P L D 2022 Balochistan 58
Before Muhammad Hashim Khan Kakar and Nazeer Ahmed Langove, JJ
Dr. ILYAS and another ---Petitioners
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and others---
Respondents
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 Governor/ 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 statut e 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 E ntry 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 bu t
not a justiciable 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.
(c) Constitution of Paki stan---
----Arts. 48 & 105---Advice of Prime 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 Mi nister respectively and
in the manner prescribed 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 Governm ent/Cabinet/Chief Minister, is violative of Article 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 d eclare that the section 15(2) of the Act is also 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 Med ical 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 Alber t 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 governance. 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 devolve d
several important functions to Provincial Governments 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' amended 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 t o 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 educati on". With the
abolition of the concurrent list, 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, how ever, 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, creati ng 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 research, 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 existing 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 existing 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. Th e 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 scien tific and technical institutions which fall within 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 mandat e 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,
appoi nted by the Chancellor on the advice 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 man ner 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 Government shall constitute a search committee consisting of five members for t he
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
Chancellor shall appoint the Vice Chancellor accordingly. However, while enac ting 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 C onstitution.
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 provisi on, 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 Pakistan (PLD 2009
SC 879) furnish a complete answer. Article 105 of the Cons titution 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 advice of
the Cabinet,
[Provided that the Governor may require the Cabinet or, as the case may be, the Chief
Minister to reconsider such a dvice, whether generally or otherwise, and the Governor
shall act in accordance with the advice tendered after such reconsideration.]
[(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 Assembly, 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 provi sion is given in the proviso to Article 105 of
the Constitution which mandates, "provided that [within fifteen days] 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 [within ten days] act in accordance
with the advice tendered after such reconsideration. The wisdom 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 otherwi se
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 as
provided in the afore -referred provisions of the Constitution. The Governor ha s no other
powers except those which are expressly conferred upon him by the Constitution. Any attempt to expound or advance any distinction between the Governors' Constitutional powers
or functions and his powers or functions under any statute runs contra ry 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 explicit. 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 beside s
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 prec ision, 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
establ ished 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 [Article 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 Gove rnment is neither answerable to the President nor
in any way subordinate to him. In formulation of the policies of his Government and
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
constituti onal 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 Const itution, 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 alloweThis 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.