' RUSTAM S. SIDHWA, J.-This is a constitutional petition filed by Abid Hussain Bokhari and two others, students of the Government College of Technology, Rawalpindi, petitioners, calling in question the decisions of the Governments of Pakistan and the Punjab, the Director of Technical Education, Punjab and Principal of the Government College of Technology, Rawalpindi, respondents, to close down the Government College of Technology, Rawalpindi, including and in particular the general order, dated 30th October, 1983 passed by the Principal of the said College in the said connection, and to have the said decisions and orders declared ultra vires, unconstitutional and in excess of jurisdiction and to compel the Government of the Pakistan and the Punjab and its officers to perform their duties and responsibilities of continuing to run and maintain the said college indefinitely or at least till the petitioners have completed their education.
2. It is pleaded in the petition that to meet the requirements of the country in the field of technical education, three polytechnic institutions were established in 1958 by the then Government of Pakistan, one of which was located at Karachi and which later was upgraded as College of Technology in 1975. It is submitted that the original scheme for Rawalpindi provided for eight (8) technologies at a total building cost of Rs, 74 lacs and, in addition to that, the Ford Foundation of America agreed to provide the entire equipment worth U S. $ 6 lacs and later additional hostel facilities were provided at a cost of Rs, 30 lacs. It is stated that by the beginning of 1983, there were 3,206 students on the rolls of the College of Technology at Rawalpindi, of which 572 students were those who had been granted admission in 1982 and whose term was to begin in 1983. It is further contended that on 30th October, 1983 the respondents had all of a sudden decided to close down the College of Technology at Rawalpindi, vide respondent No, 4's letter, dated 30th October, 1983 addressed to all the students (Annexure 'IC to the petition), and to transfer no less than seventeen hundred students to far-flung places as Rasool, Sargodha, Lahore, Faisalabad, Multan, Sialkot, Bahawalpur, Leiah and Sahiwal, to be there accommodated in similar institutions run by the Provincial Government, and that this forced transfer was being pushed through, despite the objections of the overwhelming majority of the students who belonged to poor families in the Rawalpindi Division and who were incapable of pursuing their education outside this division. It is lastly contended that the action of the respondents was mala fide and had been taken to punish all the students of the College in respect of some incidents that had taken place, in which some few students, who were politically inspired, had taken out some processions. It is further pleaded that the impugned decisions and orders are void ab initio, qorum non judice and without jurisdiction or in excess of jurisdiction and/or passed in colourable exercise of the powers possessed by the two Governments to act fairly, justly and equitably ; that the impugned decisions and orders are unfair, unreasonable, discriminative and violative of all norms of justice, equity and good conscience ; that the decisions and orders are in contravention of the provisions of Article 3 of the Constitution of Pakistan, 1973 : that the impugned decisions and orders are in violation of the norms of justice, equity and good conscience relative to educational institutions, which vest in the petitioners the right to receive and complete their education at the institutions of their own choice and uninterruptedly to complete their education at the institutions of their own choice and to enjoy the facilities and opportunities made available through such educational institutions and to be protected and treated according to law in the exercise and enjoyment of such rights; that to the extent that the respondents' actions have destroyed, defeated, alienated or curtailed such rights, without strong and sufficient cause or necessity, the action amounts to a clear violation of Articles 4 and 9 of the Constitution of Pakistan, 1973 and that the Government has acted maliciously in discriminating against the Government College of Technology, Rawalpindi, by closing down this institution in particular, whilst not taking any similar action against similar colleges in the Punjab and in other parts of the country, though such other institutions have not been free from students' strikes. In support of these submissions, learned counsel for the petitioners has cited Mian Irshad Ali v. Government of Pakistan (1), Mian Fazal Din v. Lahore Improvement Trust (2), Muhammad Aslam Khaki v. Vice-Chancellor, Gomal University D. I. Khan (3), Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (4), Gulzar Hassan v. Islamic Republic of Pakistan (5), East and West Steamship Company v. Pakistan (6), M. Younis Malik v. The State Bank of Pakistan (7), Miss Rifat Parveen v. Selection Committee (8), University of the Punjab v. Rehmatullah (9) and Muhammad Khalid Moghal v. Government of Sind (10).
