1994 PLP 2452 (MLD)

MALIK MUHAMMAD QAYYUM, J.

This is an appeal under section 3 of the Law Reforms (Amendment) Act, 1972 against the judgment of a learned Single Judge of this Court dated 21-7-1992 whereby he dismissed W.P. No.324/92 of the appellant holding it to be not maintainable.

2. In the Constitutional petition out of which this appeal has arisen, the appellant had challenged the order of his expulsion from Lawrence College, Ghora Gali, Murree, where he was a student of 9th Class on account of breach of the College Regulations. It is not necessary to go into the details for, the Constitutional petition filed by the appellant was primarily dismissed by the learned Single Judge without going into the merits on the ground that no Constitutional petition can be maintained against respondent No.1, which was not a person performing functions in connection with the affairs of Federation or Province.

3. The learned counsel for the appellant has vehemently assailed the view taken by the learned Single Judge as being not correct. According to the learned counsel, Lawrence College, Ghora Gali, Murree is under the administrative control of the Government of Punjab and its affairs are being managed by the Government through a Board of Governors constituted by the West Pakistan Government Educational and Training Institution Ordinance, 1960 (West Pakistan Ordinance No.XI of 1960) and as such it could not be held that it was not a person performing functions in connection with the affairs of the Province. The learned counsel has also referred to the definition of 'person' as appeared in Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 to contend that Lawrence College being an Educational Institution would fall within the definition given in the Constitutional provision.

4. The learned counsel for respondent No.1 has, on the other hand, supported the judgment of the learned Single Judge and has mainly relied upon The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 in support of his case.

5. Before proceeding to consider the respective contentions of the learned counsel, it would be beneficial to mention the history of Lawrence College, Ghora Gali, Murree Hills. According to the prospectus of the College, it was founded in 1860 as an asylum with a view to provide a plain, practical education to orphans and children of British soldiers in India. In 1914, it was "taken over" by the Government of Punjab and renamed as Lawrence Memorial School. The prospectus further mentions that the College was being administered by the Board of Governors appointed by the Governor of Punjab while General Officer Commandant, 12th Division, Murree is the Chairman of the Executive Council. The President of Pakistan is the Patron-in-Chief of the College.

6. On 6-4-1960, the West Pakistan Governmental Educational and Training Institution Ordinance, 1960 (West Pakistan Ordinance No. XI of 1960) was promulgated for establishing the Board of Governors for some Government Educational and Training Institutions in West Pakistan for the efficient management and control thereof. According to section 1(2), the Ordinance was to apply to such institutions and from such date, as the Government may by notification in the official Gazette specify. Section 3 provides for establishment of a Board of Governors for efficient management and control of an institution which has the status of a body corporate. The power to appoint and remove the Members vests with the Governor. According to section 6, the Principal of the College is the ex officio Secretary of the Board. Under section 11, a fund known as 'Board Fund' has been created which, inter alia, consists of grants-in-aid made by the Government and the loans obtained from the Government. Section 17 of the Ordinance authorises the Government to make Rules for the purpose of carrying out the Ordinance.

7. On 16th January, 1962, notification bearing No.SO.X-16/53-62(Edu) was issued by the Governor of Punjab in the exercise of powers conferred upon him by section 1(2) and sections 4 and 5 of the West Pakistan Government Educational and Training Institutions Ordinance, 1960, whereby a Board of Governors for governance of Lawrence College was notified composition whereof was given in paras. 4 and 5, while functions, powers, privileges of the members were mentioned in para.

8. On 26th January, 1962, by another notification, the Governor of Punjab directed under section 1(2) that the provisions of the Ordinance shall apply to the Lawrence College, Ghora Gali w.e.f. 1-7-1962. On 7-5-1965, the Government of Punjab promulgated West Pakistan Government Servants (Service under the Board of Governors of Educational Institutions) Rules, 1965.

