' This order will decide preliminary objection raised by respondents to the maintainability of instant constitutional petition as well as W.P.No, 24245 of 2015, W.P.No, 33902 of 2015, W.P.No, 7958 of 2016 & W.P.No, 10494 of 2014 filed against Government College University, Lahore (GC University).
2.The above referred writ petitions are filed against G.C. University under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). Learned counsel for G.C. University raised preliminary objection that these writ petitions are not maintainable because G.C. University is not a "person" within the meaning of Article 199 of the Constitution as it is not performing functions in connection with the affairs of Federal or Provincial Governments. He argued that Government must have absolute, unfettered and exclusive financial and administrative control over particular organization for the purpose of maintainability of constitutional petition. Submits that as Government has no financial and administrative control over G.C. University therefore, writ petition is not maintainable. To elaborate he submits that though G.C. University has been established under "The Government College University Lahore Ordinance, 2002 (Ordinance) however, under Section 3(5)(6) & (7) of the Ordinance, the G.C. University is an independent body corporate competent to acquire and hold property. Similarly Section 4(b)(c)(i)(j)(L)(m) and (an) of the Ordinance prescribe powers of the G.C. University which are independent of government control. He also referred to Sections 7, 9, 10, 12, 13, 19, 20, 21, 26(2), 33, 40, 42 & 49 of the Ordinance to argue that the affairs of G.C. University are run and controlled by Syndicate and Vice Chancellor who are independent of Government. Submits that though Governor of Punjab is Chancellor of University but he is only ceremonious head end actual control is with Syndicate, which is independent. He concludes that the case of G.C. University is at par with case of Lahore University of Management Sciences (LUMS), , decided in "Anoosha Shaigan versus Lahore University Of Management Sciences through Chancellor and others" (PLD 2007 Lahore 568) where in similar circumstances, august Supreme Court held that writ petition is not maintainable against LUMS.
3.Learned counsel for petitioners in response to above objection also referred to various provisions of the Ordinance and submitted that not only the Government of Punjab has direct administrative control over G.C. University but even financial control is indirectly with the Government of Punjab.
Submits that Governor of Punjab being Chancellor of University, acts on advice of Chief Minister of the province under Article 105 of the Constitution, therefore, it is actually the Chief Minister who is controlling the affairs of University. Submits that under Rules of Business, Government College University is attached department of government therefore, these constitutional petitions are maintainable. They placed reliance on "Pakistan Defence Officers' Housing Authority and others versus Lt. Col. Syed elawaid. Ahmed" (2013 SCMR 1707), "International Islamic University, Islamabad and others versus Dr. Shameem Tariq and others" (2015 PLC (C.S.) 1336), "Aitchison College, Lahore versus Muhammad Zubair and another" (PLD 2002 SC 326), "Shafique Ahmed Khan and others versus NESCOM through Chairman, Islamabad and others" (PLD 2016 SC 377), "Haroon-ur-Rashid versus Lahore Development Authority and others" (2016 SCMR 931).
4. I have heard the learned counsel for the parties and perused the record with their able assistance on the question of maintainability Of these constitutional petitions against G.C.
University. Question whether constitutional petitions are maintainable under Article 199 of the Constitution against G.C. University has direct nexus with litmus test i.e, if G.C. University is under administrative and financial control of government or performing functions for the benefit of the public and not for private gain or profit and therefore, fall within definition of "person" under Article 199 of the Constitution. The august Supreme Court termed this test a "function test". To find out if G.C. University qualifies "function test", it is necessary to go through the relevant provisions of the Ordinance. Section 9 of the Ordinance deals with authority of Governor of Punjab, who shall be the Chancellor of University. The Chancellor will preside over the convocation of University, he is empowered to annul any order and proceedings of any authority or officer of University, if same are not in accordance with the Ordinance, the Statutes, the Regulations or the Rules. The Chancellor has powers to assent to statute, he may also remove any person from the membership of any authority for any of the reason prescribed under Section 9(6) of the Ordinance. Section 11 of the Ordinance deals with the powers of Chancellor to cause an inspection or inquiry into the affairs of the University, whereas according to Section 11(4) the Chancellor may advice the Syndicate and in case the Syndicate failed to carry out the advice of Chancellor, the Vice Chancellor shall comply with direction of Chancellor. Sub-section (7) of Section 9 specifically provides that in the performance of hisfher functions under the Ordinance, the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution. Article 105 of the Constitution provides that Governor will act on the advice of the Chief Minister. This means that the Chancellor of G.C. University in performance of his functions and powers under the Ordinance will act and be bound by the advice of Chief Minister of the Province of Punjab.
