Abid Aziz Sheikh, J. This constitutional petition has been filed seeking direction against respondents to decide the pending application of the petitioner and consequently pay salary arrears of the petitioner for an amount of Rs.857,007/-.
2. Relevant facts are that petitioner was appointed as Assistant Professor and Head of the department in the Department of Computer Science at Imperial College of Business Studies, Lahore (herein after referred to as Imperial College). The petitioner filed application to the respondents for release of his unpaid salary of three months, however, the grievance of the petitioner was not redressed, hence this constitutional petition has been filed against Imperial College.
3. Learned counsel for the petitioner submits that petitioner remained in service of Imperial College from 05.8.2019 to 25.12.2020, however, the petitioner was laid off by the management. Submits that an amount of Rs.857,007/- as salary arrears of the petitioner have not been released despite repeated requests. On the question of maintainability, learned counsel for the petitioner submits that writ petition is maintainable for the arrears of salary in view of law laid down in Zafar Mahmood Malik vs. Water Management Specialist etc (2005 PLC (C.S) 04), Secretary Education etc vs. Tariq Mehmood, PTC Teacher (2005 PLC (C.S) 851), Razia Saleemi vs. Medical Superintendent, Nishter Hospital etc (2005 PLC (C.S) 1365) and Muhammad Rafi etc vs. Federation of Pakistan etc (2016 SCMR 2146). He further submits that Imperial College being a statutory institution established under The Imperial College of Business Studies, Lahore, Ordinance, 2002 (Ordinance), this writ petition is maintainable. He also placed reliance on similar directions issued vide order dated 04.8.2021 against Imperial College in writ petition No.48729/2021.
4. Learned counsel for the respondents on the other hand submits that Imperial College being a private sector institution, this writ petition is not maintainable. On merit, he submits that entire salary of the petitioner has already been paid in terms of revised terms and conditions of service and nothing is due against the Imperial College.
5. Arguments heard. Before touching merits of the case, I would like to decide the question of maintainability of this petition at the first instance. Under Article 199(1)(a) of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), the High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any aggrieved party, make an order directing a "person" performing functions in connection with the affairs of Federation or Province or 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. The word "person" is defined under Article 199(5) of the Constitution, which includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government. The question that whether Imperial College fall within the definition of "person" under Article 199(5) of the Constitution can be ascertained firstly from the functions performed by Imperial College and secondly, by the status of the administrative and financial control of the Government with respect of Imperial College. This test is generally classified by Courts as "functional test".
6. The august Supreme Court in Abdul Wahad etc vs. HBL etc (2013 SCMR 1383), held that for functional test, two factors are the most relevant i.e. the extent of financial interest of the state in an institution and secondly a dominance in the controlling affair thereof. To determine if Imperial College qualifies functional test for the purpose of maintainability of this constitutional petition, it is necessary to reproduce sections 8,9,10,12 and 15 of the Ordinance as under:- "8. Board of Governors.- (1) The Board of Governors of the Institute shall consist of the following:
(i) Chairman of Pakistan Benevolence and Social Management Trust;
(ii) Members of the Board of Trustees of the Trust subject to a maximum of four members;
(iii) Chairman, University Grants Commission or his nominee not below the rank of a whole time member;
(iv) A Vice Chancellor of a University in the Punjab nominated by the Patron;
(v) The Rector; and
(vi) Secretary to the Government of the Punjab Education Department or his nominee not below the rank of an Additional Secretary.
(2) The Chairman of the Board of Trustees of the Trust shall be the Chairman of the Board.
(3) The quorum for a meeting of the Board shall be one half of the total number of members, a fraction being counted as one.
9. Rector.- (1) The Rector shall be appointed by the Government on such terms and conditions as may be determined, on the recommendations of the Board.
(2) The Rector shall perform such functions as are assigned to him by the Board.
10. Powers and functions of the Board of Governors.- The administration and management of the affairs of the Institute shall vest in the Board.
12. Appointments.- The Institute may appoint such persons in its services as may be necessary on the terms and conditions as may be determined by the Board.
15. Institute Fund.- There shall be a fund to be known as the Imperial College of Business Studies Fund which shall vest in the Institute and to which shall be credited all sums received by the Institute.
7. Plain reading of above provisions of the Ordinance manifests that under section 10 of the Ordinance, the administration and management of the affairs of the Imperial College shall vest in the Board of Governors (Board). Section 8 of the Ordinance provides that Board shall consists of various individuals including Members of the Board of Trustees. Though some of the government officials are also members of the Board but majority members of the Board are private individuals, hence government does not have complete domination in running the affairs of Imperial College.
Under section 12 of the Ordinance, all appointments as well as terms and conditions of such appointments are determined by the Board and not by the Government. Under section 15 of the Ordinance, there shall a fund to be known as the Imperial College of Business Studies Fund which shall vest in the institution. The said funds are admittedly generated from private sources including fee etc and government has no direct financial control on the Imperial College.
8. Indeed under section 6 of the Ordinance, Governor of Punjab shall be the pattern of the institution and under section 9 of the Ordinance, he can also appoint Rector, however, the terms and condition of Rector shall be determined on the recommendations of the Board and further Rector shall perform such functions as are assigned to him by the Board, therefore, pattern is only a notional head and does not take any administrative or financial decisions with respect to Imperial College, which are vested with the Board consisting of majority of private individuals. The function of Imperial College under section 4 of the Ordinance is to provide for instructions and training in business administration and computer assistance and such other branches as determined by the Board with the approval of Pattern. Therefore, it can safely be said that it functions are for private gains and profit by imparting education and training and not exclusively for the benefit of public without any profit. Considering the above factors, there is no manner of doubt that Imperial College is a private institute and not a person performing functions in connections with the affairs of the Federation, Province or Local Authority for the purpose of judicial review under Article 199 of the Constitution.
