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Petitioner: Aown Abbas Bhatti VS Respondent: Forman Christian College and 2 others
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Aown Abbas Bhatti vs Forman Christian College and 2 others Case No.: Case No. W.P. No.130999 of 2018 Date of Judgment:2018-02-23 Reported As: PLD 2018 Lahore 435, PLJ 2019 Lahore 165, 2018 LHC 386 Result: Petition dismissed
Judgment JAWAD HASSAN, J.- Through the instant Constitutional Petition (the "Petition "), filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution "), the Petitioner has challenged the letter dated 27.10.2017 (the "Impugned Letter ") whereby the Petitioner was suspended/expelled by the Respondent/Forman Christian College (the " FC College "). 2. The main grievance of the Petitioner is that due to his alleged poor academic performance, he was suspended on probation for the Fall Semester 2017 and his registration for the Fall Semester 2017 was cancelled and he was told that his case can be reviewed for the registration for Spring 2018, however his probationary status will remain until his CGP A reaches the requirement of 2.0. The Impugned Letter was issued to the Petitioner on 27.10.2017. A. The Petitioner 's Arguments: 3. The learned counsel for the Petitioner inter alia submitted that the Impugned Letter has been issued by the Respondents in clear violation of Articles 10-A, 18, 25-A of the Constitution; that the decision of the Respondent is against the rules and regulations; that the Petitioner is being deprived of his fundamental right of education guaranteed under the Constitution; that no opportunity of personal hearing was ever afforded to the Petitioner , as such the decision of the Respondents is arbitrary and against the principle of natural justice; and that having two registrations/roll numbers is not against the rules and regulations. B. The Respondents' Arguments: 4. In response to order dated 16.02.2018, the Respondents have submitted report and parawise comments denying all the allegations levelled in the Petition and prayed for dismissal of the Petition. It is submitted in the report and parawise comments that this petition is not maintainable on the ground that the Respondents does not fall within the definition of a person; that the setup of the Board of Governors of the Respondents is not under the dominative control of the Federal or the Provincial Government; that the Respondents do not get any operating funds from the Government of the Punjab or the Federal Government; that Petitioner has not been able to point out
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any violation of any provision of law or any rules and regulations by the Responde nts; that the Petitioner may avail alternate remedy before appropriate forum; that the instant petition has been filed just to harass and blackmail the Respondents. 5. Mian Zafar Iqbal Kalanauri, Advocate for the Respondents, vehemently contested the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the Petition mainl y on the ground that the same is not maintainable; that the Respondent is a private body and does not fall within the ambit of definition of a person as defined under Article 199 (5) of the Constitution; that there are plethora of judgments on the maintainability of the petition against the private educational institutions. It was further argued that the Petitioner should first cross the hurdle of maintainability before going into the merits of the case. The learned Law Officer while relying upon the case of Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others (PLD 2007 Lahore 568) has contended that the matter in issue has already been discussed in detail in the said judgment and it was a test case. He also placed reliance on the case titled Maqsood Toor v. Federation of Pakistan etc (2000 SCMR 928), Tanvir Iqbal v. The Principla, OPF Girls School (1994 SCMR 958) and Muhammad Sharif v . Secretary (PLD 1973 SC 497 ). 6. In rebuttal, the learned counsel for the Petitioner submitted that the instant petition is maintainable and relied upon the case titled Saira Rana v. University of Central Punjab (2014 YLR 475), AF Industries through Proprietor and 2 others v. Federation of Pakistan through Secretary Law and 7 others (2010 CLD 1765 ), The State and others v. Director General, FIA and others (PLD 2010 Lahore 23), Muhammad Iqbal Khan Niazi v. Vice Chancellor , University of Punjab etc. (PLD 1979 Supreme Court 1), Aitchison College, Lahore through Principal v. Muhammad Zubair and another (PLD 2002 Supreme Court 326), and Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and othe rs (PLD 2009 Supreme Court 507). 7. I have heard the arguments of both the sides at length and perused the record myself minutely . C. Maintainability of the Petition to be decided first: 8. At the very outset it is observed here that the Hon'ble Supreme Court of Pakistan in its judgment reported as Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others (2011 SCMR 592) has held that every Court prior to taking cognizance and adjudicating upon an issue should first resort to the question of assu mption of jurisdiction of the Court and if it comes to the conclusion that jurisdiction can be assumed only then it can adjudicate upon the issue. The question regarding assumption of jurisdiction and its exercise has very comprehensively been dealt with and decided by the Hon'ble Supreme Court of Pakistan in the case titled Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457). Even at the hearing, question as to the maintainability of the Petition being of crucial importance and touching the root of the case was posed to the learned counsel for the Petitioner . 