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Petitioner: SHAHID HUSSAIN VS Respondent: GOVERNMENT OF THE PUNJAB
1997 P L C (C
1997 P L C (C.S.) 308
[Lahore High Court]
Before Sharif Hussain Bokhari, J
Prof. SHAHID HUSSAIN
versus
GOVERNMENT OF THE PUNJAB through Secretary, Education Department, Lahore and 3 others
Writ Petition No. 12824 of 1995, decided on 25th November, 1996.
(a) West Pakistan Educational and Training Institutions Ordinance (XI of 1960)‑‑‑
‑‑‑‑S. 9‑‑‑Government College, Lahore (General Conditions of Service) Regulations, 1990, Regln. 4‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Government--College, Lahore notified to be an institution "for purposes of West Pakistan Educational and Training Institutions Ordinance, 1960"‑‑‑Appointment of Principal of Government College, Lahore by Provincial Government‑‑ Validity‑‑‑Jurisdiction‑‑‑Competency to challenge such appointment in terms of Art. 199 of the Constitution‑‑Appointment of respondent as Principal of College by Government was not matter relating to his terms and conditions of service as civil servant so as to attract bar against jurisdiction of High Court under Art. 212 of the Constitution‑‑‑Power of Government to make such appointment in "Institution" i.e. college, has been challenged (which was no more subject to authority and control of Government) as also authority of respondent to hold that office‑‑‑Constitutional petition was thus, not barred under Art. 212 of the Constitution nor was appeal competent under S. 4, Punjab Service Tribunals Act, 1974, against notification relating to appointment of Principal, for same did not relate to terms and conditions of respondent as civil servant‑‑‑Constitutional petition against appointment of respondent as Principal was, thus, competent in circumstances.
(b) West Pakistan Educational and Training Institutions Ordinance (XI of 1960)‑--
‑‑‑‑S. 9‑‑‑Government College, Lahore (General Conditions of Service) Regulations, 1990, Regln. 4‑‑‑Constitution of Pakistan (1973), Art, 199‑‑ Appointment of Principal of Government College, Lahore, which was "institution" for purposes of West Pakistan Educational and Training Institutions Ordinance, 1960, by Provincial Government‑‑‑Validity‑‑‑Entire teaching staff and other employees of College, stood transferred to serve under Board of Governors in terms of S. 9, West Pakistan Educational and Training Institutions Ordinance, 1960‑‑‑Only power retained by Provincial Government in that regard was to transfer any person to serve under Board of Governors or transfer person serving in such College back to Government‑‑ Regulations were validly made by Board of Governors with approval of Government in terms of Ss. 8 & 18 of the Ordinance‑‑‑Board of Governors under Regln. 4 and Sched. thereto, had exclusive power to appoint Principal in such manner as provided in Schedule‑‑‑Board of Governors of College and not the Provincial Government had, thus, authority to appoint Principal of the Institution‑‑‑Appointment of respondent having been made by 'Provincial Government was invalid being made by incompetent Authority‑‑‑High Court under Art. 199 of the Constitution could invalidate such order or appointment, for it would not allow illegality to perpetuate and usurper of public office to continue‑‑‑As for the laches in filing Constitutional petition, petitioner had been making representation, to Government but no action was taken on his representations‑‑‑Besides respondent's appointment being continuing wrong, laches on part of petitioner would not per se be sufficient reason to debar him from filing the petition‑‑‑Respondent was holding public office, therefore, petition under Art. 199 of the Constitution seeking relief in nature of writ of quo warranto against him was competent‑‑‑Respondent, thus, had no authority to hold office of Principal of Government College, Lahore, which office would be deemed to be vacant; respondent would not be entitled to act as Principal of College unless appointed by Board of Governors in accordance with law.
Kamal Hussain v. Muhammad Siraj‑ul‑Islam and others PLD 1969 SC 42; Azad Government v. Israr Hussain Mughal 1996 SCR 278; Arshad Hussain v. Government of Sindh PLD 1982 Kar. 604; M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228 and Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203 ref.
Dr. Abdul Basit for Petitioner.
Syed Jamshed Ali Shah and Kh. Saeed‑ul‑Zafar and Muhammad Nasim Kashmiri, Addl. A.‑G. for Respondents.
Date of hearing: 1st July, 1996.
JUDGMENT
Through this Constitutional petition the appointment/posting of Dr. Khalid Aftab (respondent No. 4 herein) as the Principal of the Government College, Lahore has been challenged on various grounds, and the order in the nature of writs of certiorari, mandamus and quo warranto is sought.
