning, policy, centers of excellence and standards of education". With the
abolition of the concurrent lis t, all of those functions, except standard of higher education,
education got transferred to provinces. A new entry, entry No.12 stating that "standard in institutions for higher education and research, scientific and technical institutions" was
placed in Part II of the Federal Legislative List thus establishing a joint jurisdiction of both
the Provinces and the Federation over this matter. Similarly, education was recognized as a right but not a justiciable, however, the 18th Amendment Act made this right justiciable i.e.
it could be enforced through Courts. In view of Item No. 38 and item No.39 of Concurrent
Legislative List, the Parliament also promulgated the Higher Education Commission
Ordinance, 2002, creating the Federal HEC to act as a regulator for higher education across
the country.
6. There is no dispute that education is and has always been a provincial subject since
the commencement of the Constitution of the Islamic Republic of Pakistan but standards in
institution for higher education and rese arch, scientific and technical institutions are in the
domain of the Federation. In order to secure those standards the federation has established
the Higher Education Commission (HEC) under the Higher Education Commission
Ordinance, 2002, which is an exis ting law on the subject. The Commission is responsible for
formulating higher education policy and quality assurance to meet the international standards as well as providing accrediting academic degrees, development of new institutions and
uplift of existi ng institutions in the country. The amendment ensured autonomy for the
federating units and it was after the passage of the same that the subject of education fell
under the exclusive domain of the provinces. The Federal Legislature still has the power to
legislate over the subject of education to the extent of federal territory, as far as provinces are
concerned, it cannot enact legislation except in the matters pertaining to higher education,
research and scientific and technical institutions which fall w ithin Part II of Federal
Legislative List.
7. Under the mandate of 18th Constitutional Amendment, besides establishment of
Sindh Higher Education Commission and Punjab Higher Education Commission with the mandate to promote higher education and research in the respective provinces, the
Governments of sister provinces have brought amendments in their respective statutes
asserting therein that there shall be Vice- Chancellors of the public sector universities,
appointed by the Chancellor on the advi ce of the Government
8. Although the Government of Balochistan could not succeed to make the necessary
legislation and required amendments, yet the statute of The Bolan University of Medical and
Health Sciences Act, 2017 is the first step in this regard. Prima facie, it is the ditto copy of
statute of 'The University of Health Sciences, Lahore Ordinance (Ordinance LVIII of 2002)'
and The Rawalpindi Medical University Act 2017, which inter alia provides in its section
9(5) that the Chancellor in the performance of functions under the Act, shall be bound in the
same manner as the Governor of a province acts and is bound under clause (1) of Article 105 of the Constitution of the Islamic Republic of Pakistan. Similarly, section 12 says that the
Governme nt shall constitute a search committee consisting of five members for the
recommendation for appointment of Vice Chancellor and the committee shall recommend the
Government a panel of three persons suitable for appointment as Vice Chancellor and the
Chance llor shall appoint the Vice Chancellor accordingly. However, while enacting the Act
in question, astonishingly, section 15(1) regarding the appointment of Vice Chancellor by the Governor without advice by the Government was inserted in complete disregard of the spirit of 18th Amendment and in violation of Article 105 of the Constitution.
9. When Syed Iqbal Shah, learned Deputy Attorney General and Mr. Khalid Sultan,
learned counsel for respondent No. 6, were confronted with such aspects of the case, they while not feeling themselves in a position to defend the impugned provision, feebly
contended that the Governor while working under a statute is not bound to act on the advice of the Provincial Government. The contention is apparently devoid of force and has no legs
to stand as Article 105 of the Constitution and the law declared by the Hon'ble Supreme Court of Pakistan in the cases of Muhammad Nawaz Sharif v. President of Pakistan (PLD
1993 SC 473) and Sindh High Court Bar Association v. Federation of Pakist an (PLD 2009
SC 879) furnish a complete answer. Article 105 of the Constitution reads as under: --
"105. Governor to act on advice, etc.-- (1) Subject to the Constitution, in the
performance of his functions, the Governor shall act in accordance with the a dvice of
the Cabinet,
[Provided that the Governor may require the Cabinet or, as the case may be, the Chief
Minister to reconsider such advice, whether generally or otherwise, and the Governor shall act in accordance with the advice tendered after such re consideration.]
[(2) The question whether any, and if so what, advice was tendered to the Governor
by the Chief Minister shall not be inquired into in, or by, any Court, tribunal or other
authority.]
[(3) Where the Governor dissolves the Provincial Assem bly, notwithstanding
anything contained in clause (1), he shall,---
(a) appoint a date, not later than ninety days from the date of dissolution, for the
holding of a general election to the Assembly; and
(b) appoint a care -taker Cabinet.]
[(4)] Omitted.
