' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This petition has been filed for leave to appeal against the judgment dated 24-2-2011 passed by the Islamabad High Court, Islamabad.
2. Precisely stating the facts of the case are that the petitioner was appointed in the Higher Education Commission (HEC) in BS-19 w.e.f, 8-9-2004. The promotion of the petitioner to BS-20 was, however, declined by the Selection Board of Higher Education Commission and such intimation was sent to the petitioner through letter dated 1-1-2011, relevant contents wherefrom are reproduced hereinbelow:-- "Subject: PROMOTION FROM BPS-19 TO BPS-2 I am directed to inform you that the HEC Selection Board while considering your case of promotion to BPS-20 in its meeting held on 26-11-2010 has recommended to supersede you being not meeting the aggregate marks of efficiency index i.e, 70 which is required for promotion to BPS-20."
' Aggrieved, the petitioner approached the High Court which, vide impugned judgment, has declined to issue the writ to redress the grievance of the petitioner for the reasons stated therein.
3. At the commencement of hearing learned counsel for the petitioner is asked to satisfy, (i) as to whether writ petition in the case of the petitioner under Article 199(1)(a)(i) of the Constitution is competent; and (ii) whether petitioner is governed by the statutory rules. He contends that in view of the functions assigned to the Commission under section 10 of the Higher Education Commission Ordinance, 2002, the Commission is performing its functions in connection with the affairs of the Federation, therefore, he could invoke the constitutional jurisdiction of High Court. He has placed reliance upon the judgment reported in the case of Pakistan International Airlines Corporation v.
Tanweer-ur-Rehman and others (PLD 2010 SC 676). In this context it would be appropriate to reproduce hereinbelow section 10 of the Ordinance.
"10. Powers and functions of the Commission.---(1) For the evaluation, improvement, and promotion of higher education, research and development, the Commission may-
(a) formulate policies, guiding principles and priorities for higher education Institutions for promotion of socio-economic development of the country;
(b) cause evaluation of the performance of Institutions;
(c) prepare, through consultation with the Institutions, plans for the development of higher education and express its opinion on all matters relating thereto;
(d) prescribe conditions under which Institutions, including those that are not part of the State educational system, may be opened and operated;
(e) set up national or regional evaluation councils or authorize any existing council or similar body to carry out accreditation of Institutions including their departments, faculties and disciplines by giving them appropriate ratings. The Commission shall help build capacity of existing councils or bodies in order to enhance the reliability of the evaluation carried out by them; ' advise the Federal Government and the Provincial Governments on proposals for granting a charter to award degrees in both public and private sectors;
(g) submit to the Federal Government the recurring and development budgets for public sector Institutions and allocate funds to public sector Institution out of bulk financial provision received from the government and other resources on performance and need basis;
(h) review and examine the financial requirements of public sector Institutions; approve and provide funds to these Institutions on the basis of annual recurring needs as well as for development projects and research based on specific proposals and performance and while approving funds for a public sector Institution the Commission shall ensure that a significant proportion of the resources of the Institution are allocated to research, support and libraries;
(i) approve projects within the same ceilings as are specified for Department Development Working Party;
(j) advise Institutions in raising funds from sources other than the Government;
(k) support the development of linkages between Institutions and industry as well as national and international organizations that fund research and development with a view to enhancing research;
(1) facilitate the introduction of educational programmes that meet the needs of the employment market and promote the study of basic and applied sciences in every field of national and international importance in the Institutions;
(m) advise Institutions in ensuring a proper balance between teaching and research;
(n) cause to be set up testing bodies or designate any existing body for the purpose;
(o) determine the equivalence and recognition of degrees, diplomas and certificates awarded by Institutions within the country and aboard;
(p) develop guidelines and facilitate the implementation of a system of evaluation of performance of faculty members and Institutions;
(q) provide guidelines as regards minimum criteria and qualifications for appointment, promotion, salary structure in consultation with the Finance Division and other terms and conditions of service of faculty for adoption by individual Institutions and review its implementation;
(r) take measures, including the allocation of funds, for the establishment of fellowships, scholarships, visiting professorships programmes or any other programme, in addition to assistance of similar programmes of Institutions; and facilitate greater mobility of faculty through national and international contacts; ' in various disciplines to advise the Commission on its affairs; promote formal links between Institutions in the country to make the most effective use of experience and specialized equipment and promote national and international linkages with respect to knowledge sharing, collaborative research, personnel exchange and cost sharing;
(u) encourage, support and facilitate training programs, workshops and symposia;
(v) guide Institutions in designing curricula that provides a proper content of basic sciences, social sciences, humanities, engineering and technology in the curricula of each level and guide and establish minimum standards for good governance and management of Institutions and advise the Chancellor of an institution on its statutes and regulations;
(w) establish an endowment fund for higher education with contributions from governmental as well as non-governmental resources;
(x) collect information and statistics on higher education and Institutions as it may deem fit and may cause it published; and,
(y) perform such other functions consistent with the provisions of this Ordinance as may be prescribed or as may be incidental or consequential to the discharging of the aforesaid functions.