2. The relevant facts are that the Government College, Lahore, (hereinafter referred to as ' the college'), which is one of the prestigious educational Institutions of the country, was notified as "Institution" for the purposes of the Punjab Educational and Training Institution Ordinance, 1960 (hereinafter referred to as 'the Ordinance') by the Governor of the Punjab and the provisions of the Ordinance were made applicable to the College with effect from 8th of August, 1989 vide Notification No. SO(BOARDS) 2‑4/88, dated 8‑8‑1989, issued by the Government of the Punjab, Education Department. The same day another Notification was issued by‑the Government of Punjab, Education Department establishing and constituting the Board of Governors for the College in accordance with sections 3 and 4 of the Ordinance. The Board of Governors hereinafter referred to as ' the Board' so constituted comprised the Chairman, six official members and ten non‑official members. Subsequently the Board was twice reconstituted vide Notifications dated 20‑1‑1993 and 17‑1‑1996, whereunder the Board now comprises seven official members including the Provincial Education Minister as the Chairman and the Principal as the Member/Secretary and eleven non‑official members.
3. On 22‑2‑1990 Notification No.S.O. (BOARDS) 2‑4/88 was issued by the Government of Punjab, Education Department under section 9 of the Ordinance transferring all the persons serving in the College and Nuclear Research Laboratory Government College, Lahore to serve under the Board of Governors w.e.f. 1‑3‑1990. Vide Notification dated 31‑3‑1992, the Government College Lahore General Conditions of Service, Regulations, 1990 hereinafter referred to as 'the Regulations' were promulgated under section 18 of the Ordinance by the Board with the approval of the Government of Punjab, "in respect of recruitment and service conditions for the persons appointed to various categories at the College", which came into force at once.
4. On 17‑1‑1993 Notification NO.SO(E.I) E‑48/91 was issued by the Government of the Punjab appointing respondent No.4 as Principal of the College. This Notification reads as follows'‑‑ "Government of the Punjab Services, General Administration & Information Department
Section E.I.
Lahore, the 17th January, 1993.
NOTIFICATION
No. S.O.(E.I)E‑48/91. Dr. Khalid Aftab (BS‑20), presently working as Professor/Head of Economics Department, Government College, Lahore is transferred with immediate effect and posted as Principal, Government College, Lahore against an existing vacancy.
By Order of the Governor of the Punjab Muhammad Parvez Masud Chief Secretary, Punjab."
This Notification and the appointment of Dr. Khalid Aftab as Principal, Government College, Lahore has been challenged in this writ petition, by the petitioner who claims to be the Chairman of the Department of Philosophy and Dean of the Faculty of Arts in the College, and senior in service to respondent No.4.
5. The writ petition was admitted to regular hearing on 22‑1‑1996. The respondents have filed the reports/written statements. They have questioned the maintainability of the writ petition, inter alia, on the plea that the petitioner and respondent No.4 are civil servants under the Punjab Civil Servants Act, 1974, therefore, the petitioner's grievance, if any, can only be agitated before the Punjab Service Tribunal as the jurisdiction of this Court is ousted by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 4 of the Punjab Service Tribunals Act, 1974.
6. The Board of Governors, Government College, Lahore, respondent No.3 submitted separate written statement through Kh. Saeed‑uz‑Zafar, Advocate. However, this written statement is not supported by the affidavit nor is the same signed by any person on behalf of respondent No.3, except the learned counsel. It appears that the same was submitted on the 9nstructions of respondent No.4, as the Principal of the College is ex‑officio Member as well as the Secretary of the Board of Governors. It is, therefore, obvious that in this written statement, respondent No.3 has supported the appointment of respondent No.4 as Principal of the College.
7. The admitted position is that the College was notified as the 'institution' for the purposes of the Ordinance and the Board of governors was also established and constituted on 8‑8‑1989. In the Report submitted by respondent No. l through the Secretary, Education Department, the following factual position has been stated:‑‑
"Government College, Lahore was granted financial and administrative autonomy as envisaged by the Punjab Government Education and Training Institutions Ordinance, 1960 (W.P. Ord. XI of 1960) on 8‑8‑1989 vide Government Notification attached as (R.I.). On 8‑8‑1989 the Board of Governors was also constituted vide Notification (R.II) and on 1‑3‑1990 all persons serving in the Government College, Lahore were transferred to serve under the Board of Governors of the Government College, Lahore vide Notification dated 22‑2‑1990 (R.III)."
