' ABAID ULLAH KHAN, J.-Doctor Khalida Usmani, the appellant, was appointed Assistant Professor of Surgery in Fatima Jinnah Medical College, Lahore, on the 23rd August, 1971 till the 1st May, 1972 in a leave vacancy. After the return of the permanent incumbent she continued to work in an honorary capacity till the 6th July, 1972 when she was appointed Assistant Professor of Orthopaedic Surgery against a vacant post. The appellant and Doctor M. H. Randhawa, respondent No, 1, alongwith others, applied for appointment to the post of Assistant Professor of General Surgery in Fatima Jinnah Medical College. Respondent No, 1 was appointed to the post on the 3rd October, 1973. The appellant continued to hold the post of Assistant Professor of Orthopaedic Surgery till her appointment as Assistant Professor of General Surgery on the 23rd May, 1974. As she contends she performed duties of the Assistant Professor of General Surgery, which was her field of work, even when she was officiating in the post of Assistant Professor of Orthopaedic Surgery. On the 1st May, 1977 both the appellant and respondent No, 1 were promoted as Associate Professors of General Surgery.
2. In 1974, on the request of respondent No, 1 for determination of inter se seniority of Assistant Professors of Surgery the Executive Committee of Fatima Jinnah Medical College at its meeting on 30th August, 1974 declared respondent No, 1 to be senior to two other Assistant Professors, namely, the appellant and Doctor M. Sajjad Humayun, as he had joined earlier than others. The Principal communicated the decision of the Executive Committee to respondent No, 1 per letter No, 3097/F. J., dated the 20th September, 1974. The appellant represented to the Board of Governors of Fatima Jinnah Medical College, respondent No, 4, against the decision of Executive Committee but the Board upheld that decision.
3. In 1979, there fell vacant a post of Professor of Surgery for which both the appellant and respondent No, 1 became aspirants. On the 9th August, 1979 the appellant again agitated the question of inter se seniority vis-a-vis respondent No, 1 before the Executive Committee which informed her that the matter had already been decided in 1974 and respondent No, I had been declared to be senior. Her representation to the Board of Governors having born no fruit she made a complaint to the Punjab Administrative Vigilance Commission established in accordance with the provisions of the Punjab Administrative Vigilance Commission Ordinance, 1979 (X of 1979). The Commission, after hearing the parties and concerned authorities advised the College authorities on the 5th January, 1980 :-
(a) that the letter No, 3097/FJ, dated 20th September, 1974 issued by the Principal declaring Dr. Mukhtar Randhawa to be senior to the other two Assistant Professors of Surgery not having the sanction of the rules should be considered as legally void and should be withdrawn.
(b) that if it is intended to fix the inter se seniority of the doctors working in a particular speciality the appropriate rules should first be framed and then a seniority list drawn up.
(c) that the disputed period during which Dr. Khalida Usmani actually worked in the Surgery Department should be counted towards her experience in that speciality.
(d) that before a seniority list is finalised under the new rules proposed to be made under (b) above a draft seniority list should be circulated amongst doctors concerned to enable them to raise objection, if any.
(e) that pending a decision to fill the vacancy of the Professor of Surgery as indicated above, the temporary charge of the department should be given to one of the existing Professors so as not to prejudice the case of either contestant ; and ( f ) that when the competent authority proceeds to make the election both the claimants should be heard in person to ensure a just and equitable decision of the case.
4. Respondent No, I assailed the legality of the advice before this Court by writ petition No, 549.S of 1980, which was disposed of on the 21st January, 1980 as it was considered premature. He was asked to raise objections which he had taken in the petition before the competent authority which was to consider, accept or disregard the advice.
5. The Governing Body of Fatima Jinnah Medical College was not prepared to withdraw letter No, 3097/FJ, dated the 20th September, 1974 declaring respondent No, I to be senior to the appellant ; it adhered to its previous decision. As a result of difference of opinion between the Commission and the Governing Body with regard to the implementation of the advice of the Commission the matter was referred to the Governor of the Punjab who directed the Governing Body to implement the advice of the Commission. Consequently the appellant was made senior to respondent No, 1 and also she was appointed Professor of General Surgery. Respondent No, 1 invoked the extraordinary jurisdiction of this Court to question the validity of the recommendations made by the Commission and of the impugned orders passed by the Governor as also by the Governing Body of the College adversely affecting his interests.
