2014 PLP 1967 (YLR)

ABDUS SATTAR ASGHAR, J.--This composite order will dispose of both the above captioned writ petitions arising out of the same questions of facts and law.

2. The National College of Business Administration and Economics, Lahore, the petitioner in Writ Petition No.33634 of 2013 will be called hereinafter as the "petitioner Institute" and Ch. Muhammad Ahmad and others/petitioners of Writ Petition No.3113 of 2014 will be called hereinafter as the "other petitioners". The Higher Education Commission of Pakistan/respondent No.1 in both the petitions will be called hereinafter as "HEC respondent". The petitioner Institute is an educational institution chartered by the Government of the Punjab through Punjab Ordinance No.XX of 2002 to be called hereinafter as "the Ordinance".

3. The petitioner Institute has invoked the Constitutional Jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 toimpugn the Letter No.16-39-HEC/A&A/ 2003 dated 28-10-2013 to be called hereinafter as the "impugned letter".

4. Brief facts leading to these Constitutional petitions are that pursuant to the request of the petitioner Institute vide letter dated 12-12-2012 the HEC respondent vide its letter No.5-3/HEC/A&A/2012/772 dated Nil allowed the petitioner Institute to grant provisional affiliation to the following Institutions:- (1) Chenab College of Advance Studies, Faisalabad, (2) Quaid-i-Azam College of Management Science (QCMS), Railway Road Sargodha, (3) British University College, Model Town A, Bahawalpur, subject to the following conditions:- (i) That the Institutions must implement/meet the HEC Quality Criteria at main campus as well as affiliated institutions. (ii) Approval of the Board of Governors (BOG) of NCBA&E, Lahore. (iii) Inspections of the affiliated institutions shall be held once a year during first three years & subsequently once in three years by the Affiliation Committee constituted by NCBA & E, Lahore for regular monitoring of NEC, Criteria. Later on pursuant to another request of the petitioner Institute through letter dated 19-12-2012, the HEC respondent vide its letter dated 23-1-2013 further permitted the petitioner Institute to provisionally grant affiliation to the following Institutions:- (1) Christian Technical Training Centre, Church Road, Gujranwala; (2) Younas Fan Building, Main GT Road, Gujrat; (3) Chenab College of Advance Studies, Mianwali (By Dr. Tahir Ali Shah); subject to following conditions:- (i) that the Institutions must implement/meet the HEC Quality Criteria at main campus as well as affiliated institutions, (ii) the approval of the Board of Governors (BOG) of NCBA&E, Lahore, (iii) An Inspection of institution shall be held once a year during first three years and subsequently once in three years by the. Affiliation Committee constituted by NCBA Later on the HEC respondent vide impugned letter dated 28-10-2013 withdrew the formally granted permission to the petitioner Institute to affiliate above listed educational institutions, hence this Constitutional petition.

5. Learned counsel for the petitioner Institute and other petitioners argue that section 5(2) of the Ordinance empowers the petitioner Institute to open any sub-Campus or affiliate any other educational institution after a period of 10 years from the commencement of the Ordinance; that the HEC respondent had permitted the petitioner Institute to grant provisional affiliation to the other educational institutions after inspection of the said institutions by the duly constituted Affiliation Committee including a representative of the HEC respondent subject to three conditions (supra); that the permission has been withdrawn merely on the ground that no provision in the Ordinance exists to permit the petitioner Institute to grant affiliations to other educational institutions; that the HEC respondent has misconstrued the provision of the Ordinance. Learned counsel further argues that the impugned letter is issued without any notice and providing opportunity of hearing to the petitioner Institute and affiliated educational institutions and that it be declared as illegal, without lawful authority, based on mala fides, violative to the petitioner's fundamental right of due process as guaranteed under Articles 4 and 10-A of the Constitution, untenable and liable to set aside.

6. Learned counsel for the HEC respondent with reference to its para-wise comments contended that section 5 of the Ordinance only deals with jurisdiction/ restrictions and' not with the powers and functions of the petitioner Institute including power to affiliate educational institutions; that affiliation criteria of the HEC respondent is applicable only to those institutions which are authorized by the parent statute to grant affiliation; that the petitioner Institute does not have any such power therefore affiliation criteria of the HEC respondent is not applicable to the petitioner Institute; that permission was granted to the petitioner Institute to affiliate the other educational institutions on provisional basis but conditions of affiliation have not been fulfilled by the petitioner Institute. It is further argued that the affiliated institutions do not fulfil the eligibility criteria; that in the impugned letter the petitioner Institute has been asked to submit list of currently enrolled students in the affiliated institutions to safeguard their future; that the impugned order is in accordance with law and within the lawful authority of the HEC respondent; that the petitioners have no case to invoke the constitutional jurisdiction of this Court.

7. Arguments heard. Record perused.

8. Section 4 of the Ordinance deals with the functions and powers of the petitioner Institute. Clause (c) of section 4 empowers the petitioner Institute to hold the examinations and confer on or award degrees, diplomas, certificates and other academic distinctions to persons who have passed its examinations. In the light of this provision the petitioner Institute no doubt is a Degree Awarding Institute (DAI).