8. The aforesaid factual position as stated in the Report of respondent No.1 has not been controverted by the other respondents. Now, in order to determine the scope of the autonomy and the effect of the aforesaid Notifications, it is necessary to examine the relevant provisions of the Ordinance and the Notifications.
9.. The Notification dated 8‑8‑1989 notifying the College as the 'Institution' is reproduced below:‑‑‑
"Government of the Punjab Education Department (Boards Section)
NOTIFICATION
No.SO(BOARDS)2‑4/88.‑‑‑In exercise of the powers conferred on him under subsection (2) of section 1 read with clause (c) of section 2 of the Punjab Educational and Training Institutions Ordinance, 1960 as amended in 1984, the Governor of the Punjab is pleased to notify the Government College, Lahore as an 'institution' for the purposes of the Ordinance. He is further pleased to direct that the provisions of the said Ordinance shall apply to the said College with effect from 8th August, 1989.
Dated Lahore, the 8th August, 1989. By Order of the Governor of the Punjab Tariq Sultan, Education Secretary."
Simultaneously another Notification was issued by the Government of the Punjab in the Education Department, establishing and constituting the Board, which is in the following terms:‑‑‑
"Government of the Punjab Education Department Boards Section
NOTIFICATION
No.S.O.(BOARDS)2‑4/88.‑‑‑In exercise of the powers conferred on him under sections 3(1) and 4 of the Punjab Government Education end Training Institutions Ordinance, 1960 as amended in 1984 and in furtherance of the Education Department's notification of even ‑number, dated 8th August, 1989, the Governor of the Punjab is pleased to constitute the following Board of Governors of Government College, Lahore, with immediate effect:
1.
Education Minister, Punjab
Chairman
2.
Chairman, Planning and Development Department Government of the Punjab or his nominee not below the rank of Additional Secretary.
Official Member
3
Secretary Education, Government of‑ the Punjab, or his nominee not below the rank of Additional Secretary.
‑do
4.
Secretary Finance, Government of the Punjab or his nominee not below the rank of Additional Secretary.
‑do
5.
Vice‑Chancellor, University of Engineering and Technology, Lahore.
‑do
6.
Vice‑Chancellor, University of the Punjab, Lahore.
Official Member
7.
Mr. Justice Dr. Javid Iqbal, Judge, Supreme Court of Pakistan.
Non‑Official Member
8.
Mr. Majid Nizami, Chief Editor, the Nawa‑i‑Waqt and the Nation, Lahore.
‑do
9.
Mr. Shahbaz Sharif, M.P.A. and Prominent Industrialist.
‑do
10.
Dr. Muhammad Ajmal, Ex‑ Principal, Government College, Lahore, ex‑Vice‑Chancellor, Punjab University and ex Federal Education Secretary.
‑do
11.
Dr. Muhammad Afzal, Rector, International Islamic University, Islamabad, ex‑Federal Education Minister, ex‑Chairman, University Grants Commission.
‑do
12.
Begum Afifa Mamdot, 110‑6, Model Town, Lahore.
‑do
13.
Prof. Mirza Muhammad Munawar, Former Director, Iqbal Academy, Lahore presently Chairman, Women University/Commission, Punjab, Lahore.
‑do
14.
Mr. A.R. Toosy, Chief Engineer, Buildings Department, Lahore.
‑do
15.
Dr. Shaheryar Sheikh, Associate Prof. Cardiology, K.E.M.C., Lahore.
‑do
16.
Dr. Ashfaq Ahmad, a distinguished Scientist and Member, Pak Atomic Energy Commission, Islamabad.
‑do
17.
Principal, Government College, Lahore.
Official Member/ Secretary
Dated Lahore, The 8th August, 1989. By Order of the Governor of the Punjab Tariq Sultan, Education Secretary."
10. The preamble to the Ordinance declares the purpose of such action and states that "it is expedient to establish Board of Governors for some Government educational and training institutions in West Pakistan for the efficient management and control thereof." For achieving this purpose the aforestated Notifications were issued by the Government of Punjab. The consequence of notifying the College as an 'Institution' under section 1(2) of the Ordinance is that with effect from 8‑8‑1989 the College ceased to be under the control and management of the Government of Punjab and became autonomous. For efficient management and control of the College, the Board of Governors was established, which is a body corporate, having perpetual succession and common seal, with powers to enter into contract and to acquire and hold property in accordance with section 3 of the Ordinance. The Board has accordingly been constituted under section 4 of the Ordinance. Under section 10 of the Ordinance, all properties hitherto vesting in the Government in connection with the affairs of the College, now vest in the college.