9. In view of above, this Court first has to dilate upon the issue of maintainability of the petition as without crossing the hurdle of maintainability, it cannot be proceeded towards the merits of the case. Therefore, the essential question before proceeding with the merits of the case is that whether the Respondent/FC College against which a direction has been sought from this Court, falls within the definition of a person or not. D. The Forman Christian College, Lahore Act 2004: 10. Before rendering the decision on maintainability of the Petition, it is essential to see and study the constitutional document of the FC College under which it is currently working and operating. Admittedly , the FC College was granted the status of University in the private sector under the Forman Christian College, Lahore Act 2004 (the "Act"). The Act recognizes the FC College as a Society , and defines, in Section 2(p), the "Society", as "the educational society of the Forman Christian College, Lahore registered under the Societies Registration Act 1860" . 11. Section 3(1) of the Act clearly gives the FC College status of a University in the private sector and reads as follows: "3. Establishment of the University .- (1) There shall be established a University to be called the Forman Christian College, Lahore in the private sector with its campus located at Lahore." (emphasis added)
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Section 4 of the Act provides the academic functions and powers of the FC College and Section 5 of the Act restricts its jurisdiction to the Province of Punjab. Under Section 6(1) of the Act, the Governor of the Punjab is the Patron of the FC College, who or his nominee shall preside at the convocations of the FC College. 12. Section 7 of the Act gives the power to the Patron for an inspection or inquiry in respect of any matter connected with the affairs of the FC College, who shall refer the matter to a committee consisting of at least three (3) members including a nominee of the Government not below the rank of an Additional Secretary , a nominee of the Punjab Higher Education Commission not below the rank of a member of the Commission and a nominee of the Chairman of the Society . The Patron is required to communicate to the Board his views with regard to the result of the inspection or inquiry and can, after ascertaining the views of the Board, advise the Board on the action to be taken by it. If the Board of the FC College does not, within the time specified, take action to the satisfaction of the Patron, the Patron may issue such directions as he thinks fit and the Board shall comply with all such directions, and the Patron may, on the recommendations of Accreditation Committee, take any appropriate action. Further , under Section 7(7) of the Act, the Patron may, on the recommendation of Accreditation Committee, annul any decision of the Board on the ground of academic excellence, religion, culture, ideology or national integrity . 13. Section 8 of the Act provides appointment of a Rector , who should be an eminent scholar of repute or distinguished administrator who is appointed by the Government on the recomm endation of the Board on such terms and conditions as the Board may determine. The Rector is the Chief Executive Officer of the FC College and performs such functions as are assigned to him by the Board. Further , under Section 9 of the Act, the FC College is empowered to appoint such persons in its services as may be necessary on such terms and conditions as may be determined by the Board. 14. Section 10 of the Act constitutes "the Forman Christian College, Lahore Fund", which vests in the FC College to credit all sums received by the FC College. The Board of the FC College is empo wered to approve the budget of the FC College and to maintain and audit accounts under Section 1 1 of the Act. 15. Section 12 of the Act provides the Authorities of the FC College, which include (a) the Board of Governors; (b) the Academic Council; (c) the Board of Faculties; (d) the Board of Advanced Studies and Research; (e) the Selection Board; (f) the Finance and Planning Committee; and (g) such other Authorities as may be prescribed by the Statutes. 16. Section 13 of the Act provides constitution of the Board of Governors, which consist of (i) the Chairman of the Society; (ii) members of the Board of Directors of the Society subject to a maximum of ten (10) members; (iii) five (5) eminent persons of national repute to be nominated by the Society other than members of its Board of Directors; (iv) the Chairman, Higher Education Commission or his nominee not below the rank of an Executive Director; (v) Chairperson of the Punjab Higher Education Commission or his nominee not below the rank of a whole-time member of the Punjab Higher Education Commission; (vi) three (3) members of the Provincial Assembly of the Punjab, including at least one female member of the Assembly , to be nominated by the Speaker of the Assembly; (vii) a Vice Chancellor of a public sector University in the Punjab nominated by the Patron; (viii) the Rector; and (ix) Secretary to Government of the Punjab, Higher Education Department or his nominee not below the rank of Additional Secretary . Further , the Chairman of the Society is the Chairman of the Board, and the quorum for a meeting of the Board is one-half (1/2) of the total number of memb ers with at least two (2) official members. 17. Under Section 14 of the Act, the administration and management of the affairs of the FC College vests in the Board, and under Section 15 of the Act, the meetings and business of the Board is conducted in such manner and in accordance with such procedure as may be prescribed in the Regulations and until these matters are prescribed, as may be determined by the Board. Section 16 of the Act empowers the Board to delegate any of its powers, duties and functions to any person or a committee. 18. Section 17 of the Act constitutes the Academic Council, consisting of (i) the Rector (Chairman); (ii) all the Deans; (iii) all the Heads of the Departments/Institutes; (iv) all Professors and Associate Professors of the University; (v) all full-time members of the teaching faculty who hold appointments as Assistant Professors and Lecturers, who have been on the faculty for at least one (1) year; (vi) any senior administrative officer of the FC
