MIAN SAQIB NISAR, J.--- The petitioner after having passed her 0 Level's exam., appeared in A Level's exam., but awaiting the result, she applied for admission with the Lahore University of Management Sciences (the LUMS) for BSc. (Honours)/BA-LLB Programme, which has been declined to her with the advice that she must improve her A Level's result, whereas according to the petitioner at that time, A Level's result was not yet announced, which was subsequently declared and the petitioner had obtained 3 A's therein. It is this refusal which has been challenged by the petitioner through the present writ petition on the ground of being illegal, arbitrary, whimsical, unlawful, unreasonable etc., and violative to the provisions of Articles 8, 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The LUMS/respondent No,1 and two of its other officials who are respondents Nos. 2 and 3, have contested the petition and at the very outset have raised the objection about its maintainability therefore, I deem it proper to first settle the objection about the competence of the petition.
3. The precise objection of the respondents in this behalf is that LUMS is not a "person" within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, performing functions in connection with the affairs of the Federation, Province or the local Authority, therefore, the writ in the nature of mandamus as has been prayed for by the petitioner in this case, cannot be allowed.
To meet the above objection, Mr.Ahmad Rauf, learned counsel for the petitioner has argued that LUMS is an institution which has been created by the Presidential Order 25 of 1985 which was validated by 8th amendment under Article 270-A of the Constitution; furthermore, establishment of the institution has been given protection by amending 7th Schedule to the Constitution by way of item No,8. It is further submitted that the education is within the domain of, and it is the function of the government to make laws regarding the education, therefore, LUMS having come into being as a consequence of the above, falls within the meaning of "person". It is also submitted that according to the charter of LUMS, it is under the control of the President just like the Aitcheson College Lahore, which is under the control of the Governor; the President of Pakistan is the Chancellor, who appoints the Pro-Chancellor, the Rector, his decision in certain matters is final; the Board of Trustees of LUMS comprises of 15 members including a representative of the University Grants Commission (now the Higher Education Commission), which is the statutory body, the Principal, Pakistan Administrative Staff College and three other members nominated by the Board and approved by the President. Mr. Ahmad Rauf, Advocate argued that the Council of the LUMS comprises of the representative of the University Grants Commission, the representative of the Ministry of Education, the Principal of Administrative Staff College, the Director Institution of Business Administration Karachi, the Head of the business or a public administration department of a University; all the above are the official Institutions and Organizations, run and controlled by the Government of Pakistan.
' About the control of the Chancellor i,e, President of Pakistan over the affairs of LUMS, it is submitted that he can terminate the membership of any nominated member under Article 9 sub-Article (i) of the Presidential Order; the Chancellor may cause and direct any inspection or inquiry in respect of the matters connected with the affairs of LUMS; according to Article 9 sub-Article (4), the Chancellor may issue direction and the Board is bound to comply with those. It is also submitted that as per Articles 10 and 11 sub-Article (1) of the Order, the Directors shall be appointed by the Chancellor on such terms and to perform such duties as may be directed; Article 20(1) envisages that if any question arises about the interpretation of the Order 25 or if any difficulty is to be removed, it is the Chancellor who shall interpret and may make an order to remove the difficulty; under Article 20(3), all the academic programmes are subject to the approval of the Grants Commission. Thus, on the basis of the all what has been submitted above, the learned counsel states that respondent No,1 is a "person" performing its duty in connection with the affairs of the Federation. In support of his contentions, he has relied upon Arif Majeed Malik and others v. Board of Governors Karachi, Grammer School 2004 CLC 1029, Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244, Judicial Review of Public Actions by Mr. Justice (R) Fazal Karim Vol. II Page 1036, Mst. Asma Nadeem v. International Islamic University and others 2002 M LD 290 and Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. And others 1998 CLC 1890.
4. Replying to the above, Mr.Jawad Hassan, learned counsel for "the respondents has argued that according to Article 13 of the Order 1985, it is the Board of Trustees which has the control over the affairs of LUMS; such Board comprises of 15 person out of which 12 are private people and only three are the Government officials; under Article 17, LUMS has its own funds and is not being run by any finances provided by the Government which according to him is the key factor to determine, whether an educational institution is the extended arm of the Government or otherwise. He also argued that as per Article 13(1)(d) of the Order, four persons are from the National Management Foundation (NMF), which is registered as a society and is the governing body administering the affairs of LUMS; the management of NMF is entrusted to a Board of Governors, which comprises of private individuals and neither has any official representation nor is under the control of the Provincial or Federal Government; although, LUMS has the President of Pakistan as its Chancellor but he is not on the Board,; LUMS is enjoying its financial autonomy since 1985 and has been raising its own funds through the fees paid by the students or the funds received from the donors; if is not getting any financial assistance from the Government on annual basis, hence it makes its own budget, raises its own funds as an autonomous body without' any interference of the Government; in this behalf, reference has been made to Article 17 of the Order.
