IN a much publicised legal battle between vice-chancellor of Gomal University Dera Ismail Khan and Khyber Pakhtunkhwa government, a bench of Peshawar High Court recently delivered an important judgment declaring that the government had no powers under Khyber Pakhtunkhwa Universities Act, 2012 to make decision about properties of a university.
The legal fight had started when Vice-chancellor Dr Iftikhar Ahmad was sent on forced leave by the governor, in his capacity as chancellor of the Gomal University, through an order on April 22, 2021, for a period of 90 days.
The government was annoyed with the VC for his writing a letter to Prime Minister Imran Khan, pointing out certain defects in a decision taken by the provincial cabinet in its meeting on April 16 whereby it had ordered upgradation of Gomal University’s faculty of agriculture as full-fledged Agriculture University.
The VC had challenged the order of the governor of sending him on forced leave and also the decision of the provincial government of upgradation of the faculty and transferring land of the university measuring 1,000-kanal to the Agriculture University, Dera Ismail Khan.
A bench of high court consisting of Justice Roohul Amin Khan and Justice Syed M Attique Shah disposed of the petition on September 22, while giving its findings on two important points: Whether the governor could send a VC on forced leave and whether the provincial government could order transferring land of a university to any other educational institution.
In its 22-page detailed judgment, the bench ruled that it was in the domain of the governor to send a VC on forced leave on the advice of the provincial government. The bench also ruled that the government had no powers to issue orders about moveable and immovable properties of a university and only the university’s syndicate was empowered to do so.
The court set aside all the demands and proceedings regarding transfer and distribution of assets of Gomal University to the newly established Agriculture University by declaring it without lawful authority and jurisdiction.
However, the court observed that the government or the higher education department may approach Gomal University’s syndicate for lending or transferring of any property to the newly established University of Agriculture, DI Khan.
Initially, when the KP Universities Act, 2012, was enacted in 2012, its section 12 provided that a VC should be appointed for a renewable tenure of four years on terms and conditions prescribed by statute. A VC could have been removed by making a reference to a university’s senate stating the instances of inefficiency, moral turpitude or physical or mental incapacity or gross misconduct.
Subsequently, amendments were made in the Act in 2015 providing that a VC should be appointed for a single tenure of three years on market based salary and the tenure could be extended once for another such term on the basis of performance evaluation.
Amendment was also made in provision related to removal of a VC providing that the chancellor could remove the VC on recommendation of the senate; and could also remove him on his own discretion in case of substantiated allegation of gross misconduct, inefficiency, corruption, violation of budgetary provisions or moral turpitude.
Later on, powers of the governor/chancellor for removing a VC were increased by further amending the law in 2016 and it was provided that the VC should hold office during the pleasure of the chancellor provided that before removing a VC from his position, the chancellor may grant him opportunity of personal hearing.
Furthermore, the chancellor was also empowered to send a VC on forced leave for 90 days extendable once if the circumstances so demanded for reasons to be recorded.
The petitioner’s counsel contended before the bench that his client served the university to best of his ability, whereas, his only bona fide objection over the decision of the provincial cabinet and bringing the matter into the notice of the chief executive of the country was made a ground for initiation of proceedings against him.
The bench discussed in detail the powers of the chancellor as provided in the Act and ruled that the governor/chancellor was vested with the power to send the petitioner on forced leave for conducting fair, impartial and transparent inquiry.
“The impugned order is neither illegal nor without lawful authority nor is without reason, therefore, requires no interference by this court,” the bench ruled.
Gomal University DI Khan was established in 1974 and around 11,000-kanal land was donated for it by a notable, Allah Nawaz Khan.
The court observed that under section 3(5) of the Act, the university should be competent to acquire and hold property and to lease, sell or otherwise transfer any property.
The bench pointed out that the syndicate of the university, under section 23 of the Act, shall be the executive body of the university and shall, subject to the provision of the Act and the statutes, exercise general supervision over the affairs and management of the university.
“According to section 23(b) of the Act of 2012, the syndicate shall have the powers to transfer and accept transfer of movable and immovable property on behalf of the university,” the bench observed.
It was further ruled that under schemes of things provided in the Act, the cabinet, chief minister or any committee of the government had no nexus with the property of Gomal University.
“Interference of the government in the affairs of the universities will not only violate the mandate of the autonomy guaranteed in the statute enacted by the government but will also damage the quality of education being awarded in the educational institution,” the court ruled, adding that in the present case the property under the ownership, control and possession of the Gomal University was unilaterally ordered to be transferred by the committee constituted for distribution of assets between the Gomal University and newly established Agriculture University DI Khan.
Published in Dawn, October 11th, 2021