2013 PLP 1491 (CLC)

MRS. AYESHA A. MALIK, J.

The petitioner has impugned advertisement dated 13-5-2013 for being illegal and unconstitutional. The petitioner prays that advertisement dated 10-4-2013 may be restored and the respondent No.3 may be allowed to participate in the open competition for publication of textbooks in accordance with law.

2. The grievance of the petitioner is that the respondent No.3 has always participated in the bidding process for approval of manuscript of textbooks before the Punjab Curriculum Authority. Initially an advertisement was published on 10-4-2013 by virtue of which the respondent No.3 was allowed to submit its textbook manuscript with reference to the subject provided in the advertisement. Subsequently the advertisement was set aside by an order of the respondent No.5 and a fresh advertisement was issued on 13-5-2013 whereby the respondent No.3 could not participate in the open competition for selection of textbook manuscript by the Punjab Curriculum Authority.

3. On 28-6-2013 an interim order was issued whereby advertisement dated 13-5-2013 was suspended and the petitioner was allowed to participate in the open competition and submit its application to develop textbooks manuscript in various subjects for different grades. On 8-7-2013 C.M. No.4 of 2013 was moved by the respondent No.5 for recalling of order dated 28-6-2013 and for early hearing of the instant Writ Petition. The case was fixed for 10-7-2013, being today.

4. Learned counsel for the petitioner opened his arguments by relying upon the order of this court dated 3-6-2013. He argued that the respondent No.5 was to file its report and parawise comments. However, the same has not been done. Learned counsel also argued that C.M. No.4 of 2013 does not pray for recalling of order dated 28-6-20l

3. It simply prays that the case be fixed at the earliest and be heard. Finally learned counsel raised the objection that respondent No.5 Mr. Najam Aziz Sethi is the Central Chairman, Pakistan Publishers and Booksellers Association. However, the power of attorney submitted by the learned counsel Farooq Amjad Meer does not bear the signature of Mr. Najam Aziz Sethi. It has been signed by a Vice-Chairman and the Honourary Secretary-General for the Pakistan Publishers and Booksellers Association. The learned counsel argued that the Association has not been arrayed as a party. It is the Chairman of the Association Mr. Najam Aziz Sethi who has been arrayed as a party.

5. Learned counsel for the respondent No.5 argued that the case should be heard on its merits and decided as the interim order passed on 28-6-2013 is against the spirit of the relevant law. He further argued that presently Mr. Najam Aziz Sethi is not the Chairman of the Pakistan Publishers and Booksellers Association; that he himself is the Acting Chairman and he is representing the Association as the Acting Chairman. He argued that the petitioner has not arrayed Mr. Najam Aziz Sethi in his personal capacity but has arrayed the Chairman of the Association who at that time happened to be Mr. Najam Aziz Sethi.

6. After hearing both the counsel on these issues it was decided that the case be heard on its merits as the learned counsel for the respondent No.5 argued that he does not need to file any written reply and comments as he has basic preliminary objections with respect to the maintainability of this petition on the basis of which the case can be decided.

