MUHAMMAD NASIR MAHFOOZ, J.---Through this single judgment, the following writ petitions connected with instant writ petition shall be decided.
1. W.P No, 566-M/2017 titled "Al-Sheikh Cricket Club v. Pakistan Cricket Board through Chairman and others".
2. W.P No, 567-M/2017 titled "Pak Afghan Cricket Club v. Pakistan Cricket Board through Chairman and others".
3. W.P No, 568-M/2017 titled, "Colony Cricket Club v. Pakistan Cricket Board through Chairman and others".
4. W.P No, 569-M/2017 titled, "Green Star Mayar Cricket Club v. Pakistan Cricket Board through Chairman and others".
5. W.P No, 570-M/2017 titled, "Hilal Cricket Club v. Pakistan Cricket Board through Chairman and others"
2. Brief facts of the case are that petitioners are involved in promoting the game of cricket by forming separate cricket clubs with their specific names. As per contentions in the writ petition, their cricket clubs are functioning and registered with the concerned District Cricket and Zonal Cricket Association and as per the mandate of the model constitution promulgated and enforced by the Pakistan Cricket Board, it has an "ACTIVE" status and secure voting rights as the model constitution has been adopted by a resolution of general body of the club. In order to ascertain the status of local cricket club for categorizing them as either "ACTIVE" or "INACTIVE, scrutiny committee was constituted in the District of Dir Lower. Prior to the process of scrutiny the list of cricket clubs were provided to the local District Cricket Association (to be called as (DCA), which was in turn provided to the Pakistan Cricket Board and the name of petitioner/clubs was mentioned to have adopted the Pakistan Cricket Board model constitution through letter dated 08.11.2015. On arrival of the scrutiny committee, petitioner/club made available all the relevant documents including resolution from the general body for adaptation of the Constitution of Pakistan Cricket Board. Requisitioning of the general body meeting and attendance of the members of the club, the concerned scrutiny committee recorded their proceedings but while giving its decision, dated 19.10.2016, the petitioners were marked as "INACTIVE" on the following grounds: "No proper resolution regarding implementation of Pakistan Cricket Board model constitution provided".
3. The said order was assailed in Appeal before respondent No,4 but the same was dismissed on 25.11.2016, which was again challenged before the Board of Governor of the Pakistan Cricket Board which was heard by respondent No,3 and allowed on 19.1.2017 and the case was remanded back for fresh decision to respondent No,4. Vide order dated 13.4.2017, respondent No,4 dismissed the appeal which was again challenged in second appeal before respondent No,3 but the same was dismissed on 4.7.2017. Aggrieved from the determination of the respondents to hold the petitioners as an "INACTIVE" club, they have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan.
4. Comments were called from the respondents, who have raised preliminary objections regarding maintainability of instant writ petition on the ground of locus standi, non-statutory status of the constitution of Pakistan Cricket Board and that factual controversy is involved in instant writ petition, therefore, it could not be allowed. The ground on which the appeals of the petitioners were dismissed has been reiterated in the comments.
5. We have heard arguments of learned counsel for the parties and perused the record.
6. Learned counsel for the petitioner has supported his contentions as mentioned in the writ petition and relied on a judgment passed by Hon'ble Bench of this Court in W.P No,124-P/2014 decided on 7.11.2017, wherein a similar issue was raised but the same was dismissed on the ground that thirteen of the members of the club were found to be Afghan citizens/nationals which was held to be in clear negation of the rules framed for the purpose. One of the petitioner in W.P No, 567 of 2017 is hit by this order. Reliance was also placed on W.P No,4453-P/2016 decided on 17.1.2017, which was allowed and the respondents were directed to give a second chance to petitioner/club for presenting its members within a period of 30 days. It was also asserted that the writ petition is maintainable as the respondents are performing functions under Sports (Development and Control) Ordinance, 1962 (XVI of 1962), where-under a Board of Governor has been constituted which has approved the Pakistan Cricket Board Election Regulation, 2015 on 13.6.2015. He submitted that the petitioner/club fulfills all the requisite Criteria to be considered as an "ACTIVE" club and the orders passed by the respondents Nos,3 and 4 are against the relevant rules and law on the subject published in the Gazette of Pakistan, Extra August 30th of 2014. Reliance was placed on 2016 SCM R 2146, 2017 SCM R 571 and 2017 PLC 1270.
7. Learned counsel for the respondents further referred to the status of the present petitioner as non statutory and therefore strongly resisted maintainability of the instant writ petitions. Reliance is placed on 2013 SCM R 314 and an unreported judgment of Lahore High Court passed in W.P No, 59837 of 2017 decided on 23.8.2017.