(5) The provisions of clause [(2)] of Article 48 shall have effect in relation to a
Governor as if reference therein to "President" were reference to "Governor". "
10. It clearly manifests that the Governor in the performance of his function shall act in
accordance with the advice of the Cabinet or the Chief Minister and the only option which
the Governor has under the afore -referred provision is given in the proviso to Article 105 of
the Constitution which mandates, "provided that [within fifteen days] t he Governor may
require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice,
whether generally or otherwise, and the Governor shall [within ten days] act in accordance
with the advice tendered after such reconsideration. The wi sdom behind the stipulation of
time is to avoid deadlock and friction between the two Constitutional functionaries. The Governor of a province under the Constitution enjoys an exalted position being a nominee of
the president and a symbol of Federation in the province; however, the Chief Minister is the
Chief Executive of the province and is elected by the Provincial Assembly. Except otherwise
so provided under the Constitution, the President and Governor are bound by the advice
tendered by the Prime Minist er and the Chief Minister respectively and in the manner as
provided in the afore -referred provisions of the Constitution. The Governor has no other
powers except those which are expressly conferred upon him by the Constitution. Any
attempt to expound or a dvance any distinction between the Governors' Constitutional powers
or functions and his powers or functions under any statute runs contrary to the law. Reliance can be placed on the case of Aamir Raza Ashfaq v. Minhaj Ahmed Khan (2012 SCMR 6), wherein the Hon'ble Supreme Court held as under: --
"It is generally accepted that the position of a Governor in a Province is by and large similar to that of the President in the Federation and clause (5) of Article 105 of the
Constitution makes such similarity expl icit. In the case of Mian Muhammad Nawaz
Sharif v. President of Pakistan and others (PLD 1993 SC 473) it had been made
abundantly clear by this Court that the President has no other powers except those
which are expressly conferred upon him by the Constitution. In this view of the
matter any attempt to expound or advance any distinction between the
President/Governor's constitutional powers or functions and his powers or functions
under any statute runs contrary to the law so clearly declared by this Court. It had
been held by this Court in that case as under: -
"Unfortunately, this belief that he enjoys some inherent or implied powers besides
those specifically conferred on him under Articles 46, 48(6), 101, 242(1A) and
243(2)(c) is a mistaken one. In a Constitution contained in a written document
wherein the powers and duties of the various agencies established by it are formulated with precision, it is the wording of the Constitution itself that is enforced and applied
and this wording can never be overridden or supplemented by extraneous principles
or non- specified enabling powers not explicitly incorporated in the Constitution itself.
In view of the express provisions of our written Constitution detailing with fullness, the powers and duties of the various agencies of the Government that it holds in
balance there is no room of any residual or enabling powers inhering in any authority
established by it besides those conferred upon it by specific words.
Our Constitution, in fact, is designed to create a parliamentary democracy. The
President in this set- up is bound to act, in the exercise of his functions, in accordance
with the advice of the Cabinet or the Prime Minister [Article 48(1) and the Cabinet in
its turn is collectively responsible to the National Assembly [Article 91(4)] though the
Prime Minister holds office at the pleasure of the President. However, the President
cannot remove him from his office as long as he commands the confidence of the
majority of the members of the National Assembly [Articl e 91(5)]. In view of these
provisions, the system of Government envisaged by the Constitution of 1973 is of the Parliamentary type wherein the Prime Minister as Head of the Cabinet is responsible to the Parliament, which consists of the representatives of the nation.
It is manifest, therefore, that in the scheme of our Constitution the Prime Minister in administering the affairs of the Government is neither answerable to the President nor
in any way subordinate to him. In formulation of the policies of his Government a nd
in the running of its affairs, the Prime Minister is answerable only to the National
Assembly and not to the President. Indeed, it is the President who is bound by the
advice of the Prime Minister or the Cabinet in all matters concerning formulation of
policies and administration of the affairs of the Government and not the other way
about, as appears to have been mistakenly understood. Undoubtedly, the President
may require the Cabinet or the Prime Minister, as the case may be, to reconsider any
advice tendered to him but the President is bound to act on the advice tendered, even
if it be the same, after consideration."
11. Likewise, in the case of Aamer Raza Ashfaq v. Minhaj Ahmed Khan (2012 SCMR 6)
supra, the issue of appointment of Vice Chancellor of Baha -ud-Din Zakariya University
came before the august Court after a serious Constitutional battle between the two
constitutional heads of Punjab i.e. Governor Muhammad Latif Khan Khosa and the Chief
Minister Shahbaz Sharif. The Hon'ble Supreme Court bound the Governors to act on the
advice of Chief Ministers in appointment of Vice Chancellors of government universities and the authorities were instructed to issue the notification of appointment of Professor Khawaja
Alqama as the Vice Chancellor of Baha -ud-Din Zakariya University as per the summary of
Chief Minister Punjab.
Thus, in view of above, the petition is allowed. Sections 15((1) and (2)) of The Bolan
University of Medical and Health Sciences Act, 2017, with regard to appointment of Vice -
Chancellor by the Governor/Chancellor without advice by the Government/Cabinet/Chief
Minister, are violative of Article 105 of the Constitution, as such, the same are struck down
from the statute. In case appointment of Vice Chancellors, the Governor is bound to act on
the advice of the Chief Minister. The respondents are directed to make necessary
amendments in the impugned provisions of the BUMHS Act, 2017, and make it in consonance with the provisions of the Constitution.
ZH/3/Bal Petition allowed.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,
let us know.