7. That facts of this case as narrated by learned counsel for the petitioner are that the West Pakistan Textbook Board Ordinance, 1962 (1962 Ordinance) established the respondent No.3 in 1962. In 1971 the West Pakistan Textbook Board was substituted by the Punjab Textbook Board by Ordinance V of 1971. Since then the respondent No.3 has been participating and getting approved its manuscripts of various books which have been scrutinized by the competent authority. In 2007 a Policy was formulated by the Federal Government being the National Textbook and Learning Materials Policy and Plan of Action (2007 Policy) whereby a role has assigned to the respondent No.3. However that role was contrary to the 1962 Ordinance. The Punjab Curriculum Authority Act, 2012 (Act of 2012) was promulgated which set out the role of the respondent No.3 and defined the respondent No.3 as an Agency of the Government under section 2(a). Learned counsel argued that the respondent No.5 filed a representation before the Chief Minister on 12-6-2012 to oust the respondent No.3 from the open bidding process. This application was not decided by the then Chief Minister. In the meanwhile, the respondent No.5 became caretaker Chief Minister. The Vice-Chairman of the Pakistan Publishers and Booksellers Association, moved another application on 18-4-2013 again seeking ouster of the respondent No.3 from the open competition for selection of textbook manuscripts. This application was decided by the respondent No.5 in his capacity as caretaker Chief Minister. As a consequence an order was passed on 2-5-2013, whereby the impugned advertisement dated 13-5-2013 was published, which withdrew the earlier advertisement of 10-4-2013 and in its place invited only publishers to participate in the open competition for selection of textbook manuscripts by the Punjab Curriculum Authority. Learned counsel argued that the respondent No.5 has acted with mala fide intention, as a judge of his own cause. Originally he moved an application himself before the Chief Minister which was never decided and when he became caretaker Chief Minister, he had the same application moved before himself and decided upon it.

8. Learned counsel for the petitioner has also argued that the respondent No.3 has all along participated in the open competition for selection of textbook manuscript by the Punjab Curriculum Authority by virtue of section 6(1)(b) read with section 26 of the Act of 2012. Under this Act, he argued that 'agency' "means any department or organization or directorate of the Government and includes a corporation or other autonomous or semi-autonomous body set up by the Government" and Agency can participate in the production of any manuscript of textbook to be approved by the Punjab Curriculum Authority. Learned counsel has placed reliance on Writ Petition No.31842 of 2012 and its order dated 9-1-2013 as well as I.C.A. No.50 of 2013 and its order dated 23-1-2013 to advance this point. Learned counsel for the petitioner has argued with respect to Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 arguing that the respondent No.3 has a right to participate in the open competition for selection of textbook manuscripts by the Punjab Curriculum Authority. Learned counsel for respondent No.3 supports the arguments of learned counsel for the petitioner. Learned counsel for respondent No.3 was asked by this court to explain why its case was presented to this court through the petitioner. The learned counsel explained that the petitioner is an office-bearer of a welfare association for the employees of Punjab Textbook Board; that the petitioner being employees of the Punjab Textbook Board put-forward their own manuscripts in the open competition bidding process for selection of textbook manuscripts. He argued that the respondent No.3 is an autonomous body which does not receive any financial assistance from the Government and meets its expenses from the fixed profit generated by the sale of textbooks and if ousted from the participation in the open competition the respondent No.3 likely to face financial difficulties. Consequently the employees of the respondent No.3 will face difficulties.

9. Learned counsel on behalf of respondent No.5 raised the objection of locus standi with respect to the petitioner. He argued that the petitioner is an office-bearer of the Punjab Textbook Board Employees Welfare Association who was appointed as the General Secretary by the Chairman Punjab Textbook Board through an order dated 27-4-2013. He places reliance on the office order appended with the petition as Annexure-H. He argued that the petitioner is an employee of the respondent No.3 and as such cannot plead the case of the respondent No.3. He referred to the prayer of the petitioner who seeks the participation of the respondent No.3 in the open competition for selection of manuscripts of textbooks. Learned counsel further argued that the mandate of the respondent No.3 in terms of the 2007 Policy is that it will be a Regulator to help/support the process of approval of textbooks for use in schools in their respective areas of jurisdiction. He further argued that the policy provided that the Textbook Boards will invite provincial/national publishsers to register their interest or intent and specify for which subjects and grades they intend to develop and submit manuscripts. Where no letter of intent is submitted by private publishers, Textbook Boards will re-advertise and if still no letter of intent is forthcoming then the Textbook Board can develop its manuscript for that subject. He argued that the Textbook Board is a Regulator who is to review the different manuscripts submitted and give its opinion on the same. It is not their mandate to participate in the open competition for selection of manuscripts and thus undertook a commercial venture of publishing its own manuscripts. With respect to the preliminary objection, learned counsel has argued that the petitioner has not filed any order of the caretaker Chief Minister whereby he has decided upon the representation dated 18-4-2013. He argued that the petitioner has relied upon order dated 7-5-2013 issued by the Deputy Secretary (Implementation) whereby he states that the Chief Minister has been pleased to desire that recent advertisement published by Punjab Curriculum Authority to invite manuscripts for textbooks and reading material may be re-advertised in accordance with Text Books and Reading Material Policy 2007 for Group-III books only. Learned counsel argued that the earlier representation filed on 12-6-2012 was decided by the then Chief Minister on 24-1-2013 wherein a policy decision was taken that only the private sector should develop manuscript and the respondent No.3 should act as monitoring and regulating agency. Learned counsel also raised an objection with respect to the maintainability of this petition in view of the section 22 of the Act of 2012 which provides the right of appeal to any person aggrieved by a direction or order of the Authority within 30 days.

