SHUJAA T ALI KHAN, J.---- Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has assailed vires of letter; dated 29.09.2018, issued by the Rector , Forman Christian College-University , Lahore (FCC-U) whereby he was dismissed from service.
2. On 19.10.2020, during arguments, while replying to a question regarding maintainability of this petition learned counsel for the petitioner referred to judgment of this Court reported as Sheikh Nadeem Ahmad v. G. C. University and others (2016 MLD 1966 ) whereas learned counsel for the respondents relied upon the judgment of this Court reported as Aown Abbas Bhatti v. Forman Christian College and 2 others (PLD 2018 Lahore 435) to counter the stance of learned counsel for the petitioner . In view of divergent decisions of two different learned Benches of this Court the matter was referred to the Larger Bench.
3. Learned counsel for the petitioner submits that since FCC-U is working under the control of the provincial government it falls within the definition of "person" as envisaged under Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973, thus, instan t petition is maintainable. Adds that since employees of Punjab Higher Education Commission are members of the Board of Directors of FCC-U, instant petition has competently been filed.
When asked as to whether FCC-U is being financed by the government, learned counsel for the petitioner , while referring to certain provisions of the Forman Christian College, Lahore Act, 2004 (the Act, 2004), submits that the government provides funds to the Higher Education Commission which further distributes the same to the public and private sector universities. Add that since the Governor of the Province acts as Chancellor in respect of affairs of FCC-U, instant petition is maintainable. In support of his contentions, learned counsel for the petitioner has also relied upon the cases reported as Aitchison College, Lahore through Principal v. Muhammad Zubair and another (PLD 2002 SC 326) and Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others (PLD 2007 Lah. 568 ).
4. Learned Law Officer, while opposing the submissions made by learned counsel for the petitioner submits that mere supervisory role of the government or any of its institutions cannot be used to establish that FCC-U is being controlled and supervised by the governm ent, hence, the arguments advanced by learned counsel for the petitioner have no substance. To fortify his contention, learned Law Officer has relied upon the case of Abdul Wahab and others v . HBL and others (2013 SCMR 1383 ).
5. Learned counsel representing respondent No.2 contends that since his client is only a regulatory body it has nothing to do with the controversy involved in this petition rather the same relates to the petitioner and the FCC-U.
6. Learned counsel, representing respondents Nos.3 to 5, states that since FCC-U is being run from its own sources the government has nothing to do with its affairs. Adds that since Government has no control over the FCC-U, it being a private entity the terms and conditions of service of its employees are governed under the principle of master-and-servant, hence this Court lacks jurisdiction to adjudicate upon this petition.
7. We have heard learned counsel for the parties at length and have also gone through the documents forming part of this petition as well as the case-law , cited at the bar .
8. Firstly , taking up the judgment of this Court rendered in the case of Sheikh Nadeem Ahmad (Supra ) we have observed in the said case this Court held the Writ Petition maintainable against Government College University inter alia for the following reasons: - "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 governm ent 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 11.03.201 1 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 sched ule 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 indica ted in second schedule. Clause 37 of second schedule deals with administration of laws and rules framed there under 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 an 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 v. 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.........
11. Similarly Full Bench of Hon'ble Supreme Court in "Pakistan Defence Officers' Housing Authority and others v.
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 mann er 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 v. HBL and others " (2013 SCMR 1383 ). Recently in case of "International Islamic University , Islamabad and others v. Dr. Shameem Tariq and others " (2015 PLC (C. S.) 1336), Islamabad High Court while dealing with maintainability of 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 consist ed 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.0 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."
A cursory glance over the afore-quoted portions from the referred judgment renders it crystal clear that Writ Petition against G.C. University was held main tainable inter-alia mainly for three reasons viz. overall control by the Government of the Punjab; financial and planning control of the provincial government and that the Secretary Higher Education, Secretary Finance and Treasurer , Government of the Punjab were the members of "finance and planning committee". Insofar as the case in hand is concerned, FCC-U is a chartered university functioning in private sector . Its fiscal matters are being looked after by the Finance and Planning Committee, constituted under section 8 of the Act, 2004, comprising the Rector , the Academic Vice President, all of the Deans, the Bursar and one member of the Academic Council. The bare composition of the Finance and Planning Committee renders it abundantly clear that the financial and planning matters of the FCC-U are being run without any intervention of the provincial government, thus, the case referred by learned counsel for the petitioner stands distinguished from the facts and circumstances of the present case.
9. It is important to mention over here that this Court in the case of Aown Abbas Bhatti (Supra) while discussing the status of the FCC-U with specific reference to different provisions of the Act, 2004 and the judgments of the superior courts came to the following conclusions: - "32. In view of above tests, there is no doubt that as the FC College is not mention ed in Column III as Autonomous Body and the only reference of FC College under the Rules is mentioned in Schedule II under Item 37(xxx) of the Rules, therefore, the FC College does not fall within the definition of a 'person' and this petition is not competent against it.
