2017 PLP 414 (YLRN)

MUZAMIL AKHTAR SHABIR, J.

Through this constitutional petition, the University of South Asia, Lahore ("University")/petitioner has sought declaration that action of the respondents to restrain the petitioner from exercising its powers of affiliation and creation of sub-campuses after the efflux of 10 years from the date of commencement of its parent statute be declared as without lawful authority and set-aside as such.

2. The brief facts of the case are that the petitioner is a chartered university in the province of Punjab and was established through University of South Asia Lahore Act, 2005 (IX of 2005) ("Act"). According to section 6 of Act, the University is authorized to open sub-campuses or affiliate any other educational institution after passing 10 years from enactment of the Act. The respondent No. 3 prescribed affiliation criteria guidelines for Universities/ Institutions of Higher Education in public and private sectors in the year 2011 which shows that private sector universities are entitled to affiliate institutes of higher learning. The petitioner intimated to the Higher Education Commission ("HEC") that it was planning on affiliating colleges run by its sponsor company 'gateway technologies' by the name of Heritage Colleges. On 16.06.2014, the respondent HEC instructed the petitioner university that all the private sector universities should refrain from granting affiliation to colleges/institutions as per HEC Guidelines. The petitioner claims that this action of the respondent HEC was in direct contravention to the charter granted to the petitioner university in 2005. On 09.04.2015 the petitioner university received a notice from HEC threatening to remove its name from the HEC website and de-recognition of its degrees because of its proposal to affiliate Heritage International Colleges. The respondent HEC on 11.06.2015 wrote a letter to the petitioner asking it to publish a notice stating that it had no concern with the Heritage Colleges. The petitioner university replied that Heritage Colleges are registered with the Punjab Education Department but have not yet been affiliated with the petitioner university. On the refusal of the respondent HEC to allow the petitioner to open sub-campuses and affiliation to Heritage International College, the petitioner has filed this constitutional petition.

3. Notices were issued to the respondents who have contested this petition and argued that the private sector universities are not allowed to open sub-campuses and grant affiliation to other institutions. Even if a private university could do so, the University is not empowered by the Act to grant affiliation to other institutions and hence is precluded from doing so.

4. The learned counsel for the petitioner has argued that according to Section 6 of the Act, the petitioner institution could open any sub-campus or affiliate any other educational institution after passing 10 years from enactment of the Act which was promulgated on 09.07.2005. On the completion of 10 years, on 09.07.2015 no bar exist against the petitioner university to affiliate any institution or to open sub-campuses.

5. Conversely, respondent HEC has argued that simply by referring to section 6 of the Act authority is not vested in the petitioner to open sub-campuses or affiliate any other college.

6. The learned counsel for respondent No.4 has argued that before completion of 10 years from the enactment of Act, there is no authority vested in the petitioner university to affiliate other colleges or make sub-campuses and this petition having been filed prior to passing of the 10 years is premature and not maintainable.

7. From perusal of the record, it is seen that the Act of the University was enacted on 09.07.2005 and this constitutional petition was filed on 16.01.2016 i.e. after passing of more than 10 years from the Act, therefore, the objection raised by the learned counsel for respondent No.4 regarding the petition being pre-mature and not maintainable is not made out from the record and, therefore, such objection is turned down.

8. The interpretation of Section 6 of the Act is involved in this petition, which is reproduced below: "

6. Jurisdiction.

(1) The jurisdic-tion of the University be restricted to the Province of the Punjab. (2) The University shall not open any sub-campus or affiliate any other educational institution for a period of ten years from the commencement of this Act after which period it may have sub-campuses with the approval of the Chancellor." (emphasis supplied)

9. The petitioner is a private sector university established under section 3 of the Act having its campus at Lahore. The functions and powers of the university are provided under Section 4 of the Act which includes to provide for instruction and training in computer sciences, management sciences, commerce, law, humanities and social sciences, art and fashion design and such other branches of learning as the Board may determine with the approval of the Chancellor given on the recommendation of a committee constituted by the Education Department. Section 4 of the Act is reproduced below: "

4. Functions and powers of the University.

The functions and powers of the University shall be

(a) to provide for instruction and training in

(i) Computer Sciences, Manage-ment Sciences, Commerce, Law, Humanities and Social Sciences. Art and Fashion Design: and (ii) such other branches of learning as the Board may determine with the approval of the Chancellor given on the recommendation of a committee constituted by the Education Department. Provided that in case of medical and engineering education, approval of the Pakistan Medical and Dental Council and Pakistan Engineering Council respectively shall be a pre-requisite; (b) to provide for research, demonstration and other services, and for the advancement and dissemination of knowledge; (c) to hold examinations in a manner as may be determined by the Government and confer on or award degrees, diplomas, certificates and other academic distinctions to persons who have passed its examinations; (d) to select and promote faculties; (e) to prescribe courses of studies; (f) to establish and support other facilities for education, training and research; and (g) to decide teaching methods and strategies in order to ensure the most effective educational and training programs."