10. I have heard learned counsel for the parties at length and reviewed the record available on the file.

11. The foremost question which needs to be decided is whether this petition can be filed by the petitioner who admittedly seeks relief for the benefit of the respondent No.3. Essentially the respondent No.3 has not moved the court against the advertisement dated 13-5-2013 with respect to its inability to participate in the open competition for the publication of selection of textbook manuscripts. Yet it has indirectly argued its case as a respondent in the instant petition through the petitioner who is an office-bearer of the Punjab Textbook Board Employees Welfare Association and an employee of the respondent No.3. Learned counsel for the petitioner has relied upon the cases titled "Nisar Ahmad and 2 others v. Additional Secretary Food and Agriculture, Government of Pakistan and 3 others" (1997 SCMR 299), "Muhammad Ayub Khan v. Superintendent, Central Jail and others" (1997 SCMR 302) and "Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others" (PLD 1993 Karachi 237) to argue that the petitioner is an aggrieved person. With respect to the definition of an aggrieved person learned counsel argued that the petitioner is an aggrieved person if he is able to establish that he is directly or indirectly injured by the act of the respondents. I have reviewed the cases relied upon by learned counsel for the petitioner. To my mind in the instant case the question whether the petitioner is an aggrieved person or not cannot be simply answered by looking at whether the petitioner is directly or indirectly injured. The question here is whether the petitioner has a right to plead a case and seek relief for the benefit of a person who himself is capable and competent to approach the court to plead its own case. The respondent No.3 is established under the 1962 Ordinance. Its section 3 provides that the Board shall be a body corporate with perpetual succession having a common seal and can sue and be sued in its own name. The reply filed by the respondent No.3 has also been reviewed by me and I find that throughout the reply the respondent No.3 has justified and explained that it should be allowed to participate in the open competition for selection of manuscripts of textbooks. Para-6 of the reply provides that the respondent No.3 has every right to prepare textbooks and compete with the private publishers and that it has started the process of preparation of textbooks on its own in anticipation of registration to avoid delay for the preparation of textbooks for the next academic year. The reply does not explain or justify the locus standi of the petitioner. The petitioner is an employee of the respondent No.3. Admittedly the employees themselves prepare manuscripts and participate in the open competition, meaning thereby that the participation by the respondent No.3 in the open competition is essentially by its employees, for the benefit of its employees, who prepare their own manuscripts for approval by the Punjab Curriculum Authority. This means that essentially between the petitioner and the respondent No.3 there is an effort to promote the interests of the employees of the respondent No.3. The employees of the respondent No.3 along with the respondent No.3, which is an autonomous body of its own participate in this commercial venture to make money. Conceptually this goes against the mandate of the respondent No.3. The respondent No.3 in terms of the preamble of its own Ordinance is a facilitator who is to make arrangements for the production and publication of textbooks, supplementary reading material and guide books for teachers. Under section 11 the powers and duties of the Board have been enumerated. It provides that the Board may take such measures and exercise such powers as it considers necessary or expedient for carrying out the purpose of this Ordinance. Subsection (3) provides that the Board may prepare claims pertaining to all or any of the following matters. The scheme involved implementation of educational policies of Government with respect to the production and publication of textbooks, supplementary reading material and teaching aids. It also provides arrangement for the publication of textbooks. Section 11 does not provide for the Punjab Textbook Board should participate in the publication of textbooks itself. The Act of 2012 provides under section 6 that the Authority shall approve standards of education and manuscript of a textbook produced by any person or agency before the textbook is prescribed for any class of an institution. Essentially case of the petitioner is based on this section. However, this section does not explain when the respondent No.3 can participate in the publication of textbooks for selection by the Authority. The same is done in the 2007 Policy which clearly provides in clause 2.2 that the Textbook Board can only participate in the publication of a manuscript if no letter of intent is submitted by the private publisher that too after re-advertisement meaning that after a first and second advertisement whereafter still no letter of intent is forthcoming. The 1962 Ordinance, Act of 2012 and the 2007 Policy are all in consonance with each other. The respondent No.3 essentially is a regulator and a facilitator who has to make schemes for publication of textbooks for all stages for implementation of educational policy. Section 6 (1)(b) provides that the Authority i.e. Punjab Curriculum Authority, can approve standards of education and manuscript of a textbook produced by any person or agency. This ability to produce a manuscript of textbook should be in accordance with the clear objective laid down in 2007 Policy. It does not mean that the regulator should, for commercial purposes, also participate in the publication process. This act of the regulator is in direct conflict with its primary function and will reduce the efficiency and objectivity of its regulatory function. To my mind the scheme of law does not visualize the participation of the respondent No.3 in the open competition. Furthermore the petitioner has no right on the basis of which it can pray that the respondent No.3 be allowed to participate in the open competition. To my mind this ability of the employees of the respondent No.3 to put forward their own manuscripts for selection by the Punjab Curriculum Authority also undermines the role of a regulator. If the employees of the regulator are to participate in the commercial venture then the basic role of the regulator disappears. The petitioner has no right on its own as employees of the respondent No.3 which is an agency of the Government of Punjab to participate in an open competition which the respondent No.3 is to regulate.