(2) The Commission shall perform all its functions efficiently and diligently."
4. A plain reading of the above section abundantly makes it clear that for the purpose of evaluation improvement and promotion of Higher Education Research and Development, the Commission is authorized to formulate policy guiding principles and the principles for higher education Institutions for promotion of socio-economic development of the country and cause evaluation of the performance of Institutions etc. Performing its functions in the field of education and as such necessarily is exercising its powers/functions to accomplish the assignment relating to the education affairs not only for a particular Institution but for all the Institutions etc. As noted above.
At 'this stage contents of para No,12 from the judgment relied upon by the learned counsel to strengthen his above argument, is reproduced hereinbelow:---
12. Now let us see what is meant by the expression performing functions in connection with the affairs of the Federation'. The expression clearly connotes governmental or State functions involving an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order or they may be functions concerning economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Generally, these functions are to be performed by persons or agencies directly appointed, controlled and financed by the State; either by Federation or a Provincial Government. On the other, hand, private organizations or persons, as distinguished from Government or Semi-Government agencies and functionaries, cannot be regarded as a person performing functions in connection with the affairs of the Federation or a Province, simply for the reason that their activities are regulated by laws made by the State. The primary test must always be:
(i) whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power;
(ii) whether the control of the organization vests in a substantial manner in the hands of Government; and
(iii) whether the bulk of 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. [see Salahuddin v. Frontier Sugar Mills and Distillery Ltd.
(PLD 1975 SC 244)].
5.
Now turning towards statutory status of the petitioner to invoke the jurisdiction of the High Court it is to be noted that there are provisions which covered the framing of the rules, namely, section 12(2) of the Ordinance, whereby Commission has been authorized to frame the rules for the recruitment of its employees and second identical provision is contained in section 21 of the Ordinance which provides that the Commission may, with the prior approval of the Controlling Authority, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance. Under section 3 of the Ordinance the Controlling Authority has been defined to be the Prime Minister or, as the case may be, the Chief Executive of the Islamic Republic of Pakistan who may supervise the affairs of the Commission. Learned counsel has placed on record a copy of statutory Notification S.R.O. 822(I) of 2009 dated 1st September, 2009 a perusal whereof indicates that the Commission in its meeting held on 27th June, 2009 has made the rules regulating the recruitment of the persons to the Higher Education Commission known as "Higher Education Commission Employees (Recruitment) Rules, 2009".
6. Prima facie, it is assumed that these rules have been framed with the approval of the Controlling Authority, therefore, for the purpose of approaching the High Court under Article 199 of the Constitution it is required to be examined as to whether the status of such rules required to be determined qua promotion that these rules are not statutory rules; whether the petitioner had rightly invoked the jurisdiction of the High Court for rerressal of his grievance because of the reason that the Commission is discharging its functions in connection with the affairs of the Federation as it has been discussed hereinabove; and whether the petitioner, being one of its employees, is entitled to seek protection of the Constitutional provisions under Article 25 etc. As he has been pleaded by the learned counsel. Therefore, to examine this, inter alia, aspect of the case leave to appeal is granted. Let the appeal be prepared on the existing record with an opportunity to the parties to file additional documents, if any.