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Petitioner: FAHAD KHAN and 2 others VS Respondent: PRESIDENT, CECOS UNIVERSITY OF IT AND JUDGMENT
Court Name: Peshawar High Court Judge(s): Yahya Afridi, Sardar Shaukat Hayat Title:FAHAD KHAN and 2 others vs PRESIDENT, CECOS UNIVERSITY OF IT AND
JUDGMENT
Reported As: 2011 CLC 1 Result: Petition dismissed Judgment JUDGMENT ' YAHYA AFRIDI, J.---Fahad Khan, Syed Babar Younas and Syed Sohail Shah ("petitioners") have sought through the instant constitutional petition the following prayer:-- "It is, therefore, prayed that on acceptance of this writ petition the orders/notice dated 26-6-2009 whereby the petitioners' papers were cancelled as shown in the said notices/orders and subsequently confirmed by the appellate committee and thus they are deprived of their successful result in the said papers, be declared as without lawful authority and of no legal effect and consequently the petitioners having passed the said papers, the respondents be directed to declare the result of the petitioners on the basis of questions attempted by them and the marks obtained by them in the papers/subjects shown in the impugned notices/ordeRs, 2. The facts which emerge from the record of the present case are that the petitioners are regular students of B.Sc. Electrical Engineering, studying in CECOS University of IT and Emerging Sciences, at the Hayatabad Campus, Peshawar ("University"). ' The petitioners appeared in the supplementary Examination of B.Sc. Electrical Engineering final year conducted by the University in March/April 2009 ("Examination"). After attempting the Examination, the petitioners received separate notices from the respondents, all dated 9-6-2009, wherein they were accused of indulging in unfair means in the Examination and were directed to appear before the Unfair-Means Committee of the University ("UMC") for their personal hearing on 11-6-2009. Along with the notices of 9-6-2009, the petitioners were also provided Charge Sheets explaining the charges levelled against them. With this commenced the Enquiry against the petitioneRs,
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' The UMC on conclusion of the enquiry, imposed penalties upon the petitioners, which entailed cancellation of some of the papers in which they were charged to have cheated. The decision was duly communicated to the petitioners vide letters dated 26-6-2009. The present petitioners filed their respective appeals to respondent No,1 against the said decision. ' The appeals of the petitioners we're placed before the Appellate Committee of the University ("Committee") in its meeting of 3-8-2009. After considering the appeals of the present petitioners, the Committee rejected the appeals and upheld the decision already taken by the UMC. ' The present petitioners filed separate representations against the decision of the Committee to the President of the University. These representations were responded to by the respondent No,1 vide impugned orders dated 17-11-2009, whereby the President of the University also rejected the representations of the present petitioners and maintained the decision of the UMC and the Committee. 3. Aggrieved of the decisions of the respondents, the present petitioners have impugned through the present joint constitutional petition the said decision. 4. Fahad Khan (petitioner No,1) through an interim order of this Court dated 3-12-2009 was allowed to appear in Examination of the cancelled papers held in January 2010. On so appearing in the said examination, petitioner No,1 has passed the said papers and has prayed to withdraw his name as a petitioner from the present petition. The learned counsel for the respondents had no objection to the said request made by petitioner No,1, Fahad Khan, therefore, his name is deleted from the list of petitioners in the present petition. 5. At the outset of the proceedings, when the present case was taken up for final arguments of the learned counsel of the parties, the learned counsel for the respondents took certain preliminary objections. ' The learned counsel vehemently argued that University against which a prayer had been sought was a "private university" and did not fall within the purview of a 'Person' as envisaged in Article 199(1)(1-A) of the Constitution of Islamic Republic of Pakistan 1973 ("Constitution"). The learned counsel also argued that there was no violation of the fundamental right of the petitioners, so as to bring the present petition within the purview of Article 199(1)(c) of the Constitution. He also urged that the Examination Regulations being relied upon by the petitioners are not "Statutory Rules", thus not justiciable in constitutional jurisdiction. Finally, the learned counsel argued that the University had provided the petitioners all the opportunity of defence in pleading their cases and that despite clear case of cheating by the petitioners, the respondents had imposed a very lenient punishment. The learned counsel for the respondents relied upon the judgments of the superior court in Anushka's case (PLD 2007 Lahore 568), Professor Wali Khan v. Hamdard University (2006 PLC 437), Iftekhar Hussain v. Lahore School of Management (2006 YLR 1216), Tehmina Iqbal v. The Principal (1994 SCMR 958), Rabia's case (PLD 2005 Lahore 616) and Mst.Kanee's case (2009 YLR 1462). 