5. Under Section 11-A of the Ordinance, Ministry of Education, Government of Punjab shall be pro- chancellor of G.C. University and performs such functions as delegated to him by Chancellor.
Section 12 deals with the appointment of Vice Chancellor and provides that government shall determine, by notification, the qualification, experiences and other relevant requirements for the post of Vice Chancellor and will also determine the terms and conditions of service of Vice Chancellor. Section 12 further, provides that the Chancellor shall appoint Vice Chancellor for a period of four years or during the pleasure of the Chancellor. Under Section 13, the Vice Chancellor shall be the principal executive and academic officer of the University. Under Sections 14 & 15, the Registrar and Treasurer of G.C. University are to be appointed ' by the Cliancellor on the recommendation of the government. Under Section 17, Resident Auditor of G.C. University shall be taken from audit department of government on deputation.
6. Section 20 deals with the formation of Syndicate and provides that Vice Chancellor will be the Chairman of Syndicate whereas its members will include Secretary Education Department, Secretary Finance Department, Secretary Law and Parliamentary Affairs Department, Chairman University Grants Commission, one female Vice Chancellor of any public university, Chairman Board of Intermediate, two members of constituent colleges to be nominated by government and two members of affiliated colleges nominated by the government, EDO Education Lahore, three members of provincial assembly. It is relevant to note that the number of members to constitute quorum of Syndicate is eight whereas government nominees and officials referred above are more than double of the quorum required for the meeting of the Syndicate. Section 21 deals with the powers and duties of Syndicate, which include administrative and financial control of G.C.
University. It is clear and obvious that majority members of Syndicate being from either government officials or government nominees, actually, indirectly it is the Government of Punjab which is controlling the Syndicate.
7.Section 26 relates to terms and condition of service of , university employees to be governed under Statutes and Section 26(2) provides that the Chancellor may approve the statute proposed by Syndicate or he may reject it. As per Section 29(1) educational institutions under the management of Government can be affiliated with G.C. University. Section 34 says that no expenditure shall be made unless audited by Resident Auditor, whereas Resident Auditor under Section 17 shall be taken from Audit Department of the Government. Under Section 34(3)&(4), the accounts of University shall be audited by Auditor appointed by the Government who will submit the annual statement of accounts to the Government within six months of the closing of financial year. Under Section 36, "Research Center" is to be constituted for study of planning, promotion and evaluation of higher education. Section 38 provides that the committee .To control Research Center will include Secretary to Education Department, Secretary to Punjab Social Welfare Department and Chairman University Grants Commission, Under Section 40, the provision to Provident Fund Act, 1925 (Act) shall apply to provident fund of MC. University as if it were a government provident fund and University was the Government. Under Section 45the vacancies of membership of an Authority shall be filled in by the Chancellor. Section 49 is a unique provision in its nature, which gives indemnity to the University as well as to the Government against any suit or legal proceedings.
8. All above provisions of Ordinance show that Government has actual and controlling role in the administration of G.C. University. Similarly Item 8 of Schedule to the Ordinance deals with "finance and planning committee". It provides that Secretary Higher Education, Secretary Finance Department and Chairman Treasurer and Registrar appointed by the government, will be member of "finance and planning committee". The quorum of said committee is three members, whereas the government officials and nominees are more than the quorum prescribed. This shows that even the financial affairs of G.C. University is under the control of Provincial Government. From bare reading of above provisions of the Ordinance, there left no manner of doubt that Government of Punjab is not only controlling the administrative functions but also the financial affairs of the G.C.
University.
9.I have also noted that Government of Punjab vide notification dated 11.03.2011 made Rules of Business (Rules) under Article 139 of the Constitution. Rule 3(1) provides that the Secretariat shall consist of the departments specifying in column 2 of the first schedule of Rules. Higher Education Department is mentioned at Sr. No, 16 of Column No, 2 and one of the attached departments to Higher Education is Government College University Lahore given in Sr.No, XII of Column 4 of the first schedule. Similarly Rule 3(3) of Rules provides that business of government shall be distributed amongst several departments in the manner indicated in second schedule: Clause 37 of second schedule deals with administration of laws and rules framed thereunder and at Sr.No, XI, Government College University Lahore Ordinance, 2002 is one of law which is to be administered and rules to be framed for said Ordinance by Higher Education Department. The aforementioned Rules show that G.C. University Lahore is not only a attached institution of the Government of Punjab, Higher Education Department but laws and rules of G.C. _ University are also being administered by Punjab Higher Education Department.
