Muhammad Farrukh Fayyaz, petitioner, has filed this Constitutional petition challenging his expulsion/withdrawal from the Aitchison College, Lahore.
2. The brief facts are that the petitioner was studying in Class IX in the Aitchison College, Lahore. On 18-3-1996, the petitioner received the impugned order, dated 18-3-1996 (Annexure 'A') issued by Principal of the College which states as follows:--- "Muhammad Farrukh Fayyaz/M-2D son of Mr. Muhammad Fayyaz of Tajuddin House, School Number 10002 is being withdrawn with effect from 29-2-1996 (Disciplinary case)."
Previously the Headmaster of the Aitchison College (Senior School) issued Memorandum No.SS/96-124, dated 17-2-1996 (Annexure 'B') to the father of the petitioner which is as follows:--- "I regret to inform you that your son Muhammad Farrukh Fayya2, M-2D in spite of being fined Rs.10,000 and getting canned from the Principal last November for serious breach of School discipline has shown no improvement whatsoever. He has been constantly bullying boys in his class and has been writing filthy remarks about their parents and circulating them.
One such chit was intercepted. I am attaching the chit so that you can for yourself see the depth to which he has sunk.
The Principal has asked me to convey to you that the boy be withdrawn from School immediately."
The basis for the expulsion/withdrawal of the petitioner from the Aitchison College is given in the memorandum dated 17-2-1996.
3. Initially on 22-4-1996, pre-admission notice was issued to the respondents for 25-4-1996. On 25- 4-1996, this writ petition was admitted to regular hearing and because of urgency of the matter the case was adjourned to 5-5-1996 for final hearing. Mr. Umar Mahmood Kasuri, Advocate, filed written statement on behalf of the respondents to which the rejoinder was also filed by the petitioner.
4. Learned counsel for the petitioner has contended that the impugned order, dated 18-3-1996 was passed in violation of the rules and regulations of the College issued in the year 1992, which provide that the detention or withdrawal is decided by the Academic Council and not by the Principal and that the mere use of abusive words among classmates was not an offence at all, not to speak of an offence involving moral turpitude, though the use of abusive language was improper and indecent but was not covered by any of the offences mentioned in Pakistan Penal Code. However, the main contention of learned counsel for the petitioner is that no show-cause notice was issued nor was an opportunity of hearing given to the petitioner before passing the impugned order, dated 18-3-1996. In this connection it is averred in the writ petition that, "it was legally and Constitutionally necessary that a notice should have been issued to the petitioner to show cause why he should not be withdrawn from the school. In the absence of such a notice the order of expulsion from the college suffers from non-compliance with the elementary principles of natural justice".
5. In the written statement the objection to the maintainability of this writ petition has been raised.
With regard to the question of show-cause notice, it is stated in the written statement that, "the petitioner was given due notice to show cause about his improper and unbecoming conduct which amounted to an act prejudicial to school discipline. The action taken against the petitioner in removing him from the roll of college is perfectly legal and in accordance with the Rules of the School". It is argued by learned counsel for the respondents that the father of the petitioner was given hearing by the Principal after 17-2-1996 and before the final order, dated 18-3-1996 was passed and again the learned counsel for the petitioner met the Principal of the College after 18-3- 1996 and before filing the writ petition. He argues that in this way the petitioner was also given personal hearing before passing the final order. He further submits that the memorandum dated 17-2-1996 also served as a show-cause notice to the petitioner.
6. Mr. Umer Mehmood Kasuri, Advocate, learned counsel for the respondents mainly opposed the writ petition on the question of jurisdiction of this Court. He contends that the College is not a Statutory Body nor a Local Authority and is not a person performing functions in connection with the affairs of the Federation or a Province, therefore, the writ petition is not competent under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He submits that the Aitchison College, Lahore, was initially registered as a Society under the Societies Registration Act, 1860, but by a notification dated 11-11-1961 issued by the then Governor under Martial Law Order No.86 of 1961 of Zone B, the Society was dissolved and a Board of Governors was constituted for the management and control of the Aitchison College. He referred to an unreported judgment of this Court passed in Writ Petition No. 10591 of 1995 on 11-12-1995 wherein it was held as follows:--- "As regards the maintainability of the writ petition, merely because the college is governed by a Board, which is chaired by the Governor of Punjab and certain Government officials are its members, will not make it a body who is performing functions in connection with the affairs of the Province or the Federation of Pakistan. The Board is also not a local authority. The institution is governed by its own rules/regulations framed by the Board who is running the institution, therefore, it is also not established beyond doubt that the action taken by the respondent No.4 is liable to be interfered with in exercise of writ jurisdiction of this Court."