6. The learned counsel for the petitioners in rebuttal to the submissions of the learned counsel for the respondents, argued that the University was a statutory body, being a creation of a provincial statute, N.-W.F.P. Ordinance No,XXI of 2001 ("Ordinance") and was performing functions of the Provincial Government by imparting education to the public. The learned counsel also drew a parallel with the University of Peshawar ("UOP"), stating that being a statutory corporation both were independent, administratively and financially, having distinct obligations for imparting and dissemination of education to the public. Thus both corporate bodies were amenable to the jurisdiction of this court. The learned counsel further stated that as the creation of the University was through a statute, its working was justiciable and could be judicially reviewed by the constitutional court under Article 199 of the Constitution. The learned counsel also contended that the Examination Regulations were framed under the Ordinance and were clearly provided in the Calendar of the University and thus the violation of the same could not be kept away from judicial
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review on any ground, whatsoever. He further stated that under the said Regulations, case of unfair means could only be initiated in cases when it was reported by the invigilator during the course of the examination, which was not the situation in the present case. In this regard the learned counsel cited University of Dacca v. Zakir Hussain (PLD 1965 SC 90), Muhammad Shahid v. University of Peshawar (PLD 1991 Peshawar 71), Mst.Saleha v. University of Peshawar (PLD 2003 Peshawar 69) Mian Mohsin Shah's case (PLD 1995 Peshawar 43), Muhammad Jamil v. University of Peshawar (2000 CLC 1112), Mushtaq Ali Shah v. NED (2010 SCMR 705), Chairman Syndicate of Peshawar (2007 SCMR 703), Khalid Khan v. Gomal University (PLD 1991 Peshawar 7) and finally Aitchison College's case (PLD 2002 SC 326) and Pakistan Telecommunication's case (2010 SCMR 253). 7. We will first address the preliminary objection raised by the learned counsel for the respondents regarding the maintainability of the present petition, as according to him, the University is not a "person" as envisaged under Article 199 of the Constitution. ' Sub-Article 1 (a) (1) of Article 199 reads:-- "Subject to the Constitution a High Court may, if it is satisfied that no other alternative remedy is provided by law; (a) On the application of an aggrieved party, make an order; (i) Directing a person performing within the territorial jurisdiction of the court functions in connection with the affairs of the Federation or a Province or a local authority, to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do." ' Sub-Article 1 (c) of Article 199 reads:-- "On the application of an aggrieved person, make an order giving such directions to any person or authority, including any government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that court as may be appropriate for the enforcement of any of the fundamental rights conferred by chapter I Part II." ' The term "person" has also been defined in Sub- Article 5 of Article 199 as:-- "Person" includes a body politic or corporate, any authority of or under the control of a Federal Government or of a Provincial Government, and any court or tribunal other than the Supreme Court, a High Court or a court or tribunal established under the law relating to the armed forces of Pakistan." 8. To explain the legal purport of the term "person" as envisaged under Article 199 of the Constitution, we refer to the landmark judgment of the Supreme Court in University of Dacca v. Zakir Hussain (PLD 1965 SC 90) which reads:-- "It is clear from this definition that the University is an association of persons who have been constituted by the statute into a body corporate and, therefore, the University comes well within the definition of a "person" given in the General Clauses Act. Again under Article 242 of the Constitution a "person" is defined as including any body politic or corporate. As such even under this definition the University comes within the category of a "person" under the Constitution. The next question that arises is whether it is performing any function in connection with the affairs of a Province. The University has been set up, as stated in section 4 of the Dacca University Ordinance, to provide, inter alia, for instruction in various branches of learning and to make provision for research and for the advancement and dissemination of knowledge, to affiliate and disaffiliate colleges, to prescribe courses of studies, to hold examinations and to grant and confer diplomas, degrees and other academic distinctions. Its purpose, therefore, is to impart education at higher levels in the Divisions of Dacca and Chittagong and in the district of Bakerganj in the Khaulna Division. It is clear, therefore, that it is performing functions within the Province of East Pakistan which are connected with one of the affairs of that Province, namely, education. (emphasis provided). ' In Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 S.C. 244) the august Supreme Court, considered whether a company could be treated as a "person" as envisaged under Article
