In the Peshawar High Court, Peshawar

1

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Writ Petition No. 105-P/2015

JUDGMENT

Date of hearing : 22nd March, 2016

Petitioner(Malik Naz) : By : Mr.Naveed Maqsood Sethi advocate

Respondents(Board of: By : Syed Arshad Ali, Advocate.

Governors etc). for respondent No.4.

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NISAR HUSSAIN KHAN, J.- Petitioner prayed for issuance of an appropriate writ declaring the impugned appointment of respondent No.4 as Principal of Edwardes College, Peshawar, as without lawful authority and of no legal effect. It is also prayed that respondent No.4 be asked as to under which authority of law he claims to hold the office when he was not selected on merit and in accordance with the selection procedure, with consequential direction to respondents No.1 and 2 to withdraw his appointment Notification and to act in accordance with law and appoint principal in a transparent manner by re-advertising the said post.

2.Backdrop of the facts leading to the instant petition as averred in the petition, is that post of Principal of Edwardes College, Peshawar remained a point of dispute between the Bishop Diocese, Peshawar, College Faculty and the Board of Governors for the last couple of years . Finally the post was advertised for which numerous applications were received, out of which 10 candidates were short listed, and 7 were interviewed on 20.11.2014 because 3 out of them did not appear. Lastly, 3 out of 7 were recommended by the Search Committee to the Board of Governors for selection of one of them for the post of Principal Edwardes College, Peshawar. Finally respondent No.4, Brig.(R) Nayer Fardows was selected and consequential impugned appointment notification was issued on 5th December, 2014.

3.Petitioner has questioned his appointment on various grounds; that it was pre-determined to appoint a Christian as Principal of Edwardes College, Peshawar; that his appointment is outcome of political manoeuvring and pressure; that his appointment has not been made in accordance with rules, hence he is not entitled to hold coveted post of Principal Edwardes College, Peshawar.

4.Comments of respondents were called who accordingly submitted whereinthey contradicted the petitioner’s allegations with vehemence. They also questioned the maintainability of instant petition. Respondent No.4 has also filed reply wherein he has highlighted his academic profile and experience.

5.Learned counsel for petitioner at the very outset submitted that he only seeks issuance of a writ of quo-warranto against respondent No.4. However, during the course of arguments, he highlighted the academic qualification and petitioner’s experience in teaching and administration of educational institutions and contended that he has wrongly been ignored because it was pre-determined by the authorities, at the helm of affairs, to appoint respondent No.4 and to this effect he also tendered affidavit which was sent to the Registrar of this Court, for safe custody to be used at proper stage and time.

6.Learned counsel for respondents raised preliminary objection on maintainability of the petition and argued that EdwardesCollege, Peshawar, is a private educational institution which is neither run by the Government administratively nor financially because not a single penny is provided from the public exchequer to run its affairs. Rather all the expenses are incurred by the College through its own sources. In this respect, he placed reliance on Muhammad Ashraf Sangri Vs Federation of Pakistan and others(2014 SCMR -157),Dr. Khalil ur Rehman Vs Govedrnment of Punjab through Chief Secretary Punjab & 5 others (2015 PLC (CS) -793) , Dr.Mir Alam Jan Vs. Dr. Muhammad Shahzad and others (2008 SCMR – 960), Arbab Imtiaz Khan Vs Assim Jamil Zubedi and another (2011 PLC(CS) –482), Maqsood Ahmad Toor & 4 others Vs Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others (2000 SCMR – 928), Sajid Hussain Vs Shah Abdul Latif University, Khairpur through Registrar and 4 others (PLD 2012 Sindh- 232), Anoosha Shaigan Vs Lahore University of Management sciences thorugh chancellor and other (PLD 2007 Lahore- 568) and Aitchison College, Lahore through Principal Vs Muhammad Zubair and another (PLD 2002 SC – 326).

7.We have heard learned counsel for the parties and have also gone through record with their valuable assistance.

8.It would be appropriate to resolve the question of maintainability of instant petition before entering into factual aspects of the case. Relief sought precisely falls within the ambit of Article 199 (1)(a)(ii) & (1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, both of which, for appreciation of legal import in the light of petitioner’s grievance, are reproduced as follows:-

“199. Jurisdiction of High Court.—(1) Subject to the Constitution, a High Court 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—

(i)xxxxxxxxxxxxxxx

(ii)declaring that any act done or proceeding taken within the territorial jurisdiction of the Court 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; or

(b) on the application of any person, make an order —

(i) xxxxxxxxxxxxxxxx

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or.”

