IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
PRESENT: 
MR. JUSTICE TASSADUQ HUSSAIN JILLANI 
MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI 
MR. JUSTICE ASIF SAEED KHAN KHOSA 
 
Civil Petition No. 1017-L of 2011 
(Against the judgment dated 11.5.2011 passed by the Lahore High Court, 
Multan Bench in W.P. No. 8930 of 2010) 
 
Rana Aamer Raza Ashfaq and another 
… Petitioners 
VERSUS  
 
Dr. Minhaj Ahmad Khan & another 
… Respondents 
 
For the Petitioners: 
Mr. Ahmad Raza, ASC along with Sajid 
Iqbal in person. 
 
For Respondent No.1: 
 
In person 
 
For Respondent No.2: 
Mr. Nazir Ahmad Chishti, Deputy Registrar, 
BZU. 
 
On Court’s Call: 
Maulvi Anwarul Haq, Attorney General for 
Pakistan a/w Salman Faisal, Advocate, 
Syed Ali Mustafa Gillani, Advocate and 
Mrs. Shafaq Mohsin, Advocate. 
Khawaja Haris Ahmed, Advocate General 
Punjab 
 
Mr. Khadim Hussain Qaiser, Addl. A.G. 
Punjab 
 
Mr. Jawad Hasan, Addl. A.G. Pb. 
 
 
 
Date of Hearing: 
 
 
19.8.2011, 
14, 19 & 22.9.2011 
 
 
JUDGMENT 
 
 
 
TASSADUQ HUSSAIN JILLANI, J.- “Good or bad 
fortune of a nation depends on three factors; its Constitution, the 
way the Constitution is made to work and the respect it inspires*1.” 
The Constitution of a country is a sacrosanct document which 
                                                 
* George Bidault, a French intellectual and former Prime Minister. 
Mr. K. K. Agha, Addl. Attorney General for Pakistan.
C.P. No. 1017-L of 2011 
2 
establishes various institutions, apparatus of the government, 
defines the relationship between the individuals and the State, 
between the Federation and its Federating Units/Provinces and 
various organizations of the State. The judiciary is under oath to 
preserve and defend the Constitution under the rule of law. It does 
so by its power of judicial review and in the case in hand, we have 
been called upon to exercise it in the following set of circumstances. 
2. 
Petitioner and respondent No.1 Dr. Minhaj Ahmad Khan 
applied for three posts of Assistant Professors in Computer Sciences 
in Bahauddin Zakariya University (hereinafter referred to as “the 
University”] pursuant to advertisement made by it on 11.3.2010 
through newspapers and its website. They were among the nine 
candidates shortlisted and called for the interview on 4.8.2010. 
Respondent No.1 appeared before the Selection Committee but was 
neither interviewed nor considered. However, the petitioners were 
selected after the interview. He challenged this selection through a 
Constitution petition. In the written statement filed by the 
respondent-University 
before 
the 
High 
Court, the fact that 
respondent was the only Ph.D among the nine shortlisted 
candidates and more experienced was not disputed but the reason 
given for not considering him for the posts was that he went to 
France on ex-Pakistan leave for post doctoral studies though with 
NOC but without the permission of the competent authority 
therefore, the Syndicate in its meeting dated 17.2.2010 had directed 
an enquiry against him under the Punjab Employees Efficiency, 
C.P. No. 1017-L of 2011 
3 
Discipline and Accountability Act, 2006 (PEEDA Act 2006) which 
was still pending. The Constitution petition was allowed by the 
Lahore High Court vide the impugned judgment dated 11.5.2011 on 
the ground that the pendency of an enquiry was no ground not to 
consider him. The recommendations of the Selection Board dated 
8.8.2010 were declared illegal by the High Court and the respondent 
was directed to convene a meeting of the Selection Board and 
conduct interviews of the petitioner along with the shortlisted 
candidates afresh. 
3. 
Seeking 
leave 
to 
appeal 
against 
the 
impugned 
judgment, learned counsel for the petitioners submitted that the High 
Court had no jurisdiction to interfere in the selection process as the 
employees of the University are not governed by statutory rules; that 
even otherwise relief could have been granted to respondent No.1 
without interfering with the selection of the petitioners as there was 
still one post vacant; that petitioners had assumed the charge after 
having been selected and worked for eleven months and that their 
appointment has been set aside for reasons not sustainable in law. 
He further submitted that on account of the non-appointment of the 
Vice Chancellor of the University, the meeting of the Selection Board 
has not been convened for a denovo exercise for selection in terms 
of the impugned judgment and not only the petitioners are suffering 
but the University is partially dysfunctional on account of this inaction 
on the part of the Provincial Government.  
C.P. No. 1017-L of 2011 
4 
4. 
The University has not challenged the impugned 
judgment. On 19.8.2011 during the course of hearing of this petition 
and on Court query, the Deputy Registrar of the University apprised 
the Court that meeting of the Selection Board to initiate the process 
of interviewing the shortlisted candidates afresh in terms of the 
impugned judgment has not been held because no Vice Chancellor 
has been appointed as yet; that the appointment is being delayed as 
the Chancellor of the University/Governor Punjab has not passed 
any order in this regard despite the advice having been tendered by 
the Chief Minister Punjab in terms of section 11(8) of the Bahauddin 
Zakariya University Act, 1975 [hereinafter referred to as ‘the Act’]. 
5. 
Notice was issued to the learned Attorney General for 
Pakistan to address this Court, inter alia, on the following issues 
arising out of the petition:- 
(i) 
Whether 
the 
Chancellor 
of 
the 
University/Governor of Punjab is bound by the 
advice tendered by the Chief Minister on 
reconsideration in view of section 11(8) of the 
Act read with proviso to Article 105 of the 
Constitution and the law declared by this Court 
[in the case of Muhammad Nawaz Sharif vs. 
President of Pakistan and others (PLD 1993 
SC 
473) 
and 
Sindh 
High 
Court 
Bar 
Association and another v. Federation of 
Pakistan and others (PLD 2009 SC 879)] and 
in Intra Court Appeal No. 243 and 245 of 2010, 
decided by the Lahore High Court, Lahore, in 
which the Chancellor was a party? (Emphasis 
is supplied) 
 
(ii) 
Whether the delay in appointment of the Vice 
Chancellor and the Pro Vice Chancellor in the 
University has the effect of making the 
Institution 
dysfunctional 
to 
achieve 
its 
objectives under the law? 
C.P. No. 1017-L of 2011 
5 
 
(iii) 
Considering the Right to Education to be a 
Fundamental Right, whether the same is being 
violated on account of delay in appointment of 
the institutional head of the said University? 
 
(iv) 
Whether the delay in appointment of the 
Institutional Head has the effect of impinging 
on the Fundamental Rights enshrined in 
Articles 9, 14, 18 of the Constitution? 
 
 
6. 
The learned Attorney General for Pakistan submitted as 
follows:- 
(i) 
that the Governor of Punjab while acting in his 
capacity as Chancellor under the Act as opposed to 
his Constitutional capacity as Governor is not bound 
by the advice of the Chief Minister. According to him 
the Governor is bound to act on the advice of the 
Chief Minister under Article 105 of the Constitution 
only if he is acting as Governor and not when he is 
seized of a matter as Chancellor of the University; 
(ii) 
that if Article 105 of the Constitution was made 
applicable to acts done and orders passed by the 
Governor under a Statute acting in a different 
capacity, it would deprive him of any discretionary 
and independent decision making power under the 
Act and make the relevant Statute redundant qua his 
role; 
(iii) 
that a distinction has to be made in the functions of 
the Governor when he acts under the Constitution in 
C.P. No. 1017-L of 2011 
6 
terms of its Article 105 and in cases when he acts 
under the Statute in different capacities i.e. 
Chancellor; 
(iv) 
that the powers of the President under Article 48(1) 
and (2) are comparable with that of the Governor in a 
Province in terms of latter’s powers under Article 
105(1). This Court in Al-Jehad Trust v. Federation of 
Pakistan (PLD 1997 SC 84 at 93 to 95) has dilated 
upon matters/Articles of the Constitution where the 
President is bound by the advice and where he can 
act in his discretion. This distinction has to be kept in 
view in the case of Governor as well; 
(v) 
that the advice of the Prime Minister is binding on 
President in some cases under the Constitution, 
whereas when the latter is acting under a Statute, he 
has discretionary powers to act. The afore-referred 
judgment does not lay down that President/Governor 
while performing functions in different capacities 
under a Statute, will be bound by the mandate of 
Article 48(1) and Article 105 of the Constitution 
respectively; 
(vi) 
that section 11(8) of the Act inserted through an 
amendment has incorporated Article 105 of the 
Constitution into the Act and this inserted provision 
applies to the functions of the Chancellor in respect 
C.P. No. 1017-L of 2011 
7 
of those matters set out in section 11 only and not 
those set out in section 14 of the said Act; 
(vii) 
that while interpreting section 11(8) of the Act, this 
Court has to keep in view the decision taken by the 
Chancellors’ Committee in its meeting held on 11th of 
May, 2006 under the chairmanship of President of 
Pakistan, para-7 of which unequivocally vests the 
power for appointment of Vice Chancellor in the 
Chancellor. The said para reads as follows:- 
“7. Vice Chancellors of all Provincial Public 
Universities 
should 
be 
appointed 
after 
advertisement through a search committee 
process. The search Committee will be 
required to put up a panel of 3 names for 
approval of the Chancellor from whom the 
Vice Chancellor may be selected.” 
 
