P L D 2004 Lahore 335 (PLP)

Provided that nothing in this Article shall prevent‑‑‑ (a) the regulation of any trade or profession by a licensing system; or (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by the Federal Government or a Provincial Government, or by a Corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons." A citizen is not prohibited from establishing and administering an educational institution of his own choice. But to establish educational institutions can by no stretch of imagination, be treated as practising any profession. Teaching may be a profession but establishing an institution, employing teaching and non‑teaching staff procuring the necessary infrastructure for running a school or college is not practising profession. It may be anything but not practising a profession. I must make it clear that I have not gone into the precise meaning and content of the expressions profession, occupation, trade or business for the reason that it is not necessary for me to do so in view of the approach I am adopting hereinafter, which would be evident from the succeeding paragraphs. Assuming, however, that a person or body of persons has a right to establish an educational institution in this country, even then this right is not an absolute one. It is subject to such law as may be made by the State in the interest of general public. On these premises, the question, which arises for consideration in the instant case is whether a person who has the right to establish and administer an educational institution of his choice, has a fundamental right to affiliation. The submission of the learned counsel is that the right of the petitioner to establish an educational institution of his choice will be rendered nugatory if affiliation is denied, and that the establishment of the college by him would be of no utility unless the same is affiliated to the respondent‑University for the purpose of conferment of degrees on students. Indisputably, when an institution applies to a University to be affiliated. It has to conform to the measures prescribed by the concerned University inter alia for regulating the course of study, qualifications or teachers, facilities for libraries and laboratories which are matters germane to affiliation. The conditions precedent for affiliation are meant for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right.

8. The next contention raised by the learned counsel for the petitioner is that the petitioner‑College applied for affiliation as far back as on 10th of December, 2002 but the respondent‑University had not decided the application and the refusal on its part to issue roll number slips to 56 students of the petitioner‑College, besides being mala fide was tantamount to affect future of the students who had worked hard for at least one year to prepare themselves for the ensuing examination. On the other hand it is submitted by Dr. A Basit that the Affiliation Committee of the University had visited the petitioner-College on 22nd of December, 2003 and submitted its report, pursuant whereto the Vice Chancellor of the respondent‑University, in exercise of the powers vested in him under section 15(3) of the University of the Punjab Act, 1973, has not granted affiliation to the College to teach B‑Com Classes for the Academic Session 2003‑2004. According to Dr. A. Basit, the petitioner was apprised of this decision when he yesterday waited upon the Registrar of the University. The reasons for refusal of affiliation as set out in the letter addressed to the petitioner are as follows:‑‑ (i) New Trust has not been formed so far. (ii) The area of college building is deficient. (iii) Office record has not been maintained properly. (iv) Relevant books are not available. (v) One teacher having M.Com. Degree is efficient.

9. Section 35 of the University of the Punjab Act, 1973, which is the regulatory provision with regard to affiliation is to the following effect:‑‑ "

35. Affiliation.‑‑(1) An educational institution applying for affiliation to the University shall make an application University and shall satisfy it:‑‑ (a) that the educational institution is under the management of Government or of a regularly constituted governing body: (b) that the financial resources of the educational institution arc sufficient to enable it to make due provision for its continued maintenance and efficient working; (c) that the strength and qualifications of the teaching and other staff and the terms and conditions of their service, are adequate to make the due provision for the courses of instruction, teaching or training to be undertaken by the educational institution; (d) that the educational institution has framed proper rules regarding the efficiency and discipline of its staff and other employees: (e) that the building in which the educational institution is to be located is suitable and that provision will be made in conformity with the statutes and the regulations for:‑‑ (i) the residence of students, not residing with their parents or guardians, in the hostels established and maintained by the educational institution or in hostels or lodgings approved by it; and (ii) the supervision, physical and general welfare of students; (f) that provision has been made for a library and adequate library services; (g) that where affiliation is sought in any branch of experimental sciences, due arrangements have been made for imparting instruction in that branch of science in properly equipped laboratory, museum and other places of practical work; (h) that due provision will so far as circumstances may permit, be made for the residence of the principal and members of the teaching staff in or near the college or place provided for the residence of students; and (i) that the affiliation of the educational institution will not be injurious to the interests of education or discipline of educational institutions in its neighbourhood. (2) The application shall further contain an undertaking that after the educational institution is affiliated, any transference of and changes in the management and in the teaching staff, save in the case of Government Colleges, shall be forthwith reported to the University and that the teaching staff shall possess such qualification as are or may be prescribed. (3) The procedure to be followed in disposing of an application for the affiliation of an educational institution shall be such as may be prescribed. (4) The Syndicate may, on the recommendation of the Affiliation Committee, grant or refuse affiliation to an educational institution: Provided that affiliation shall not be refused unless the educational institution has been given an opportunity of making a representation against the proposed decision.