5. I have heard the learned counsel for the parties. Under Article 199(a)(i) of the Constitution of Islamic Republic of Pakistan, 1973 a writ of mandamus can be issued to a person performing functions in connection with the affairs of the Federation, a Province or local Authority. Thus, it cannot obviously be issued to some , who does not fall within the purview of the "person" defined in the Article to mean:-- "(5) '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 word "control" appearing in the aforementioned definition is also quite significant and it is not restricted to the financial control of the Government over a body but the executive control as well; it does not necessarily mean the financial control over the bodies that are under the dominative control of the Federal or Provincial Government, which are amenable to the jurisdiction under Article 199 of the Constitution. Thus, the judgment of the Honourable Supreme Court reported as Aitcheson College Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326, cited by the learned counsel for the petitioner, is distinguishable from the captioned case, as the dominating control in Aitcheson College is (1) taken over under MLO (2) Governor of the Punjab is the President of the Board (3) there are Provincial Secretaries on the Board and Corp. Commanders
(4) it is the Special Institution under the Provincial Rules of Business and (5) on account of the above, it is permissible to transfer the Government servants to the Aitcheson College.
6. In order to ascertain the fundamental question involved in this case, whether a person who has been impleaded as the respondent in a constitutional petition under Article 199, is a "person" within the definition reproduced above, in my view, the following judgments are quite important.
In Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCM R 928 at page 933, the primary test, which was held must be applied to ascertain the above issue is, 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 the bulk of the funds is provided by the State.
In Tanvir Iqbal Siddiqi v. The Principal, Overseas Pakistanis' Foundation (OPF), Girls College Islamabad 1994 SCM R 958 at page 959, it has been held that OPF is not a department of the Federal Government; it is not shown that the OPF performs the functions in connection with the affairs of the Federation within the meaning of Article 199.
In Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 at page 257, it has been held that the private organizations or persons, as distinguished from government or semi-government agencies and functionaries, cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State.
In Muhammad Sharif v. The Secretary to the Government of the Punjab, Basic Democracies Social Welfare and Local Government Department, Lahore and 3 others PLD 1973 SC 497 at page 506, it has, been held that the College Governing Council or any sub-committee constituted by it could only make regulation for the internal management F of the college, and such regulation could not acquire the status of statutory rules, so as to be enforced by the High Court in the exercise of its writ jurisdiction.
In Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445,it is ordained that in the absence of proof that any statutory duty was involved or that any legal right was being claimed a mandamus could not be issued.
' In Noor Jehan Shah v. Pakistan Defence Officers Housing Authority through its Administrator 1997 M LD 2261, the test applied for determining the above status is the same, which was mentioned in 2000 SCM R 928.
' In Qamar-ul-Islam v. The Institute of Chartered Accountants of Pakistan 1993 M LD 1362 at page 1365, it was held that ICAP was constituted under the Ordinance X of 1961 as a body corporate and under section 9, the control and management does not vest with the Government but same vests in the council constituted under the Ordinance and the funds are received under section 17 of the Ordinance.
' Therefore, ICAP is not a person performing functions in connection with the affairs of the State and as such the writ petition was held to be incompetent.
7. On account of the above case law, I am of the considered view that the absolute control over the management of a body/an organization by the federation etc., is a condition most important for declaring it to be a "person" performing its functions in connection with the affairs of the Federation etc; the Federation etc. Should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions. Such control must be absolute, unfettered, unbridled and exclusive, besides, the State must also have the financial control of the Organization; the power of hiring and firing the employees thereof appointing and removing the management body meant for running the routine affairs of the Organization. But from the Presidential Order of 1985, though the President is the Chancellor of the LUMS, but this is notional and more with the status of a Patron-in-Chief; in practical terms except for the nomination of the persons on the Board or the Council, he does not have the administrative or policy-making control, which is the authority of the Board of Trustees and the Council of LUMS, which manages its affairs. It has been rightly pointed out by the respondents' counsel that the funds to LUMS are not being provided by the Government on regular basis, those are generated by the LUMS itself either from the fees or the donations and may be occasionally in the nature of donation, the government also contributes, but this contribution cannot be held to be within the concept of "financial control" of the Organization. The judgments cited by the learned counsel for the petitioner, in the light of the catena of judgments from the respondents' side which have been discussed above, not only are distinguishable, rather do not apply to the facts and circumstances of the present case.
' Therefore, when both the "administrative" and the "financial" control of the Federation over respondent No,1 is lacking, I am constrained to hold that LUMS is not a "person" within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which could be held to be performing its duties in connection with the affairs of the Federation or the Province. Resultantly, this writ petition against the respondents is incompetent, which is hereby dismissed.