9.Since petitioner firstly seeks appointment of respondent No.4 by respondent No.2 as illegal, without jurisdiction and without lawful authority, hence it would fall within the first part of Article 199 as referred herein above. Article 199 (`1)(a)(ii) ordains a declaration of an act done, proceeding taken by a person performing functions in connection with the affairs of the Federation, a Province or a local authority, within the territorial jurisdiction of the court as without lawful authority and of no legal effect. The phrase “person” is of paramount significance with reference to performance of its function in connection with the affairs of the Federation or Province which is a determinative factor for resolving the constitutional jurisdiction. “Person” has been defined in sub clause (5) of the same Article, according to which a person includes any body politic or corporate, any authority of or under the control of the Federal 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 Armed Forces of Pakistan. The Article itself has defined the “person”, so court while interpreting the phrase “person” performing functions in connection with the affairs of the Federation or Province, shall be guided by the same Article and cannot go beyond that to the dictionary meaning of the word “person”. By virtue of the language employed, litmus test for determining that whether functions entrusted to the Organization are the functions of the State involving some sovereign authority or public power or whether organization was/is under the direct control of the Government and whether bulk of the funds are provided from the public kitty by the State. Same issue came under consideration before the august Supreme Court in case titled Salahuddin and 2 others Vs Frontier Sugar Mills & Distillery Ltd., Takht Bhai and 2 others (PLD 1975 Supreme Court – 244) wherein their lordship observed that at times government creates statutory corporations in different spheres to have profitable outcome and retain the effective control over its functioning by appointing their heads and senior officers, to regulate their composition and procedure by appropriate statutes and also by providing funds for their financial matters like the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. By virtue of their this status, they are regarded as “person” performing functions in connection with the affairs of the Federation or Province, while private organizations or persons, quite distinguished from the government or semi government agencies, cannot be regarded as persons performing functions in connection with the affairs of Federation or a Province, merely because their activities happened to be regulated by the law made by the State. It was unequivocally observed by their lordships as follows:

“The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government: and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not.”

This definition of the “person” has consistently been reiterated by Hon’ble Supreme Court and followed which till date holds the field.

10.The case of petitioner relating to the EdwardesCollege, Peshawar when examined at the touchstone of the interpretation in Salahuddin’s case, one comes to an irresistible conclusion that the Edwardes CollegePeshawar does not fall within the ambit of “person” as provided under Article 199(1)(a)(ii) & (1)(b)(ii), as it is undisputed that the EdwardesCollege, Peshawar is neither creation of any statute nor regulated by any Rule or regulation framed by the Federal or Provincial Government or any local authority. In historical context the EdwardesCollege, Peshawar, initially was a missionary school namely EdwardesHigh School founded by ChurchMissionary Society in 1853 which was later upgraded to the status of College in 1900. Since then it was functioning as private institution. In 1971 when all the private institutions were nationalized it was also proposed for nationalization but was resisted, so its independent status as private institution was acknowledged and maintained. However, vide notification No.S.O.E.I/19-6/73, dated January, 1974, the Governor, the then NWFP now KPK established Board of Governors for EdwardesCollege, Peshawar and all the administrative powers for this College were vested in the Board. The Governor of the Province was to be the Chairman of the Board and Minister for Education as Vice Chairman, Bishop,Peshawar was also Vice Chairman. Vice Chancellor of Peshawar University, Commissioner Peshawar Division, secretary (Finance) Govt. of KPK, Secretary (Health) KPK, Director of Education KPK, Peshawar were nominated as members while one each member from the staff, Senior Old boys, one nominated by Bishop. The Principal of the College was member and also to act as Secretary of the Board. Except this Notification, there is no statutory instrument which may indicate that how the College was created, and how its educational activities were funded. It is also a mystery that in absence of any statutory power, under what authority of law, the then Governor of KPK issued Notification for Constitution of Board of Governors. The only legislative authority vested in the Governor is under Article 128 of the Constitution which authorises him to make and promulgate an Ordinance in the circumstances stipulated therein. Whereas all the executive actions are to be taken by the Provincial Government in the name of Governor. Moreso, the Governor is to perform function pursuant to Article-105, on advice of the Cabinet or Chief Minister. Or he is to discharge function on direction of President as his Agent by virtue of Article-145 of Constitution. Admittedly, no advice by the Cabinet or Chief Minister was given nor President had authorised him in that respect.