7. On the contrary, Mr. A.K. Dogar, Advocate, learned counsel for the petitioner submitted that the Society, which was previously managing and controlling the affairs of the Aitchison College, was dissolved and Board of Governors was constituted under notification dated 11-11-1961 issued under Martial Law Order No.86 of 1961 Zone B, and in pursuance thereof the management and control of the College was taken over by the Board of Governors which included the Governor of the Province, General Officer Commanding, Finance Secretary and the Education Secretary, among the official members, and that the Statutes of the College under which the Aitchison College is being managed and controlled were made by the Governor of West Pakistan under the aforesaid notification dated 11-11-1961. Thus the Aitchison College is amenable to the writ jurisdiction of this Court. He also relied on the judgment of this Court in Mujeeb-ur-Rehman Shami v. Principal, Aitchison College, Lahore and 2 others 1994 CLC 342, particularly to the following passage:--- "The important question in this case would be to see whether the conditions of service of the petitioner are governed by statutes or rules and if so whether those have been disregarded while taking impugned action against him. The terms and conditions of the petitioner are regulated by statutes of Aitchison College framed by the Governor in the exercise of his powers conferred upon him under Martial Law Administrator Zone-B's Order 86. The Zonal Martial Law Administrator's powers to issue Martial Law Orders have been held to be of Legislative nature. Reliance in this respect is placed upon Gulab Din v. Major A.T. Shaukat and others PLD 1961 (W.P.) Lahore 952, Muhammad Afzal v. Commissioner, Lahore Division PLD 1963 SC 401 and Allah Bakhsh v. District Magistrate, Jhang and 2 others PLD 1978 Lah. 765. Since the statutes of Aitchison College have been framed in the manner stated above under MLO, as such, they are certainly entitled to be given the status of statutory rules violation of which has been agitated by the petitioner. "
8. The facts of Majeeb-ur-Rehman Shami's case were that the petitioner therein filed a declaratory suit challenging the termination of his service on the ground that his service was governed by the said statutes of the Aitchison College framed by the then Governor of West Pakistan under Martial Law Order NO-86 of 1961. The preliminary objection regarding maintainability of the suit against the Aitchison College was decided by the learned trial Court in favour of the plaintiff and against the defendant but in revision the learned District Judge, Lahore, held that the suit was barred by law.
This revisional order was challenged in the writ petition by Mujeeb-ur-Rehman Shami and this Court held, "Since the statutes of Aitchison College having been framed in the manner stated above under Martial Law Order, as such, they are certainly entitled to be given the status of statutory rules violation of which has been agitated by the petitioner. "
9. The question whether the writ could be issued by this Court in exercise of its powers under Article 199 of the Constitution to the authorities of the Aitchison College was not involved nor decided in Mujeeb-ur-Rehman Shami's case. The question arising herein is whether the Aitchison College is a person defined in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and that the College falls in any of the categories enumerated in clause (a)(i) of sub-Article (1) of Article 199 of the Constitution.
10. The person has been defined in Sub-Article (5) of Article 199 of the Constitution in the following terms:--- "In this Article, unless the context otherwise requires:--- "Person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan:"
11. It was stated at the bar that the College is not financed or funded by the Government nor is administered and controlled by the Government. According to learned counsel for the respondents, the College is being financed out of the tuition fee collected from the students and the donations. The Administration is overall looked after by the Board of Governors which has representatives from the public, amongst old students of the College and some official members.
According to him, the fact that the Governor of the Province is President of the Board of Governors and that the Board of Governors included some Government officials, does not make the Aitchison College or the Board of Governors a person functioning in connection with the affairs of the Federation or the Province or a local authority. This view is also supported by the unreported judgment of this Court delivered in Writ Petition No. 10591 of 1995 the relevant passage whereof has been reproduced above.
12. Mr. M. Naseem Kashmiri, learned Additional Advocate-General, Punjab who appeared on Court call to assit the Court supported the arguments of Mr. Umer Mehmood Kasuri, Advocate, learned counsel for the respondents on the question of jurisdiction of this Court and the legal status of the College. He also referred to Article 199(1)(a)(i) and Sub-Article (5) thereof to contend that Aitchison College is not amenable to writ jurisdiction of this Court.
13. Thus it is clear that the Aitchison College is not a statutory body in spite of the fact that erstwhile Society, which used to manage and control the College, was replaced by the Board of Governors constituted under the aforesaid notification dated 11-11-1961 issued under M. L. O. No. 86 of 1961 (Zone B). It may not be out of place to mention that M.L.O. No. 86 of 1961 was a temporary legislation, even if it is considered a piece of legislation, and became extinct on the enforcement of the Constitution of Islamic Republic of Pakistan, 1962 on 8-6-1962. Thus the statutes framed thereunder may remain operative, until changed or amended by the Board of Governors, and the past and closed transaction might be saved, but the Aitchison College did not become nor exists as a statutory body. In Syeda Sayeeda Banoo and another v. Province of East Pakistan and others PLD 1969 Dacca 352, it was held that: "It will be seen from the observations, quoted above, that the amount of control the Provincial Government exercises over the Dacca University which is the creature of a Statute is not comparable with the amount of control that is exercised by the Secondary Education Board over a private school receiving grants from the Provincial Government.
In this view of the matter, we are unable to uphold the contention of Mr. Bhattacharjee that the members the Managing Committee of a private school are persons performing functions in connection with the affairs of the Province of East Pakistan. The mere fact that such a school receives some monetary help or that the Provincial Government has some amount of control in regard to its affairs will not make the members of the Managing Committee of that school persons performing functions in connection with the affairs of the Province".
14. For what has been stated above, in my opinion, the respondents are not amenable to the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and as such this writ petition is not competent and is dismissed on that short ground alone. Since the writ petition is dismissed for want of jurisdiction, I refrain to comment upon the other points raised in the writ petition. No order as to costs.