3. It is pleaded in the written statement filed on behalf of the Provincial Government and its officers, that the petition is not maintainable, as the same does not disclose any breach or infringement of any right vested in the petitioners or guaranteed to them; that the petitioners have no right to insist on receiving education at a particular place or a particular institution, which can be constitutionally enforced ; that the respondents are under no constitutional or legal obligation to educate the petitioners according to their wishes, desires and dictates ; and that the establishment of educational institutions, their running, shifting, amalgamation with other institutions and closure are decisions within the exclusive domain of the Government, in ' respect of which the Courts cannot substitute their own decision. It is further pleaded that the decision to close down the college was taken in the larger
(1) PLD 1975 Lah. 7 (3) PLD 1980 Pesh. 128 (5) PLD 1975 Lah. 1219 (7) PLD 1981 Lah. 181 (9) PLD 1982 Lah. 729 (2) PLD 1969 SC 223 (4) PLD 1969 SC 407 (6) PLD 1958 SC (Pak.) 41 (8) PLD 1980 Quetta 10 (10) 1982 CLC 1937 ' public interest, which has since been implemented, and that writs which are incapable of being enforced, should not be issued. It is further pleaded that pursuant to the desire of the Federal Government to set up the Army College of Electrical and Mechanical Engineers at Rawalpindi, the Provincial Government agreed to hand over the campus and the building of the Government College of Technology at Rawalpindi to the Pakistan Army ; that in April, 1983 the said arrangement between the Federal and Provincial Governments was finally approved by the President of Pakistan ; that as a result of this arrangement, the Provincial Government will get funds by way of compensation which will enable it to set up three similar technical institutions at Chakwal, Mianwali and Attock in the northern region ; and that towards the implementation of the said decision, the following steps have already been taken :-
(a) The college which was closed in January, 1983 has not been reopened for the purposes of education ;
(b) The Principal of the College has since been appointed as the Project Director for the implementation of the project of shifting and handing over.
(c) The members of the teaching staff are under movement orders ;
(d) The workshops, the equipment and the machinery are in the process of dismantling, packing and transportation ;
(e) The campus and the buildings of the College have since been handed over to the Army who have already established their camp office therein ; and ( f) The movement plan of the students has already been prepared. And is in the process of implementation.
' It is also pleaded that certain financial compensation has also been agreed to be provided to the students, for the inconvenience and disturbance to which they would be placed, when being transferred to other similar institutions. It has further been pleaded that the writ petition has become infructuous as the college stands closed down, the machinery and equipment have been largely dismantled and shifted and the premises have been handed over to the Army, who have moved in. In support of its case, the learned Additional Advocate-General has cited Lt.-Col. Farzand Ali v. Province of West Pakistan (1) and Muhammad Hasan Abidi v. Pakistan (2) to show that the decision of closure having been materially acted upon, the Government would not be in a position to retrace its steps. It is contended that as the petitioners have not adverted to the violation of any statutory law or rule, no writ petition lies. In this connection Hakim-ud-Din v. Government of West Pakistan (3) has been cited. It is openly and frankly submitted that the students of the college have been continuously misbehaving for a number of years, blocking the Peshawar Road-which acts as the highway between Rawalpindi and Peshawar-and looting and setting fire to the buses and trucks playing thereon. Which have created a law and order problem, which in turn have led to the decisions taken, which are referred to in the written statement. The learned Additional Advocate- General has not disclosed any other reason which may have prompted the Government to close down the college, as opposed to shifting it to a more lesser vulnerable
(1) PLD 1970 SC 98 (2) P D 1960 SC 21
(3) PLD 1960 Lab. 709 ' area in Islamabad than the Peshawar Road. The element of sale of the college's properties, equipment and machinery to the Federal Government for a handsome profit, is referred to only as justification for setting up three technological institutes at Attock, Chakwal and Mianwali in replacement of one. No reason has been urged for not installing one in Islamabad or within that district or the Rawalpindi District. The written statement of the Government also does not answer these important matters. The learned Additional Advocate-General, in deference to the wish of this Court, has placed two files of the Government, for its inspection, without claiming any privilege.
