P L D 1969 Dacca 352 (PLP)

SATTAR, J.‑These two cases have been heard one after another. They are disposed of by this judgment because the only point which is considered by us is common to both these cases. The petitioners were Assistant Teachers in the Lady Pratima Girls High School, Chandpur, District Comilla. By Resolution No. 6 dated 9th November 1964 passed by the Managing Committee of the School, it was decided that the services of these two teachers should be terminated. Pursuant to this resolution, the Headmaster in‑charge served a notice dated the 11th November 1964 on each of them terminating the services of Mrs. S. S. Banoo (petitioner of Petition No. 47 of 1965) with effect from 20‑12‑64 and that of Mrs. Saila Chakraborty (petitioner of Petition No. 48 of 1965) with effect from 17‑t 1‑64, with this provision that she would be paid one month's salary in lieu of Notice. The resolution of the Managing Committee and the notices have been impugned on the ground inter alia that they are contrary to the rules and regulations framed under the East Pakistan Secondary Education Act. These Rules were issued upon (1) The Province of East Pakistan, (2) The Deputy Director of Public Instruction (3), the Sub‑Divisional Officer, Chandpur who is the ex officio President of the Managing Committee of the School, and (4) The Secretary of the School. The ex officio President and the Secretary only appeared and contested those Rules. Later, however, on applications filed by the petitioners, the members of the Managing Committee of the School were made parties respondents in these cases. They are represented by Mr. Ishtiaq Ahmad. A preliminary objection as to the maintainability of these applications has been taken by Mr. Ishtiaq Ahmed. It has been contended that no application under Article 98 (2) of the Constitution is maintainable against the Managing Committee of a private school or its members. Article 98 (2) of the Constitution reads as follows: ‑ "(2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law: ‑ (a) on the application of any aggrieved party, make an order :‑ (1) directing a person performing in the province functions In connection with the affairs of the Centre, the Province of or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do ; or (iii) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect ; or (b) on the application of any person, make an order :‑ (i) directing that a person in custody in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in any unlawful manner ; or (ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office ; or (e) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government, exercising any power or performing any function in, or fn relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter 1 of Part 1I of this Constitution." Learned counsel has argued that the reliefs sought in these petitions are against the Managing Committee of the School and as the Managing Committee of a private School which is an incorporate Body is not a person within the meaning of Article 98 (2) of the Constitution, these applications are not main tainable. In this connection, our attention has been drawn to Article 98 (5) wherein it has been provided that in this Article unless the context otherwise requires "person" includes any body politic or corporate, any authority of or under the control of the Central 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 Defence services of Pakistan. It is contended that the word "person" in Article 98 (2) while generally means a natural person will have the extended meaning given to it by Article 98 (2) but cannot include an incorporate body. It is further pointed out that though under the General Clauses Act an incorporate body is a juristic person but since the provisions of the General Clauses Act cannot be pressed into service for the interpolation A of the Constitution in the absence of a specific provision to that effect in the Constitution itself, that meaning cannot be given to the word "person" used in Article 98 (2) of the Constitution. It is not necessary in these cases to decide whether the Managing Committee of a School is a person within the meaning of Article 98(2) as the Managing Committee has not been made party. B We however do not see why the relief claimed, if otherwise available, cannot be given to the petitioners against the members of the Managing Committee of a private School. They are natural persons and therefore they come within the purview of Article 98 (2) of the Constitution. The singular used in Article 98 (2) includes the plural. This is a general principle of interpretation, which in our view, will apply in interpreting the Constitution also. Therefore, simply because the petitioners cannot make the Managing Committee party in these cases, the argument that they cannot claim any relief against the members of the Managing Committee cannot be accepted. It has then been contended that the members of the Mana ging Committee are not persons performing in the Province functions in connection with the affairs of the Centre, the Province or a Local Authority and therefore no relief against them can be given under Article 98 (2) of the Constitution. Mr. Bhattacharjee who appears for the petitioners on the other hand, contends that, as the Members of the Managing Committee of a private school are concerned with the spread of education and receive grants from the Provincial Government and function under its control, they are persons performing functions In connection with the affairs of the Province and therefore are amenable to the jurisdiction of this Court under Article 98 (2) of the Constitution. Reference in this connection has been made to various provisions of the East Pakistan Secondary Education Act and the rules and regulations framed thereunder. It is true that under the provisions of this Act and the rules and regulations framed thereunder every school receiving