' Petitioner-College claims to be run, managed and sponsored by Punjab Education Society, a Society registered by the Government of Punjab under the Voluntary Social Welfare Organization (Registration and Control) Ordinance, 1961. Petitioner-College admits and imparts education/instructions to the students in the field of Home Economics and prepares them for the examination held by respondent-University for conferring the degree of Graduation in Home Economics under the Punjab Private Educational lnstitutions. (Promotion and Regulation)
Ordinance (IV of 1984), hereinafter referred to as the Ordinance, the petitioner-College is required to obtain registration under section 6 of the Ordinance and under section 3 thereof, no institution can run unless it is registered in accordance with the provisions of the Ordinance. It is the case of the petitioner-College that after its establishment in 1991 it was granted provisional registration for one year on 25-5-1992 on the terms and conditions stated in letter, dated 25-5-1992 issued by respondent No,4 (Annexure "G" at page 29). The petitioner-College also applied for affiliation to the respondent-University under the University of Punjab Act, 1973. Both for the purposes of registration and affiliation, the case of the petitioner-College was processed. Number of District Committees constituted by respondent No,4 and Affiliation Committees constituted by respondent-University visited the petitioner-College, inspected its premises and records and the Committees did not recommend registration and affiliation on the ground that the College did not fulfil the required conditions nor had the necessary facilities nor was being managed in accordance with the applicable rules and conditions.
2. On the strength of the provisional registration, number of students were sent up by the College to the University for the purposes of examination. Since the College was not affiliated, respondent- University hesitated to accept their examination forms and to permit them to be examined.
Presumably on the assurance of the petitioner-College and the pursuasion of the students, the respondent-University agreed to permit the students to take examination but made it clear that this will not be taken as precedent and that for future examinations the college must get itself affiliated after fulfilment of the necessary pre-conditions, and after provision of the necessary facilities like library, good teaching staff, good premises ensuring the privacy of girls students etc.
3. In the events that followed, the respondent-Government even withdrew the provisional registration as the College could not remove the shortcomings and deficiencies as pointed out in various reports of the Committees. Finally vide order, dated 13-12-1995 (Annexure "J"), the respondent-Government informed the Chairman of the petitioner-College in the following words:- "The registration case/application of your College stand closed at our end because the District Committee in its two successive visits have disapproved the registration of your College. Photo copy of District Inspection Committee reports is enclosed."
' It is this decision which is being called in question through this Constitutional petition with the following prayers:--- "It is, therefore, most respectfully prayed that the respondents may kindly be directed as under:---
(a) The respondent No,1 may kindly be directed to obtain the recommendations of the first affiliation committee and the same may be asked to place before the syndicate as required by law.
(b) The respondent No,4 may kindly be directed to consider the registration as permanent in any case not to act on the biased, mala fide and rival opinion of the Principal of the College of Home Economics.
(c) That the respondent No,1 may kindly be directed to finalise the affiliation and to act in accordance with law.
' It further be declared that the refusal by the Additional Director Public Instructions on behalf of Director Public Instruction, Lahore for the registration of the College with D.P.I., through Letter No,27/48- 90/35227, dated 13-12-1995 is based on mala fide and the same is not sustainable. It is further declared that the non-registration of the institution with the D.P.I. Is not ground for refusal for affiliation with the Punjab University.
' It is further prayed that the respondent No,4 may kindly be directed to act in accordance with law within the parameters of guidelines and requirement of Ordinance, 1984. Respondent may kindly be directed to affiliate and register the college in accordance with law.
' Any other relief which this Honourable Court deems fit may kindly be granted."
4. Number of writ petitions have also been instituted by the students of the College against the refusal of the University to grant them roll numbers for examinations on the ground of non- affiliation. This petition was admitted on 21-11-1996 on the ground that connected petitions by the students stood admitted. Connected petitions of students have also been heard and are being separately disposed of.
5. Report and parawise comments have been submitted both by respondents Nos.1 to 3 and separately by respondent No,4. It is stated by the University that since the College does not fulfil the conditions laid down in section 35 of the University of the Punjab Act, 1973, hereinafter referred to as the Act, and further that since the institution College has not been registered under the Ordinance, therefore, the University has legitimately and legally refused the affiliation. In this connection it is averred that number of Affiliation Committees in their respective reports did not recommend affiliation for the reason stated therein. It is pointed out that the findings of each of the Committee were communicated to the petitioner with the direction to remove the deficiencies so that the question of affiliation could be finally decided. It is maintained that since the defects pointed out were not removed, therefore, the University is justified in declining affiliation and further justified in refusing to allow the students of the College to take the relevant examinations. It is maintained that number of students were permitted to take the examination only under the orders of this Court and this Court made it clear that the interim permission to take the examination was purely conditional and the result of the examination would not confer any right to the degree. This was subject to the final decision of the writ petitions. Respondent No,4 in its comments has taken a similar instance and has also stated that number of District Committees were formed who visited the premises of the College on various dates with reasonable intervals and report of the Committee on every visit went against the petitioner-College and that on being called upon to meet the objections and to come up to the criteria pointed out by the Committee, the petitioner-College failed and hence the case for registration was fmally closed on 13-12-1995, the order being now impugned.