11. Thus it appears that after the Notification dated 8‑8‑1989, the Government/Governor retained some powers only under the provisions of the Ordinance as summarised hereunder:‑‑
(i) to constitute/re‑constitute Board of Governors.
(Section 4)
(ii) to remove the Members of the Board of Governors; '
(Section 5)
(iii) to approve the budget and
(iv) the Regulations;
(Section 8)
(v) to make transitional provisions regarding staff;
(Section 9)
(vi) to approve estimated receipt and expenditure in respect of next financial year;
(Section 13)
(vii) to approve annual report on the conduct of the affairs of the Board for that year;
(Section 14)
(viii) to issue directive to the Board for rectification of an audit objection;
(Section 15)
(ix) to make rules for carrying out the purposes of the Ordinance;
(Section17)
and
(x) to approve regulations framed by the Board;
(Section 18)
12. With regard to the persons who were already‑serving in the College, section 9 of the Ordinance and the Notification No. S.O.(BOARDS)2‑4/88, dated 22‑2‑1990 has taken their proper care. Section 9 reads as follows:‑‑
"Any person serving, in connection with the affairs of the Province, in an institution in any capacity immediately before the day notified under subsection (2) of section 1, hereinafter referred to as the 'said day', may be transferred by Government for service under the Board on such terms and conditions as Government may determine; provided that such terms and conditions shall not be less favourable than those admissible to him under Government; provided further that no such person shall be dismissed, removed from service or reduced in rank by an authority subordinate to that bi, which he was appointed. "
Similarly the relevant provisions of the Notification dated 22‑2‑1990 may be advantageously reproduced hereunder:‑‑‑
"1. All persons serving, in whatever capacity, in the Government College, Lahore shall with effect from 1st March 1990 stand transferred to serve under the Board of Governors of the Government College, Lahore on the following terms and conditions:‑‑‑
(i) The employees transferred to the Board shall be initially adjusted against the same posts as they were holding in the College immediately before the transfer and their status shall not be reduced.
(ii) Any person so transferred shall be entitled to receive the pay and allowance which shall not be less than what he was drawing before the 1st March, 1990. There shall be no extra emoluments in the nature of deputation pay or allowance etc.
(iii) The employees so transferred shall enjoy all the privileges of Government service and shall be governed by the Service Rules of the Education Department of the Punjab in all matters
(iv) ..
(v) ..
2 ..
3(i) The Board shall exercise all administrative, disciplinary and financial powers in respect of any such person; provided that no such person shall be dismissed, removed from service, retired compulsorily, or reduced in rank or suspended by an authority subordinate to that by which he was appointed; provided further that disciplinary action involving any of the aforesaid punishments in respect of any such person may be initiated by the Board.
(ii) ......................................
(iii) The Board shall be competent to make such organizational changes as it may deem fit and employ any such person in any capacity as it deems proper provided that as a result of such changes such person does not suffer in emoluments or status.
4. Till his permanent absorption in the Board's service under certain specified terms and conditions, any employee, teaching staff or others, may be taken out or transferred back to the Government and posted elsewhere on his own request or on Board's proposal or at the pleasure of the Government .."
13. On the strength of paragraph l(i), (iii) and paragraph 4 of the Notification dated 22‑2‑1990, Syed Jamshed Ali Shah, Advocate, learned counsel for respondent No.4 made two‑fold submissions. Firstly, that the petitioner and respondent No.4 are the Government servants, therefore, the appointment/posting of respondent No.4 as the Principal of the College could not be impugned in the writ petition in view of the Constitutional bar under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Secondly that the Government of Punjab still retains the powers to transfer, post and appoint any person in the College, therefore, the appointment/posting of respondent No.4 as Principal of the College by the Government of the Punjab through Notification dated 17‑1‑1993, was validly and competently made.