 
(viii) that in the present case the above mentioned 
decision was followed. An advertisement was placed 
and the Search Committee recommended three 
names from which the Governor in his capacity as 
Chancellor, not Governor, selected one, in his 
discretion and gave credible reasons for his 
selection. This is fully in line with the scheme 
envisaged by the Act under section 14 and the law 
on the exercise of discretion; 
(ix) 
that in any event section 11(8) is wholly out of place 
in the Act and is contrary to the scheme of the Act. It 
C.P. No. 1017-L of 2011 
8 
is 
entirely 
inappropriate 
to 
incorporate 
a 
Constitutional provision into an ordinary piece of 
legislation which is relatable to the functions of the 
Governor under the Constitution rather than a 
Statute. Its incorporation can therefore be regarded 
as redundant vis-à-vis the working of the Act; and 
(x) 
that it is notable that when the Chief Minister ignored 
the summary by not recommending the first of the 
three in order of merit on the Search Committee’s list  
and interviewed only two of the three candidates, he 
gave no reasons as to why he preferred candidate 
No. 2 over candidate No. 1 or 3. On the other hand, 
the Chancellor/Governor interviewed all the three 
candidates selected by the Search Committee. After 
careful examination of their comparative merit, he 
considered Dr. Muhammad Zafar Ullah as the best of 
the lot which is not open to exception. 
7. 
Learned Advocate General Punjab, on the other hand, 
submitted as follows:- 
(i) 
that refusal of Governor of Punjab to appoint 
Professor Dr. Syed Khawaja Alqama and instead 
appointing Prof. Dr. Muhammad Zafar Ullah is not 
tenable in law: first because in terms of section 11(8) 
of the Act read with Article 105 of the Constitution, 
the Chancellor can only refer the matter back to the 
C.P. No. 1017-L of 2011 
9 
Chief Minister once for re-consideration, but when 
the said advice is re-tendered by the Chief Minister, 
the Governor has no option but to act in accordance 
therewith within ten days; 
(ii) 
that neither the Constitution nor the law permits him 
to sit in judgment over the advice of the Chief 
Minister and the law does not empower him to 
override the said advice; 
(iii) 
that the provisions of section 11(8) of the Act are 
based on the principle embodied in Article 105 of the 
Constitution and cannot be termed to be violative of 
Article 9, 14, 18 and 25 as contended in the written 
statement filed by the Attorney General; 
(iv) 
that the decision of the Second Chancellors’ 
Committee meeting dated 11.5.2006 cannot in any 
manner override a statutory provision contained in 
section 11(8) of the Act; 
(v) 
that the argument that Governor in his capacity as 
Chancellor is not performing the Constitutional 
functions and therefore is not bound by the advice 
completely 
ignores 
that 
Article 
105 
of 
the 
Constitution was inserted in the Act by legislative 
reference to which no exception can be taken and 
the advice of the Chief Minister wi th reference to 
section 11(8) of the Act is binding in the same 
C.P. No. 1017-L of 2011 
10 
manner on the Chancellor as the advice of the Chief 
Minister on the Governor because Article 105 of the 
Constitution is in pari materia to section 11(8) of the 
Act; 
(vi) 
that the Chief Minister was not bound to interview Dr. 
Muhammad Zafar Ullah though he was amongst the 
three recommended by the Search Committee for 
the slot of Vice Chancellor because first Dr. 
Muhammad Zafar Ullah was placed at No.3 in the list 
of 
candidates 
recommended 
by 
the 
Search 
Committee and, as such, it was the prerogative of 
the Chief Minister whether to call him for interview or 
not; and, second there was sufficient information 
available with the Chief Minister that the conduct of 
Dr. Muhammad Zafarullah had not been above 
board, and that he had been undergoing a number of 
inquiries during his previous tenure as the Vice 
Chancellor of the University; and 
(vii) 
that the Vice Chancellor is the academic head of the 
university and enjoys a pivotal position in various 
domains of the functioning of the University under 
the Statute. The delay in the appointment of Vice 
Chancellor is adversely affecting the functioning of 
the university and may have a negative effect on the 
fundamental right of Right to Education of the 
C.P. No. 1017-L of 2011 
11 
students. According to him, the Vice Chancellor of 
the University is head of the Senate which passes 
the annual statement of accounts and revised 
budgets; that he appoints members of the Syndicate; 
he convenes meeting of the Syndicate being its 
Chairman; he is head of the Academic Council; he in 
his capacity as Head of Board of Studies has to 
coordinate publication, research work, assigning 
subject to each faculty and convenes the meeting of 
the Selection Board which fills various posts in the 
University. 
 
8. 
We have considered the submissions made and have 
gone through the precedent case law to which reference has been 
made above. 
9. 
The issues mentioned in Para-5 above have nexus and 
are being dilated upon together. 
10. 
The role and functions of the Chancellor under the Act 
have been delineated in various provisions of the Act. In terms of its 
section 11(1), the Governor Punjab is the ex officio Chancellor of the 
University; Under section 11(2), he or his nominee presides over the 
Convocation of the University and the meeting of Senate; he has the 
power to issue show cause to an Authority functioning under the Act 
for annulling any proceedings which are violative of the Act, the 
Statute, the Regulations or the Rules framed under the Act [Section 
C.P. No. 1017-L of 2011 
12 
11(3)]; he confirms conferral of an honorary degree on any one 
[Section 11(4)]; he issues assent to Statutes which are to be 
submitted to him by the Senate [Section 11(5)]; and he has the 
power to remove any one from membership of any Authority under 
the Act for reasons given in sub-section (6) of Section 11. Sub-
section (8) of section 11 mandates that “in performance of his 
functions under the Act the Chancellor shall act and be bound in the 
same manner as the Governor of the Province acts and is bound 
under Article 105 of the Constitution of the Islamic Republic of 
Pakistan.” (Emphasis is supplied). He has the revisional powers 
(Section 11-A), powers of visitation and inspection (Section 12), 
power to appoint Vice Chancellor on such terms and conditions as 
he may determine, and he has the power to appoint Pro Vice 
Chancellor (section 15). 
11. 
Sub-section (8) of Section 11 of the Act referred to 
above was inserted along with certain other amendments by the 
Multan University (Amendment) Act, 1975 (Punjab Act No. XIX of 
1975, Section 2). The declared object and reasons for this 
amendment were as follows:- 
“it is also imperative that in order to preserve the 
academic atmosphere of the Universities, there 
should be effective machinery to regulate the 
conduct and behaviour of all people engaged in 
the instruction of the youth of the country.” 
 
12. 
A perusal of the Statutes relating to some other 
Universities in Punjab indicate that similar amendments were 
brought about in following Universities:- 
C.P. No. 1017-L of 2011 
13 
S.No. Description 
Amendment 
Reasons 
and 
Objects 
1. 
The University 
of the Punjab 
(Second 
Amendment) 
Bill, 1975 
In Section 11 after 
sub-section (7), sub-
section 
(8) 
was 
added. 
(8) 
In 
the 
performance of his 
functions under the 
Act the Chancellor 
shall 
act 
and 
be 
bound in the same 
manner 
as 
the 
Governor 
of 
a 
Province acts and is 
bound under Article 
105 
of 
the 
Constitution of the 
Islamic Republic of 
Pakistan. (Emphasis 
is supplied) 
It is necessary that 
principles of good 
Government 
as 
enunciated in the 
Constitution should 
be 
made 
applicable 
as 
widely as possible. 
It 
is, 
therefore, 
necessary 
to 
amend the law on 
the subject. 
2. 
The University 
of 
Agriculture 
Lyallpur 
(Second 
Amendment) 
Bill, 1975. 
In Section 11 after 
sub-section (7), sub-
section 
(8) 
was 
added. 
(8) 
In 
the 
performance of his 
functions under the 
Act the Chancellor 
shall 
act 
and 
be 
bound in the same 
manner 
as 
the 
Governor 
of 
a 
Province acts and is 
bound under Article 
105 
of 
the 
Constitution of the 
Islamic Republic of 
Pakistan. (Emphasis 
is supplied) 
It is necessary that 
principles of good 
Government 
as 
enunciated in the 
Constitution should 
be 
made 
applicable 
as 
widely as possible. 
It 
is, 
therefore, 
necessary 
to 
amend the law on 
the subject. 
3. 
The 
Islamia 
University 
of 
Bahawalpur 
(Amendment) 
Bill, 1975 
In Section 11 after 
sub-section (7), sub-
section 
(8) 
was 
added. 
(8) 
In 
the 
performance of his 
functions under the 
Act the Chancellor 
shall 
act 
and 
be 
It is necessary that 
principles of good 
Government 
as 
enunciated in the 
Constitution should 
be 
made 
applicable 
as 
widely as possible. 
It 
is, 
therefore, 
C.P. No. 1017-L of 2011 
14 
bound in the same 
manner 
as 
the 
Governor 
of 
a 
Province acts and is 
bound under Article 
105 
of 
the 
Constitution of the 
Islamic Republic of 
Pakistan. (Emphasis 
is supplied) 
necessary 
to 
amend the law on 
the subject. 
4. 
The 
Government 
College 
University, 
Lahore 
(Amendment) 
Bill, 2003 
In Section 9 after 
sub-section (6), sub-
section 
(7) 
was 
added. 
 