6. Attack to the legality of the impugned action was based, apart from other reasons, on the ground, which formed the subject of arguments addressed by the learned counsel for the parties, that the application of the provisions of the Punjab Administrative Vigilance Commission Ordinance, 1979, was not attracted to the case in hand because Fatima Jinnah Medical College and its allied hospital were private institutions run by a Society registered under the Societies Registration Act (XXI of 1860), and that they were administered neither by the Federal nor by the Provincial Government and as such did not fall in the category of 'agency' as envisaged by the Ordinance and its employees were not public servants or functionaries under the administrative control of the Federal or Provincial Government. In this connection it was urged that the Privately Managed School and Colleges (Taking Over) Regulation, 1972 Martial Law Regulation No, 118, hereinafter referred to as the Regulation, was not applicable to Fatima Jinnah Medical College which was not a privately managed college as contemplated by the Regulation and consequently it did not vest in the Provincial Government. The appellant put forth the contrary view extending application of the Regulation and the Punjab Administrative Vigilance Commission Ordinance to Fatima Jinnah Medical College and its employees.
7. The learned Judge in Chamber formed the view that it could not be said that the Fatima Jinnah Medical College was a privately managed college for it was maintained and managed by a Governing Body appointed by the Central and Provincial Governments and, therefore, it did not vest automatically in the Punjab Government under para. 4 of the Regulation. He did not consider the College to be an agency as defined in the Ordinance and as such held it to be not amenable to the application of the Ordinance. He observed that even if it was a case attracting the jurisdiction of the Provincial Government with regard to the terms and conditions of service of the contesting parties Article 212 of the Constitution created an insurmountable bar in the way of the Commission to deal with the matter. In the end he declared the impugned recommendations of the Commission, orders of the Governor and their implementation by the Governing Body and Principal of the College to be without lawful authority and of no legal effect. Feeling aggrieved Doctor Khalida Usmani by this Intra-Court appeal, the Province of the Punjab, Administrative Vigilance Commission. Board of Governors and Principal of Fatima Jinnah Medical Caliege, Lahore, through Intra-Court Appeal No, 358 of 1981, have disputed the validity of the judgment of the learned Judge in Chamber.
8. The learned counsel for the parties addressed arguments on the preliminary points whether by virtue of the provisions of the Regulation, Fatima Jinnah Medical College came to be vested in the Provincial Government of the Punjab and whether the Punjab Administrative Vigilance Commission Ordinance, 1979, applied to Fatima Jinnah Medical College and its employees including the appellant and respondent No,
1. The learned counsel for respondent No, 1 conceded that if Fatima Jinnah Medical College is taken to have vested in the Provincial Government and the Punjab Administrative Vigilance Commission Ordinance was held to be applicable to it, the appellant and respondent No, I, the impugned recommendations of the Commission and the impugned orders passed pursuant thereto were not open to challenge in the writ jurisdiction of this Court.
9. In order to appreciate the respective contentions of the learned counsel for the contesting parties it may be advantageous to have in view the relevant provisions of the Regulation and the Punjab Administrative Vigilance Commission Ordinance, 1979. Paragraph 2(a), (b) of the Regulation defines 'college' and 'privately managed college' as follows, - 2 (a) 'college' means an institution having intermediate, degree or post-graduate classes or any combination of two or more such classes.
(b) 'privately managed college' means a college maintained and managed by any person or body other than the Central Government, a Provincial Government, a municipal committee, a cantonment board or any other local authority.
' Para. 4 of the Regulation runs as under :- ' 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 Territory ; and
(b) in the Provincial Government, if they are situated in a province'.
' The provisions touching application of the Punjab Administrative Vigilance Commission Ordinance, 1979, contained in section 1(4) thereof are to the following effect,- '1(4) It shall apply to--
(a) all agencies, public servants and other functionaries under the administrative control of the Provincial Government ; and
(b) such agencies, public servants and other functionaries operating or working in the Province of the Punjab as are under the administrative control of the Federal Government but in respect of whom the Federal Government authorities the Commission to exercise powers under the provisions of the Ordinance : ' Provided that the Government may by notification exempt specified public servants, other functionaries or agencies from the operation of all or any of the provisions of this Ordinance'.
'Agency' and 'public servant' are defined in section 2 in the following words :- '2(ii) 'agency' means a department or office of Government or any of its units or branches and includes a local body, a statutory corporation established, or a company wholly or partly controlled, by Government and any officer, employee or member thereof acting or purporting to act in exercise of his duties.