12. Learned counsel for the petitioner has argued and stressed a great deal on the question that no one can be a judge of its own cause, essentially on the ground that the respondent No.5 moved a representation before the then Chief Minister in 2012 which application was never decided and when he himself became caretaker Chief Minister, he made a decision on the same application. I have considered this argument and find that the argument is presumptive. There is nothing on the record to substantiate the claim that the representation of 12-6-2012 has not been decided. To the contrary the record shows that a decision was taken in January, 2013 by the Chief Minister which has not been placed on the file of this court. Similarly there is no order of the caretaker Chief Minister with respect to the representation filed on 18-4-2013. The report and parawise comments filed by the respondents Nos.1, 2 and 4 show that an Inter-Provincial Education Ministers Conference was held on 22-1-2013 in Islamabad. The 2007 Policy was discussed and approved by the Provincial Ministers to ensure the production of standard textbooks through a fair competition in their respective provinces. The role of the respondent No.3 as per the report and parawise comments filed by the respondents Nos.1, 2 and 4 is that the respondent No.3 will not undertake to produce textbooks themselves unless an expression of interest is advertised, no response is received pursuant to the first advertisement and on second advertisement, it is only after the second advertisement that the Textbook Board can produce and publish a textbook. Therefore, this argument has no merit as the record shows that the 2007 Policy endorsed by the Provinces is being followed. Furthermore the application was filed by the respondent No.5 as Central Chairman, Pakistan Publishers and Booksellers Association. It was not his personal cause, but the cause of the Publishers and Booksellers Association. As caretaker Chief Minister, he endorsed the decision taken in January, 2013 by the then Chief Minister and called for an advertisement as per the 2007 Policy. As I have already stated there is no conflict between the 2007 Policy, 1962 Ordinance and the Act of 2012. Hence no case of interference is made out.

13. In view of the aforesaid, this petition is dismissed. KMZ/M-205/L Petition dismissed.