(7) 
In 
the 
performance of his 
functions under the 
Act the Chancellor 
shall 
act 
and 
be 
bound in the same 
manner 
as 
the 
Governor 
of 
a 
Province acts and is 
bound under Article 
105 
of 
the 
Constitution of the 
Islamic Republic of 
Pakistan. (Emphasis 
is supplied) 
As 
the 
Chief 
Minister 
is 
the 
executive head of 
the Province, the 
Governor 
in 
his 
capacity 
as 
Chancellor of the 
University shall act 
on his advice. The 
Minister 
for 
Education, Punjab 
should act as Pro-
Chancellor of the 
University and in 
order 
to 
create 
academic freedom 
for the University 
and 
to 
help 
it 
function 
smoothly 
representation 
of 
the 
Members 
of 
the 
Provincial 
Assembly 
in 
the 
Syndicate 
should 
be 
made. 
Therefore, 
the 
Government 
of 
Punjab 
has 
decided to amend 
the 
Government 
College University 
Lahore Ordinance, 
2002 
(XLVIII 
of 
2002).  
5. 
The University 
of 
Education, 
Lahore 
(Amendment) 
Bill 2003 
In section 10, after 
sub-section 6, sub-
section 7 was added. 
 
(7) 
In 
the 
As 
the 
Chief 
Minister 
is 
the 
executive head of 
the Province, the 
Governor 
in 
his 
C.P. No. 1017-L of 2011 
15 
performance of his 
functions under the 
Act the Chancellor 
shall 
act 
and 
be 
bound in the same 
manner 
as 
the 
Governor 
of 
a 
Province acts and is 
bound under Article 
105 
of 
the 
Constitution of the 
Islamic Republic of 
Pakistan. (Emphasis 
is supplied) 
capacity 
as 
Chancellor of the 
University shall act 
on his advice. The 
Minister 
for 
Education, Punjab 
should act as Pro-
Chancellor of the 
University and in 
order 
to 
create 
academic freedom 
for the University 
and 
to 
help 
it 
function 
smoothly 
representation 
of 
the 
Members 
of 
the 
Provincial 
Assembly 
in 
the 
Syndicate 
should 
be 
made. 
Therefore, 
the 
Government 
of 
Punjab 
has 
decided to amend 
the University of 
Education, Lahore 
Ordinance, 2002 (L 
of 2002). 
6. 
The University 
of 
Sargodha 
(Amendment) 
Bill, 2003 
In section 9, after 
sub-section (6), sub-
section 
(7) 
was 
added. 
 
(7) 
In 
the 
performance of his 
functions under the 
Act the Chancellor 
shall 
act 
and 
be 
bound in the same 
manner 
as 
the 
Governor 
of 
a 
Province acts and is 
bound under Article 
105 
of 
the 
Constitution of the 
Islamic Republic of 
Pakistan. (Emphasis 
is supplied) 
As 
the 
Chief 
Minister 
is 
the 
executive head of 
the Province, the 
Governor 
in 
his 
capacity 
as 
Chancellor of the 
University shall act 
on his advice. The 
Minister 
for 
Education, Punjab 
should act as Pro-
Chancellor of the 
University and in 
order 
to 
create 
academic freedom 
for the University 
and 
to 
help 
it 
function 
smoothly 
representation 
of 
the 
Members 
of 
C.P. No. 1017-L of 2011 
16 
the 
Provincial 
Assembly 
in 
the 
Syndicate 
should 
be 
made. 
Therefore, 
the 
Government 
of 
Punjab 
has 
decided to amend 
the University of 
Sargodha 
Ordinance, 
2002 
(LXXX of 2002). 
7. 
The University 
of Engineering 
& 
Technology 
Taxila 
(Amendment) 
Bill 2003 
In Section 9, after 
sub-section (5), sub-
section 
(6) 
was 
added. 
(6) 
In 
the 
performance of his 
functions under the 
Act the Chancellor 
shall 
act 
and 
be 
bound in the same 
manner 
as 
the 
Governor 
of 
a 
Province acts and is 
bound under Article 
105 
of 
the 
Constitution of the 
Islamic Republic of 
Pakistan. (Emphasis 
is supplied) 
As 
the 
Chief 
Minister 
is 
the 
executive head of 
the Province, the 
Governor 
in 
his 
capacity 
as 
Chancellor of the 
University 
should 
act on his advice. 
Government of the 
Punjab 
has 
therefore, decided 
to 
amend 
the 
University 
of 
Engineering 
and 
Technology, Taxila 
Act, 1994 (XII of 
1994). 
8. 
The 
Fatima 
Jinnah Women 
University, 
Rawalpindi 
(Amendment) 
Bill 2003 
In Section 8, after 
sub-section 6, sub-
section 7 was added. 
 
(7) 
In 
the 
performance of his 
functions under the 
Act the Chancellor 
shall 
act 
and 
be 
bound in the same 
manner 
as 
the 
Governor 
of 
a 
Province acts and is 
bound under Article 
105 
of 
the 
Constitution of the 
Islamic Republic of 
Pakistan. (Emphasis 
As 
the 
Chief 
Minister 
is 
the 
executive head of 
the Province, the 
Governor 
in 
his 
capacity 
as 
Chancellor of the 
University 
should 
act on his advice. 
Government of the 
Punjab 
has 
therefore, decided 
to 
amend 
the 
Fatima 
Jinnah 
Women University, 
Rawalpindi 
Ordinance, 
1999 
(XLIII of 1999).  
C.P. No. 1017-L of 2011 
17 
is supplied) 
 
