QAISER RASHID KHAN, J:- Through this single judgment, we intend to dispose of the instant W.P No. 2764 P of 2019, filed by Bishop Humphrey Sarfaraz Peters and the connected WP No. 3185-P of 2019, filed by Shakil Ahmad Nisar and others as well as the 12(2) application No. 28-P of 2019 filed by the provincial government in W.P No. 105-P of 2015 decided by this court on 22.3.2016 as the controversy in all of them stems from and centres around the affairs and management of the Edwardes College, Peshawar and also common questions of law and facts are involved therein.
2. Brief facts of WP No. 2764-P of 2019 are that the petitioner Bishop Humphrey Sarfaraz Peters, who claims to be the Chairman Board of Governors, Edwardes College, Peshawar has approached this court with the assertions that the Edwardes College, Peshawar was established in the year 1900 as a private Missionary Educational Institution by Church Mission Society and it is controlled and managed by the Board of Governors constituted under its Constitution of 1943; that the petitioner is looking after the affairs of the College, funded from its own resources and no budget allocation is made by either the Provincial or Federal Government and that its internal and external audit system is managed through private chartered firms and that the college is registered with Higher Education Regulatory Authority (HERA), University of Peshawar and Board of Intermediate and Secondary Education (BISE), Peshawar as a private college; that previously a writ petition bearing No. 105-P of 2015 was filed by one Malak Naz against the Board of Governors of the college, which was dismissed by this court on 22.03.2016 wherein it was held that the college is a private educational institute and is not a statutory body and that it is registered and sponsored by the Church of Pakistan, having its own financial resources; that the respondents No. 2 to 4 through an application u/s 12(2) CPC challenged the said judgment but it was withdrawn on 18.09.2018; that the respondent No.1, posing himself to be the Chairman of BoG of the college, issued letter No. SO (111)
3(1/15GS/10/529-33) dated 06.03.2019 whereby a meeting of the Board of Governors was convened for 08.03.2019. However, when the judgment of this court dated 22.3.2016 was brought into the notice of the said respondent, the same was postponed vide letter No. SO (111)3(1/5 GS/10/542-46) dated 7.3.2019; that the contract of one Ayesha Durrani, a lecturer of the college was not renewed but even then the appeal filed before the respondent No.1 was referred to the principal of the college on 17.04.2019 for consideration and renewal of the contract followed by another letter for submission of revised and budget estimates for the year 2019-20 for approval; that the respondent No.3 also issued a letter on 19.02.2019 whereby a detailed information was sought from the college; that despite the fact that no summary was moved to the respondent No.1 but even then he issued a letter No. SOC (III) (5)/8/GS/10 dated 08.05.2019 whereby the college was declared as Public Sector Educational Institution in violation of Article 105 of the Constitution and asked for forwarding Revised Estimate 2018-2019 and Budget Estimate 2019-2020 to be discussed in the meeting dated 14.05.2019; that the college is neither a public sector institute nor an autonomous body and it does not receive any financial support/funding from any public sector/Government exchequer pursuant to the judgment of this court dated 22.03.2016 and that the respondents are interfering illegally, mala fidely and without lawful authority in the affairs and official status of the college, prompting the petitioner to approach this court through the present petition.
On being put to notice, the respondents submitted their comments wherein they denied the stance of the petitioner and averred that the respondent No.1 being the Governor of the province is the lawful Chairman of BoG of the Edwardes College and that the provincial government has been granting sufficient funds to it on regular basis besides extra grants-in-aid from time to time.