10. No prohibition to lay down reasonable standards as conditions precedent to affiliation, can be conceived either against the Legislature, or the respondent‑University to frame similar regulations if the same are designed as to make it an effective vehicle for imparting education. In, view of the alarming rate of illiteracy in our country, it is need of the day that we should have, in abundance, educational institutions to serve as temples of learning. The virtues of human intelligence are mastered and harmonized by education which is a great cohesive force in developing integrity and ethos of the nation. But, it is of common knowledge that educational institutions are being established with a view to minting money instead of making them a votary of learning. Moreover, the right to establish and administer an educational institution plainly does not include the right to maladministration. Section 35 of the Act has been enacted to vouchsafe, inter alia, that no such educational institution is housed in unhealthy surroundings; that it does not fall below the standards of excellence expected of educational institutions, and is compelled to keep in steps with others. If a request is made for the affiliation of an educational institution, it is implicit in the request that the educational institution would abide by the regulations which are made by the University granting affiliation. The University can always prescribe regulations and insist that they should be complied with before it would grant affiliation to an educational institution. To deny the power of making regulations to the University concerned would result in robbing the concept of affiliation of its real essence. No institution can claim affiliation until it conforms to a certain standard. The fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation. Affiliation is a facility sought by an educational institution and granted by the University for the purpose of enabling the students of that particular educational institution to sit for an examination to be conducted by the University in the prescribed subjects and to obtain a degree conferred by the University. For that purpose, the students have to be coached in such a manner that they attain excellence in respect of the standards of education prescribed by the University. That is the price of affiliation. For this reason, it is permissible for the University to prescribe regulations which must be complied with before an institution can seek and retain affiliation. Therefore, I have no doubt in my mind that affiliation of an educational institution could be regulated, laying down permissible standards, observance of which could be made a condition precedent to the according of affiliation. In Unni Krishanan, J.P. and others v. State of Andhra Pradesh and others AIR 1993 Supreme Court 2178 it was inter alia observed as follows:‑‑ "

169. We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation. In St. Xaviers College v. State of Gujrat (1975) ISCR 173: (AIR 1974 SC 1389) it has been held uniformly by all the nine learned Judges that there is no fundamental right to affiliation. Ray, C.J., stated that this has been the consistent view of this Court. They also recognized that recognition or affiliation is essential for a meaningful exercise or the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered, to grant affiliation to other educational institutions ..The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance ...The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity to supplement to the principal activity carried on by the State. No private educational institution can, survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the Authorities of the State. In such a situation, it is obligatory, in the interest of general public, upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of students. Since the recognizing/affiliating authority is the State it is under an obligation to impose such conditions as part of its duty. It cannot allow itself or its power and privileges to be used unfairly. The incidents attaching to the main activity, attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government Authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions."