10. From the perusal of section 4 above there is no doubt that the University is a Degree Awarding Institute ('DAI') for the subjects provided therein. As per section 6 of the Act, the jurisdiction of the university is restricted to the Province of Punjab only and a restriction has been placed under section 6(2) upon the university not to open any sub-campus or affiliate any other educational institution for a period of ten years from the commencement of the Act. The subsection (2) of the Section 6 is couched in the negative language. It is settled by now that a provision couched in negative language is mandatory. Hence, for the first 10 years after the enactment of the Act, the University was barred from opening any sub-campuses or affiliating any other educational institution. This bar has not been extended beyond 10 years, which points out towards the fact that beyond initial period of 10 years, the university may open sub-campus and affiliate other educational institutions. As per section 2(d) of the Act, the Chancellor is defined as the Governor of the Punjab and under section 6(2), the University may open sub-campuses with the approval of the Chancellor.

11. The learned counsel for respondent HEC has argued that concluding line of section 6(2) of the Act permits opening of new sub-campus after period of ten years but does not permit the petitioner institution to affiliate any other educational institution with it. From perusal of section 6(2) of the Act, it is observed that the bar to affiliate any other institution is provided for the initial period of 10 years. Had the intention of legislation been to absolutely prohibit the petitioner university to affiliate any other institution, it would have provided so in the Act. The intention of the legislature seems to be that beyond initial period of ten years, the bar to open sub-campus and affiliate new colleges will cease to exist. However, opening of sub-campus was made subject to the approval of the Chancellor i.e. Governor of Punjab. The Governor of Punjab being the head of the Province is entitled to adopt any procedure that he likes before granting approval to the university to open new sub-campus or affiliate any other college. If the interpretation of HEC is adopted then it would be tantamount to defeat the intention of Section 6 of the Act which cannot be allowed. On the basis of afore-mentioned reasons it is held that beyond the initial period of ten years, the petitioner university, subject to the approval of the Chancellor, has powers to open sub-campus and affiliate other colleges with itself.

12. The learned counsel for respondent HEC has argued that it is for the HEC to grant accreditation to the degrees awarded by the petitioner/ University and merely by affiliating the afore-said colleges the petitioner/ University would award degrees to them which would not be recognized by the HEC authorities.

13. The learned counsel for the petitioner on the contrary has argued that it is not within the power and jurisdiction of the respondents to regulate the affairs of the university and under the Act, the university itself is empowered to do the same. The subsection (c) of section 4 authorizes the University to hold examinations in a manner as may be determined by the Government and confer on or award degrees, diplomas, certificates and other academic distinctions to persons who have passed its examinations. The University is authorized to deal with subjects provided under clause (a) of section (4), subject to restrictions provided therein. The petitioner/university is required to seek permission of the Government to confer the aforesaid degrees, etc. The relevant Government as per subsection (j) of section 2 is the Government of the Punjab. The said government can prescribe criteria for exercise of powers by the university under subsection (c) of section

4. The HEC has to work within the sphere prescribed by its own law but this does not mean that the Act would cease to have effect.

14. The HEC has itself laid down the Affiliation criteria/Guidelines for Universities/Institutions of Higher Education Public and Private Sectors. Clause 2(i) provides that University/ Degree Awarding Institute ('DAI') (in public/private) sector should have provision in the Act to affiliate the College/Institute. Clause 2(iv) provides that the Institute/College seeking affiliation with public/private sector institution shall register itself with the Provincial Government or the HEC in case of Federal territory, if applicable. Clause 2(v) provides that the Institute/ College will seek permission of the concerned Provincial Government and Higher Education Commission in case of Federal Territory. Clause 3 provides as under: "

3. Application for affiliation An institution applying for affiliation to university shall make an application to Registrar of University on prescribed form (Ann-I) at least 6 months prior to the date from which affiliation is sought with sufficient time prior to commencement of academic programmes of university. There shall be an application processing fee at such rates as may be prescribed by university/DAI. . The Institute will offer those programmes which are offered the affiliating University/ DAI. ."

15. The perusal of the afore-referred clauses, provided in the Affiliation criteria above, negates the claim of the HEC that private sector universities cannot affiliate other institutions. The process provided in the criteria framed by the HEC for affiliation of institutes with the University revolves around the university/Degree Awarding Institute and the institute seeking affiliation and there is no substantive role of the HEC in the same. There does not seem to be any absolute bar against such affiliation.

16. Reference may also be made to the consolidated decision dated 31.03.2014 passed by this Court in W.P. No. 33634/2013 W.P. No. 3113/2014, wherein section 5(2) of Punjab Ordinance No. XX of 2012 relating to National College of Business Administration and Economics, Lahore, which is similar to the section 6(2) of the Act came into consideration of this Court and while interpreting the said section the Court observed as under: "

11. Nutshell of the above discussion is that the HEC respondent is misconceived in holding the view that provision of section 5(2) of the Ordinance does not empower the petitioner Institute to affiliate other educational institutions .."

17. For what has been discussed above, it is held that the HEC and other respondents are misconceived in holding the view that provisions of section 6(2) of the Act do not empower the petitioner/ university to open sub-campuses or affiliate other educational institutions beyond the bar for initial period of 10 years prescribed by law. However, for that purpose, the petitioner/university needs the approval of the Chancellor and the Government as mentioned above. The observations made above do not hinder or stop the HEC to work within the sphere of its own law.

18. For what has been stated above, this petition is allowed in the afore referred terms. ZC/U-6/L Petition allowed.