3. Similarly, the brief facts of W.P No. 3185-P of 2019 filed by petitioners Shakil Ahmad Nisar, Associate Professor and others are that they are the faculty members of the Edwardes College and its affairs are run and managed by the Board of Governors headed by the Governor of the Province; that the college stood nationalized by virtue of operation of law under the Privately Managed Schools and Colleges (Taking Over) Regulation, 1972 and that the matter was also discussed in the National Assembly of Pakistan on 7th September 1972 where the Edwardes College was declared as a nationalized institution; that the Board of Governors of the College is headed by the Governor of the Province and the entire administrative control and management of the College rests with the Board of Governors and that 25% budget of the college is being provided by the provincial government and grant- in-aid of 300 million rupees was also provided to the College to upgrade its status as a university; that the Service Rules 1991, were got vetted from the Education Department Khyber Pakhtunkhwa and accordingly approved from the Finance Department; that the principa ls of the College have been appointed by the Board of Governors headed by the Governor Khyber Pakhtunkhwa from time to time and even the appointment of the incumbent was also made by the said BoG pursuant to an advertisement floated by the Secretary of Board of Governors for a term of four years and his appointment was challenged by one Malak Naz in W.P No. 105-P of 2015 before this court wherein the Board of Governors has been arrayed through its Secretary instead of Chairman Board of Governors through Principal Secretary or vice Chairman; that somehow Bishop Humphrey in collusion with the incumbent Principal held a meeting of the Executive Committee of Diocese and came up with an idea for constitution of a new Board of Governors and thereby disbande d the Board of Governors headed by the Governor Khyber Pakhtunkhwa and set up a rival Board of Governors. The petitioners have prayed for declaring the Board established by Bishop Humphrey as illegal, unlawful and withou t lawful authority and all the decisions taken pursuant thereof as void ab initio having no basis in law .
4. Likewise, the facts of 12(2) application filed by the Provincial Government in WP No. 105-P of 2015 decided by this court on 22.3.2016 are that the Edwardes College, Peshawar stood nationalized under the Privately Managed School and Colleges (Taking Over) Regulation 1972 and the Provincial Government notified Board of Governors for its management and control vide notification No. SOE-1/19-6/73 dated 10.01.1974 published in the Government Gazette on 2nd April 1976 and that pursuant to the Regulation ibid, the Provincial Government notified the Board of Governors for the College to be headed by the Governor of the province; that this court in W.P No. 105-P of 2015 decided on 22.3.2016 has raised certain questions regarding the legality of the notification of the year 1974 of BoG of the College but, neither the provincial government had been made a party to the petition nor proper facts and legal aspect of the case qua the statutory powers of the provincial government to notify the constitution of BoG of the college to be headed by the Governor of the province were presented before the court; that the provincial government has granted handsome amounts regularly to the college besides extra grants-in-aid from time to time and a hefty amount of Rs. 300 million was provided to the College and the Local Fund Audit of the provincial government has been regularly conducting the audit of the College but all these facts were concealed from the court; that the incumbent principal namely, Dr. Nayar Fardows has also been appointed by the Board of Governors headed by the Governor of the province as its Chairman; that the Principal of the College being a private respondent in the writ petition No.105-P of 2015 engaged a counsel for himself and on behalf of Board of Governors through Secretary (respondent No.1) Principal Edwardes College ( Respondent No.3) and Humphrey Sarfaraz Peters Bishop of Diocese of Peshawar engaged their counsel without the approval of the Board of Governors; that in the writ petition No. 105/P of 2015, the petitioner Malak Naz had challenged the appointment of the incumbent Principal of the college but the court while deciding the petition held and declared the notification No. SO.EI/19-16/73 of January 1974 to have been issued without lawful authority and declared the Edwardes College as a private institution.
5. The learned counsel for the petitioner , after giving a brief history and background of the establishment of the historical Edwardes College, Peshawar vehemently contends that the College is a private and independent institution registered with the Higher Education Regulatory Authority and that the provincial government has no authority whatsoever to interfere in its affairs in any manner and that the College has never been nationalized as till date, no nonfiction in the official gazette has been published to this effect. Further contends that the College has its own constitution and its affairs are governed by the Board of Governors headed by the petitioner having its own budget, generated through donations and its employees are not civil servants and more so, that the Governor of the province is having no authority to act on his own except when a summary is forwarded by the cabinet or the chief minister as per Article 105 of the Constitution of the Islamic Republic of Pakistan, 1973. He lastly contends that the notification NO. S.O.E.I/19-6/73 dated January 1974 on which the government is relying has already been declared void ab initio and without lawful authority by this court through its judgment dated 22.03.2016 in writ petition No. 105-P of 2015 but, still the respondents are illegally interfering in the affairs of the College thereby undermining its independence and private status and that too, when it has its own duly constituted BoG to look after its affairs.