8. In order to regulate the development and control of sports in Pakistan, an Ordinance known as Sports (Development and Control) Ordinance, 1962 (XVI of 1962), was promulgated on 02.05.1962.
Under section 3 thereof the Central Government may by notification in the official Gazette constitute a Board for the control of sports in Pakistan. Under section 4, the name, constitution, powers and functions of a board shall be such as may determine by the Central Government and under section 5, a board may make rules and regulations for carrying its objects into effect.
9. In order to appreciate the controversy as involved in instant writ petition, it would be necessary to consider the relevant provision of Constitution of Pakistan Cricket Board published in the Gazette of Pakistan, Extra on 30.08.2014, wherein an "ACTIVE" club is defined in section 2 (ii), means a cricket club which;
(a) has adopted the model constitution as formulated by the board of Governors within a period of three months from the date of its communication;
(b) has not less than sixteen playing members registered with the District Cricket Association, or as the case may be, zonal cricket Association to which it is affiliated and verified by the scrutiny committee of the board;
(c) has formulated by laws for regulating business and the conduct of its members;
(d) participates in every calendar year in at least two tournaments organized by the District Cricket Association to which it is affiliated or two others tournaments approved or recognized by the Board.
(e) does not belong to any service organization or department;
(f) has the use of a pitch where net practice is regularly held, subject to the satisfaction of the board.
Explanation: For the purpose of this clause, not more than three cricket clubs may use the same pitch and nets; and g) is not a defaulter of the dues of the concerned District Cricket Association;
10. Under Rule (xxix) the rules is defined to means the rules made by the Board under section 5 of the Sports (Development and Control) Ordinance, 1962 (XVI of 1962). Under para 3 with the heading Pakistan Cricket Board, it is provided that a board to be known as the Pakistan Cricket Board is constituted which shall manage and regulate subject to and in accordance with this constitution by the Chairman, the Board of Governors and the general body, the affairs of the board. Under para 3(2) the Board shall be a body corporate and has been given even the status and character as required for the body corporate. Under para 3(3) the Board shall be the governing body of Pakistan Cricket and its primary aim shall be to promote the game of cricket in Pakistan. Under para 4 the body, the objects, powers and functions of the Board have been laid down and includes promotion, develop, supervise and maintain general control on all forms of domestic and international cricket. Under para 16, the composition of Board of Governors has been given in subsection 1(a) and (b) the different regions have been mentioned from where 04 members are duly elected on the basis of rotation as per applicable regulations to be members of Board of Governors. Under para 13(2), delegation of powers and functions shall not prevent the Board of Governors from concurrent exercise of powers or performance of functions so delegated. Under para 14 composition of Regional Cricket Association is laid down. It has been made a condition precedent for all Regional Cricket Association to adopt the model constitution provided by the Board from the date of communication from the model constitution made by the Board. Under para 14(2), the Regional Cricket Association shall be responsible to promote, develop, regulate and maintain general control of cricket in their respective regions. Under para 14(4) the Regional Cricket Association may receive funds from the Board and also generate funds through their own efforts.
Under para 14(5) the electoral college for the elections of Regional Cricket Association shall be the elected representative of District and Zonal Cricket Associations. Under para 15 District and Zonal Cricket Associations are to be formed which shall adopt the model constitution provided by the Board and shall replace their respective constitution within three months of the date of communication of the model constitution made by the Board. Under para 15 (2) the electoral college for the District and Zonal Cricket Association shall be the ACTIVE clubs on the basis of one- club, one-vote. Its provisions also provide for composition of Women Cricket Association, Blind Cricket Council, veterans Cricket Association etc. under para 20, the general body shall recommend to the Board of Governors to admit any eligible Regional Cricket Association, District Cricket Association or service organization to full membership of the board and grant Associate Membership of the Board. Under para 29, appointment of Election Commissioner is provided to discharge such functions as may be prescribed. Under para 29 (5), the Election Commissioner shall have the responsibility for holding and monitoring fair, free and transparent elections under this constitution. Under para 29(6) the Board of Governors on the recommendation of the Chairman and in consultation with the Election Commissioner may appoint one or more Deputy Election Commissioners. Under para 30, the Board shall maintain such bank accounts as may be determined by them. Under para 37, the penal of adjudication is to be appointed for dispute resolution or decision of appeals. Under para 41, the Board may make regulations in accordance with the ibid Ordinance of 1962. Under papa 41(b), the regulation may provide for holding of elections for Regional Cricket Association or District Cricket Association and clubs including the scrutiny. Under para 45 the Federal Government may, if deems necessary and expedient, make amendment in this constitution by way of repeal, substitution, omission, modification or addition of any provision thereof.