During arguments, no Martial Law Regulation or Order was pleaded as a defence to the action taken or to bar the jurisdiction of this Court to hear this petition.
4. The Deputy Attorney-General, who represents the Federal Government, has adopted the arguments of the learned Additional Advocate-General, Punjab.
5. I have given my anxious consideration to the case and have also perused the record. The main question that arises for consideration is whether the Government College of Technology, Rawalpindi (hereinafter to be referred to as "the college") can be legally stated to be relocated, or in the process of relocation, at Attock, Chakwal and Mianwali or whether it stands disbanded or disestablished and, in either eventually, whether the Provincial Government could have legally done so and, if so, under what circumstances and under what terms and conditions. The college is not a body corporate established by statute. Had it been so, it would have been a public corporation, subject to such statutory control as permitted by the statute. The college in question has no charter or articles of incorporation or any statute authorising its formation, but is one which has been established by the Provincial Government and is being maintained out of provincial funds. As such, the college, whether it be treated as an organization, or euphemistically referred to as a corporation, is a public institution. Basically, it is an agent or instrument of the State to carry out a public purpose and subject to the plenary control of the Government.
6. The regulation of educational institutions, since it closely affects public interest, involving the education, welfare, morals and safety of the students and the impact they have on the society and the State in particular, are governed and regulated by constitutional or legislative provisions, which confer upon the necessary Governments vast discretionary powers to deal with all matters relating to the same, subject of course to certain fundamental restrictions which the institutions accept as a matter of principle and which the Courts strongly enforced to jealously guard against any form of arbitrary arrangements which tend to suppress or disestablish the institution or arrangements which are unreasonable, not made in good faith, against the public interest or inconsistent with the scope or object of the institution's charter.
7. As regards relocation of educational institutions, the same is generally effected through an act of the Legislature. Normally, Courts of law have upheld the validity of statutes authorising the removal of educational institutions or departments thereof from one location to another (See Stevens v. Thames (1) or broadening the functions of such institutions or any of their units Fisher v.
Board of Region of University of Nebrasca (2), Relocation
(1) 88 So. 77, 204 Ala. 487 (2) 189 N W 161, 108 N E B 66 ' is not restrained by Courts on any theory of a trust resulting in favour of a city, where such institution is located, or in favour of the donors, who may have contributed to the establishment of the same, though in some American cases a city is treated as being entitled to a refund of its contributions, on relocation of the institution at a different site. See South Western Presbyterian University v. City of Clarks Ville (1). Where a location of or the college is established by statute, relocation, is usually brought about by statute ; where it is fixed by charter, by amendment of the charter or by statute ; and where it is fixed by the articles of incorporation or other constitution, by amendment of the articles or the constitution. The absence of any charter or articles of incorporation or statute establishing the college at Rawalpindi, would not deprive the Punjab Government of its plenary power to relocate it at place other than its original location. If it does so by statute, which is an act of the Legislature, the collective will of the elected representatives of the province is present, to act as an adequate D safeguard against any attack of arbitrariness. If it does so by Ordinance. When the legislative session is in recess or when there is no Legislature at all, the stamp of the collective will and conscience of the elected representatives is not there and the Ordinance must stand up against any attack of arbitrariness or .Of being unreasonable, or not made in good faith, or of being against the public interest, once the Legislature resumes session and its future continuance is put up for determination. If the relocation is effected through executive action, the position is still the same as above for all executive action must pass the test of reasonableness, good faith and! Public benefit.