Regarding writ petition No. 3185-P of 2019, wherein he is representing respondents No. 5 and 6, the learned counsel contends that the matter has been settled once and for all in the early round of litigation in WP No. 105- P of 2015 and that the petitioners are not entitled to any relief.
While attacking the application under section 12(2) CPC, the learned counsel contends that after the judgement dated 22.3.2016, rendered in WP No. 105-P of 2015, the provincial government filed an application under section 12(2) CPC which was dismissed as withdrawn on 18.09.2019 and this is the second application under section 12
(2) CPC which is hopelessly time barred as Article 173 of the Limitation Act, 1908 would be attracted in the present case which provides for a period of 90 days for filing of such application and after the lapse of the said period, the applicant has to explain the delay of each and every day but in the present case, no reasonable grounds have been forwarded either in the application under section 12(2) CPC itself or in the condonation of delay application.
He placed reliance on 1983 CLC 1590 (Karachi).
The learned AAG assisted by Malik Ghulam Mohy-ud-din, Advocate, Mr. Ali Goha r Durrani, Advocate, the learned counsel representing the petitioners in the connected WP No. 3185-P of 2019 and newly added respondents in W.P No. 2764 of 2019 resist the submissions made by the learned counsel for the petitioner and contend that Article 269 of the Constitution, 1973 has provided full protection to the notification dated 10.01.1974 which has been declared illegal by this court through judgment dated 22.03.2016, rendered in writ petition No. 105-P of 2015 and all because the stance of the provincial government did not come up before the Hon'ble bench at that point of time and more so, the matter was also discussed in the National Assembly wherein in response to a question the then Education Minister had replied in unequivocal terms that the College is a nationalized institution. They also referred to Regulation 12B of the Regulation ibid whereby it has been laid down that all privately managed colleges and privately managed schools shall in their respective classes use the same medium of instruction and follow the same curriculum in the subject of Islamiat, as is for the time being laid down for the comparable classes in the Colleges and schools maintained by the Government. Further contend that by the operation of law the ownership of the college is with the provincial government but it was not made party in the earlier petition and as such no assistance was provided to the court while passing the judgment dated 22.03.2016 in writ petition No. 105-P of 2015. Further contend that when the issue of embezzlement in the College funds surfaced and the government intended to take action, it alerted the petitioner and in order to hide their wrong doings, the writ petition No. 105-P of 2015 was manipulated through a private person namely Malak Naz. Further contend that the petitioner wants declaration for which he can seek his remedy before the learned civil court under section 42 of the Specific Relief Act, 1877.
Regarding the application under section 12 (2) CPC, they contend that the first application under section 12(2)
CPC was withdrawn on the premise that the petitioner of W.P No. 105-P of 2015 had filed a CPLA before the august court and at that point of time, this court was of the view that the application was premature as it is well settled that the 12 (2) application would be filed in the court who passes the final judgment. Since the CPLA was withdrawn, therefore, the government had no choice but to move the present second application under section 12(2) CPC which is well within time as in this case Article 181 comes into play which provides for a period of three years. They place reliance on 2019 SCMR page 1, 2015 SCMR 1257 , PLD 2010 SC page 676, 2003 SCMR 163, PLD 1987 SC 145 , 2007 SCMR 834 .
During the course of arguments, the learned Advocate General has produced certain office orders (placed on file) whereby the incumbent principal has appointed his kin to different high and key posts without adopting codal formalities and then sanctioned them ex-Pakistan leave. He has also produced a document (placed on file) which shows that over 200 students have opted to quit the Edwardes College and migrate to other colleges
6. Arguments heard and the available record perused.
7. The moot questions which are to be determined by this court are that firstly as to whether the Edwardes College, Peshawar is a nationalized institution and its affairs are to be run by the Boar d of Governors headed by the Governor of Khyber Pakhtunkhwa pursuant to the notification of the year 1974 and secondly as to whether the 12
(2) application is within time and thirdly while deciding the writ petition No. 105-P of 2015 on 22.03.2016 whether proper assistance was rendered and all the relevant facts were properly brought into the notice of the court.