9. It may be expedient to reproduce section 5 of the Ordinance, which reads below:- "

5. Jurisdiction.

(1) The jurisdiction of the Institute shall be restricted to the Province of the Punjab. (2) The Institute shall not open any sub-campus or affiliate any other educational institute for a period of ten years from the commencement of this Ordinance after which period it may have sub-campuses with the approval of the Patron." Bare reading of section 5(2) ibid reveals that its first part is a prohibitory clause whereas construction of concluding line of this provision clearly manifests that the same is a permissive clause. It is settled principle of the interpretation of statutes that the intention of the law-maker is always gathered by reading the statute as a whole and meanings are given to each and every word of the whole statute by adopting a harmonious construction. It is also well-settled that while interpreting a particular provision of law, the court should take into consideration the object for which it has been enacted. The interpretation of the law t should be made in a manner which may advance the object and suppress the mischief for which the law in question might have been enacted and not to construe in a manner which may defeat the object of the law. Needless to say that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. Bare reading of the subsection (2) of section 5 of the Ordinance clearly manifests intention of the legislation i.e. Opening of sub-Campuses or affiliate any other educational institution. In this provision a condition was imposed that the petitioner Institute shall not open any sub-Campus or affiliate any other educational institution for a period of ten years from the commencement of this Ordinance. It is well-established principle of interpretation that an interpretation whereby any portion of an enactment is rendered ineffective is not to be adopted when clear meaning can be given to such provision in a harmonious manner. In holding this opinion reliance is made upon (i) Shahid Nabi Malik and another v. Chief Education Commissioner Islamabad and 7 others (PLD 1997 SC 32), (ii) Muhammad Aslam Khaki v. Muhammad Hashim (PLD 2000 SC 225), (iii) Hafiz Abdul Waheed v. Mrs. Asma Jahangir (PLD 2004 SC 219), D.G. Khan Cement Company Ltd. And others v. Federation of Pakistan and others (2004 SCMR 456) and Mirza Shaukat Bain and others v. Shahid Jamil and others (PLD 2005 SC 530).

10. Learned counsel for the HEC respondent has vehemently argued that the concluding line of section 5(2) of the Ordinance merely permits to open new sub-Campuses after ten years from the commencement of the Ordinance and that the same does not particularly permit the petitioner Institute to affiliate any other educational institution. I am afraid learned counsel for the HEC respondent is misconceived. If the above mentioned provision of section 5(2) is construed as the learned counsel for the HEC respondent wants, it would amount to defeat the object of the enactment itself as provided in the first part of the provision. Principles of interpretation and construction of statutes as laid down by the Superior Courts manifest that harmonious construction is to be made after fully understanding the intention with which the same had been made and the object which was intended to be achieved. The best mode of ascertaining the meaning affixed to any word or sentence by a deliberative body is by reading such sentence as a whole in its context. Section 5(2) of the Ordinance is single sentence provision the object whereof cannot be construed by dividing a part thereof to give it mischievous meaning contrary to the object of its enactment. As per rule of interpretation if the intention is manifest, any hardship or inconvenience in construing the provision cannot alter the meaning of the language employed by the Legislature.

11. Nutshell of the above discussion is that the HEC-respondent is misconceived in holding the view that provision of section 5(2) of the Ordinance does not empower the petitioner-Institute to affiliate other educational institutions. Besides it is pertinent to mention that while granting provisional permission to affiliate the other institutions, the HEC-respondent had imposed three conditions (supra). The impugned letter does not mention about violation of any of the said conditions. The impugned letter also does not contain any objection regarding the eligibility criteria of the provisionally affiliated institutions. The sole ground taken by the HEC-respondent in the impugned letter for withdrawal of the provisional permission is that no provision exists in the Ordinance to permit the petitioner-Institute to affiliate other educational institutions. In the attending circumstances objections like non-fulfilment of the conditions and non-fulfilling the eligibility criteria raised by the HEC-respondent in its para-wise comments as well as during the arguments of the learned counsel being alien to the contents and grounds of the impugned letter cannot be agitated at this stage. It is however clarified that the HEC-respondent is not precluded to raise these objections or other relevant objections if solicited through having recourse to the well-established principle of due process. It is evident on the record that before issuing the impugned letter the HEC-respondent neither issued any notice to the petitioner-Institute or to the affiliated educational institutions nor provided any opportunity of hearing to them violative to the principle of natural justice. Needless to say that right of due process is a fundamental' right of a person guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. The impugned letter dated 28-10-2013 therefore being illegal, contrary to the principle of natural justice and violative to Article 10-A of the Constitution is untenable and liable to set aside.

12. For the above reasons both the writ petitions are accepted and the impugned letter dated 28-10-2013 is set aside. The HEC-respondent however may take any legal action within its jurisdiction strictly observing due process of law. MH/N-21/L Petition allowed.