8. A dissolution or abandonment of an educational institution is effected or can come about in many ways. It can be an action of the legislature. It can be by the corporate existence of the educational institution standing destroyed, such as by the creation of another statutory corporate body to take over the control and management of the institution, leaving the institution without any corporate function to perform. It can also be by a statutory transfer of the property of the institution to a higher body, like a University, constituting de facto dissolution of the institution. It can also be by the institution dissolving itself by voluntary surrender of its franchise or its status, as such educational institution, and its acceptance by the Federal, Provincial or State Government. In America, State universities and colleges, being generally the creatures of the legislature, are held to be dissolvable by act of the legislature, whereas in the case of private universities and colleges, unless a State has reserved to itself the power to dissolve such institutions, the Legislature cannot repeal their charters against the consent of such institutions, without there being judicial ascertainment and declaration of default on their part. Misuser or non-user by an institution of its corporate privileges or franchise, culpable negligence on the part of the trustees amounting to grave abuse of corporate powers, fraudulent misuse of powers, etc., are some instances of default.
(See Corpus Juris Secundum, Vol. 14, pages 1366-67). In Pakistan higher educational institutions established by the State are the creatures of statute, or executive decision. Those established privately have some form of corporate status, depending upon whether they are registered under the Companies Act, 1913, or under the Societies Registration Act, 1899. Where the institution is public and established by statute, dissolution would have to be brought about by an act of the Legislature, unless so permitted by the statute of incorporation.
(1) 159 W W 550, 149 Tenn 256 Where such institution has been established by executive decision, dissolution could be brought about by statutory enactment or executive: action, subject to the restrictions and safeguards stated earlier, regarding relocation. In ascertaining whether the decision to dissolve an institution reasonable, made in good faith and in the public interest, the question whether the Provincial Government has ascertained and found default, on principles akin to that followed by the American Courts in declaring default, assumes relevance. If it has, the action would be supportable : if not, it would suffer the inherent vice of arbitrariness. The reason is not far to seek. Let us take the case where dissolution is effected by statute. Where a statute is not ex facie discriminatory, but is executed or administered in a partial, unjust or oppressive manner, as in the case of East and West Steamship Company v. Pakistan or unreasonably or arbitrarily, as to curtail liberty, or beyond the scope of the powers laid down, as in the cases of M. Younis Malik v. The State Bank of Pakistan, Montgomery Flour & General Mills Ltd. v. Director Food Purchase (1) and Ikram Bus Service v. Board of Revenue, West Pakistan (2) or incompetently or in disregard of the provisions of the law, as in the case of University of the Punjab v. Rehmatullah, the High Court would have a right to interfere in writ jurisdiction. Where a statute declares a definite policy, there is some standard to answer the charge of excess delegation, and also the charge of violation of equality, if the standard is reasonable. If no standard is set / up, to avoid the charge of violation of equality, those exercising the power must act as if they are administering a valid standard. See East and West Steamship Co. v. Pakistan. Even were a statute permits a Minister of the State to act on the basis of an opinion to be formed by him, even then, as held by Lord Denning in Secretary of State for Employment v.
Associated Society for Locomotive Engineers and others (3), it does not mean that the Minister's decision is put beyond challenge. What it means is that if the Minister does not act in good faith, or if he acts on extraneous considerations which ought not to influence him, or if he plainly misdirects himself in fact or in law, the Court would have a right to interfere. In Ghulam Jilani v. Government of West Pakistan (4) where a rule permitted the Deputy Commissioner to act on the basis of his "satisfaction", the Supreme Court held, on the basis of the guideline provided in the main Act, that it had to be on the basis of reasonable grounds and where the file did not disclose the same, the order was susceptible to judicial review. Now, if the dissolution is effected by executive action pure and simple, not taken under any statute, the position is not different. Whether the executive action is the violation of a scheme or plan laid down b Government, having no statutory effect, but having roots in authority conferred on responsible officers of the State appointed by a statute, as in the case of Bilal Ahmad Malik v. Secretary, Ministry of Commerce (5), or it is the arbitrary, whimsical or discriminatory interpretation of the terms of a scheme or plan of admission laid down by an institution, having no statutory character, by responsible officers of the State in general as in the cases of Masha Khan v. Selection Committee, Bolan Medical College (6) and
(1) PLD 1957 Lah. 914 (2) PLD 1963 SC 564
(3) (1972) 2 All E R 949 (4) PLD 1967 SC 373
(5) PLD 1963 Kar. 981 (6) 1981 CLC 634 ' Miss Riffat Parveen v. Selection Committee, Bolan Medical College, or it is the violation of the principles of natural justice enshrined, in such a rule as that of audi alteram partem, as in the cases of Naveed Rauf v. Board of Intermediate and Secondary Education (1) and Muhammad Khalid Moghal v. Government of Sind, the action not being fair, reasonable and just, would be struck down in writ jurisdiction. An arbitrary decision has always been treated as without jurisdiction. (See Miss Nasreen Fatima Awan v. Government of Baluchistan (2). If there is no standard laid down, the person exercising the power, even if he is acting in an executive capacity, must act as if he is administering a valid standard, specially if his decision is to affect vested rights. On the principles of natural justice, the valid standard becomes impliedly the law to be enforced, to enforce fairness.