11. Under para 41, the Pakistan Cricket Board on 13.06.2015 unanimously approved the Elections Regulations, 2015, which provides procedure for club elections, procedure for scrutiny of clubs, procedure for District/Zonal/City Cricket Association Elections and election regulations for the same. It also provides procedure for elections of Regional Cricket Association and vide annexure A, B and C, the forms of nomination etc for the elections and undertaking has been provided. These regulations have been framed by the Pakistan Cricket Board in pursuance to the powers conferred by section 5 of the ibid Ordinance. The Federal Government has framed the constitution that has been published in the Extra Ordinary Gazette of Pakistan on 30.08.2014 after duly approved by the Federal Government. Its publication in the gazette confers a statutory status, to the said regulations.
12. The model constitution is stated to be adopted by the petitioner and was duly presented in their documents to the officials of Pakistan Cricket Board at the time of scrutiny. The relevant documents are annexed with the writ petitions which also includes scrutiny assessment forms wherein details and the numbers of players is mentioned. The relevant column shows adaptation of the model constitution through a tick mark.
13. The objection of learned counsel for the respondents, regarding non-maintainability of the writ petition could be aptly met by referring to the publication of Constitutions of 2014 in the Extra Ordinary Gazette of Pakistan duly approved by the Federal Government and as a token thereof signed by Section Officer of the Ministry of Inter Provincial Coordination and so approval of the Federal Government as a sine qua non for any rules or regulations to be considered as statutory or non-statutory are fulfilled. The function test to consider whether the rules are statutory or non- statutory is provided in case titled "Salahuddin v. Frontier Sugar Mill and others reported as (PLD 1975 SC 2014), relevant para is quoted below, "The primary test must always be the functions entrusted to the organization or person concerned are indeed function of the state involving some exercise of sovereign or published power; whether they control of the organization vest in a substantial manner in a hand of Government; and whether a 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 to be regarded as persons preforming functions in connection with the affairs of the federation or a Province; otherwise not"
14.This view was also affirmed in the case titled "Atchison College Lahore through Principal v.
Muhammad Zubair" reported as (PLD 2002 SC 326). Honorable Supreme Court of Pakistan yet in another judgment reported as 2013 SCM R 1707 has summarized the said test as under, "The principles of law which can be deducted from the foregoing survey of the precedent case-law can be summarized as under:--
(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.
(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'.
(iii)In all the public employm ents created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings.
(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction.
(v) That the Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect and after its promulgation (27th of May, 2000), all the disciplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said law would be amenable to writ jurisdiction of the High Court under Article 199 of the Constitution.
15. Under Article 199 (1) (a) a High Court, if it is satisfied that no other adequate remedy is provided in law may on the application of any aggrieved party make an order: "(i) Directing, a person performing within the territorial jurisdiction of the court, functions in the connections with the affairs of the federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; and under clause 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".
16. Deriving wisdom from the afore quoted provisions, it can be held that the petitioner are aggrieved parties and the Pakistan Cricket Board is a person performing functions under the control of Federal Government so, therefore, the regulations duly published in the official Gazette after approval by the Federal Government are statutory in character and therefore, the instant writ petition is maintainable. Under para 10, the Board of Governor shall include a Federal Secretary, Ministry of Inter Provincial Coordination, Government of Pakistan, as ex-officio member and under para 12, the functions of Board of Governors are provided, however the Pakistan Cricket Board, Elections Regulations, 2015, have been framed and approved by the Board of Governors. The Board of Governors is performing functions in connection with the affairs of the Government; thus its status is statutory in character by all intents and purposes. Reference in this regard can also be made from case titled "Pakistan Telecommunication Company Ltd. v. Muhammad Zahid and others, reported as (2010 SCM R 253), para 18 is quoted below:- On an identical question relating to the interpretation of the expression 'person' as used in clause (5) of Article 199 of the Constitution of Islamic Republic of Pakistan with reference to the extraordinary powers of the High Court under Article 201 of the Interim Constitution in issuing writ, it was ruled that the High Court can exercise powers only in respect of the 'person' performing, within territorial jurisdiction of the, Court functions in connection with the affairs of the Federation, Province or Local Authority and if the 'person' as defined in clause (5) of the Article whose acts, actions or proceedings before the High Court does not fall within the specified categories then it would clearly be not amenable to the extraordinary jurisdiction of the High Court as held by this Court in the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244.