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199 of the Constitution. While dilating upon the said term, the august Supreme Court formulated a test laying down three condition precedents for a body corporate to fulfil in order to be considered a "person" performing function in connection with the affairs of the Government, as provided under Article 199 of the Constitution. It was held that; "The primary test must always be whether the function entrusted to the organization or person concerned are indeed functions of the State involving some exercise of the sovereign of public power; whether the control of the organization vest in a substantial manner in the hands of the Government and whether the bulk of the fund is provided by the State. If these conditions are fulfilled then the person including a body politic or body corporate may indeed be regarded as person performing functions in connection with the affairs of the Federation or a Province; otherwise not." (Emphasis. Provided) ' Thus there are three essential criteria to be fulfilled by any Organization or authority or a body corporate, which could be termed as a "person" under Article 199 are; (i) exercising sovereign power (ii) control of the organization or person is substantially in the hands of the Government and (iii) the funds for the said organization are being provided by the State. ' The august Supreme Court in Aitchison College v. Muhammad Zubair (PLD 2002 SC 326). Though approving the "test" laid down in Salahuddin's case declared Aitchison College, Lahore to be a "person" under Article 199 of the Constitution, despite the fact that Government did not provide any funds to the college. The Hon'ble Supreme Court held:-- " But in our opinion merely on account of non-getting financial assistance, the Aitchison College cannot be considered to be an educational institution not functioning under the control of the Provincial Educational Department though the Board of Governors headed by the Governor as its President. In this behalf it would not be out of context to point out that there are certain provincial educational institutions who have sufficient means to generate funds for its functioning but still they are deemed to be under the dominating control of the Government as its affairs are being regularized or being run by adopting such mechanism in which the constitutional head of the Province i.e. Can directly participate. Examining the proposition in hand adverse to above reasons namely that the Governor of the Province being its president and other official belonging to the Provincial Government have only ceremonial representation in the Board of Governors and the affairs of the college can be run without their participation by the private members of the Board of Governors "we are of the opinion that notwithstanding the fact that Aitchison College is not receiving any financial assistance from the Provincial Government but as its management and control and all other matters relating to its affairs to the statutory body functioning under the system which has been provided under MLO No,86 (Zone B) vests in provincial functionary, therefore, the institution would fall within the definition of a person under Article 199 (5) of the Constitution." ' The august Supreme Court in Maqsood Ahmad Toor v. Federation of Pakistan (2000 SCMR 928) while determining the status of Pakistan Postal Service Corporation held that the same was not a "person" under Article 199 of the Constitution as it did not fulfil the "test" laid down in Salahuddin's case and stated that:- "We are fortified in this view by the case reported as Salahuddin v. Frontier Sugar Mills and Distillery Ltd (PLD 1975 S.C. 244) wherein it was held that private organization or persons as distinguish from Government or semi government agencies and functionaries cannot be regarded as person performing functions in connection with affairs of the Federation or province simply because their activities happened to be regulated by laws and by State." (Emphasis provided) ' In Pakistan Red Crescent Society ("PRCS") v. Syed Nazir Gilani (PLD 2005 SC 806) the august Supreme Court has reaffirmed the stance it has taken in its earlier judgment regarding the "test"