In this respect, the position in Islamic Law is absolutely firm and clear. The Qadih is commanded to judge on the basis of truth and justice and to be fair and just and not allow the lower dictates of any form of lust, whether it be personal interest, vindictiveness, greed or bias, to interfere in his work. For, verily doth the Holy Quran proclaim : "Follow not the lusts (of your hearts), last ye swerve, and if ye distort (justice)........... , verily Allah is well-acquainted (Surah IV : Verse 135)
"Allah commands justice, the doing of good .. And he forbids all.. ... injustice... ". (Surah XVI : Verse 90)
"So judge thou between men in truth (and justice): Nor follow thou the lusts (Of thy heart), for they will mislead thee from the Path of Allah."
(Surah XXXVIII : Verse 26)
"Be fair : for Allah loves those who are fair (and just)."
(Surah XLIX : Verse 9)
9. In the light of the legal position stated above, it now remains for me to determine the issues stated in para. 5 above. It is admitted on both sides, and the learned officers of the State concede this position, that the issue before me is not as regards the relocation of the college as it originally stood, but the dissolution of the same and the intended setting up of three new institutes in lieu thereof. The only question, therefore, that remains is whether the action taken by the respondents all on the executive plane, leading to the closing down of the college, was on the basis of misuser or non-user by the college of its corporate privileges or charter, or culpable negligence on the part of its staff amounting to grave abuse of their powers and authority, or for fraudulent misuse of powers on their part, or for some grave reason, which legally could be treated as an acceptable default, on which so prestigious an institution, as the college in instance, could have been closed down. Of course, there can be a case where default cannot be laid at the doorstep of the institution, but the institution merits closure for some special reason, such as where through lack of interest and appreciable fall in the admissions, the further continuance of the
(1) 1980 CLC 1336 (2) PLD 1978 Quetta 17 institution is not justifiable. But this is not the case here. The college at Rawalpindi was no small institution. It was the biggest polytechnic in the Punjab and perhaps one of the most prestigious in Asia. Its campus was spread over an area of 76 acres and the built up area of its constructions was over 600,000 sq. Ft. The total value of its assets was roughly 15 crores. The college offered twelve technologies at diploma level, which was the highest number offered by any college in the country.
In addition, the college housed the Teachers, Training Wing and the B. Tech (Pass) and B. Tech
(Hons) programmes in Electrical and Electronics Technology. The total enrolment in the college was 1,869. The strength of its teaching as well as non-teaching staff was 115 and 169 respectively. At the time of its closure, the college had on its rolls about 1,858 students, of which 391 were boarders : 42 per cent of the total being residents of Rawalpindi and Islamabad District alone. It is urged on behalf of the State that the only ground) for the closure of the college was that the students had off and on been disorderly and had come out on the Peshawar Road and stopped the traffic between Rawalpindi and Peshawar, which had invariably created law and order problems. This reason, as already stated in para. 8 above, is not a good reason for closing down so prestigious an institution.
