‘Appointment of junior professor as KU Faculty of Science dean unlawful’

The Sindh High Court (SHC) has held that the proposal of the universities & boards secretary to the competent authority for the appointment of University of Karachi Faculty of Science dean was based on mala fide intention just to accommodate junior professors. The court also set aside the impugned notifications with regard to their appointments.

The order came on a petition of Prof Jamil Hassan Kazmi against the appointment of Dr M Abid Hasnain as dean, and after his retirement, the appointment of Prof Dr Nasira Khatoon up to her date of superannuation by the universities & boards secretary through a June 4, 2020 notification.

The petitioner’s counsel said that the official respondents have erroneously protected the private respondents by forwarding their names to the chief minster for appointment as dean.

He added that direct appointment as head of a department by way of a summary, bypassing the proper procedure of appointment through the competitive process, was patently discriminatory and in gross violation of articles 4, 8 and 25 of the constitution.

He said that the appointment of the respondent as dean was liable to be cancelled because the petitioner was the only meritorious professor in grade-22 working as professor in the science faculty.

He added that the petitioner was the only candidate who was the most senior, being a grade-22 professor, to be considered as dean in terms of the code of the university describing who could be appointed dean.

The private respondents’ counsel raised the question of maintainability of the instant petition on the premise that the petitioner had approached the court with unclean hands.

The counsel said that the petitioner maliciously waited for the tenure of the former dean to end on November 3, 2020 before approaching the court, so the relief sought by the petitioner was barred by laches (a lack of diligence in making a legal claim).

He added that the petitioner has accepted the appointments of the respondents as respective deans by not challenging the notification of the universities & boards secretary issued on June 4, 2020.

The provincial law officer and KU’s counsel supported the stance of the private respondents and raised a similar question of maintainability of the instant petition being barred by laches.

The respondents’ counsel said that one respondent had already retired on November 3, 2020 as dean, while the other professor being the most senior had taken over as dean, so the petitioner was not entitled to invoke the constitutional jurisdiction of the court because he had failed to point out any infringement of his fundamental rights.

He said that the petitioner was not senior among three professors of the Faculty of Science since he was at serial number five according to the seniority list of the professors of the faculty.

He added that the appointment had been made within the ambit of the relevant statute, so the court could not sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulations-making body of the Sindh government.

After hearing the arguments of the counsel, a division bench of the SHC comprising Justice Salahuddin Panhwar and Justice Adnan-ul-Karim Memon said that the universities & boards secretary had twisted the facts about the seniority of the professors.

The bench said that the secretary had floated a summary to the CM and proposed on his own accord that the competent authority might appoint Dr Hasnain as dean up to November 3, 2020, further proposing that after his retirement, Dr Nasira might be appointed in his place.

The court said that after the perusal of the record, it was found that the petitioner was senior to the respondent and ought to have been recommended for the position of dean, but the respondent university preferred Dr Nasira in place of the petitioner by ignoring the said settled principles.

The bench said that the universities & boards secretary had played a tricky role and on his own accord suggested the competent authority for the appointment of the respondent against the future vacancy that was likely to occur after the retirement of Dr Hasnain as dean up to his date of superannuation.

The court said that it has been informed that the petitioner is the senior-most professor serving in grade-22 and is eligible for the position of dean, while the private respondents are in grade-21, so the question arises that who prompted the respondents to nominate a junior officer for the subject post.

The bench said that such aspects need to be looked into by the competent authority on the disciplinary side after providing an opportunity of meaningful hearing to them within a reasonable time.

The court said that the petitioner seems to be the senior-most professor in the Faculty of Science whose suitability is not disputed, so he will be considered for appointment as dean. The court also set aside the impugned notification with regard to appointment of the respondent as dean.

The bench said in its judgment that every action of the respondents was dubious in making the proposal to the competent authority, including the proposing of the names of the shortlisted candidates, in a cursory manner, so the competent authority was prima facie not properly appraised on the subject issue.

The court said that such a matter needs to be looked into by the competent authority afresh, keeping in view the seniority-cum-merit principle as the law laid down by the Supreme Court on the subject, and take a fresh decision to appoint a dean.

The bench said that the recommendation of KU as well as suggestion of the universities & boards secretary to the competent authority for the appointment of dean was without lawful authority.

The court said that it does not appreciate the conduct of the respondents in the manner they have dealt with the matter of the appointment of dean, bypassing the senior professor working in grade-22 and recommending the private respondents for the said position in violation of the principle of natural justice and seniority.

The bench said that appointments are to be made by the government in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities, etc. through a transparent manner and a competitive process, and not otherwise.

The court said that the CM has endorsed the purported proposal of the universities & boards secretary through a summary that needs to be revisited before the retirement of the petitioner, keeping in view the seniority principle for the appointment of dean as well as the law settled down by the SC.

The bench directed the competent authority to hold a fresh interview of the petitioner and the respondent for the appointment of dean on merit under the law within two weeks.