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College to be nominated by the Rector; (vii) an expert in the field of education to be nominated by the Secretary to the Government, Higher Education Department, from a panel of experts recommended by the Board; and (viii) the Registrar (Member/Secretary). These members appointed by nomination shall hold office for three (3) years, and the quorum for a meeting of the Academic Council is one-half (1/2) of the total number of members, a fraction being counted as one. 19. Section 18 of the Act provides powers and duties of the Academic Council, which is the academic body of the FC College, which has the powers to lay down proper standards of instruction, research, publication and examination and to regulate and promote the academic life of the FC College, specifically inter alia to regulate the admission of students to the courses of studies and examinations in the FC College, and to make Regulations prescribing the courses of studies, the syllabi and the outlines of tests for all the FC College examinations subject to approval of the Board. Moreover , under Section 21 of the Act, the Board is empowered, by notification, to make Regulations for the administration and management of the affairs of the FC College. Lastly , the the Board is required to give such directions, not inconsistent with the Act, as it may consider necessary for the removal of such difficulty arising in giving ef fect to any of the provisions of the Act. 20. Having gone through the Act in detail, which is governing the management and operations of the FC College, it is equally necessary to look at the law settled by the Hon'ble Courts in view of maintainability of the petition against a "person". It is unequivocal from the Article 199(5) of the Constitution that a person includes any body Politic or Corporate, any Authority of or under the control of the Federal Government or of a Provincial Government. For the sake of clarity , the said Article is reproduced below and is as follows: "(5) In this Article, unless the context otherwise requires; person? includes any body Politic or Corporate, any Authority of or under the control of the 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 a Law relating to the Armed Forces of Pakistan;" E. The Hon'ble Supreme Court' s view on the maintainability of the writ petition against 'Person' under Article 199 (5) of the Constitution: 21. The Hon'ble Supreme Court of Pakistan has time and again tried to define the concept of 'person' for the purposes of maintainability of a petitio n under Article 199 of the Constitution, against different Statutory Corporations or other Corporate and Juridical persons. In the case of Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd. (PLD 1975 SC 244), the Hon'ble Supreme Court of Pakistan laid down an exhaustive test to determine whether any entity falls within the definition of a 'person', performing functions in connection with the affairs of the Federation etc. and observed as follows: "However private organizations or persons, as distinguished from government or semi-government agencies and functionaries cannot be regarded a persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State. ... The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving same exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds 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 a person performing functions in connection with the affairs of the Federation or a Province; otherwise not." (emphasis added) 22. In another case titled Pakistan International Airlines Corporation v. Tanweer ur Rehman (PLD 2010 SC 676), the Hon'ble Supreme Court of Pakistan has further elaborated and laid down the principles of Salahuddin case supra , and ruled as follows: "Now let us see what is meant by the expression performing functions in connection with the affairs of the Federation'. The expression clearly connotes governmental or State functions involving an element of exercise of public power . The functions may be the traditional police functions of the State, involving the maintenance of law and order or they may be functions concerning economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Generally , these functions are to be
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performed by persons or agencies directly appointed, controlled and financed by the State; either by Federation or a Provincial Governmen t. ..." 23. In Aitchison College Lahore through Principal v. Muhammad Zubair and another (PLD 2002 SC 326) and Maqsood Toor v. Federation of Pakistan (2000 SCMR 928), the Hon'ble Supreme Court has again resonated the test laid down in Salahuddin case supra. However, the Hon'ble Supreme Court, in Aitchison College case supra, held that the Aitchison College falls within the definition of 'person' under Article 199(5) of the Constitution, which is distinguished from this captioned case as the dominating control in Aitchison College is (1) taken over under MLO (2) Governor- President and also on the Board (3) Provincial Secretaries - Corp Commanders etc. members (4) included as Special Institution under Provincial Rules of Business and (5) ability to transfer Government servants to Aitchison College. F. The Hon'ble High Courts' view: 24. The question of maintainability involved in the Petition has elaborately been answered in the Anoosha Shaigan v. LUMS (PLD 2007 Lahore 568) cited by Mian Zafar Iqbal Kalanauri, Advocate, wherein this Court dismissed the petition against the Lahore University of Management Sciences (LUMS) and held as under: "5. ... The word "control" appearing in the aforementioned definition [of the person] is also quite significant and it is not restricted to the financial control of the Government over a body but the executive control as well; it does not necessarily mean the financial control over the bodies that are under the dominative control of the Federal, or Provincial Government, which are amenable to the jurisdiction under Article 199 of the Constitution. ... 