13. 
There is no cavil to the proposition as canvassed by the 
learned Attorney General for Pakistan, Moulvi Anwarul Haq that 
there are matters/Articles where the President or the Governor, 
subject to Constitution, may act in their discretion. But those matters 
are not an issue before this Court and the attempt to extend the 
discretionary domain to the issue in hand has not been found by us 
to be backed by law. Here we are seized of giving effect to a Statute 
which incorporates a Constitutional provision by reference. In 
construing such a piece of legislation, the Court has to examine and 
keep in mind three things: (i) the Statement of Reasons and Objects 
given therein; (ii) the statement of objects given in other laws in pari 
materia to the one under consideration; and (iii) the mandate of the 
Constitutional provision which stands adopted by way of reference.  
14. 
A bare perusal of the statement of objects of the similar 
amending provisions in various Universities of Punjab, a detail of 
which has been given in the table above, reflects that the legislative 
intent was that “the principles of good government as enunciated in 
the Constitution should be made applicable” (The University of the 
Punjab Second Amendment Bill, 1975) or “as the Chief Minister is 
the executive head of the Province, the Governor in his capacity as 
Chancellor of the University shall act on his advice” [The 
Government College University, Lahore (Amendment) Bill 2003]. 
These amendments insert in the Statutes an important principle of 
C.P. No. 1017-L of 2011 
18 
Parliamentary 
Democracy 
enshrined 
in 
Article 
105 
of 
the 
Constitution which inter alia mandates that (at the Provincial level) 
“subject to Constitution, in the performance of his functions, 
Governor shall act [on and] in accordance with the advice of the 
Cabinet [or the Chief Minister].” 
15. 
The Constitutional intent and mandate of Article 48 and 
Article 105 are one of the foundational values of our Constitutional 
scheme. The Constitution of Islamic Republic of Pakistan underpins 
a system of Federal Parliamentary Democracy. The Governor of a 
Province under the Constitution enjoys an exalted position—he is a 
nominee of the President and a symbol of Federation in the 
Province, whereas 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 Minister 
and the Chief Minister respectively and in the manner as provided in 
the afore-referred provisions of the Constitution. The Governor while 
acting as Chancellor is a statutory functionary. By specific mention of 
Article 105 of the Constitution in section 11(8) of the Act and in 
laying down that, “in the performance of his functions under the Act, 
the Chancellor shall act and be bound in the same manner as the 
Governor of a Province acts and is bound under Article 105 of the 
Constitution of Islamic Republic of Pakistan”, the Legislature has 
blended the same value of supremacy of the Parliament/Provincial 
Assembly which underlie the adopted Constitutional provision.  
C.P. No. 1017-L of 2011 
19 
16. 
The insertion of sub-section (8) in section 11 of the Act 
and similar provisions in Statutes of other Universities are instances 
of referential legislation which is a common device to incorporate 
earlier statutory provisions by reference rather than setting out 
similar provisions in totality. Such a legislation is as old as the Latin 
maxim Verba relata hoc maxime operantur per referentiam ut in eis 
inesse videntur i.e. words to which reference is made in an 
instrument have the same effect and operation as if they were 
inserted in the clause referring to them.  
17. 
Referential legislation broadly is of two kinds i.e. either a 
specific provision of a certain Act is incorporated into another Statute 
or the provision of a certain Statute is incorporated by a general 
reference. Laws including the adopted provisions do not remain 
static and issues crop up when the adopted provisions are amended 
in 
the 
earlier 
Statute. 
The 
question 
whether 
subsequent 
amendments in such adopted provisions either by specific 
incorporation or by a general reference would be ipso facto read into 
the latter has been a subject of judicial comment. In Bajaya vs 
Gopikabai And Anr. (AIR 1978 SC 793), the Court was of the view 
as follows:- 
Broadly 
speaking, 
legislation 
by 
referential 
incorporation falls in two categories : First, where 
a statute by specific reference incorporates the 
provisions of another statute as of the time of 
adoption. Second, where a statute incorporates 
by general reference the law concerning a 
particular subject, as a genus. In the case of the 
C.P. No. 1017-L of 2011 
20 
former, the subsequent amendments made in the 
referred statute cannot automatically be read into 
the adopting statute. In the case of latter 
category, it may be presumed that the legislative 
intent 
was 
to 
include 
all 
the 
subsequent 
amendments also, made from time to time in the 
generic law on the subject adopted by general 
reference. This principle of construction of a 
reference statute has been neatly summed up by 
Sutherland, thus : 
A statute which refers to the law of a 
subject generally adopts the law on the 
subject as of the time the law is invoked. 
This will include all the amendments and 
modifications of the law subsequent to 
the time the reference statute was 
enacted. 
(Vide, Sutherland's Statutory Construction, 
Third Edition, Article 5208, page 5208). 
Corpus Juris Secundum also enunciates the 
same principle in these terms : 
...Where the reference in an adopting 
statute is to the law generally which 
governs the particular subject, and not 
to 
any 
specific 
statute 
or 
part 
thereof,...the reference will be held to 
include the law as it stands at the time it 
is sought to be applied, with all the 
changes made from time to time, at 
least as far as the changes are 
consistent with the purpose of the 
adopting statute.” 
18. 
In a rather instructive judgment of the Lahore High 
Court in Pakistan International Airlines Corporation v. Chairman, 
C.P. No. 1017-L of 2011 
21 
Punjab Labour Appellate Tribunal, Lahore (PLD 1979 Lahore 415), 
the rule of interpretation in this context was summed up as follows:- 
“37. The rule of interpretation to be inferred from 
all the references quoted above is: 
(a) When a statute adopts a part or all of another 
statute by specific or descriptive reference the, 
adoption takes the statute as it exists at that time 
and the adopted , provisions with necessary 
adaptations if any became a part of the adopting 
statute as if it was written down in it; 
(b) any subsequent addition to or modification of 
the adopted statute, can be included in the -
adopting statute only if so expressly or impliedly 
provided in the adopting statute; 
(c) When particular sections of an earlier statute 
are expressly incorporated into a later statute the 
other sections of the earlier statute may be 
referred to in order to resolve any ambiguity or 
obscurity that may arise in its interpretation of that 
section; 
(d) When the adopting statute refers to law 
generally which governs a particular subject, the 
reference in such a case includes not only the law 
in force at the date of adopting act but all 
subsequent laws on the particular subject referred 
to, in so far as they are consistent with the 
adopting law; 
(e) When Legislature in adopting the procedural 
provisions of another Act, made substitutions in 
certain instances, it will be inferred that in matters 
not specified no substitutions were intended.” 
 
19. 
In a recent judgment  of the Supreme Court of India 
dated 11.1.2011 passed in M/s Girnar Traders v. State of 
Maharashtra & Ors (Civil Appeal No. 3703 of 2003 & Civil Appeal 
C.P. No. 1017-L of 2011 
22 
No. 292 of 2011), a similar view was taken and it was held as 
follows:- 
“Reference to an earlier law in the latter law could 
be a simple reference of provisions of earlier 
statute or a specific reference where the earlier 
law is made an integral part of the new law, i.e., 
by incorporation. In the case of legislation by 
reference, it is fictionally made a part of the latter 
law. 
We 
have 
already 
noticed 
that 
all 
amendments to the former law, though made 
subsequent to the enactment of the latter law, 
would ipso facto apply and one finds mention of 
this particular aspect in Section 8 of the General 
Clauses Act, 1897. In contrast to such simple 
reference, legal incidents of legislation by 
incorporation is that it becomes part of the 
existing law which implies bodily lifting provisions 
of one enactment and making them part of 
another 
and 
in 
such 
cases 
subsequent 
amendments in the incorporated Act could not be 
treated 
as 
part 
of 
the 
incorporating 
Act. 
Ultimately, it is the expression and/or the 
language used in the new law with reference to 
the existing law that would determine as to under 
what class of referential legislation it falls.” 
 
20. 
The effect of this referential legislation [Section 11(8) of 
the Act] would be that any Constitutional amendment made in the 
said Article would be read into the amended provision of the Act. 
Consequently the amendments brought about in Article 105 of the 
Constitution by virtue of the 18th Amendment (Act X of 2010) would 
be fully applicable. Article 105 as amended reads as follows:- 
“105. Governor to act on advice, etc.—(1) 
Subject to Constitution, in the performance of his 
C.P. No. 1017-L of 2011 
23 
functions, 
Governor 
shall 
act 
[on 
and] 
in 
accordance with the advice of the Cabinet [or the 
Chief Minister]: 
[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.] 
(Emphasis is supplied). 
 
(2) The question whether any, and if so what, 
advice was tendered to the Governor by the Chief 
Minister [or Cabinet] shall not be inquired into in, 
or by, any court, tribunal or other authority. 
 
[(3) ………. 
 
(a) ……… 
 
(b) ……… 
(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”.] 
 
21. 
The 
principle 
of 
Parliamentary 
Democracy 
or 
supremacy of the Parliament which underlie the afore-mentioned 
provision is also reflected at the Federal Level in Article 48(1) of the 
Constitution qua the binding nature of the advice tendered by the 
Prime Minister to the President and has time and again been 
highlighted by this Court. In a seminal judgment titled as Mian 
Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 
473 at 567), it was held as follows:- 
“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(l)] and 
the Cabinet in its turn is collectively responsible to 
C.P. No. 1017-L of 2011 
24 
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 
Government 
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. Undoubtedly, both are 
expected to work in harmony and in close 
collaboration for the efficient running of the affairs 
of the State but as their roles in the Constitution 
are defined, which do not overlap, both can 
exercise their respective functions unhindered 
and without bringing the machinery of the 
Government to a standstill. Despite personal likes 
or dislikes, the two can co-exist Constitutionally. 
Their personal likes or dislikes are irrelevant so 
far as the discharge of their Constitutional 
obligations are concerned. Despite personal 
rancour, 
ill-will 
and 
incompatibility 
of 
temperament, no deadlock, no stalemate, no 
breakdown can arise if both act in accordance 
with the terms or the Oath taken -by them, while 
accepting their high office. They have sworn: 
C.P. No. 1017-L of 2011 
25 
.not to allow their personal interest to influence 
their official conduct or their official decisions." 
And taken Oath: 
"to do right in all circumstances, to all manner of 
people, according to law, without fear or favour, 
affection or ill-will." 
22. 
In yet another Full Court judgment of this Court in Sindh 
High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 
879), the Hon’ble Chief Justice of Pakistan, Mr. Justice Iftikhar 
Muhammad Chaudhry, speaking for the Court, reiterating the ratio 
laid down in Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 
84), observed as follows:- 
“198. In Al-Jehad Trust v. Federation of Pakistan 
(PLD 1997 SC 84), it was held that in respect of 
appointments of Judges as contemplated under 
Articles 177 and 193 of the Constitution, advice of 
the Cabinet or Prime Minister under Article 48(1) 
would be attracted, but the same would be further 
qualified by, and subject to the ratio decidendi of 
the judgment passed in Al-Jehad Trust v. 
Federation of Pakistan (PLD 1996 SC 324). 
Following the principles enunciated in the 
aforesaid two judgments, it is declared that in the 
matter of appointment of Judges of the High 
Courts, the Governor could act only on the advice 
of the Chief Minister in terms of Article 105 of the 
Constitution. In this view of the matter, the fact 
that the recommendations of the Governor in the 
case of the respondents Nos. 3 and 4 acting 
otherwise than on the advice or in absence of the 
advice of the Chief Minister were invalid even 
though 
the 
same 
coincided 
with 
the 
recommendation of Abdul Hameed Dogar, J.” 
 