33. It, therefore, follows from above that the FC College, being a private entity , is not in dispute, and the language of the Act of the Parliament reflects the legislative intention. The FC College does not fall within the definition of a 'person' for which a test has been determined above because the setup of the Board of Governors of the FC College is not under the dominative control of the Federal or the Provincial Government, and the FC College does not get any operating funds from the Government. Therefore, when both the "administrative" and the "financial" control of the Government over Respondents is lacking, I am constrained to hold that the FC College is not a "person" within the meaning of Article 199(5) of the Constitution, which could be held to be performing its duties in connection with the affairs of the Federation or the Province. If the Parliament in its wisdom creates a juridical person through the legislative process and does not provide for the control of the Government over it, then obviously it is intended not to bring it within the ambit of a 'person' in the context of Article 199 of the Constitution."
10. After analyzing the reasons given by two learned Benches of this Court we endorse the viewpoint taken in the case of Aown Abbas Bhatti (Supra ) as it clinches the issue in its true perspective.
11. Finding an opportunity , we may clarify here that maintainability of Writ Petition against a chartered university by a member of the society is entirely distin ct as compared to a person who assails any order passed by university authorities qua terms and conditions of his service. In both these situations, entirely different tests are to be applied inasmuch as in the first category it is to be seen as to whether the university is performing functions in connection with affairs of the State or not and in the subsequent category maintainability of a Constitutional Petition is to be determined in relation to nature of service rules/regulations governing terms and conditions of service of aggrieved employee of the University . Though, learned counsel representing the petitioner addressed the Court at certain length but failed to refer to any statutory rules or regulations governing the terms and conditions of service justifying interference by this Court in exercise of its Constitutional jurisdiction. The Apex Court of the country , while dealing with the question regarding maintainability of Constitutional Petition by an employee of a university before a High Court, in the case of Abdul Rashid Khan v. Registrar Baha ud Din Zikrya University (2011 SCMR 944) has held that -- "*Learned counsel, however , did not dispute that respondent No.5 University has no statutory rules and, thus, in view of the dictum laid down in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602), the petitioner had no remedy before the High Court under Article 199 of the Constituti on. The legal question, that in a case where any university/education institution has no statutory rules, it will bar the remedy for its employees to invoke the jurisdiction of the High Court under Article 199 of the Constitution , has been comprehensively dealt with in the case of Ijaz Hussain Sulery v. Registrar (1999 SCMR 2381 ) and University of the Punjab v. Sardar Ali (1992 SCMR 1093 ). This position is further elaborated by another judgment of this Court in the case Muhammad Mubeen-us-Salam (supra). Thus, no exception can be taken to such concurrent findings of two forums below ."
(emphasis provided)"
If the maintainability of this petition is adjudged on the touchstone of the afore-referred judgment of Hon'ble Supreme Court of Pakistan there leaves no ambiguity that terms and conditions of service of the petitioner , having been governed by non-statutory service rules/regulations, the same is not maintainable.
12. During arguments learned counsel for the petitioner has put much empha sis on the fact that since the government has supervisory control over the FCC-U, it falls within the definition of "person" as defined under Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973. We are unable to subscribe to the said view for the reason that the same question came under discussion before the Hon'ble Supreme Court of Pakistan in the case of Abdul W ahab and others (Supra) which was responded in the following manner: - "7 In this context, it may be held that for the purposes of resorting to the 'function test', two important factors are the most relevant i.e. the extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof. But when queried, it is not shown if the State/Federation has the majority of shareholding, or majority representation in the Board of Management of the Bank. As regards the authority and the role of the SBP (in the above context), SBP is only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance 1962 and suffice ij to say that such regulatory role and control of SBP shall not clothe the Bank, with the status of a 'person' or the 'authority' performing the functions in connection with the affairs of the Federation. Rather it shall remain to be a private entity . In support of the above, reliance can be placed on two judgments of this Court reported as Salahuddin and 2 others v. Frontier Sugar Mills and Distillery'
Ltd. Takht Bhai and 10 others (PLD 1975 SC 244), which prescribes that "regulatory control does not make a person performing functions in relation to the federation or a province."
13. Insofar reliance of learned counsel for the petitioner on the case of Aitchison College (supra) is concerned suffice it to note that in the said case the Apex Court of the country has held that since after dissolution of Aitchison College Society the same was treated as special institution of province of the Punjab whereas no such status/declaration has been bestowed in favour of FCC-U. As far as the case of Anoosha Shaigan (Supra), is concerned, the same instead of lending any support to the petitioner goes against him as in the said case this Court dismissed the W rit Petition by holding that LUMS does not fall within the definition of "person".
14. For what has been noted above we have no doubt to hold that instan t petition is not maintainable.
Consequently , the same is dismissed as such with no order as to costs.