11.Unquestionably, Edwardes College, Peshawar is a private educational institution funded by its own sources. No budget allocation is made by the Provincial Government for running the affairs of the institution. It has independent financial as well as administrative status. To regulate financial affairs of the institution, Board of Governor of the Edwardes College, Peshawar framed rules, namely, Edwardes College Peshawar Financial Rules and Regulations, 2011 . Article 2 of Chapter-II of the ibid Rules relates to “Sources of Revenue and Receipts”. The maximum resources reflected under this head are mainly, College’s own sources and Grants and Donations. The break-up of college’s own sources and grants and donations have also been provided under different heads. Though there is reference of grant from Federal or Provincial

Government but the College is not dependent on said grants. As is evident from its Rules, grants may or may not be provided by the Federal or Provincial Government, nevertheless College is to function smoothly on the basis of its own sources. Financial powers have been vested in the Board of Governors of the College under Chapter-III of the ibid Rules. Likewise, Edwardes College, Peshawar has its own Service Rules, 1991, to regulate the services of its employees. These are on the pattern of civil servants rules but no administrative authority or power is vested with the government in relation to the administrative control of the institution or service matters of its employees. Above all, it is registered as owned and sponsored by Church of Pakistan by the Higher Education Regulatory Authority under Section 8 of the Government of Khyber Pakhtunkhwa Registration and functioning of Private Educational Institutions Ordinance, 2001 (Ordinance No. XXVII of 2001) which is clear manifestation of its private status.

12.Ratio of case of Aitchison College, Lahore through Principal Vs Muhammad Zubair and another ( PLD 2002 Supreme Court – 326 ) proceeds on altogether different facts. Aitchison College Lahore was established under the Societies Registration Act prior to the partition of sub-continent which continued functioning till 1961 when the then Martial Law Administrator Zone-B issued MLO No.86 on 22.5.1961 by empowering the Governor of West Pakistan to dissolve the registered society. Pursuant to the said MLO, Notification No. SOX-16/25-61(Edu), dated 11.11.1961 was issued by the Government of West Pakistan, Education Department, Civil Secretariat, under the order of Governor of West Pakistan whereby council and committee of management of Aitchison College, Lahore were dissolved and its control was placed under the Board of Governors, composition whereof was also provided, according to which, Governor of West Pakistan was to be President of the Board with its 6 members including the General Officer Commanding, Provincial Secretaries of Finance and Education Departments and Principal of College was to act as Secretary of the Board. Subsequently, Education Department of Government of West Pakistan issued statute of Aitchison College Lahore promulgated by the Governor of West Pakistan. In 1995 Punjab Government Rules of Business 1974 were also amended, pursuant whereof Aitchison college was attached with the education department as a special institution. With this factual background, Government of Punjab by virtue of MLO Order of 1961 followed by Government of Punjab Notification in 1995, somehow or the other, is controlling the affairs of the Aitchison College, particularly when it is attached with its Education Department as a special institution. Whereas there is no such order of any authority empowering the government nor subsequent thereto any such order has been passed or notification issued by the Provincial Government relating to the affairs of the Edwardes College, Peshawar. Rather it is an independent Institution in view of its registration as a private education institution under Ordinance No.XXVII of 2001. With this factual position, it is safely concluded that the Edwardes College Peshawar, administratively as well as financially is an independent private educational institution.

13.Now we are confronted with next question which has earnestly been urged by learned counsel for petitioner for issuance of a writ of quo-warranto. For issuance of writ so asked for, it is incumbent upon the petitioner to establish that respondent No.4 is holding a “public office”; secondly he is not qualified to hold that office; thirdly the appointing authority was not competent to appoint him and fourthly that his appointment was illegal or irregular being in violation of prescribed Rules. In view of the preceding observations relating to “person” performing functions in connection with the affairs of the Federation or Province, it has been held that the Edwardes College Peshawar does not come within the ambit of person as provided in Article 199 as it does not perform function in connection with the affairs of Federation or a Province. Thus any employee of the College whether Principal or Lecturer or any member of the Establishment of the College cannot be deemed to hold a public office. The term “public office” relates to an authority, executive, administrative or judicial conferred by the State. A person holding an office in connection with his business entrepreneur or any private institution cannot be termed as holding the public office. Since respondent No.4 is Principal of Private College, so he does not hold or occupy a public office. In view of this factual and legal position, petitioner has failed to satisfy first condition of writ of quo-warranto. Whereas learned counsel for petitioner was specifically questioned whether petitioner is qualified to hold the post of principal and whether appointing authority was competent to appoint him, he candidly answered in affirmative. He neither questioned the eligibility of respondent No.4 for holding the post of the Principal nor challenged the competence of respondent No.2 about appointment of respondent No.4. The only allegation which he, time and again, urged with vehemence that whole exercise of appointment of respondent No.4 was pre-planned, with malafide intention and ulterior motive under political pressure and manoeuvring of the Bishop, because only a Christian was to be appointed, as principal of the College. All these questionsrelate to factual controversy which cannot be resolved in the constitutional jurisdiction. Nor on the basis of it, a writ of quo-warranto can be issued. Similarly, learned counsel for petitioner has failed to lay hand on any rule, regulation or statute which has been violated in appointment of respondent No.4. All the assertions made on behalf of the petitioner are based on mere assumptions which are not justiciable in constitutional jurisdiction.

14.For the reasons discussed above, we could not find any merit in the instant petition, hence the same stands dismissed.

JUDGEAnnounced on

22nd March,2016 J U D G E