8. As the record unfolds, pursuant to Para-4 of the Privately Managed Schools and Colleges (Taking over)
Regulation 1972 (Regulation No.118) from the first day of September 1972, all private-managed colleges, together with all property attached to them shall vest in the Central Government, if they are situated in Islamabad Capital Territory and in the Provincial Governme nt, if they are situated in a Province. It will be more apt to reproduce Paragraphs 4 and 5 of the Regulation ibid; Paragraph 4. As from the first day of September 1972, all privately-managed colleges, together with all property attached to them, shall vest:-
(a) in the Central Government, if they are situated in the Islamabad Capital T erritory; and
(b) in the Provincial Government, if they are situated in a Province.
Paragraph 5. Such privately-managed school as the Central Government, in the case of a school situated in the Islamabad Capital Territory , and the Provincial Government in any other case, may be notification in the official Gazette issued at any time on or after the first day of October 1972, specify in this behalf, shall best in the Central Government or , as the case may be, in the Provincial Government, together with all property attached to it.
Provided that no such notification shall be issued in respect of a privately managed school unless the Provincial Government is satisfied that such school cannot be run on a genuine benevolent, philanthropic or non - commercial basis or is not maintain property standards, Admittedly, the provincial government of the erstwhile N.W.F.P through a notification of Janua ry 1974 constituted the Board of Governors for Edwardes College, Peshawar headed by the Governor as its Chairman and all the administrative powers to be vested in the Board which was in turn published in the Government Gazette on 2nd April 1976, which is reproduced as under; GOVERNMENT OF N.W .F.P, EDUCA TION DEP ARTMENT .
Dated Peshawar the 10th January, 1974 NOTIFICA TION.
No.S.O.E.I/19-6/73.--The Governor , North-W est Frontier Province is pleased to establish the following Board of Governors for Edwardes College, Peshawar with immediate effect. All the Administrative powers for this college will vest in the Board:-
1. The Governor , N.W .F.P Chairman.
2. The Minimiser for Education V ice-Chairman NWFP
3. The Bishop, Peshawar Vice-Chairman
4. The V ice -Chancellor , University of Peshawar . Member .
5. The Commissioner , Peshawar Division, Peshawar . Member .
6. The Secretary, Government of NWFP, Finance Department. Member.
7. The Secretary, Government of N.W.F.P, Health and Education Department. Member.
8. The Director of Education, N.W.F.P, Peshawar. Member.
9. One Member of the staf f to be elected by staf f members for a term of 3 years.
10. One Senior Old Boy of the College to be nominated by the Chairman for a term of 3 years.
11. One Member to be nominated by the Bishop of Peshawar .
12. The Principal, Edwardes, College, Peshawar . Member Secretary GHULAM MOHY-UD-DIN DEPUTY SECRET ARY, EDUCA TION, HEAL TH AND EDUCA TION DEP ARTMENT .
Since then for four decades, all the decisions qua the College have been taken by the said Board including the appointment of its principals from time to time. Such power and authority of the BoG was never called in question before any forum. Moreover, the provincial government vide notification SO. SOB /HE/3-17/Grant in Aid/ Vol-II had sanctioned and released rupees three hundred million as one time Grant-in-Aid for the Up- gradation of Edwardes College, Peshawar to the status of a full-fledged university. Besides, the incumbent principal of the college has also been appointed by the Board headed by the Governor of the Province.
9. The Privately Managed School and Colleges (Taking Over) Regulation 1972 has been validated through Article 269 of the Constitution of the Islamic Republic of Pakistan 1973 which reads as under;
269. Validation of Laws, acts, etc.-(1) All Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws made between the twentieth day of December , one thousand nine hundred and seventy one and the twentieth day of April, one thousand nine hundred and seventy-two (both days inclusive), are hereby declared notwithstanding any judgment of any court, to have been validly made by competent authority and shall not be called in question in any court on any ground whatsoever .