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laid down in Salahuddin's case. The august Supreme Court, while considering the position of PRCS on the touchstone of the term "person" under Article 199 and held:-- after having gone through the relevant record we are of the view that the entire controversy revolves around the legal character of Pakistan Red Crescent Society, which requires determination to set the controversy at naught. There is no cavil to the proposition that the precise and prime object of the society is to provide relief and other aid to the sick and wounded and other purposes of a like nature " "A careful perusal of the above mentioned observation would reveal that it has been decided in a categoric manner that the Pakistan Red Crescent Society cannot be treated as a person performing function in connection with the affairs of the Federation of province. We are conscious of the fact that President of Pakistan is the President of Pakistan Red Crescent Society and Minister Health, Government of Pakistan is the Ex-Officio Vice President but it would have no substantial bearing on the legal character of the society because no budget allocation has been made by the Federal Government and no share capital is involved. The Pakistan Red Crescent Society generates its income from donation made by public and allocation from international agencies having a charitable character. Occasionally the Pakistan Red Crescent Society may get some "grant" and "aid" from Government but it cannot be equated to that of regular budget allocation and thus its independent entity remains unaffected. ' In the light of what has been mentioned hereinabove, the only inescapable conclusion would be that the Federal or Provincial Government had nothing to do with the affairs of the Society and vise versa." ' However, recently the august Supreme Court in Pakistan Telecommunication v. Muhammad Zahid (2010 SCMR 253) has dilated upon the term 'person' as envisaged under Article 199 of the Constitution. The issue in hand related to certain private telephone exchange operators, who were working in the International Gateway Exchange with the Pakistan Telecommunication Company Ltd. ("PTCL"). The objection raised was that PTCL being not owned or controlled by the Federal Government could not be dragged into litigation being a "private person". It was also urged that the said operators were employees of the Telecom Foundation, which was a charitable organization established under Charitable Act, 1890. The august Supreme Court traced the legal history of the Pakistan Telephone and Wireless Department and its recent re-organization as PTCL established under section 34 of the Pakistan Telecommunication (Reorganization) Act of 1996. The august Supreme Court considering the control of the Federal Government and Pakistan Telecommunication Authority over the working and functioning of PTCL, concluded that:-- "Telecommunication undisputedly is the subject pertains to one of the important affairs of the Federation dischargeable now through the PTCL, hence such entity involved in the same exercise of sovereign power, essentially falls within the context of 'person' as defined in clause (5) of Article 199 of the Constitution, therefore, for the above reasons the grievance of the private respondent was amenable to the writ jurisdiction of the High Court Undisputedly, the crux of the case of the private respondent has been that they are being discriminated as against the other operators performing service permanently with the PTCL or having been regularized in due course as operators in the International Gateway Exchange performing similar functions in the exchange apparently amounts to have been grossly violated as against the guaranteed rights under Article 2-A, 4 and 25 of the Constitution by depriving them of their emoluments besides other service benefits....The impugned judgment is unexceptional irrespective of the status of the private respondents to be that of a worker or a civil servant or the contract employees having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them". ' Thus on reviewing the aforementioned judgments by the august Supreme Court over the last quarter of a centaury, the test laid down in Salahuddin's case can safely be taken as the
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benchmark on which to decide whether an organization or any body corporate is a "person" performing functions in connection with affairs of the Federal or Provincial Government within the purview of Article 199(1)(a) of the Constitution. However, in cases where the administrative control of the Government over the said organization was substantial in nature, in such cases the lack of financial contribution by the Government to the said person was not deemed to disregard the said organization as a "person". 