9. Mere fact that Imperial College has been established under the Ordinance, will itself not be sufficient to treat Imperial College as a "person" for the purpose of Article 199(5) of the Constitution.
In similar situation, in Anoosha Shaigan vs. Lahore University of Management Sciences etc (PLD 2007 Lahore 568), constitutional petition filed against Lahore University of Management Sciences (LUMS), which was also established under a statute, was held to be not maintainable by this Court as no financial or administrative control of the government is extended to LUMS. For convenience, relevant observation in above-cited judgment is reproduced hereunder:- "On account of the above case law, I am of the considered view that the absolute control over the management of a body/an organization by the federation etc., is a condition most important for declaring it to be a "person" performing its functions in connection with the affairs of the Federation etc; the Federation etc. should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions. Such control must be absolute, unfettered, unbridled and exclusive, besides, the State must also have the financial control of the Organization; the power of hiring and firing the employees thereof appointing and removing the management body meant for running the routine affairs of the Organization. But from the Presidential Order of 1985, though the President is the Chancellor of the LUMS, but this is notional and more with the status of a Patron-in-Chief; in practical terms except for the nomination of the persons on the Board or the Council, he does not have the administrative or policy-making control, which is the authority of the Board of Trustees and the Council of LUMS, which manages its affairs. It has been rightly pointed out by the respondents counsel that the funds to LUMS are not being provided by the Government on regular basis, those are generated by the LUMS itself either from the fees or the donations and may be occasionally in the nature of donation, the government also contributes, but this contribution cannot be held to be within the concept of "financial control" of the Organization. The judgments cited by the learned counsel, for the petitioner, in the light of the catena of judgments from the respondents' side which have been discussed above, not only are distinguishable, rather do not apply to the facts and circumstances of the present case".
The same view was also expressed by Hon'ble Supreme Court in Syed Iqbal Hussain Shah Gillani vs. Pakistan Bar Council through Secretary Supreme Court Bar Building, Islamabad (2021 SCMR 425), where despite statutory enactment, it is held that writ petition against the Pakistan Bar Council is not maintainable.
10. Similarly, in case of Forman Christian College (F.C. College), which was also established under Forman Christian College, Lahore Act, 2004, this Court in Aown Abbas Bhatti vs. Forman Christian College etc (PLD 2018 Lahore 435) held that as there is no administrative and financial control of the government on the F.C College, therefore, the constitutional petition is not maintainable.
Relevant extract of the judgment is reproduced hereunder:- "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".
11. The Division Bench of this Court in ICA No.454/2016 vide reported judgment dated 21.6.2021 held that University of Management and Technology, Lahore (UMT) established under the University of Management and Technology, Lahore Act, 2004 (Act), does not fall within the definition of a "person", hence not amenable to judicial review. Relevant part of the judgment is reproduced hereunder:-
9. This Court while applying the functional test to a private bank (UBL) in case reported as Noor Badshah vs. United Bank Limited etc (2015 PLC (C.S) 468), held that bank being a private entity, is not amenable to constitutional jurisdiction. Same view was also expressed by Islamabad High Court in Pervaiz Akhter Bhatti vs. Federation of Pakistan etc (2020 IHC 146) and Sindh High Court in Abdul Sami Memon etc vs. Federation of Pakistan etc (2020 PLC 125). Similarly, Hon'ble Supreme Court in Pakistan Olympic Association etc vs. Nadeem Aftab Sindhu etc (2019 SCMR 221) held that Pakistan Olympic Association though promoting sports in Pakistan but being not substantially controlled by the government cannot be subject to judicial review. Relevant part of Apex Court judgment is as under:- "Before parting it is found pertinent to mention that indeed, the promotion of sports in Pakistan holds paramount importance and the participation of athletes in international sports events is a matter of immense pride and prestige for the entire nation, however, in the tide of such emotions we cannot lose sight of the fact that a body which is operating independently and is admittedly not being substantially controlled by either the Federal or Provincial Government or any other governmental body and considering the fact that the instant matter does not involve a violation of any of the fundamental rights, the internal functions of the Association cannot, in the facts and circumstances, be subjected to judicial review under Article 199 of the Constitution. Therefore, it is held that the decision of the learned High Court in holding a writ to be maintainable against the Association was erroneous and cannot be sustained".
10. In view of above discussion, we have no manner of doubt that UMT is a private sector university and not performing functions in connection with the affairs of Federal or Provincial Government or Local Authority in terms of Article 199(1)(a) of the Constitution, hence not amenable to judicial review.
The same view was also expressed by this Court in Malik Naz vs. Board of Governors etc (2017 CLC 256) and Zahid Hussain vs. The Chairman Selection Committee etc (2017 CLC 426).
12. The case law relied upon by learned counsel for the petitioner is distinguishable and not applicable to the present case. In case of Zafar Mahmood Malik supra, writ petition was against Government of Punjab Agriculture Department, where in case of Tariq Mahmood, the Writ Petition was against Government of Punjab Education Department. Similarly, the case of Razia Saleemi supra was against Nishtar Hospital, Multan and case of Muhammad Rafi supra was against Civil Aviation Authority. In all above cases, relied upon by the learned counsel for the petitioner, the respondents were either government department or government control institutions, hence writ petitions were found to be maintainable. So far as the order dated 04.8.2021 in writ petition No.48729/2021 is concerned, the said order was passed in limine and neither question of maintainability of writ against Imperial College was raised nor adjudicated, hence the same is not applicable in present matter.
13. In view of above discussion, preliminary objection raised by the learned counsel for the respondents is sustained and writ petition is accordingly dismissed being not maintainable.