This order shall dispose of Writ Petitions Nos.558 of 2004 and 2344 of 2003 as identical questions of facts are involved in both of them.
2. The petitioner is aggrieved of the decision taken in the meeting of the Overseas Pakistanis Foundation, held on 27-8-2003, decided and declared to take over the management of the Overseas Pakistanis Foundation Girls College, Islamabad. The former writ petition, filed by Professor Miss Rabia Noor, Principal OPF Girls College, Islamabad, a declaration has been sought that the OPF Girls College is a separate entity established by the Government of Pakistan and is not under the control and supervision of respondent Overseas Pakistanis Foundation and the consequential relief has been sought that respondent No,3 be restrained permanently from interfering in the affairs of OPF Girls College and remain within the four corners of law, whereas the latter writ petition has been filed by OPF Girls College through A.R. Siddiqui, Member of the Board of Directors, Overseas Pakistanis' Foundation Girls College, Islamabad, challenging the aforesaid action of the Overseas Pakistanis Foundation.
3. The main thrust of argument of learned counsel of both the petitioners is that respondent No,3 had no concern whatsoever with the College and its administrative affairs because admittedly the OPF Girls College was established by the Government of Pakistan through a resolution published in the official Gazette dated 22-1-1984 along with revised resolution dated 9-8-1988 and the Board of Directors was reconstituted on 31-10-2000. Reliance is placed on the cases reported as Mrs. M.N.
Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612 and Dr. Rashid Anwar v.
Federation of Pakistan through Secretary, Establishment Division, Islamabad and 7 others 1996 SCM R 1572.
4. Respondent No,3 Overseas Pakistanis Foundation filed report and parawise comments.
Preliminary objections were taken that the question of the petitioner Professor Mrs. Rabia Noor's retirement due to superannuation cannot be adjudicated upon by this Court in Constitutional jurisdiction by reason of the specific bar contained in Article 212 of the Constitution; that several controversial, contentious and disputed questions of fact have been agitated-by the petitioner in the petition, which , cannot be effectively adjudicated upon without the recording of evidence; that the Board of Directors of OPF Girls College, respondent No,2, is not a juristic person so it cannot sue or be sued as it has not been lawfully constituted and therefore it lacks legal personality; that OPF Girls College, Islamabad was established and constructed by and from the funds of respondent No,3 therefore respondent No,3 owns and has the lawful right to manage OPF Girls College in accordance with respondent No,3's Memorandum and Articles of Association; that the instrument creating the Board of Directors is a nullity in the eye of law; the so-called Board of Directors was sought to be created by a resolution dated 22-1-1984 of the Ministry of Labour, Manpower and Overseas Pakistanis, the same was not notified in the official Gazette until 9-8-1988; the Ministry of Labour, Manpower and Overseas Pakistanis did not have the statutory or Constitutional mandate for the creation of the Board of Directors nor has the said Resolution been passed in exercise of powers delegated under any law or legal instrument; respondent No,3 was authorized to be created by the Emigration Rules, 1979, framed under the Emigration Ordinance, 1979 (Ordinance No,XVIII of 1979) with the object, inter alias of providing education to the children of the Overseas Pakistanis and in order to achieve the said objective to set up and manage educational institutions in Pakistan; consequently it was incorporated and registered as a company limited by guarantee under the provisions of the Companies Act, 1913 with a Memorandum and Article of Association and therefore the writ petition against the respondent is not maintainable. On merits, it was admitted that petitioner Professor Rabia Noor was appointed by respondent No,3 after she was interviewed; she vide letter dated 4-5-1985 communicated the acceptance of the terms and conditions of her appointment directly to respondent No,3, and finally locus standi of the writ-petitioner A.R. Siddiqui has been challenged.
5. Regarding authorities of the- Hon'ble Supreme Court, i,e, Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612 and Dr. Rashid Anwar v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 7 others 1996 SCM R 1572, the learned counsel for the respondent contends that the question for determination in the referred cases was whether the employees of the OPF College are civil servants or otherwise. By relying on the case reported as Tanvir Iqbal Siddiqui v. The Principal, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad 1994 SCM R 958, the learned counsel contends that OPF Girls College was decidedly not a department of the Federal Government and it was not performing the functions in connection with the affairs of the Federation within meaning of Article 199 of the Constitution therefore the Constitutional petition is not maintainable.
6. I have heard the learned counsel for the parties and perused the record with their assistance.
Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 right to make an application has been given to 'an aggrieved party' and not merely to such person who has been 'injured' by a violation of 'right' or 'franchise' or by a threat thereupon. Article 199 does not say that an application, under it, can be made only by such party who can say that his 'right' has been invaded upon and that he has, therefore, been 'injured' in such a sense. The expression 'right' is as well-known concept in Jurisprudence and the converse of it is 'injury'. On the touchstone of Article 199 of the Constitution, I hold that both the petitioners, namely, Professor Miss Rabia Noor and A.R.
Siddiqui have the locus standi to file the writ petitions.