 
23. 
In a recent case pertaining to appointment of Vice 
Chancellor of Government College University, Faisalabad, a learned 
Division Bench of the Lahore High Court in Intra Court Appeal Nos. 
C.P. No. 1017-L of 2011 
26 
243 and 245 of 2010 has already held that the Chancellor of the 
University/Governor of Punjab is bound by the advice tendered by 
the Chief Minister qua appointment of Vice Chancellor. In this 
judgment, the Chancellor/Governor of the Punjab was a party and 
the judgment has attained finality and it was not interfered with by 
this Court. 
24. 
In the instant case, the Chief Minister of Punjab having 
received a panel of three candidates recommended by the Search 
Committee advised the Governor of Punjab vide Summary dated 
25.6.2011 to appoint Dr. Syed Khawaja Alqama as Vice Chancellor 
of the University. The summary reads as follows:- 
“Chief Minister, after interviewing the first two 
candidates on the panel recommended by the 
Search Committee, is of the view that Dr. Syed 
Khawaja Alqama s/o Khawaja Khair-ud-Din is 
more suitable for appointment as Vice Chancellor, 
Bahauddin Zakariya University, Multan and has 
been pleased to advise the Governor/Chancellor 
in terms of section 14 and section 11(8) of the 
Bahauddin Zakariya University, Multan Act, 1975 
read with Article 105 of the Constitution of the 
Islamic Republic of Pakistan to appoint Dr. Syed 
Khawaja Alqama as Vice Chancellor of the said 
University for a term not exceeding four years.” 
 
 
25. 
The Chancellor of the University/Governor of Punjab 
instead of acting on the advice tendered by the Chief Minister, or 
sending it back to him for reconsideration in terms of Article 105(1) 
of the Constitution, himself interviewed the panel of three candidates 
(selected by the Search Committee) and sent a memo to the Chief 
Minister on 7.7.2011 in purported exercise of appointing Dr. 
C.P. No. 1017-L of 2011 
27 
Muhammad Zafarullah as the Vice Chancellor and gave his own 
reasons which inter alia are as follows:- 
(i) 
The amended provision in Sub Section 8 of 
Section 11 would itself be void under Article 
8 of the Constitution impinging upon the 
Fundamental Rights of Articles 9, 14, 18 
and 25 of the Constitution of the Islamic 
Republic of Pakistan and hence, by virtue 
of inbuilt mandate of the Constitution, the 
extent of such inconsistency (Sub Section 
8), the amending Act would be void and 
non-operative, ineffective and liable to be 
declared accordingly by the Judicial for a 
causing 
embarrassment 
to 
the 
Government. 
(j) 
As per prevailing position in the Federally 
Chartered Public Sector Universities, the 
Head of the State as Chancellor appoints 
the Vice Chancellors at his discretion. 
Similarly 
in 
the 
other 
Provinces, 
Constitutional Heads of the Provinces 
exercise such powers in their capacity as 
Chancellors without the advice of the Chief 
Ministers. This is also reflected from the 
decision of the 2nd Chancellors Committee 
meeting held on 11.05.2006, as indicated 
at Para 1 ante. Accordingly, the affairs of 
the Universities including appointment of 
Vice Chancellors of the Public Sector 
Universities in Punjab are also the sole 
prerogative of the Governor/Chancellor, to 
maintain parity in line with the Federation 
as well as other Provinces. As also to 
sustain educational excellence through 
integrated 
expansion 
of 
curricula, 
disciplines, policies in tune with national 
aspirations and international accreditation, 
a cohesive uniformity is imperative and 
consistent with the propounded exposition. 
 
In view of the above, I, in exercise of the powers 
vested in me, in my capacity as Chancellor, under 
Section 
14(1) 
of 
the 
Bahauddin 
Zakariya 
University Act, 1975, hereby appoint Prof. Dr. 
Muhammad 
Zafarullah 
as 
Vice 
Chancellor, 
Bahauddin Zakariya University, Multan, for a 
period of four years, with immediate effect.” 
C.P. No. 1017-L of 2011 
28 
 
 
26. 
The procedure adopted by the Chancellor/Governor of 
Punjab for purported appointment of Prof. Dr. Muhammad Zafarullah 
is not countenanced in section 11(8) of the Act read with Article 
105(1) of the Constitution. The only option which the Chancellor had 
under the afore-referred provision is given in 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” 
(emphasis is supplied). The timeline given in Article 105 of the 
Constitution within which the Governor is to act, is intended to avoid 
deadlock and friction between the two Constitutional functionaries. 
The Chancellor’s summary reflects a lack of understanding of both 
the legal and Constitutional provisions which regulate the powers of 
the Chancellor of the University. The mandate of law cannot be 
frustrated. We, therefore, hold that the summary sent by the 
Chancellor to appoint a person of his choice as Vice Chancellor 
against the advice tendered by the Chief Minister (recommending 
Prof. Dr. Syed Khawaja Alqama as Vice Chancellor of the University) 
be treated as a reference for reconsideration by the Chief Minister 
and the letter of the Chief Minister holding that the Chancellor’s 
attempt to appoint a person of his choice was violative of section 
11(8) of the Act read with Article 105(1) of the Constitution, 
C.P. No. 1017-L of 2011 
29 
reiterating the earlier advice for appointment of Prof. Dr. Syed 
Khawaja Alqama as Vice Chancellor, shall be deemed to be the 
advice of the Chief Minister after reconsideration and shall be given 
effect to accordingly. The said summary/advice reads as follows:- 
“Chief Minister has seen and has observed as 
under:- 
 
The purported powers claimed by the 
Governor in his capacity as Chancellor and 
the 
consequent 
“appointment” 
of 
Dr. 
Muhammad Zafarullah, as Vice Chancellor, 
Bahauddin Zakariya University, Multan, 
claimed to have made by him, have no 
legal or constitutional basis. Nor does the 
Chancellor have the authority to arrogate to 
himself the power to sit over the judgment 
of the Chief Minister, inter alia, in the matter 
of advice given by him in the context of 
Section 14(1) read with Section 11(8) of 
Bahauddin Zakariya University Act, 1975. 
 
Accordingly, the purported appointment of 
Dr. Muhammad Zafarullah, in disregard of 
the advice of the Chief Minister (para 
9/ante), is illegal, void ab initio and of no 
legal effect in view of Section 14(1) and 
Section 11(8) of the Bahauddin Zakariya 
University, Multan Act, 1975, read with 
Article 105 of the Constitution and the legal 
opinion at Annex-K (paras 18 and 26). Be 
that as it may, considering the observations 
of 
the 
Chancellor 
as 
a 
referral 
for 
reconsideration, particularly in view of the 
contents of para 11(a) to (e) supra, the 
Chief Minister, after thoroughly examining 
the case from all conceivable angles, is 
pleased again to advise the Chancellor to 
appoint Dr. Syed Khawaja Alqama as Vice 
Chancellor of the said University for a term 
of four years. 
The case may be placed before the Chancellor 
accordingly.” 
 