(ix) 'Public servant' means a public servant as defined in section 21 of the Pakistan Penal Code, 1860 (XLV of 1860), and includes a Minister, Advisor, Parliamentary Secretary and also the Chairman, Managing Director, Director, or other officer or employee of a statutory corporation or a company referred to in clause (ii), appointed by or with the approval of Government or paid out of the funds of such corporation or company'.
10. Admittedly Fatima Jinnah Medical College, Lahore, was set up and housed in the building of Balak Ram Medical College which, alongwith its allied hospital known as Sir Ganga Ram Hospital, Lahore, was non-Muslim evacuee trust property. After independence a society by the name of 'The Association for the Control and Management of the Fatima Jinnah Medical College for Women, Lahore, and Sir Ganga Ram Hospital, Lahore, was formed on the 2nd May, 1950 and registered under the Societies Registration Act, 1860, on the 9th May, 1950. One of the objects of the society was to maintain and manage the College and the Hospital. The following were the members of the society :-
(1) Lt.,-Col. Sher Muhammad Khan Malik, I. M. S., Director, Health Services, Punjab, Lahore.
(2) The Hon'ble Mr. Justice S. A. Rahman, Judge, High Court, Lahore.
(3) Begum Jehan Ara Shah Nawaz, 53, Lawrence Road, Lahore.
(4) Begum Zeenat Fida Hassan, 1, Danepur Road, Lahore.
(5) Syed Fida Hassan, P. A, S., Commissioner, Lahore Division, Lahore.
(6) Begum Khudeja Ghulam Ahmad Khan, 9, Aziz Avenue, Canal Bank, Lahore.
Mr. Muhammad Bashir Ahmad, M. A., Accountant-General, Punjab, Lahore.
11. According to the rules and regulations of the Society Miss Fatima Jinnah was to be the patron- in-chief and the Minister of Health to the Government of the Punjab was to be the patron of the Society. The Society had the following office bearers :-
(ii) one Honorary Secretary
(iii) one Honorary Treasurer ' The management of the affairs of the Society was vested in governing body consisting of sixteen members to be constituted as follows :-
(1) Director-General of Health Pakistan, during the term of his office, who shall also be the Chairman of the Governing Body.
(2) Director of Health Services, Punjab, during the term of his office, who shall also be the Honorary Secretary.
(3) Accountant-General, Punjab, during the term of his office, who shall also be the Honorary Treasurer-
(4) Surgeon-General with the Government of East Bengal.
(5) Inspector-General of Civil Hospitals, N.-W. F. P.
(6) Inspector-General of Civil Hospitals, Sind.
(7) Six members to be nominated by the Central Government of Pakistan.
(8) Four members to be nominated by the Punjab Government.
12. The Society was to have an executive committee for attending to day to day work. Four nominees of the governing body, including the Honorary Secretary and the Honorary Treasurer, Principal of Fatima Jinnah Medical College and Medical Superintendent, Sir Ganga Ram Hospital, who was also to be the Ex Officio Secretary of the Committee, were to constitute the executive committee. The executive committee through its secretary was to maintain the accounts of the society and all money received was to be deposited in Lloyds Bank Limited, Lahore, or any other scheduled Bank in Pakistan to the credit of the Society. The honorary treasurer and the honorary secretary of the governing body were jointly to operate the bank accounts. The governing body and the executive committee had all along been performing their functions under the rules and regulations of the Society.
13. The learned counsel for the appellant and respondents Nos. 2 to 5 contended that the Society had an independent entity of its own despite the fact that the Central and Provincial Governments employees became its members and as it was not synonymous with the Central Government, Provincial Government, Municipal Committee, Cantonment Board or any other local authority, the Fatima Jinnah Medical College, which it was managing, would be considered to be a privately managed college within the purview of paras. 2(b) and 4 of the Regulation and consequently it automatically vested in the Provincial Government on the first day of September, 1972. They submitted that no separate formal order or notification was required to be issued for the purpose of vesting of the College in the Provincial Government. According to them notification No, S.