grant functions under the control of the Secondary Education Board. The question that remains to be considered, however, is whether these facts alone will be sufficient to say that the members of the Managing Committee of such a school are persons performing functions 9n connection with the affairs of the Province. Learned Advocate for the petitioners in this connection has referred to the decision of the Supreme Court in the case of the University of Dacca and another v. Zakir Ahmed (P L D1963 S C 90). In this case, the question that arose was whether the University of Dacca in a person within the meaning of Article 98 (2) of the Constitution performing in the Province of East Pakistan functions in connection was the affairs of that province. There could be no doubt, in view of the provisions of the Dacca University Ordinance, that the University is a Body corporate and therefore is a person within the meaning of Article 98 (2) of the Constitution. The next question that arose was: whether the University can be said to be performing functions in connection with the affairs of the Province of East Pakistan. Hamoodur Rahman, J. who delivered judgment in this case in this connection observed as follows; "The next question that arises is whether it is performing any function in connection with the affairs of a province. The University has been set up, as stated in section 4 of the Dacca University Ordinance, to provide, inter alia, for instruction in various branches of learning and to make provision for research and for the advancement and dissemination of the knowledge, to affiliate and disaffiliate colleges, to prescribe courses of studies, to hold examinations and to grant and confer diplomas, degrees and other academic distinction. Its purpose, therefore, is to impart education at higher levels in the Divisions of Dacca and Chittagong and in the district of Bakerganj in the Khulna Division. It is clear, therefore, that it is performing functions within the Province of East Pakistan which are connected with one of the affairs of that Province, namely, education. It is also patent from a perusal of the Dacca University Ordinance that the Provincial Government has considerable power to control and regulate the activities of the University both directly and through the Chancellor who is also the Governor of the Province. Thus under section 8 the Provincial Government has the right to cause an inspection to be made of the University, its buildings, laboratories and equipment and of any institution associated with the University as also of the examinations, teaching and other work conducted or done by the University and to issue through the Governor such directions to the University as it may think fit. Again, under section 11 the Governor as the ex officio Chancellor of the University, may pass such orders as he considers necessary if he is satisfied that exceptional circumstances seriously inter fering with the normal activities of the University exist. Such orders are binding on the University. In almost all matters an appeal lies from the decision of the University and the authority of the University to the Governor as Chancellor of the University. Again, whenever a question arises as to whether any person is entitled to be a member of any authority or any other body of the University, the matter has, under section 44 of the Ordinance, to be referred to the Chancellor whose decision is final. It is difficult, therefore, to resist the conclusion that the University is a person performing functions in connection with the affairs of the Province, namely, education. Under section 42, furthermore, the annual accounts and balance‑sheets of the University have to be submitted to the Provincial Government for the purposes of audit and the Government scrutinises the audit report which must also be submitted to Government. The bulk of the University's revenue comes from Government grants and the Governor appoints its Vice‑Chancellor. The control of the Government over the affairs of the University is as complete as it can be. Thus the University is not only a "person" within the meaning of that term in the General Clauses Act and the Constitution but it is also a "person" of the category referred to in Article 98 of the Constitution and, therefore, it is without any doubt amenable to the jurisdiction of the High Court under that Article." It will be seen from the observations, quoted above, that the amount of control the Provincial Government exercises over the Dacca University which is the creature of a Statute is not com parable with the amount of control that is exercised by the Secondary Education Board over a private school receiving grants from the Provincial Government. In this view of the matter, we are unable to uphold the contention of Mr. Bhattacharjee that the members the Managing Committee of a private school are persons performing functions in connection with the affairs of the Province of East Pakistan. The mere fact that such a School receives some monetary help or that the Provincial Government has some amount of control in regard to its affairs will not make the members of the Managing Committee of that school persons performing functions in connection with the affairs of the Province. We, therefore, hold that these two applications against the members of the Managing Committee of the Lady Pratima Mitter Girls School are not maintainable. We have advisedly Dot made any observation with regard to the merits of the claim of the petitioners. The Rules, therefore, are discharged but having regard to the facts of these cases the parties are directed to bear their own costs. Learned Advocate for the petitioners prays for a certificate under Article 58 of the Constitution. We certify that these cases involve substantial questions of law relating to the inter pretation of the Constitution. SALAHUDDIN AHMED, J.‑‑I agree. A. E./S. A. H. Rules discharged.