10. In similar situation, Hon'ble Supreme Court in case of "Aitchison College, Lahore versus Muhammad Zubair and another" (PLD 2002 SC 326) while looking at Rules of Business and role of Government relating to administration of Aitchison College held that constitutional petition against Aitchison College is maintainable. The relevant part of the judgment is reproduced hereunder:-- "Applying the above test on the facts of instant cases, we feel no hesitation in drawing inference that the Board of Governors, Aitchison College, Lahore headed. By the Governor of the Province as its President alongwith other officers i.e, Secretaries Education, Finance and General Officer Commanding as well as unofficial Members are involved in providing 'education which is one of the responsibility of the State and by taking over its management and control the Board, exercises sovereign powers as well as public powers being a statutory functionary of Government who in order to provide it full legal/Constitutional protection had brought it into the folds of its Education Department by amending the Provincial Rules of Business as back as in 1994 and even if for sake of arguments if it is presumed that no financial aid is being provided to the College from the Provincial Public exchequer, even then, the College remains in dominating control of the Provincial Government through Board of Governors.
' Therefore, the above test stands fully satisfied and we are persuaded to hold that organization of the Aitchison College, Lahore falls within the definition of a person".
11.Similarly Full Bench of Hon'ble Supreme Court in "Pakistan Defence Officers' Housing Authority and others versus Lt. Col. Syed Jawaid Ahmed" (2013 SCMR 1707) while applying the "Function Test" to various governments owned and controlled companies and institutions held as under:-- "While dilating on this question whether the appellants' organizations are "persons" within the meanings of Article 199(1)(a)(ii) read with Article 199(5) of the Constitution, the expanded functions of the Federation or a Province in contemporary age have to be kept in view. An important dimension of the modern welfare State is that the role of the State and its various institutions has increased manifold. The Government is regulator and dispenser of special services. It has the power to create jobs, issue licenses, fix quotas, grant mining rights or lease of estate, sign contracts and provide variety of utility services to the people. Such entrepreneurial activities at times are carried out through companies created under the Statute or under the Companies Ordinance. The functions these companies institutions perform have element of public authority,. A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private gain or profit.
Such an authority, however, is not precluded from making a profit for the public benefit. The Courts have generally applied what has been classified as a "function test" to consider whether a statutory body is a 'person' within the meaning of Article 199 of the Constitution. In Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), the Court laid down similar test to assess whether a body or authority is a person within the meaning of Article 199 of the Constitution and observed: "The primary test must always be whether the functions entrusted to the organization or persons 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".
' Same view was again expressed by Full Bench of Hon'ble Supreme Court in "Abdul Wahab and others versus HBL and others" (2013 SCMR 1383). Recently in case of "International Islamic University, Islamabad and others versus Dr. Shameem Tariq and others" (2015 PLC (C.S.) 1336), Islamabad.
High Court while dealing with maintainability if petition against "International Islamic University" held that President of Pakistan has direct control in all the affairs of the University, hence constitutional petition Is maintainable.
12.The case law relied upon by the learned counsel for the respondent is not, relevant to the facts and circumstances of these cases. In case of LUMS, no doubt the University was constituted under the Ordinance but the Government had no direct financial and administrative control over LUMS.
Even Board of Trustees who had to run the affairs of LUMS were not consisted of any government officials or its nominees. In these circumstances, Hon'ble Supreme Court found that when apply "function test", the petition is not maintainable against LUMS. However, present case is more akin to case of Aitchison College, where Government of Punjab has administrative and financial control. In G.C. University the Government of Punjab has direct administrative and financial control over the University and not only Vice-Chancellor is appointed by the government but even the Syndicate consists of majority of government officials and nominees. The Governor of Punjab being the Chancellor of G.C. University is the final authority who also, acts and be bound by decision of Chief Minister of the Province under Article 105 of the Constitution.
13. In view of above discussion, it can safely be concluded that G.C. University is a "person" within the meaning of Article 199(5) and (1)(c) of the Constitution. Therefore, preliminary objection is over ruled and it is held that all these constitutional petitions are maintainable. As above preliminary objection regarding maintainability is finally decided, therefore, let these petitions be set down for hearing to be decided on their own merits for 26.07.2016.
(R.A.)