14. Syed Jamshed Ali Shah, Advocate, learned counsel for respondent No.4 also argued that notwithstanding the fact that the College was notified as an 'Institution' under the Ordinance, the Provincial Government retained the powers of making transfers, postings and appointments in the College and in other administrative matters, such as approving the Budget, the Rules and Regulations and appointing and removing the members of the Board of Governors. In this behalf he referred to sections 8, 9, 13, 14, 17 and 18 of the Ordinance. According to him, all these provisions under the Ordinance and the said Notification of 22‑2‑1990 indicate that the Government was competent to transfer respondent No.4 from the post of the Head of the Economics Department of the College and to post him as the Principal of the College against an Existing vacancy which was done through the impugned Notification No. SO(E.I)E‑48/91, dated 17‑1‑1993. The learned counsel also referred Article 129 of the Constitution to contend that the Punjab Provincial Government in exercise of its executive authority could make such appointment and posting in the College.
15. In my view the first contention is misconceived, inasmuch as the appointments' of respondent No.4 as the Principal of the College by the Government is not a matter relating to his terms and conditions of service as a civil servant so as to attract the bar against the jurisdiction of this Court under Article 212 of the Constitution. What is challenged in this Constitutional petition is the power of the Government to make such an appointment in the 'Institution' i.e. the College, which is no more subject to the authority and control of the Government, and the authority of respondent No.4 to hold the same office. Therefore, this petition is not barred under Article 212 of the Constitution nor is appeal competent under section 4 of the Punjab Service Tribunals Act, 1974 against the impugned Notification, as it does not relate to terms and conditions of respondent No.4 as a civil servant.
16. After notifying the College as an 'Institution' under the Ordinance and constituting Board of Governors, the Board, to the exclusion of the Government, assumed the full powers to administer, manage and control the College in accordance with sections 3 and 8 of the Ordinance. Under section 3 of the Ordinance, the Board has been established 'for the efficient management and control' of the 'Institution' and under section 8 of the Ordinance inter alia, with the following powers:‑‑‑
"(a) to acquire and dispose of property and generally to enter into contracts, in conformity with the purposes of this Ordinance;
(b) recruitment and determination of the terms and conditions of service of the Principal and other members of the staff of the institution and of other officers and servants of the Board;
(c) to formulate the budget of the institution for approval of Government;
(d) to set up an Executive Committee and other Standing Committees as may be required for carrying out the purposes of this Ordinance;
(e) to delegate powers to the Chairman, the Executive Committee, Standing Committee, the Principal, the staff of the Institution and other officers and servants of the Board; and
(f) to frame, subject to the approval of Government, regulations for the conduct of business of the Board."
17. In support of the second contention, the learned counsel for the respondents, in addition to the aforesaid Notification dated 22‑2‑1990, also relied on the wording of section 9 of the Ordinance which is reproduced in the earlier part of this judgment.
18. As observed above, the Government of Punjab has also issued Notification No. SO(BOARDS) 2‑4188, dated 31‑3‑1992 (Annexure RIIV to the written statement of respondent No‑1) approving and enforcing with immediate effect the Government College, Lahore General Conditions of Service Regulations, 1990, framed by the Board which begin in the following terms:‑‑‑
"In exercise of the powers conferred on it under section 18 of the Punjab Government Educational and Training Institutions Ordinance, 1960 as amended in 1984, the Board of Governors of the Government College, Lahore has, with the approval of Government of the Punjab, framed the following Regulations in respect of recruitment and service conditions for the persons appointed to various categories at the College."
19. These Regulations have been framed by the Board under sections 8 and 18 of the ordinance with the approval of the Government prescribing manner of recruitment and terms and conditions of service of the Principal and other officers and employees of the College.
20. According to section 2(f) of the Ordinance "prescribed" means prescribed by rules or regulations made under this ordinance. Regulation No.2 defines the "Appointing Authority" to mean the authority shown in column 5 of the schedule; the "Principal" to mean Principal of Government College, Lahore' and the 'employee' to mean a person employed in any manner to a post and paid out of the Board's fund. Section 2(g) of the Ordinance also defines the 'Principal' to mean the Principal officer‑in‑charge of an institution. Regulation No.3 states that, except as otherwise provided, these Regulations shall apply to all employees of the Board. Regulation No.4 prescribes qualifications etc. for various posts. Clause (1) of Regulation No.4 which prescribes the qualification of the principal reads as follows: ‑‑‑
The Principal will be the Chief Academic and Executive Officer of the College. The minimum qualifications, age, method of recruitment and the appointing Authority in respect of the Principal will be as given in the Schedule. The principal shall be appointed for a term of 4 years, but 'shall be eligible for another term or a part…
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