0. (P & P)-12/5-79, dated the 1st July, 1980 issued by the Government of the Punjab in the Health Department, which was interpreted in the judgment under appeal as also by the learned counsel for respondent No, 1, to vest the College in the Provincial Government, just recites the vesting of the College in the Provincial Government as from the 1st September, 1972 under para. 4 of the Regulution and contains directions emanating from the Governor that its administrative control and management should be taken over by the Health Department. A perusal of the notification, which for facility of reference is reproduced below, supports the contention of the learned counsel for the appellant and respondents Nos. 2 to 5 :- "No, SO(P&P)-12/5-79.-The Governor of the Punjab is pleased to direct that the administrative control and management of the Fatima Jinnah Medical College. Lahore, with its allied hospital and other property attached to it, which on nationalization stood vested in the Government of the Punjab as from the first day of September, 1972 under para. 4 of the Martial Law Regulation No, 118, be taken over by the Health Department of the Government of the Punjab with immediate effect."
14. The learned counsel, with reference to the budget estimates, pointed out that since the financial year 1974-75 all the expenditure of the Fatima Jinnah Medical College had become part of the expenditure of the Provincial Government of the Punjab. Before that the College was given grant- in-aid which is given to non-government bodies. Therefore, the learned counsel asserted that the College became a part and parcel of the Government and being one of its units would be treated as 'agency' as contemplated by section 2(u) of the Punjab Administrative Vigilance Commission Ordinance, 1979.
15. Conceding that the Society was an entity separate from the Government the learned counsel for respondent No, 1 propounded the theory that though the governing body and executive committee of the Society were de jure running the affairs of the College yet the de facto position was that the effective control and management of the College was in the hands of the Government, and, therefore, the College could not be called a 'privately managed college' within the meaning of the Regulation and consequently did not vest in the Provincial Government on the 1st September, 1972 as provided by the Regulation. Again he maintained that as the College had not vested in the Government but was being run de jure by the Society, which was not Government, it could not be brought within the ambit of 'agency' as defined in the Punjab Administrative Vigilance Commission Ordinance, 1979, and consequently the Punjab Administrative Vigilance Commission and the Governor could not exercise their powers and take the impugned action under the Ordinance.
16. The learned counsel for respondent No, 1 argued that de jure the college was managed by the executive committee and governing body of the Society while de facto its affairs had been throughout managed by the Federal and Provincial Governments. Elaborating his arguments he said that in order to discover as to who was controlling or managing the Society as well as the College it was necessary to lift the veil and see behind, as had been done by the Supreme Court in Justice Shaukat Ali's case (1) as to who was the real person at the helms of the affairs. He submitted that the ex officio members of the governing body were officers and nominees of the Federal and Provincial Governments, that the expenditure to maintain and run the College was borne by these Governments which were issuing from time to time directions touching the admissions to and affairs of the College to the governing body which in turn had been duly employing with those directions. In addition to the expenditure incurred by the Government the College did not receive donations from private persons. After independence with the departure of the non-Muslims from Pakistan, Balak Ram Medical College was left with no finances and it was in order to give it continuity to run as a college that the Society was formed and to meet the expenditure the Government stepped in to provide funds. Though in consideration for providing the sinews of war the Government could legitimately look to the Society to meet its demands in respect of admissions of certain categories of students as also to give weight to its views and directions for spending the financial grants in proper manner and to have its officers and nominees on the governing body yet legatly the actual management was in the hands of the Society through its executive committee and governing body because all orders were passed and signed by the executive committee, governing body or the persons authorised by them ; the Government itself did not pass orders. The Society all along preserved its entity and in the eye of law alone could be said to manage and run the College. The Society being no Government or municipal committee, cantonment board or other local authority, the College would be taken to be 'privately managed college' within the purview of the Regulation according to whose provisions it would be deemed to have automatically vested in the Government on the 1st day of September, 1972. It may be mentioned that no separate notification by the Government for vesting the College in the Government was necessary to be issued. Notification No, SO(P&P)-12/5-79, dated 1st July, 1980 issued by the Government of the Punjab on the 1st July, 1980 simply refers to the vesting of the College in the Government from the 1st September, 1972 under para. 4 of the Regulation. No interference can be drawn from the notification that the college did not vest in the Government on the 1st day of September, 1972. Having so vested it would conform to the description of `agency' as defined in section 2(11) of the Punjab Administrative Vigilance Commission Ordinance, 1979, and consequently the Commission and the Governor had the jurisdiction to take the impugned action and the orders passed pursuant thereto by the governing body would be lawful and immune from the scrutiny of this Court in writ jurisdiction. On this view of the matter both the appeals are accepted and the decision of the learned Single Judge is reversed resulting in the dismissal of respondent No, l's writ petition. In the circumstances of the case the parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.