In a high-profile legal battle between Gomal University vice-chancellor Dera Ismail Khan and the government of Khyber Pakhtunkhwa, a bench in the Peshawar High Court recently issued an important judgment declaring that the government had no power in under the Khyber Pakhtunkhwa Universities Act, 2012 to make a decision on the properties of a university.
The legal battle began when Vice-Chancellor Dr Iftikhar Ahmad was sent on forced leave by the Governor, in his capacity as Chancellor of Gomal University, by an order of April 22, 2021, for 90 days.
The government was upset with the VC for writing a letter to Prime Minister Imran Khan, pointing out some flaws in a decision taken by the provincial cabinet at its April 16 meeting in which it ordered the upgrading of the faculty of agriculture of Gomal University as a fully-fledged Agriculture University.
The VC challenged the governor’s order to send her on forced leave as well as the provincial government’s decision to revalue the faculty and transfer land from the university measuring 1,000 kanals to the University of Agriculture, Dera Ismail Khan.
A high court bench consisting of Judge Roohul Amin Khan and Judge Syed M Attica Shah ruled on 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 the transfer of land from a university to any other educational institution.
In its detailed 22-page judgment, the judiciary ruled that it was up to the governor to send a VC on forced leave on the advice of the provincial government. The bench also ruled that the government does not have the power to issue ordinances on the movable and immovable property of a university and that only the university union has the authority to do so.
The court quashed all claims and proceedings regarding the transfer and distribution of assets from Gomal University to the newly established University of Agriculture, declaring it without legitimate authority or jurisdiction.
However, the court observed that the government or the higher education department can approach the Gomal University union for the loan or transfer of any property to the new agricultural university, DI Khan.
Initially, when the KP Universities Act, 2012 was enacted in 2012, its section 12 provided that a VC was to be appointed for a renewable term of four years under terms and conditions prescribed by law. A VC could have been deleted by referring to the senate of a university indicating cases of ineffectiveness, moral turpitude or physical or mental incapacity or serious misconduct.
Subsequently, changes were made to the law in 2015 providing that a VC should be appointed for a single term of three years on market-based salary and that the term could be extended once for another term on the basis for a performance review.
A change was also made to the provision on the removal of a CV providing that the Chancellor could dismiss the CV on the recommendation of the Senate; and could also revoke it at its sole discretion in the event of a well-founded allegation of serious misconduct, inefficiency, corruption, violation of budgetary provisions or moral turpitude.
Later the powers of the Governor / Chancellor to remove a VC were increased by further amending the law in 2016 and it was expected that the VC should perform his duties during the Chancellor’s pleasure provided that before removing a VC from his post, the Chancellor may grant him the opportunity to be heard in person.
In addition, the Chancellor was also empowered to send a VC on forced 90-day leave extendable once if the circumstances so required for reasons to be recorded.
The applicant’s lawyer argued in court that his client was serving the university to the best of his ability, while his only good faith objection to the provincial cabinet’s decision and bringing the matter to the attention of the chief executive of the country has been the reason to prosecute him.
The bench discussed in detail the powers of the chancellor as provided for in the law and ruled that the governor / chancellor was vested with the power to send the applicant on forced leave to conduct a fair, impartial and transparent investigation.
“The contested order is neither illegal nor without legal authority nor without reason, therefore, does not require any interference from this court,” the magistracy said.
Gomal DI Khan University was established in 1974 and land of approximately 11,000 canals was donated to it by a notable, Allah Nawaz Khan.
The court noted that under section 3 (5) of the law, the university should have jurisdiction to acquire and hold property and to rent, sell or otherwise transfer any property.
The judiciary recalled that the university union, by virtue of article 23 of the law, is the executive body of the university and exercises, subject to the provisions of the law and the statutes, the general supervision of business and management of the University.
“According to article 23 (b) of the law of 2012, the union has the power to transfer and accept the transfer of movable and immovable property on behalf of the university,” observed the judiciary.
It was further ruled that under the statutory plans, the cabinet, chief minister or any government committee had no connection with the property of Gomal University.
“Government interference in the affairs of universities will not only violate the mandate of autonomy guaranteed by the law promulgated by the government, but will also undermine the quality of education provided in the educational institution,” he said. declared the court, adding that in this case, the property owned, controlled and owned by Gomal University was unilaterally ordered to be transferred by the committee formed for the distribution of assets between Gomal University and the new university agricultural DI Khan.
Posted in Dawn, le 11 October 2021