8. In this background, the legal question arising in this petition may be examined. In view of the definition given in sub-Article (5) of Article 199 of the Constitution, it cannot be doubted that Lawrence College, Ghora Gali is a person within the meaning of the Constitution, which includes "any body politic" or "body corporate". In Black's Law Dictionary, 5th Edition at page 159, 'body politic or corporate' means: "A social compact by which the whole people cogenants with each citizen and each citizen with the whole people, that all shall be governed by certain laws for the common good. ??????????? Also a term applied to a Municipal Corporation, school, district, country or city

9. Now the further question arises as to whether the Principal or the College can be said to be performing any functions in connection with the affairs of the Federation and Province. After going our careful consideration to this question, we find ourselves unable to agree with the learned Single Judge who has answered this question in the negative. Imparting education is an obligation of the Province under the Constitution. Lawrence College is one of the educational institutions belonging to the Government to which West Pakistan Government Educational and Training Institution Ordinance, 1960 was made applicable by notification dated 26-1-1962. The Board has the status of a 'body corporate' under section 3(2) of the Ordinance. The power to administer and manage an institution vests with the Board under section 8, which can be delegated to the Principal or the staff under section 8(e) of the Ordinance. It is in the exercise of this delegated power that the Principal who is also an ex-officio Secretary of the Board has passed the impugned order. In these circumstances we are unable to see as to how could it be said that respondent No.1 is not a person performing functions in connection with the affairs of the Province.

10. The reliance of learned counsel for respondent No.1 on the case of the Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 is not well founded as it has no application to the facts of the present case. The dispute before the Supreme Court was as to whether the Constitutional petition can be maintained by an employee of Cadet College, Kohat. The answer was rendered in the negative on the ground that there were. no statutory rules of service governing the relationship between the Cadet College, Kohat and its employees as the principle of master and servant would apply. This question does not arise in this case.

11. The test for determining as to whether a person is performing functions in connection with the affairs of the Federation or the Province has been laid down by the Supreme Court in the famous case of Salahud Din and 2 others v: Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244, in which it was ruled that:

"Now, what is meant by the phrase 'performing functions in connection with the affairs of the Federation or a Province'. It is clear that the reference is to Governmental or State functions involving, in one form or another, 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 and other regulatory activities:

or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. by the Federal Government or a Provincial Government, however, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory Corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that, free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the Heads and other Senior Officers of the Corporations, by regulating their composition and procedures by appropriate Statutes, and by finding funds for financing their activities. Examples of such Statutory Corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan and the large number of Universities functioning under their respective Statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province."

12. Reference may also be made to the judgment of the Full Bench of this Court in Muhammad Aslam Saleemi v. The Pakistan Television Corporation and another PLD 1977 Lah. 852, wherein it was held that even though Pakistan Television Corporation is incorporated as a Limited Company yet Government having controlling share in it from its inception and it is being fully controlled and run by the Government, it is performing functions in connection with the Federation.

13. Applying the above tests to the present case, it will be seen that according to its prospectus, the College was taken over by the Government in 1914. The West Pakistan Government Educational and Training Institution Ordinance, 1960 has been made applicable to the College by notification issued by the Government on 26-1-1962. The College is being administered by a Board of Governors of which Governor of Punjab is the Chairman and the other Members are appointed by him. According to section 11 of Ordinance XI of 1960, 'Board Funds' inter alia, comprise of grants-in-aid made by the Government and loans obtained from the Government. Its employees are governed by the West Pakistan Government Servants (Service under the Board of Governors of Educational Institutions) Rules, 1965. In this view of the matter, we are unable to sustain the contention that the College which is performing important Governmental functions like imparting education can be said to be a person not performing functions in connection with the affairs of the Federation and the Province.

14. The learned counsel for respondent No.l submitted that in any case, this Court should not interfere in this matter as it is likely to lead indiscipline. We are not called upon to comment on this aspect of the matter which is essentially relatable to the exercise of discretion by this Court and may be agitated before the learned Single Judge hearing the petition to which the case is being remanded as there is no decision on merits of the petition. In view of what has been stated above, while accepting this appeal, we set aside the impugned judgment and held that the Constitutional petition against respondent No.1 was maintainable. The case shall now be laid before a learned Single Judge for decision on merits. No order as to costs. A.A./A-685/L????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.