 
Sd/- 
 
(Abdul Qayoum) 
C.P. No. 1017-L of 2011 
30 
 
Additional Secretary 
 
Chief Minister’s Secretariat” 
 
 
27. 
The afore-mentioned summary/advice by the Chief 
Minister after reconsideration is dated 11.7.2011. More than three 
months have gone by, although the timeline provided under Article 
105 of the Constitution is ten days within which the Chancellor was 
to act on the advice. The lack of appreciation reflected in the 
summary of the Chancellor/Governor of Punjab of the mandate of 
law can neither be permitted to frustrate the legislative intent, nor the 
university’s disarray can be allowed to remain unchecked.  
28. 
In the afore-referred circumstances, we further hold that 
the summary dated 11.7.2011 sent after reconsideration by the 
Chief Minister shall be deemed to have been acted upon and the 
department 
concerned 
shall 
issue 
the 
requisite 
notification 
accordingly. 
29. 
It is imperative to remind ourselves particularly those 
who are under Oath, “to defend and protect” the Constitution that in 
terms of Article 5(2), “obedience to the Constitution and law is the 
[inviolable] obligation of every citizen wherever he may be and of 
every other person for the time being within Pakistan.” A 
Constitutional provision which is time bound is always mandatory 
unless the context otherwise provides so. The provisions of Article 
254 of the Constitution i.e. “failure to comply with requirement as to 
time does not render an act invalid” are not intended to condone 
non-compliance of a mandatory and time bound provision, rather are 
C.P. No. 1017-L of 2011 
31 
meant to save the action taken belatedly. In the instant case, we are 
not dealing with a delayed act but a failure to act as mandated by 
the Constitution. 
30. 
We may add that prior to Eighteenth Amendment 
[brought about by Constitution (Eighteenth Amendment) Act, 2010 
(Act No. X of 2010)], no timeline was provided within which the 
President was to act under the advice of the Prime Minister (Article 
48) or the Governor was to act on the advice of the Chief Minister 
(Article 105). The absence of timeline could be problematic. It was 
vulnerable to misuse, had the potential to cause delay in decision 
making and to impede the working of two elected office holders 
enjoying majority in respective Assemblies i.e. the Prime Minister at 
the Federal Level and the Chief Minister at the Provincial Level. This 
could have a destabilizing effect on democracy. It goes to the eternal 
credit of those who amended these provisions by the Eighteenth 
Amendment that the options available to the two important 
Constitutional functionaries i.e. the President (under Article 48) and 
the Governor (under Article 105) were made time bound. Although 
the consequences of non-compliance with these timelines are not 
provided in the amended provisions, yet this Court has to give a 
purposive interpretation to make the Constitution a living document. 
One may imagine the consequences on the affected institutions, if 
the legislative intent is not given effect to. Unfortunately one of our 
national banes has been that we tend to live in history but do not 
learn form it. Friction between the President and the Prime Minister 
C.P. No. 1017-L of 2011 
32 
[with reference to enforcement of Article 48(1) of the Constitution] or 
between the Governor and the Chief Minister [with reference to 
Article 105(1) of the Constitution] has been a recurrent theme of our 
Constitutional history and one of the causes of political instability. 
Societies grow and nations progress by strict adherence to the rule 
of law. Judges have nothing to do with shades of public opinion 
which the holders of public office may represent or with the passions 
of the day which sway public opinion. Their task is to tenaciously and 
fiercely uphold and implement the Constitution and the law. In the 
words of Lord Justice Lawton:- 
“Their function is to decide whether a minister has 
acted within the powers given to him by statute or 
the common law. If he is declared by a court, after 
due process of law, to have acted outside his 
powers, he must stop doing what he has done 
until such time as Parliament gives him the 
powers he wants. In a case such as this I regard 
myself as a referee. I can blow my judicial whistle 
when the ball goes out of play; but when the 
game restarts I must neither take part in it nor tell 
the players how to play2.” 
 
31. 
Blowing a “judicial whistle” is a Constitutional mandate 
which a Judge can neither shun when it is time to blow, nor can do 
so without a just cause. 
32. 
The deadlock between two important holders of public 
offices evidenced in this case is not merely a political issue. It has 
wider ramifications which may not be difficult to fathom. It is 
adversely affecting the working of various institutions and in this 
                                                 
2 Laker Airways v. Deptt. Of Trade, 1977 (2) WLR 234 at 267. 
C.P. No. 1017-L of 2011 
33 
particular case an important educational institution i.e. the University 
and consequently the quality of education.  
33. 
Right to education is a fundamental right as it ultimately 
affects the quality of life which has nexus with other Fundamental 
Rights guaranteed by the Constitution under Article 4 and 9 of the 
Constitution of Islamic Republic of Pakistan. Awareness of rights and 
duties, growth of civic consciousness in a society, enjoyment of 
Fundamental Rights guaranteed under the Constitution and legal 
empowerment of people depend to a great extent on the quality of 
education. People cannot be free in the real sense unless they are 
properly educated. In Ahmed Abdullah v. Government of the Punjab 
(PLD 2003 Lahore 752 at 791), a case decided by a Full Bench of 
the Lahore High Court and wherein one of us (Tassaduq Hussain 
Jillani, J.-) authored the judgment, it had been held as under:- 
26. The fundamental right of "right to life" 
recognized in the entire civilized world and 
enshrined in Article 9 of our Constitution has been 
given expanded meaning over the years. With the 
passage of time the role of the State has become 
more pervasive. Its actions, policies and laws 
affect the individuals in a variety of ways and the 
Courts 
have 
accordingly 
given 
a 
more 
comprehensive and dynamic interpretation of the 
fundamental rights including the right to life. Right 
to life is no longer considered as merely a right to 
physical existence or a right not to be deprived of 
life without due process of law. It means a sum 
total of rights which an individual in a State may 
require to enjoy a dignified existence. In modern 
age a dignified existence may not be possible 
without a certain level of education and the State 
has to play a role in ensuring by positive action 
that the citizens enjoy this right. In Brown v. 
Board of Education (1953) 98 Law Ed. 873, the 
C.P. No. 1017-L of 2011 
34 
US Supreme Court acknowledged this right and 
held as under:-- 
 
"Today, education is perhaps the most important 
function of State and Local Governments ... ... .... 
.. it is required in the performance of our most 
basic responsibilities, even service in the Armed 
Forces, it is the very foundation of good 
citizenship. Today, it is the principal instrument in 
awakening the child to cultural values, in 
preparing him for later professional training, and 
in helping him to adjust normally to his 
environment'. In these days, it is doubtful and 
child may reasonably be expected to succeed in 
life if he is denied the opportunity of an education. 
" 
 
 
34. 
Universities are seats of learning and centres of 
excellence. They not only enable the future generations to equip 
themselves with degrees/practical tools to earn livelihood, but also 
enrich them with learning, with wisdom and with visions for practical 
lives. To achieve its objects, the University functions besides the 
Chancellor and Vice Chancellor through its various institutions i.e. 
the faculty, the Senate, the Syndicate and Board of Studies. The 
Vice Chancellor is its institutional head and enjoys a pivotal position. 
Being the executive and academic head of the University, it is for 
him to ensure that the University’s Statute, Regulations and Rules 
are faithfully observed. He presides over the meetings of various 
bodies of the University and affiliated colleges. In matters of urgent 
nature, it is he who takes remedial steps; it is he who creates 
temporary posts when the urgency requires; he sanctions 
expenditures provided for in the approved budget, re-appropriates 
amounts not exceeding a certain amount; he convenes meetings of 
C.P. No. 1017-L of 2011 
35 
the Senate and the Syndicate. He is the bridge between the 
executive and academic wings of the University. It is this multi-
dimensional role of the Vice Chancellor which requires that the 
person who occupies this office should be imbued with values and 
character 
traits 
of 
integrity, 
of 
academic 
excellence 
and 
administrative ability. It is because of this that the search for Vice 
Chancellor the world over has been an exercise driven by higher 
principles. In our own country, the University Grants Commission 
has laid down a procedure for appointment of Vice Chancellor which 
inter alia requires the constitution of a Search Committee. The said 
Search Committee comprises of eminent individuals having 
distinction in various disciplines. The Search Committee is to 
recommend a panel of three candidates out of which the competent 
authority has to appoint one as Vice Chancellor.  
35. 
The afore-referred description of the role of the Vice 
Chancellor under the Act would show how the delay in appointment 
of such an important functionary would adversely affect the working 
of the University and would make the institution almost dysfunctional 
and would thereby adversely affect inter alia the quality of education. 
36. 
Adverting to the validity of the judgment under 
challenge, the submissions of petitioners’ learned counsel qua the 
maintainability of petition before the High Court have been 
considered by us. However, we find that the impugned judgment 
even if having some element of jurisdictional defect has been 
passed in aid of justice and any interference would not be in accord 
C.P. No. 1017-L of 2011 
36 
with the canons of equity. Because respondent No.1’s grievance 
was that the principles of natural justice and due process had been 
violated when he was called for the interview but not considered. It is 
not denied that in terms of the qualifications prescribed as reflected 
in advertisement, respondent No.1 was qualified to compete for the 
post in question and the only Ph.D. in the subject among the 
shortlisted candidates. He was sent a letter to appear for interview, 
was called in on the day of interview by the Selection Committee but 
was not put any question and practically was not interviewed. In the 
minutes of the Selection Committee, no reason was recorded as to 
why he was not interviewed nor any reason was conveyed to him. 
The plea taken by the respondent-University before the Court that 
the Committee did not deem it proper to interview him because an 
enquiry was pending appears to be an afterthought and even 
otherwise in absence of any penalty, he could not have been 
condemned. In refusing to interview respondent No.1 without 
assigning any reason, the Selection Committee acted arbitrarily in 
the exercise of the discretion vested in it. Dilating on the principles 
which weigh with the courts while exercising the power of judicial 
review, S.A. de Smith in his book ‘Judicial Review of Administrative 
Action’ (3rd Edition) at page 452 adverts to this aspect as follows:- 
"The relevant principles formulated by the Courts 
may be broadly summarised as follows. The 
authority in which a discretion is vested can be 
compelled to exercise that discretion, but not to 
exercise it in any particular manner. In general, a 
discretion must be exercised only by the authority 
to which it is committed. That authority must 
C.P. No. 1017-L of 2011 
37 
genuinely address itself to the matter before it: it 
must not act under the dictation of another body 
or disable itself from exercising a discretion in 
each individual case. In the purported exercise of 
its discretion it must not do what it has been 
forbidden to do, nor must it do what it has not 
been authorised to do. It must act in good faith, 
must have regard to all relevant considerations 
(emphasis supplied) and must not be swayed by 
irrelevant considerations, must not seek to 
promote purposes alien to the letter or to the spirit 
of the legislation that gives it power to act, and 
must not act arbitrarily or capriciously (underlining 
is 
ours). 
These 
several 
principles 
can 
conveniently be grouped in two main categories: 
failure to exercise a discretion, and excess or 
abuse of discretionary power. The two classes 
are not, however mutually exclusive. Thus, 
discretion may be improperly fettered because 
irrelevant considerations have been taken into 
account; and where an authority hands over its 
discretion to another body it acts ultra vires. Nor, 
as will be shown, is it possible to differentiate with 
precision the grounds of invalidity contained 
within each category." 
 