(2) All orders made, proceedings taken and acts done by any authority , or by any person, which were made, taken or done, or purported to have been made , taken or done, between the twentieth day of December , one thousand nine hundred and seventy-one, and the twentieth day of April, one thousand nine hundred and seventy two (both days inclusive), in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever .
(3) No suit or other legal proceedings shall lie in any court against any authority or any person for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
10. Above apart, the record appended with the petitions show that the same issue also came up before the National Assembly on 7 September 1972 wherein the following question was asked by Mr. Ghulam Nabi Chaudhry.
"Will the honourable Minister please state whether a College in Peshawar has also been taken over?"th In reply to the said question, Mr. Abdul Hafeez Pirzada, the then Minister for Education and Provincial Coordination answered in the following words; "If the reference is about the Edwardes College of Peshawar that is the only privately managed college in NWFP and the operation of law at present is that the College stands nationalized. However a request has come from the Provincial Government of North-West Frontier requesting the Central Government to exempt this college from the operation of nationalisation policy under Martial Law Regulation No. 118. That request is under consideration."
But neither from the record nor the submissions of the learned counsel for the parties it can be gathered that any further action had been taken in the matter . Such being the position, it is held that the Edwardes College is a nationalized and autonomous institute pursuant to the Regulation ibid which has been validated as per Article 269 of the Constitution, 1973 and its affairs are properly managed by the Board of Governors headed by the Governor of the Khyber Pakhtunkhwa and the newly constituted Board of Governors for running the affairs of the College is without lawful authority and thus nullity in the eye of law and any decisions taken pursuant thereof shall also have no legal or binding ef fect.
11. Now adverting to the application under section 12(2) CPC. The first application No. 09-P of 2017 was filed by the provincial government on 4.3.2017 but at that point of time, Malak Naz, the petitioner in W.P No. 105-P of 2015 had filed a CPLA No. 1900 of 2016 before the august apex court against the judgment of this court dated 22.3.2016. When the earlier application under section 12(2)CPC came up for hearing before this court on 18.09.2018, it was dismissed as withdrawn in the following terms: "Learned counsel for respondent No.5 stated at the bar that the impugned judgment dated 22.03.2016 has already been challenged by respondent No.1 which is still sub judice before Apex Court.
As such this petition at this stage is premature as to whether the application u/s 12(2) CPC filed in the light of judgment of Apex Court cited as PLD 2016 SC 358 or otherwise, so, this application u/s 12(2) CPC is dismissed as withdrawn".
It goes without saying that the provincial government had not made any request for the withdrawal of the application under section 12(2) CPC but instead the Hon'ble Bench held such application to be premature on the pointation of the learned counsel for the respondent No.5 i.e. the incumbent Principal of the Edwardes College.
Moreover, the same was held to be pre-mature in the light of the judgment reported as PLD 2016 SC 358.
Strangely enough, the same petitioner, Malak Naz did not pursue his CPLA and accordingly the same was dismissed as not pressed by the august apex court vide order dated 16.04.2019. Accordingly, the provincial government filed a second application under section 12 (2) CPC on 25.06.2019.
The argument of the learned counsel for the respondents that 12(2) application is time barred as Article 173 of the Limitation Act,1908 provides for a period of 90 days for filing such application carries little weight for the reasons; firstly that the said Article applies to Review Petition and not 12(2) CPC application and secondly , the first application was withdrawn being pre-mature at the instance of respondent No.5 (Principal of the Edwardes College) in view of the pendency of the CPLA before the august apex court against the judgment of this court dated 22.3.2016. As such the present application under section 12(2) CPC of the Provincial Government which is well within time in view of Article 181 of the Limitation Act, 1908 which provides for 3 years period of time for filing such application. Reliance is placed on PLD 2019 Supreme Court 504 titled BASHIR AHMED through Legal Representative and others versus Muhammad Hussain and others."
