ISLAMABAD: The Supreme Court on Monday restrained the newly-reconstituted selection board of the Higher Education Commission (HEC) from finalising appointment of the commission’s executive director till a decision by the apex court.

Headed by Justice Ijazul Ahsan, a three-judge bench, however, granted leave to appeal to the federal government against the Jan 18, 2022, Islamabad High Court (IHC) restoration of Dr Tariq Javed Banuri to the post of the HEC chairman with a direction that the appointment being made by the selection board under the chairman would be subject to the outcome of the apex court decision.

Dr Banuri was appointed chairman in 2018 on a four-year term and supposed to retire in May this year. However, his tenure was truncated through a notification issued by the federal government and thus removed from the post in March 2021 on the basis of a set of amendments to the HEC ordinance 2002 through a presidential ordinance that reduced the chairman’s tenure to two years.

Three-judge bench grants leave to appeal to govt against Jan 18 restoration of chairman by IHC

Later, the ordinances were laid before parliament as bills and after their passage and receiving the assent of the president were enacted as Higher Education Commission (Amendment) Act 2021.

On Jan 18, the IHC short order restored Dr Banuri on the post. The Ministry of Education and Professional Training through Additional Attorney General (AAG) Chaudhry Aamir Rehman moved the apex court seeking to set aside the restoration order.

Dr Banuri on Jan 27 reconstituted the selection board for the appointment of the commission’s executive director (ED), which was opposed by the education ministry.

The selection board had even finalised the name of a candidate for the post but did not announce it. The post had fallen vacant in October 2018 after the resignation of Dr Arshad Ali.

The office of the executive director, which acts as the principal accounting officer with over Rs100 billion budget outlay, has been running on an ad hoc basis since.

On Monday, the Supreme Court expressed the hope that the IHC will soon issue its detailed reasons justifying the restoration of Dr Banuri.

The AAG pleaded before the court that the chairman HEC should be restrained from filling such an important post since he did not enjoy any authority.

The appeal argued that the amended ordinances had been given retrospective effect.

Therefore, the Jan 18 short order of the IHC was illegal, unlawful and without jurisdiction hence liable to be set aside.

The legislature has full power to reduce the tenure of a post with retrospective effect and therefore no clog could be placed on the power of legislature, the petition said.

The ordinances amended the provisions of the HEC ordinance 2002 and reduced the tenure of the chairman to two years from the very inception of the law.

“Thus the chairman HEC has ceased to hold office by virtue of statutory intervention upon promulgation of the ordinance IX of 2021 and ordinance X of 2021 and his removal was not made through March 26, 2021 and April 5, 2021 notifications, which were merely declaratory and ministerial acts giving effect to the legislative intent, the appeal argued.”

The petition added: “The high court thus erred in law while holding that the notification was not lawfully issued under the amending ordinances.”

Published in Dawn, February 15th, 2022