 
37. 
In Federation of Pakistan v. Charsadda Sugar Mills 
Limited (1978 SCMR 428), this Court was called upon to consider a 
judgment of the High Court whereby relief was granted against an 
order passed by the Central Board of Revenue which reflected 
arbitrariness, absence of conscious application of mind and for 
considerations other than law. The Court observed as follows:- 
"It is self-evident that the Central Board of 
Revenue in allowing the partial abatement was 
satisfied that the shortfall in the production 
capacity was substantial and beyond the control 
of the respondent but to the extent of 855.53 tons 
only. In disallowing the shortfall for the remaining 
2,643.16 tons of sugar claimed by the respondent 
the Board merely relied on its own formula by 
applying the 10$ cut on the total production 
capacity of 26,000 tons per annum. It has failed to 
C.P. No. 1017-L of 2011 
38 
even consider the case set up by the respondent 
in its application made under Rule 4 of the Rules. 
In doing so the Board acted almost mechanically 
and failed to exercise the discretion vested in it 
under the law. It was the duty of the Board to 
have acted justly, fairly and reasonably having full 
regard to the facts and circumstances of the case 
before it. The Board did not even weigh and 
examine the merits of the claim pleaded by the 
respondent. This indeed, tantamount to the 
refusal on the part of the Board to exercise 
quasi-judicial discretion vested in it under the law. 
We, therefore, find that the judgment delivered by 
the High Court is unexceptionable and hereby 
dismiss this petition." 
 
 
38. 
Lord Denning expressed similar views on exercise of 
discretionary authority (in his book ‘The Closing Chapter’) when 
relying on a judgment of Court of Appeals of England & Wales (1948 
1 KB 223, 234) authored by Lord Greene (Master of the Rolls) he 
said:- 
“Again, if a public authority is entrusted, as part of 
its public law function, with the exercise of a 
discretion, it must take into account all relevant 
considerations. It must not be influenced by any 
irrelevant consideration. And its discretion must 
be exercised reasonable—in this sense, that it 
must not be so unreasonable that no reasonable 
authority could have reached it.” 
 
 
39. 
This Court would not interfere in the judgment of the 
High Court on yet another salutary principle of equity i.e. if in the 
exercise of Constitutional jurisdiction it has passed an order to 
remedy a manifest wrong. In Messrs Norwich Union Fire Insurance 
Society Limited v. Muhammad Javed Iqbal (1986 SCMR 1071), it 
was observed as follows:- 
C.P. No. 1017-L of 2011 
39 
“In this view of the matter, as laid down in Raunaq 
Ali v. Chief Settlement Commissioner PLD 1973 
SC 236, the High Court was within its power to 
refuse relief in writ jurisdiction, where the 
impugned order before it had the effect of 
fostering justice and righting a wrong, even 
though the authority concerned had acted clearly 
without jurisdiction. The High Court having acted 
in consonance with this higher principle of justice 
laid down by this Court, there is no justification for 
taking exception to the impugned judgment. The 
other question of law need not, therefore, be 
examined.” 
 
 
40. 
The respondent-University though did not challenge the 
impugned judgment, yet its Registrar has submitted a report/written 
statement dated 17.09.2011 to the effect that the Enquiry Committee 
entrusted with the task of inquiring into the charge of misconduct 
against respondent No.1 has submitted its finding and the same 
would be placed before the Syndicate whenever its meeting is 
convened, for consideration. The findings of the Enquiry Officer 
dated 17.3.2011 are to the following effect:- 
1. 
Dr. Minhaj Ahmad Khan remained absent 
from his duty without approval of leave from 
the competent authority. 
 
2. 
The unauthorized absence from duty is 
considered misconduct in view of the 
provision of PEEDA Act 2006 and hence 
Dr. Minhaj Ahmad Khan is found to be 
guilty in this context. 
 
3. 
The absence from duty period is less than 
one (1) year, hence, in view of the provision 
of PEEDA Act 2006 penalty should be of 
minor degree. It should be not more than 
withholding one annual increment without 
any cumulative effect.” 
 
C.P. No. 1017-L of 2011 
40 
41. 
We would not like to comment on the afore-referred 
findings as it is for the Syndicate, at appropriate stage, to consider 
and decide about the matter in accordance with law. However, the 
fact remains that on the date when he was shortlisted and called for 
interview on 8.8.2010, there was neither any finding against him nor 
penalty. Even otherwise, it was not a case of promotion but a case of 
fresh appointment. 
42. 
It was also brought to our notice that another seat of 
Assistant Professor Computer Sciences for which the parties had 
competed is available and without disturbing the petitioners, 
respondent No.1 could be accommodated. This factual position was 
not specifically controverted by the respondent-University. If that be 
so, the direction for fresh interview would be confined to respondent 
No.1 and if he gets selected, the inter se seniority shall be re-
determined as if respondent was interviewed along with the 
petitioners. If no fresh seat is available, the entire exercise would be 
carried out afresh strictly in terms of the impugned judgment. 
43. 
So far as withholding of salary of respondent No.1 is 
concerned, there is nothing on record and even in the report 
submitted by the Registrar before this Court to indicate that there is 
any order passed by the competent authority to withhold his salary. 
In these circumstances, the same is without any lawful authority and 
respondent-University is directed to release his salary and arrears, if 
any, forthwith. 
C.P. No. 1017-L of 2011 
41 
44. 
For what has been discussed above, we hold, declare 
and direct as under:- 
(i) 
that 
notwithstanding 
the 
powers 
under 
the 
Constitution where the Governor may act in his 
discretion, the Governor while acting as Chancellor 
is a statutory functionary in terms of section 11(1) of 
the Bahauddin Zakariya University Act and in the 
performance of his functions under the Act, he is to 
act and is bound by the advice tendered by the Chief 
Minister in the manner provided in section 11(8) of 
the Act read with Article 105 of the Constitution of 
Islamic Republic of Pakistan; 
(ii) 
that the Chancellor of the University/Governor of 
Punjab is bound by the timeline given in proviso to 
Article 105 of the Constitution 
which 
stands 
incorporated in the Act by legislative reference i.e. 
within fifteen (15) days he may require the Chief 
Minister or the Cabinet, as the case may be, to 
reconsider the advice and if such a reference/advice 
is tendered after reconsideration by the Chief 
Minister, he is bound to act within ten (10) days of 
having received it; 
(iii) 
that the Chief Minister had sent the summary for 
appointment of Dr. Syed Khawaja Alqama as Vice 
Chancellor on 25.6.2011. The Chancellor/ Governor 
C.P. No. 1017-L of 2011 
42 
of Punjab instead of acting on such advice, vide 
memo dated 7.7.2011, purported to appoint Prof. Dr. 
Muhammad Zafarullah as Vice Chancellor, which 
shall be deemed as a reference to the Chief Minister 
for reconsideration. The summary of the Chief 
Minister dated 11.7.2011 in terms of which the Chief 
Minister reiterated his earlier advice with regard to 
appointment of Dr. Syed Khawaja Alqama as Vice 
Chancellor shall be deemed to be the advice 
tendered by him after reconsideration; 
(iv) 
that as the Chancellor/Governor of Punjab was to act 
on the reconsidered advice within ten (10) days and 
as more than three months have elapsed since the 
tendering of reconsidered advice, the same shall be 
deemed to have been acted upon and the concerned 
department 
may 
issue 
requisite 
notification 
accordingly; 
(v) 
that since respondent No.1 was the only Ph.D. 
among the shortlisted candidates for appointment as 
Assistant Professor Computer Sciences and despite 
having been called for interview, he was not 
considered, the interference by the learned High 
Court and direction for a denovo exercise of 
selection from amongst the shortlisted candidates 
has not been found by us to be against the canons of 
C.P. No. 1017-L of 2011 
43 
equity and no case for interference except partial 
modification of the impugned judgment is made out; 
and 
(vi) 
that the meeting of the Selection Committee shall be 
convened by the new Vice Chancellor forthwith and 
he shall ensure that the matter is processed in terms 
of Paras 42 & 43 of this judgment. 
 