The proper remedy for such a situation is to locate and punish the miscreants. If educational institutions are closed down on this ground, there would hardly be an institution that would survive and, in any case, the sins of a few cannot be permitted to destroy the fate of the majority. Before the college at Rawalpindi was closed, of almost nine to eleven months all the four colleges and thirteen polytechnics in the Punjab were in the throes of student unrest and agitation and all of them were located in highly sensitive or vulnerable areas. The singling out of the college at Rawalpindi for closure is, therefore, not understood. It is also feebly urged that the closure can be supported' by the great financial and technical advantages accruing to the Provincial Government out of the transfer of the buildings and lands of the college to the Army, which would now enable the Provincial Government to set up three polytechnic institutes at Attock, Mianwali and Chakwal and that this reason should be taken as adequate and sufficient to support the reorganization. In the first place, prestigious educational institutions are not sold or transferred for -money, unless it be to replace the very same institutions with new and added facilities, without disturbing their corporate or institutional character. Educational institutions, with passing age, acquire vintage character and status. Second, the so-called reorganization is the direct offspring of the main decision, which was to remove the college from its existing vulnerable location. It was never mooted independently, with logistic and figures. And last, but not the least, even assuming a reorganization plan is accepted, the closure of the college without providing for one of the three new institutes to be located in the same area simultaneously as a college, so that the closure does not dislocate the education o the students, would make the scheme unreasonable and unfair. Any reorganization plan which dissolves a running institution without any finding of acceptable default or other special and substantive reason, wounds the feelings of the residents of the area, creates serious and logistic social problems in attempting to shift a large body of student and staff members to places far away from their normal locale, compels the majority of the students to shift to different and distant towns to continue and complete their education and provides no safeguards so that the transfer does not affect anyone socially or financially, cannot be stated to be fair or reasonable. Though five months have passed by since the college served notices on its students informing them of the closure of the institution, the alternative three new polytechnic institutes have not been set up, nor are they likely to be set up till another two years. Taking all circumstances into consideration, the action of the respondents in closing down the college at Rawalpindi was not because of any acceptable default on the part of the institution, for which such an institution could be closed down. The action of the respondents was, therefore, neither fair nor reasonable in the circumstances. Rather, it was arbitrary. No valid standard was kept by the executive before them, before taking so drastic a decision, as they did. Surprisingly, at no stage the Provincial Education Ministry, which was directly concerned in the matter, secured any opinion from the Law Department, on so serious a subject as the one before them.
10. As regards the relief that I can offer in this case, the same presents some difficulty. The college has been totally dissolved and its buildings and lands have been handed over to the Army. The students have been dispersed to different towns in the province. The staff have been posted to different polytechnic institutes. Financial compensation has also been paid, or is in the process of payment, to the students, for the inconvenience and disturbance caused to them on their transfer to other technical institutes. To direct the Punjab Government now to resuscitate the college, would be to open up a new "Pandoras' Box". The petitioners themselves in their petition, realising the fait accompli presented to them, prayed, in the alternative, that the college be temporarily continued till at least the petitioners completed their education. Since the filing of the petition, alternative arrangements were made by the respondents, which have, in some reasonable measure, granted the petitioners adequate relief to complete their courses, but at institutes located in far distant places. In these circumstances, whilst not being able to offer any relief and reluctantly dismissing this petition, I would, however, request the Governor of the Punjab, as a special case and on compassionate grounds, to favourably consider the prospect of reviewing the matter, with a view to locating one of the three new institutions in Islamabad or Rawalpindi itself, not as an institute but as a college, as a symbolical resuscitation of the dissolved college. In such an event, the respondents could locate the new college at a location which does not offer a law and order problem to the administration and the said new college could be endowed preferably with the same technologies and fields of study as hitherto possessed by it, and provided with such other facilities also which the respondents can so provide, to lessen the resentment and sense of deprivation felt by the students of the said college and the residents of the Rawalpindi and the Islamabad Districts, at their having lost their most prestigious institution.
11. The parties are left to bear their own costs.