9. Now keeping the "test" as provided in Salahuddin's case, we are to see whether the University fulfils the condition precedents set therein to come with the meaning of a person us envisaged under Article 199(1)(a) of the Constitution. ' The University is a creation of the Ordinance. The preamble of the Ordinance, clearly stipulates that it was expedient to provide for establishment of a University at Peshawar in the "private sector". Section 3 of the Ordinance provides that the University shall be a body corporate having perpetual succession and a common seal with powers to acquire, hold and dispose of property and could sue and be sued in the said name. Section 4 of the Ordinance relates to powers and functions of the University, which clearly provides for establishment of faculties, institutes, colleges and departments for imparting instructions and training in allied and non-allied branches of learning research and other services for the advancement dissemination of knowledge. Section 7 of the Ordinance provides for the Governor of the Province to be Patron-inChief of the University. The powers of the Patron-in-Chief are, however, restricted only to preside over convocations and to confer honorary degrees. Section 9 of the Ordinance, stipulates that Engineer Mohammad Tanvir Javed, the Managing Director of CECOS Educational Institutions (Pvt.) Ltd. Peshawar shall be the lifetime President of the University and the Board of Directors of the said company, shall have power to nominate the subsequent President of the University. The officers of the University included the President, the Vice President, the Vice Chancellor, the Dean, the head of the teaching departments, the Registrar, the Controller of Examinations, Director Finance and such other persons 'as may be specified by the regulations under the Ordinance. The authorities of the University on the other hand have been provided under Section 18 of the Ordinance as the Board of Governors, the Academic Council the Board of Faculties, the Board of Studies, the Advance Studies and Research Board, the Selection Board, the Finance and Planning Committee and other authority as constituted under the Ordinance. The Board of Governors, is the main body, which formulates the principles, policies and plans governing the activities of the University. The Board includes the President, the Vice Chancellor, the Vice President and Vice Chancellor nominated by the Governor, two persons of eminence nominated by the President, two eminent educationists to be nominated by the Board of Directors, a retired Judge, Chairman University Grant Commission or his nominee, one member from the commercial sector to be nominated by the Board, Chairman N.-W.F.P. Information Technology Board or his nominee and one Dean/ Chairman to be nominated by the Vice Chancellor. Section 27 of the Ordinance provides for the statutes, to be framed under the Ordinance and the same are to be proposed by the Board of Governors, which are to be approved by the President and who shall have the power to approve the same with or without modification or to refer them back to the Board of Governors for reconsideration. Similarly, Regulations under Section 28 and Rules under section 29 of the Ordinance, are also creation of the authorities of the University and the ultimate approval thereof is vested in the President of the University. Section 30 of the Ordinance relates to funds of the University, which clearly provides that the University shall generate its own funds from income, fees, donation, trust, endowments, grants, contribution and other sources. There is no prescribed mode of accepting funds from the Government. However, section 31 of the Ordinance does provide that the University shall transfer 0.5% of the first collection of the funds from the students to the Government for the purpose of the registration and students welfare, whereas the CECOS Educational Institution (Pvt.) Ltd. Has been provided authority to inject
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funds and withdraw the same, without any resistance from the Government. The ownership of all properties assets moveable or immoveable of the University are vested or considered to be the property of the company, under section 42 of the Ordinance. Whereas, section 43 of the Ordinance provides the Board of Governors of the University to interpret any provision of the Ordinance and its decision to be final, while in case of any difficulty arising from giving effect to the provision of the Ordinance, the President has the power to pass such orders to remove any difficulty in the working of the University. ' The role of the Provincial Government creeps into the functioning of the University, though indirectly, on three different stands; Firstly, the Patron-in-Chief of the University is the Governor of the Province, secondly the President may cause an inspection or an inquiry on the request of the Government in respect to any matter connected with the affairs of the University thirdly, the University under Section 40 shall work within the provisions of the National Education Policy and other laws or policies framed or amended by the Government from time to time. ' Thus what clearly transpires out of the provisions of the Ordinance is that the control over the financial and administrative functioning and affairs…
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