17. Reliance is also placed on case titled "Shafiq Ahmad Khan and others v. NESCOM through Chairman, Islamabad and others, reported as (PLD 2016 SC 377), relevant para is reproduced as under.
"But a survey of all these judgments would reveal that it is not the sole criterion which makes them statutory or otherwise. It is indeed their nature and area of efficacy which are determinative of their status. Rules dealing with instructions for internal control or management are treated as non-statutory while those whose area of efficacy is broader and are complementary to the parent statute in the matters of crucial importance are statutory. The Rules framed under sections 7, 9 and 15 of the Act are of that genus or genera as they are not only broader in their area of efficacy but are also complementary to the parent statute in the matters of crucial importance. Yes, these Rules have not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory.
18. The game of cricket in Pakistan is being controlled under the Sports (Development and Control)
Ordinance, 1962 (XVI of 1962), besides other games. The District Cricket Clubs registered with the District Cricket Association having not less than 16 playing members and having adopted the model constitution as formulated by the Board of Governors within a period of 03 months from the date of communication besides fulfilling other conditions can be termed as an ACTIVE cricket Club.
Petitioners have been declared an INACTIVE Cricket Club on the conditions provided in clauses (a) and (b) accept for one Cricket club namely Pak Afghan Cricket Club in W.P No, 567-M/2017. It appears from the record on file and as alleged by the petitioners that they have been victimized for not belonging to specific elections group and other cricket clubs belongs to the successful election group have been granted the status of an ACTIVE Club. In this regard reference is made to 05 Cricket Club of Dir Lower namely, Shelia Cricket Club, Miskenay Cricket Club, Panthers Cricket Club, Shalimaar Cricket Club and Al-Hayat Cricket Club. It was stated at the bar and is also referred by the learned independent adjudicator, Pakistan Cricket Board that the petitioner has been discriminated feet the said ground was not considered by the learned adjudicator for lack of relevant record. The relevant record has been annexed with the instant writ' petition which is an order of Deputy Election Commissioner, Pakistan Cricket Board, dated 25.11.2016 passed on the appeal of one of the Clubs i,e, Shena Cricket Club and even the report of scrutiny committee of Pakistan Cricket Board dated 04.11.2016 declaring it/as INACTIVE has been reproduced therein and the appeal was allowed.
19. For about 5/6 year these areas have suffered a lot due to militancy and insurgency which has hampered their pace of development and now they have joined the stream for successful lives of their generation. Sports is one of such activity that creates a healthy environment for the betterment of society and if they are not allowed to participate in the sports activities than certainly the younger generations turn their attention towards unproductive activities as faced during the turbulent period. No fruitful purpose would be served, if the petitioners are restrained from actively participating in the sports activities through their respective cricket clubs which will help the young payers having talent to display the same in the national level as well as in the comity of nations, in the larger perspective. Promotion of sports and cultural activities is one of the primary responsibility of the state which further helps in promotion of social and economic well- being of the people, therefore, if the petitioners are provided a further chance by the respondents in scrutiny of their antecedents a fresh, it would be more in the interest of justice rather than to defeat the ends of justice.
20.Another bench of this court in case titled, "Kohat Cricket Club v. Pakistan Cricket Board and others" in W.P. No,4453-P/2016 on 17.01.2017 allowed the writ petition and held that the petitioner club had the right to present its member before the scrutiny committee and the decision of respondent No, 4 was considered to be harsh in the given circumstances and the petitioner was considered deserving for being given a second chance. It is also essential to mention that this order was challenged in C.P. No,754 of 2017, before the august Supreme Court of Pakistan and on 26.01.2018 the said petition was dismissed as withdrawn as quoted below, "After arguing the case at some length, learned counsel for the petitioner wants to withdraw this petition. Dismissed accordingly".
21. Similarly in another W.P No, 124-P/2017 on 07.11.2017, though this court had dismissed the writ petition but only on the ground that the players were Afghan Citizens/nationals, which was considered to be in clear negation of the rules framed for the purpose. Hence in W.P. No, 576- M/2017 both of the players are afghan nationals, so it is dismissed.
22.In none of the remaining cases, such an objection has been raised, therefore, rest of the writ petitions also deserves to be accepted and the petitioners be allowed another chance by the respondents to fulfill the requisite criteria as envisaged in the relevant rules. Respondents shall allow another opportunity to the petitioners accordingly. There is no order as to costs.