1992 PLP 2273 (MLD)

Qamar Afzal for Respondent No.3. Date of hearing: 21st July, 1992. By this petition under Article 199 of the Constitution, the petitioner, Ali Irtaza Khan, seeks to have it declared that the order of the first respondent, Principal, Lawrence College, Gorah Gali, Murree `expelling the petitioner from the College be declared as illegal, arbitrary, without lawful authority, discriminatory and mala fide and also of no legal effect'. It is also prayed `that the respondent be directed to allow the petitioner to continue his studies in the College in Class IX'.

2. The petitioner was a student . of 8th Class in the Lawrence College, Gorah Gali, Murree (hereinafter to be referred to as the College). It appears that in November, 1991, he was sent home or what is called `was withdrawn' for what is described in the College rules as `breaking bounds'. However, on the representation made by his parents, he was allowed to take the promotion examination in December, 1991. After he had taken the examination and had passed it, the College Council informed the petitioner's father, ‑ Ch. Muhammad Afzal Khan, City Magistrate, Rawalpindi, that `your son will not be allowed to continue his studies as from the next academic year'. It is maintained that the petitioner had not committed `any act of indiscipline or any such act which could have resulted in his expulsion from the College'; that before his expulsion, no inquiry was held and no opportunity was afforded to the petitioner or his parents to explain their position and therefore, this `unilateral action of the College Authorities in expelling the petitioner from the College is absolutely illegal, arbitrary, without any legal and just basis'.

3. It should be mentioned here that there are three respondents in this writ petition, namely, respondent No.1, Principal, Lawrence College, respondent No.2, Board of Governors, Lawrence College, and respondent No.3, Government of the Punjab. Learned counsel for the petitioner stated before me that the petitioner seeks no relief against the Board of Governors and that the Board's name as respondent be deleted.

4. In the reply, the Principal of the College has stated that the College is a `residential institution. Students of tender age are given admission and are kept under strict supervision of House Masters. Constant vigilance of the students is in the interest of the students' safety and development of character and personality. Withdrawal of students for violation of rules is a routine matter... Breaking of bounds is considered a serious default of discipline'. It is stated further that `the rules relating to breaking of bounds arc strictly followed in the best interest of the safety of the students and development of their personality. On an earlier occasion, a student was murdered in the same area by another student'. Regarding the act which resulted in the order in question, it is stated:‑‑ "The petitioner had broken the bounds and was found missing from the College after the 5th period and his whereabouts were not known which caused quite a bit of alarm and stir in the College. He later stated that he was sitting idle in the wildlife park which act itself was dangerous. The College Council decided that the College cannot take risk and accept responsibility of such conduct. He was accordingly withdrawn:"

5. The College, it appears, is a private educational institution. A Board of Governors for its `efficient management and control' has been established under the Punjab Government Education and Training Institutions Ordinance, 1960 (I shall call it as the 1960 Ordinance) and that Board is by section 3 thereof, a body corporate having `perpetual succession and a common seal'. Section 17 of the 1960 Ordinance empowers the Provincial Government to make rules for carrying out the purposes of this Ordinance and section 18 of the said Ordinance empowers the Board of Governors to frame regulations, subject to approval of the Government, not inconsistent with the provisions of this Ordinance and the rules made there under to carry out the purposes of this Ordinance. There is however, no provision in the 1960 Ordinance or in the rules and regulations made under sections 17 and 18 thereof relating to the admission of students or their expulsion from the College. The arguments at the Bar proceeded on the basis that the action taken against the petitioner was taken under the College rules contained in the prospectus of the College. Two of those rules were referred to by the learned counsel for the parties. They are both at page 10 of the prospectus. The first rule, inter alia, provides that `names of all those boys, who are absent without leave for ten days from the commencement of the school year in March, will be struck off the. College rolls and their security forfeited'. This was obviously not a case of absence without leave for ten days and this rule has, therefore, no relevance. The second rule provides that a boy may be expelled from the College `with or without warning depending on the gravity of the offence', among others, on the ground of `breaking bounds or leaving College campus in unauthorised dress'. The petitioner, who was present before me, was truthful enough to admit that he had broken the bounds that is to say, had during college time gone out of the bounds of the College. For this truthfulness, I must give him full credit.

6. Under Article 199 of the Constitution, this Court may, 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, 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; or (ii) declaring that any act done `by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect."

7. What is the significance of the expression `person performing functions in connection with the affairs of the Federation, a Province or a local authority'. It lies in the recognition that there are tw6 separate fields of law; one of private law, the other of public law. Private law regulates the affairs of citizens between themselves; Public law regulates the affairs of citizens vis‑a‑vis public authorities. (Lord Denning in O'Reilly v. Mackman (1983) AC 237,

255. The remedy of judicial review that Article 199 of the Constitution provides, a great remedy indeed, belongs exclusively to public law, its primary object being to make the machinery of Government work properly rather than to enforce private rights. For a decision to be susceptible to judicial review, the decision makers must be empowered by public law (and not merely as in an arbitration, by agreement between private persons) to make decision that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences such as altering rights and obligations. (Lord Diplock in Council of Civil Service Union v. Minister (1984) 3 All. ER 935.

8. The first question that must, therefore, be asked in this case is ‑‑ is the Principal, a person performing functions in connection with the affairs of the federation, a Province or a local authority? That is a question of this Court's jurisdiction. For, unless the answer is in the affirmative, this Court has no power to interfere with his decision.