7. ... I am of the considered view that the absolute control over the management of a body/an organization by the federation etc., is a condition most important for declaring it to be a "person" performing its functions in connection with the affairs of the Federation etc; the Federation etc. should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions. Such control must be absolute, unfettered, unbridled and exclusive, besides, the State must also have the financial control of the Organization; the power of hiring and firing the employees thereof appointing and removing the management body meant for running the routine affairs of the Organization. But from the Presidential Order of 1985, though the President is the Chancellor of the LUMS, but this is notional and more with the status of a Patron-in Chief; in practical terms except for the nomination of the persons on the Board or the Council, he does not have the administrative or policy-making control, which is the authority of the Board of Trustees and the Council of LUMS, which manages its affairs. It has been rightly pointed out by the respondents counsel that the funds to LUMS are not being provided by the Government on regular basis, those are generated by the LUMS itself either from the fees or the donations and may be occasionally in the nature of donation, the government also contributes, but this contribution cannot be held to be within the concept of "financial control" of the Organization. ..." 25. In Dr. Kamran Jahangir v. Chancellor Shifa Tameer-E-Millat University and others (2015 PLC (C.S.) 710 (Islamabad) ), it has been held that the University under question is not a person in context of Article 199 of the Constitution by following the principles elaborated in Anoosha Shaigan case supra, and further held as under: "11. The High Court's exercise powers and jurisdiction under Article 199 of the Constitution in rare and exceptional cases when the relief is being sought against an educational institution. In case of educational institutions, Courts are conscious of the doctrine of in 'loco parentis', Latin for 'in the place of a parent'. It relates to a presumption that an educational institution is the best judge of the interests of the students and ought to be allowed to act as it may deem appropriate. This doctrine has been upheld by the august Supreme Court in "The University of Dacca v. Zakir Ahmed", PLD 1965 SC 90. It was observed that '--- we are not unmindful of the necessity of maintaining discipline in educational institutions or other institutions or departments where the maintenance of discipline is essential for the orderly conduct of the institution or department concerned, nor are we unmindful of the fact that persons in charge particularly of educational institution must be given full authority to correct those placed in their charge in the same manner as a parent or guardian would be able to do". The law was later resonated in the judgment of "Ahmed v. Vice-Chancellor University of Engineering and Technology", PLD 1981 SC 464. The Courts, therefore, show restrain while interfering in the administrative matters and decisions of an
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educational institution. This self-restraint in the case of educational institutions is to safeguard and protect the autonomy, independence and sanctity of an educational institution. It is also to ensure that the discipline of the students, and authority of the faculty, is not eroded. In the case before this Court, the petitioner served the University for a considerable time. Resorting to litigation by a faculty member or officer of an educational institution, and making the latter stand before the Court in an adversarial position, is certainly not desirable. Such litigation erodes and undermines the authority and prestige of an educational institution, and inevitably has adverse effects on the impressionable minds of the students enrolled in such institutions. The jurisdiction of this Court under Article 199 of the Constitution is equitable and discretionary in nature. Even if the petitioner would have been successful in making out a case in favour of maintainability of the petition, yet this Court may not have exercised its discretionary jurisdiction, so as to uphold the authority and prestige of the educational institution i.e. the University ." (emphasis added) G. The Functional T est: 26. Mr. Justice (R) Fazal Karim in Seco nd Addition (2018) of his book Judicial Review of Public Actions in Volume-3, Chapter-5 at Page-151 1 under the heading Persons performing functions in connection with the affairs of Government has stated as under: "As we shall see, the word person? has a special significance for the purposes of Article 199. However , what needs to be highlighted here is that to engage Article 199, clause (1), sub-clause (a), it is not enough that the respondent functionary is a person? within the meaning of Article 199, but it must be shown further that the act in question was done in the performance of functions in connection with the affairs of the Federation, a Province or a local authority , that is to say , it was a public function." 27. The review of the above produced case laws indicates that the test relevant for the determination of the status of a "person", performing functions in connection with the affairs of the Federation or the Province, is manifested on following principles: (i) whether the functions entrusted to the organization or person concerned are indeed functions of the State involving same exercise of sovereign or public power; (ii) whether the absolute, unfettered, unbridled and exclusive administrative and management control of the organization vests in a substantial manner in the hands of the Government, which means that the Government should have (a) complete domination to do and undo whatever it decides in running the affairs of such a body , including the power of hiring and firing the employees and appointing and removing the management body , and (b) the exclusive, complete and final authority to…
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