 
The petition is partly converted into appeal and allowed 
i.e. the impugned judgment is modified in terms noted above. 
 
JUDGE 
 
JUDGE 
 
JUDGE 
 
Announced in Open Court at Islamabad on 07.10.2011. 
 
 
 
JUDGE 
 
APPROVED FOR REPORTING 
Khurram Anees 
C.P. No. 1017-L of 2011 
44 
 
Asif Saeed Khan Khosa, J.: The 
proposed 
judgment 
authored by my learned brother Tassaduq Hussain Jillani, J. is quite 
comprehensive and I fully endorse the same but there are certain 
aspects of the relevant constitutional issue which I would like to 
highlight and explain through the present note.  
 
2. 
By virtue of subsection (1) of section 11 of the Bahauddin 
Zakariya University Act, 1975 the Governor of the Punjab is ex 
officio to be the Chancellor of that University and, thus, the said 
statute adds another function to the many other constitutional and 
statutory functions to be performed by the Governor. In terms of 
clause (1) of Article 105 of the Constitution of the Islamic Republic of 
Pakistan, 1973 “in the performance of his functions, the Governor 
shall act on and in accordance with the advice of the Cabinet or the 
Chief Minister” and the said constitutional provision does not 
recognize any distinction between the Governor’s functions under 
the Constitution and his functions under any statute.  
 
3. 
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 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 
C.P. No. 1017-L of 2011 
45 
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 
[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 Government 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.” 
 
(italics have been supplied for emphasis) 
 
In a recent case of Shahid Orakzai v. Pakistan through Secretary 
Law, Ministry of Law, Islamabad (PLD 2011 SC 365) an Hon’ble 
former Judge of this Court had been appointed by the President of 
Pakistan as Chairman, National Accountability Bureau without the 
advice of the Prime Minister under an impression that the power 
derived for such appointment from the National Accountability 
Ordinance, 1999 was a statutory power of the President and not a 
function of the President conditioned by the Constitution to be 
performed upon an advice of the Prime Minister but upon the 
initiative of the learned counsel for the Federation of Pakistan the 
President had cancelled the notification of appointment and a fresh 
appointment of the Chairman was made upon the advice of the 
Prime Minister. Maulvi Anwarul Haq, the learned Attorney-General 
C.P. No. 1017-L of 2011 
46 
for Pakistan, had appeared before this Court in that case as well and 
in the present proceedings he was reminded of that case and he had 
no other option but to concede that in that case the understanding of 
the Federation of Pakistan was that even in the matter of exercise of 
powers derived from a statute the President is to act on the advice of 
the Prime Minister or the Cabinet. It has already been observed by 
me above that the position of a Governor in a Province is by and 
large similar to that of the President in the Federation and, thus, the 
impression entertained by the Governor of the Punjab in the present 
case about any distinction between his powers or functions under 
the Constitution and his powers or functions under a statute may be, 
in the words of the judgment rendered by this Court in the case of 
Mian Muhammad Nawaz Sharif (supra), “mistaken” and I observe so 
with respect to the exalted office that he holds. 
 
4. 
In his Concise Statement submitted before this Court the 
Governor of the Punjab, in his capacity as the Chancellor, has 
maintained that he may be bound by the provisions of Article 105 of 
the Constitution in his functions exercised as the Governor but when 
it comes to exercise of his powers or functions as the Chancellor of 
the relevant University the provisions of Article 105 of the 
Constitution 
do 
not 
remain 
relevant. 
This 
stance 
of 
the 
Governor/Chancellor, however, overlooks the fact that any doubt in 
this regard was removed by the relevant legislature itself through 
insertion of subsection (8) in section 11 of the Bahauddin Zakariya 
University Act, 1975 through an amendment Act of 1975 and the 
added provision reads as under: 
 
“In performance of his functions under the Act the Chancellor shall act and 
be bound in the same manner as the Governor of the Province acts and is 
bound under Article 105 of the Constitution of the Islamic Republic of 
Pakistan.”  
 
I understand that the Governor of the time, who had already ex 
officio become the Chancellor of the said University under the main 
C.P. No. 1017-L of 2011 
47 
Act, had assented to the amendment Act without any demur and 
also that no Governor/Chancellor has so far challenged the said 
amendment in the relevant law before any court of law on any 
ground whatsoever and, thus, the above mentioned amendment is 
still very much a part of the relevant statute.  
 
5. 
The issue at hand may also be addressed from another angle 
and perspective. The Governor of a Province is generally 
acknowledged to be a nominee, agent or representative of the 
Federation or the Federal Government in the Province concerned. A 
Governor is appointed by the President on the advice of the Prime 
Minister [Article 101(1) of the Constitution], he holds his office during 
the pleasure of the President [Article 101(3) of the Constitution], the 
President may make such provision as he thinks fit for the discharge 
of the functions of a Governor in any contingency not provided for in 
Part IV of the Constitution [Article 101(5) of the Constitution] and a 
Governor enjoys the same discretionary constitutional powers in his 
Province as are enjoyed by the President under the Constitution 
[Article 105(5) of the Constitution]. A perusal of the Fourth Schedule 
of the Constitution containing the Federal Legislative List shows that 
except for “Education as respects Pakistani students in foreign 
countries and foreign students in Pakistan” the subject of Education 
falls within the exclusive legislative domain of the Provinces. 
According to Article 97 of the Constitution “the executive authority of 
the federation shall extend to the matters with respect to which 
Majlis-e-Shoora (Parliament) has power to make laws” and by virtue 
of Article 137 of the Constitution “the executive authority of the 
Province shall extend to the matters with respect to which the 
Provincial Assembly has power to make laws”. It is not disputed that 
the authority exercised by a Chancellor vis-à-vis the affairs of his 
University is essentially an executive authority and if a Governor in 
his capacity as a Chancellor of a University situated within a 
Province starts exercising the relevant executive authority treating 
C.P. No. 1017-L of 2011 
48 
the same as his personal and discretionary authority to be exercised 
without the advice of the Chief Executive of the Province, i.e. the 
Chief Minister then it would practically amount to the Federation or 
the Federal Government exercising that executive authority in the 
Province through its nominee, agent or representative and that 
would surely be violative of the express constitutional intent and 
mandate besides being offensive to the principle of provincial 
autonomy which is a cornerstone of our constitutional dispensation. 
 
6. 
Before entering upon his office a Governor of a Province 
makes an oath, prescribed in the Third Schedule of the Constitution, 
and solemnly swears, inter alia, “That as the Governor of the 
Province of -------, I will discharge my duties and perform my 
functions, honestly, to the best of my ability, faithfully, in accordance 
with the Constitution of the Islamic Republic of Pakistan, and the law 
-------” (italics have been supplied for emphasis). The constitutional 
position regarding the issue at hand has already been clarified by 
this Court in the case of Mian Muhammad Nawaz Sharif (supra) and 
the same is being reiterated through the present judgment and the 
legal position in respect of the issue before us is evident in no 
uncertain terms from the provisions of subsection (8) of section 11 of 
the Bahauddin Zakariya University Act, 1975 reproduced above and, 
therefore, it is expected that the worthy Governor of the Punjab shall 
perform all his functions as Chancellor in accordance with the 
Constitution and the law while adhering to the oath of his 
gubernatorial office. 
 
 
(Asif Saeed Khan Khosa) 
Judge 
   
 