7. Admittedly the Federal Government/Ministry of Labour, Manpower and Overseas Pakistanis in exercise of powers conferred by section 16 of the Emigration Ordinance, 1979 made Emigration Rules, 1979 (hereinafter referred to Rules). These rules were notified vide S.R.O. 453(1)/79 dated 26- 5-1979. Clause 2(gg) of the said rules provides as follows:-- "(gg) 'Overseas Pakistanis Foundation' means the Foundation set up by the Federal Government to be managed by a Board of Governors with the Minister in charge of the affairs of the emigrants and such other members as that Government may from time to time nominate."
8. Furthermore, under clause 26 of the said Rules, the Welfare Fund shall vest in the Overseas Pakistanis Foundation which shall control the said Fund and may invest money and incur expenditure therefrom on the matters specified therein. The Overseas Pakistan's Foundation was set up by the Federal Government on 8-7-1979 and subsequently registered as a Company limited by Guarantee under the provisions of Companies Act, 1913. It has its own Memorandum and Articles of Association. One of the objects of the constitution of respondent No,3 (Foundation) is, inter alia, to establish and manage educational institutions in Pakistan. It was one of its objectives that respondent No,3 Overseas Pakistanis Foundation established OPF Girls College, therefore, the OPF Girls College, Islamabad, cannot be under the direct control of the Ministry of Labour, Manpower and Overseas Pakistanis. OPF Girls College, Islamabad is neither an autonomous body nor a Department. It is an extension of the OPF. Both the parties claim generation of funds for buying the plot and establishment of the School, but this is a question of fact which cannot be adjudicated upon by this Court in exercise of Constitutional jurisdiction. But the fact remains that the OPF Foundation was set up on 8-7-1979 as a Company limited by guarantee much prior to the issuance of Resolution dated 22-1-1984 by the Ministry of Labour, Manpower and Overseas Pakistanis, through which Board of Directors under the title 'Board of Directors of the OPF Girls College, Islamabad' was created. The instrument creating so-called Board of Directors of OPF Girls College (hereinafter referred as Board of Directors), has no legal existence and is nullity in the eye of law. The so-called Board of Directors was created through a resolution dated 22-1-1984 of the Ministry of Labour, which instrument did not have the authority of any law or legal instrument and the same was not even notified in the official gazette until 9-8-1988. The Ministry of Labour, Manpower and Overseas Pakistanis did not have the statutory or Constitutional mandate for creation of the Board of Directors nor had the said resolution been passed in exercise of the powers delegated under any law or legal instrument. In the case reported as M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612, it has been held that resolution of establishing the College in Islamabad by the Federal Government has not been passed in pursuance of any delegated statutory powers. In this view of the matter, the Board is neither a corporate body nor a juristic person competent to employ teachers. However, it was held that, "Establishment of College in Islamabad by Federal Government having been done in the discharge of its Constitutional and/or statutory obligations as a State, teachers appointed by the Federal Government in said College hold a civil post in connection with the affairs of the Federation". This view of the Hon'ble Supreme Court .Was reiterated in the case of Dr. Rashid Anwar 1996 SCM R 1572 (supra), holding that "So far as the status of P.I.M.S. As an autonomous body is concerned, even Raja Muhammad Bashir, learned Deputy Attorney-General very candidly conceded before us that such bodies created by a resolution of the Government cannot enjoy the same status as a legal person, having an autonomous character". In the case reported as Tanvir Iqbal Siddiqui v. The Principal, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad 1994 SCM R 958, Tanvir Iqbal Siddiqui, who was employed as a Science Laboratory Assistant/Technician with the Overseas Pakistanis'
Foundation Girls College, Islamabad, his services were terminated on 30-4-1990. He assailed the validity of the termination through Writ Petition No,323 of 1992, which was disposed of at limine stage by the learned Single Bench of this Court vide Order dated 22-7-1992. The said employee filed Civil Petition before the Honourable Supreme Court. Leave was refused and the said petition was dismissed by observing that OPF Girls College, Islamabad, was decidedly not a Department of Federal Government and it was not performing functions, in connection with the affairs of the Federation within meaning of Article 199 of the Constitution therefore the High Court rightly came to conclusion that Constitutional petition was not competent.
9. The above discussion leads me to observe that although Professor Miss Rabia Noor, petitioner, was appointed as Principal, yet she is a civil servant and the termination of her service is part of the terms and conditions of service for which she may voice her grievance before the Service Tribunal.
This writ petition is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
10. As far as writ petition of A.R. Siddiqui is concerned, I have already observed that resolution dated 22-1-1984 of the Ministry of Labour, Manpower and Overseas Pakistanis, which was notified in the official Gazette on 9-8-1988, did not have the statutory or Constitutional mandate for creation of the Board of Directors nor had the said resolution been passed in exercise of powers delegated under any law or legal instrument, therefore, his writ petition is also not maintainable. For what has been discussed above,, both the writ petitions are dismissed.