12. Above apart, in W.P No. 105-P of 2015, one Malak Naz, a contender for the office of Principal of the Edwardes College, Peshawar had called in question the appointment of the incumbent principal and it was primarily a contest between the two individuals. However , the provincial government being the main stakeholder and thus a contender was not arrayed as a party . It appears from the judgment rendered by this court on 22.3.2016 that the facts were not presented before it in their true and right perspective including the fact that in view of the Privately Managed Schools and Colleges (Taking over) Regulation 1972 (Regulation No.118) and the notification dated 10 January 1974, the status of the Edwardes College had already been declared to be a nationalized institution with its BoG headed by the Governor of the Province. The Regulation ibid was in turn accorded due protection by Article 269 ofth the Constitution of the Islamic Republic of Pakistan 1973 as is abundantly manifest from the Article (supra), and the same could not have been called in quest ion through any legal proceedings in any court of law which also included this court. Such circumstances obviously constituted patent misrepresentation and concealing of facts and the law on the subject on the part of the contesting parties i.e. Malak Naz and the incumbent Principal of the Edwardes College as the fate of the Edwardes Colle ge to be a nationalized institution had stood settled way back in the year 1972 through Regulation ibid and Articl e 269 of the Constitution, 1973. At the time when the judgment was rendered by this court on 22.03.2016 in W.P No. 105-P of 2015, it was the bounden duty and legal obligation of the incumbent principal to have laid before the court the status of the Edwardes College as a nationalized institution with its own BoG headed by the Governor of the Province in the light of the notification dated 10.1.1974 but then such facts appear to have been concealed from the court at that time and that was how the judgment was passed by this court on 22.03.2016.
Another intriguing feature of the matter is that a person namely Malak Naz who had filed a CPLA before the august apex court against the judgment of this court dated 22.3.2016 opted to withdraw from his claim and contest for the post of the principal of the Edwardes College without any reason whatsoever as evident from the order dated 24.4.2019 of the Hon'ble apex court. The same also speaks volumes as to how the petition was filed in the first hand and then not even pursued before the Hon'ble apex court. Thus the element of fraud and misrepresentation is floating on the surface of the record and the circumstances obviously call for the interference of this court within the mandate of section 12 (2) CPC.
13. For the foregoing reasons, we allow the application, filed by the provincial government under Section 12(2)
CPC, set aside the impugned judgment of this court dated 22.03.2016 in W.P No. 105-P of 2015 and accordingly the main writ petition is restored to its original number, which shall be decided afresh on its own merits as the subject matter of the same was only a contest between two individuals i.e. Malak Naz and the incumbent principal Nayyar Fardows for the office of principal Edwardes College, Peshawar. The other issues including the status of the Edwardes College to be a nationalized institution or otherwise were discussed in the judgment only because the proper and necessary person i.e. Provincial Government was not made party to the writ petition and also because the entire background and history of the college right from its establishment till its nationalization made through a legal and constitutional process were not brought before the court. The office is directed to fix the same on a date to be fixed by it after proper service of the parties.
Accordingly , the writ petition No. 2764-P of 2019, filed by Bishop Humphrey Sarfaraz Peters basing his claim on the judgment dated 22.3.2016 in W.P No. 105-P of 2015 stands dismissed and simultaneously the W.P No. 3185-P of 2019 filed by Shakil Ahmad Nisar and others is allowed in the above terms.
14. Before parting with this judgment, it is observed that the Edwardes College, stands out as the oldest educational institution of the province and has remained the cradle of knowledge and learning for over a century having produced generations of luminaries who have served the country at the highest and important posts and where the students used to be vying eagerly to get admission due to its highest standard and merits but suddenly things have come to such an abysmal state where the students have opted to migrate to other colleges to save their future in view of its deteriorating educational standards and poor show in the Board and University exams.
The authorities at the helm of the affairs are thus directed to seriously look into the matter and make strenuous efforts to restore the trust of the students and their parents and revive the past glory of the oldest college of the Province.