9. The College has not been created by a statute; nor is there anything to show that the College or its Principal has been entrusted by law with functions in connection with the affairs of the Federation or a Province. The best that learned counsel for the petitioner could do was to refer to page 1 of the prospectus, where it is stated that the College started as an asylum in 1860 with the object `to provide plain, practical education for the orphans and children of British soldiers ... in India' and that in 1914 `it was taken over by the Government of the Punjab, as the Lawrence Memorial School ... ' But that was in 1914. The present position, as has been noticed above, is that a Board of Governors for its `efficient management and control' has been established, but that does not in any way affect its position as a private institution: Learned counsel for the petitioner referred to the well‑known case of University of Dacca and another v. Zakir Ahmed P L D 1965 SC 90 for his contention that the Principal is a person performing functions in connection with the affairs of the Province. In that case, the question was whether the University of Dacca was a person within the meaning of Article 98(2) of the 1962 Constitution performing for the Province, of East Pakistan functions in connection with that Province. The University was the creation of a statute and it was held that there could be no doubt, in view of the provisions of the Dacca University Ordinance, that it was a body corporate, that it was a person within the meaning of Article 98(2) of the Constitution and that it was a person performing functions in connection with the affairs of the Province, namely, education. That case was considered in Syeda Sayeeda Bano arid another v. Province of East Pakistan and another P L D 1969 Dacca 352, also a case of a private institution as the College here is. The educational institution in that case had a managing committee and` the argument was that as the school received monetary help from the Government, the members of the managing committee were persons performing functions in connection with the affairs of the Province. The contention was repelled.

10. Then, an act is without lawful authority if the person doing it had no authority to do it under the. law under which he purported to act; it is an act ultra vires or without or in excess of jurisdiction. As was held in The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi P L D 1984 SC 170, the question in such cases is whether there is a statutory provision or a statutory rule which has been violated. The case of Muhammad Shoab Qureshi appears to have a direct bearing, for there, as here, a Board of Governors had been established under the 1960 Ordinance for the management and control of the Cadet College, Kohat. One of the matters before the Court concerned a Head Clerk whose services had been terminated by the order of the Principal of the College and the other matter concerned a senior Master of the College who had been removed from service by the Board of Governors. It was held that the writ petitions were not competent because there was no statutory provision or statutory rules which might have been violated in the case of the writ petitioners. Learned counsel for the petitioner referred to a number of cases, Muhammad Iqbal Khan Niazi v. Vice‑Chancellor, University of Punjab etc. PLD 1979 SC 1, Liaqat Ali Bajwa v. The Vice‑Chancellor, University of Agriculture, Faisalabad and 4 others 1986 C L C 2667, Majid Ali v. Principal, Government Women's College,, Karachi and 2 others 1981 C L C 1255 and Muhammad Tariq v. Board of Intermediate and Secondary Education, Lahore 1990 C L C 898, to mention some of them, but they were all cases of Government institutions. The industry of learned counsel for the petitioner enabled him to lay his hands upon a case from the Indian jurisdiction, namely, C.D. Sekkilar v. Krishnamoorthy A I R 1952 Mad.

151. In that case, a student had been expelled from the hostel of a College which was conducted by a Trust from out of the funds of charities which were admittedly public charities. In India, the writ jurisdiction is exercised by the High Courts under Article 226 of the Constitution of India which provides that:‑‑ "every High Court shall have power throughout territories in relation to which it exercises jurisdiction to issue to any person or authority including in proper cases any Government within those territories, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition; quo warranto and certiorari." It will be noted that the jurisdiction there is conferred in terms of the English writs. The defect inherent in so conferring jurisdiction, as was pointed out by Kaikaus, J. in Jamal Shah's case P L D 1966 SC 1, was that `whenever a question arose as to the limits of this jurisdiction, reference had perforce to be made to the scope of the various writs in England'. It was to remedy that defect that our Constitution‑makers thought it desirable `that the jurisdiction of the High Court be stated without reference to the English writs and in words which it would not be difficult to construe'. Adapting Selden's phrase, Mahajan, J said in Province of Bombay v. Advani 1950 SCR 621 that the jurisdiction to issue writs in England `varies according to the foot of the Chancellor'. Cornelius, C.J., therefore, emphasised in Jamal Shah's case that English cases (and the same applies to Indian cases) are not relevant for the application of Article 199 which is worded in clear terms and must be applied according to its terms. The Indian case cannot therefore, be helpful to the petitioner. Otherwise too, it was decided on, and is authority for, its own facts.

11. It must, therefore, be held that the position of the Principal in taking the impugned action against the petitioner was that of a domestic tribunal. As was held by Lord Diplock in O'Reilly v. Mackman (1983) AC 237 at 275 when a tribunal is acting under a statutory provision, it is a statutory tribunal as contrasted with a domestic tribunal upon which powers are conferred by contract between those who agree to submit to its jurisdiction. The question in such cases is' not whether the Court considers that the act in question was fair and just, but the very different question whether the case is one in which the Court has power to interfere.

12. Then, the petitioner candidly admitted that he had committed the act of `breaking bounds' contrary to the rule referred to above. To countenance the contention that despite that admission, some kind of enquiry should have been held or the petitioner or his parents should have been afforded a hearing would be to `over‑judicialise' the disciplinary proceedings and that, in my opinion, would be inconsistent with the kind of disciplinary control required to be maintained in the educational institutions in general and such residential institutions in particular.

13. For these reasons the petition is dismissed. A.A./A‑223/L Petition dismissed.