11. While dealing with a similar contention, in Rahimyarkhan College of Education v. Islamia University, Bahawalpur (1996 CLC 64) it was inter alia held in the following terms:‑‑ "The right to seek education could be classified as fundamental right as it is relatable right to life. A person has a right to establish an institution but it does not carry a right to have it recognized. For purposes of recognition it has to conform to the condition laid down in the relevant law and the same cannot be dubbed as unreasonable restriction. " The aforementioned decision was upheld by the Hon'ble Supreme Court in Rahimyarkhan College of Education v. Islamia University 1996 SCMR

341. In the said case, it was contended that in view of the poor literary rate of our country, it was not just and proper to stop educational institutions from disseminating knowledge in different spheres. While dealing with this contention, the Hon'ble Supreme Court held as follows:‑‑ "There can be no cavil with the proposition that the citizens of this country should be enabled not only to become literate but also to improve their educational proficiency. It is, however, equally, imperative that the institutions which come in this field, should play their role in a befitting manner. Mere fleecing of people desirous to achieve excellence or providing them short cuts to obtain high degrees, without requisite knowledge cannot be countenanced. Heavy responsibility, therefore, falls on the shoulders of the functionaries of the University to ensure that affiliation is granted to only such institutions as can deliver goods in a perfect and laudable manner. If any institution is found lacking in this behalf, the University Authorities will be justified in refusing affiliation thereto. It is discretionary with the University to grant or withhold affiliation and if discretion is exercised judiciously, it cannot be taken exception to by any one. A perusal of clause (n) of subsection (2) of section 25 react with section 34 of Islamia University Bahawalpur Act, 1975, would indicate that an institution has to satisfy several requirements to earn affiliation." Thus, if the Affiliation Committee had found that any of the requirements laid down in rule 34 of the said Act, had not been fulfilled by the petitioners, and then on the basis of its report in this regard, the Syndicate had refused affiliation to the petitioners, the orders of the Syndicate in the matter did not suffer from any jurisdictional defect and would not warrant interference by the superior Courts in, exercise of their Constitutional jurisdiction. " After reproducing the observations of the Supreme Court of India in the judgment reported as AIR 1993 SC 2178, and quoted above, their Lordships further held as follows:‑‑ "It would, therefore, appear that in the case before us, it was not only the right of the University but also its duty to make sure that the institutions, which have made the petitions in hand, satisfied necessary requirements for obtaining affiliation, and if they had failed to comply with those requirements, the University was justified to refuse to grant further or permanent affiliation to them." Thus, the contention of the learned counsel for the petitioner is devoid of force, and is repelled.

12. The next contention of the learned counsel for the petitioner that the grounds made foundation for refusing affiliation are serious inroads on the right of the petitioner to administer his College according to his choice and the same are tantamount to perilously violating this right, cannot be gone into hypothetically, because the decision taken today by the Vice‑Chancellor of the respondent‑University is not under challenge in this Constitutional petition. For the same reason, this Court cannot, at this stage, go into the submissions of the learned counsel for the petitioner that under section 35(4) of the Act only the Syndicate has the power to grant or refuse affiliation to an educational institution; that the power conferred by section 15(3) of the Act on the Vice‑Chancellor could be exercised by him only in cases of "emergency" whereas in the case of the petitioner, decision on the application seeking affiliation, could be taken only in couple of weeks from the date of the application viz. 10th of December, 2002, even by observing very minutely the entire gamut of procedure prescribed by section 35 read with section 4(g) of the Act, and that the exercise of emergency power, after repose of full one year, by keeping the petitioner's application pending was not justifiable on any ground whatsoever. Moreover, by force of subsection (3) of section 15 itself, the Vice‑Chancellor is bound to report his action to the Syndicate which may, or may not, approve it. Besides, the petitioner has the right of appeal before the Senate in view of the provisions of section 39 of the Act. Therefore, this contention also fails, subject, of course, to the observations hereinbefore made.

13. However, before parting with this order, I may observe that the management of the respondent‑University stands on no better footing. The work which could easily be accomplished in a couple of weeks, had not been done in full one year. If the Management of the respondent- University had dealt with the petitioner's application with dispatch, and had taken decision within a reasonable time, at least the students and ultimately their parents, would not have suffered mental agony and torture, besides, financial loss. This aspect of the matter is certainty unfortunate, and requires to be addressed by those at the helm of affairs of the respondent‑University. So far as this Court is concerned, it can examine the scope and extent of emergency powers of the Vice Chancellor under section 15(3) of the Act in proper proceedings when such an occasion arises.

14. Subject to the above observations, this petition is dismissed in limine. M.B.A./I‑5/L Petition dismissed.