ISLAMABAD: The federal government has challenged before the Supreme Court the Jan 18, 2022, restoration of Dr Tariq Javed Banuri on the post of chairman Higher Education Commission (HEC). Moved through Additional Attorney General (AAG) Chaudhry Aamir Rehman, the petition has sought to set aside the Jan 18 Islamabad High Court (IHC) short order restoring Dr Banuri on the post.

Dr Banuri was appointed chairman HEC in 2018 on a four-year term and was supposed to retire in May this year but he was 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 tenure to two years.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.

The Ministry of Education and Professional Training has moved the appeal before the apex court arguing that the amended ordinances had been given retrospective effect with clear intendment and that the Jan 18 short order of the IHC was illegal, unlawful and without jurisdiction hence liable to be set aside.

Petition says Jan 18 order of IHC illegal and without jurisdiction

The petition contended that once retrospectively was given in clear and unequivocal terms, no protection to any vested right could be afforded contrary to the clear and unambiguous language of the law.

The legislature has the 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 ordinance in clear terms amended the provisions of the HEC ordinance 2002 providing for the tenure of the chairman HEC and reduced the same to a term of 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 high court thus erred in law while holding that the notification were not lawfully issued under the amending ordinances,” the petition said, adding reasonable classification was permissible under Article 25 of the constitution, which ensures equality among citizens.

To justify classification, it should have reasonable basis and rest on real and substantial distinction, argued the appeal, adding in the present case the chairman HEC and the members of the commission were different class altogether.

They are defined differently by the ordinance, 2002. Their mode of appointment is different and even law makes a distinction in their status as well, the petition said.

Furthermore, the chairman is a class unto itself, hence law made to affecting the tenure of the chairman is a valid law, said the petition.The government reserves the right to urge further and additional grounds on receiving the reasons for the short order, the petition said.

Published in Dawn, February 7th, 2022