6. In support of the petition, learned counsel for the petitioner-College challenged the veracity of the reports of the District Committees on the ground that the same were biased and incorrect, inasmuch as, one of its members was the Principal of Government College of Home Economics who has been recording adverse findings against the College on account of rivalry. It is also urged that the question of affiliation has to be decided independently by the University according to its own law and rules and the regulations and merely because registration has been refused by the Government under the Ordinance, is no ground to deny affiliation to the petitioner. These submissions have been refuted both by the learned Assistant Advocate-General appearing for Government/respondent No,4 and by learned counsel appearing for the University---other respondents. It is pointed out that on the asking of the petitioner, the Committees were repeatedly constituted and the objected members were removed and in all the five inspections by different Committees, the College was not found suitable for registration. Reports of the various committees have been placed on record. Necessary correspondence showing that the petitioner was duly informed of the findings of the Committees have also been placed on record.
7. A perusal of the reports of the Committees placed on the file reveals that number of serious deficiencies existed and were pointed out. It cannot be said nor it has been argued that those objections are frivolous. This Court is not called upon to sit in judgment over the factors/conditions shown to be absent and which are required to be made good, provided these are relevant to the purposes of the Ordinance, viz., regulation and promotion of the private educational institutions.
The objective of the Ordinance is to see that private educational institutions impart quality education and that the students are not exploited in any manner nor they are denied facilities which should, ordinarily, be available in the educational institution. Keeping this purpose in view, I would hold that the conditions/deficiencies/shortcomings noted by the various Committees are highly relevant to the object of the Ordinance and this finding should be enough for the purposes of judicial review. This Court may not and is not required to sit as a Judge over the factual findings.
There is, therefore, weight in the submission of the learned Assistant Advocate-General that the registration has been rightly refused by respondent No,4.
8. The allegation of malice against the Principal of Government College for Home Economics, Gulberg, does not improve the case of the petitioner-College. The said Principal was only one of the members of the Committee which consisted of 6/7 other senior Professors/Officials. It is not the case of the petitioner before me that the other members of the Committee also suffered the bias allegedly harboured by the Principal. It will be seen that on the demand of the petitioner, the Principal was removed from the membership of the Connate and the fresh Committee also came to the similar conclusion that the petitioner-College was not up to the mark and, therefore, was not entitled to be registered. The allegation of bias is otherwise difficult to uphold, inasmuch as, the Government College of Home Economics is not a private institution as the petitioner-College is, and therefore, it cannot be said that as Head of the College, the Principal would have some monetary interest or the principal would be sharing the profits of the Government College for Home Economics.
9. Be that as it may, in the facts and circumstances alleged, the necessary proof of malice and mala fide on the part of the aforesaid principal is lacking. Some of the reports make interesting reading and in one of the reports of the Inspection Committee duly communicated to the petitioner-College vide letter of respondent No,4, dated 12-6-1994, it was pointed out that:---
(a) Food Laboratory is of kitchen size which cannot house a class of 24 students for practicals at a time.
(b) No Blackboard or proper working areas are, available.
(c) Library facilities are extremely inadequate.
(d) Students who remained absent after admission, were kept on roll.
(e) During the stay of the Committee no student was around in the college. It appears that the college is non-operational.
(f) Rooms were rented to persons other than the college students.
' The above are some of the findings/observations. These and some other findings have been repeated in the subsequent reports. All the members of the Committee have unanimously signed these reports. The allegation of malice, therefore, is difficult to uphold. This contention is repelled.
10. The affiliation by the University is regulated by section 35 of the University of the Punjab Act, 1973.
This provision read with the rules and regulations provides complete guidelines for affiliation of educational institutions. The respondent-University has been examining the question of affiliation from time to time and members of the Affiliation Committee have also been visiting the college and have been unanimously recommending non-affiliation on the grounds similar to the ones noted above. It is true that non-registration under the Ordinance is not one of the considerations laid down in section 35 (ibid). However, since the Ordinance is the law of the land, the University is well within its right to insist that the educational institutions desirous of affiliation must fulfil the law of the land. For this insistence the University does not necessarily have to fall back upon section 35.
However, this argument in this case looses significance, inasmuch as, independent of non- registration under the Ordinance, the Affiliation Committee of the University has not been recommending affiliation on the ground of absence of necessary facilities and the factors laid down in section 35. The contention of the petitioner, therefore, that the refusal by the University to grant affiliation is bad since it is based on irrelevant consideration, viz., non-registration is without merit. As noted, non-registration is not the only ground.
11. At the cost of repetition let it be recorded that the Affiliation Committee of the University visited the College on 13-7-1992 and, as noted in its report, did not find the available facilities like staff, library, building, playground, and laboratory up to the mark or altogether lacking and recommended that affiliation be not granted. This was communicated to the petitioner on 20-10- 1992. On representation of thp petitioner, the Affiliation Committee visited the College again and this time it also found that the College was not registered under the Ordinance and was advised to obtain registration in the first instance. Once again it would not be proper for this Court to oversee the correctness of the findings of the Affiliation Committee in respect of facilities etc., and even if this exercise could be undertaken, there is no material on record to come to a different finding.
12. An objection has also been taken on behalf of the University that refusal to grant affiliation can be challenged by way of appeal under section 39 of the Act to the Senate and this having not been done, this petition should be dismissed on this ground as well. Reliance is placed on Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109 and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore (PLD 1996 SC 246). In the latter judgment the Supreme Court has observed at page 249 as follows:--- "9. The High Courts are already huddled up with thousands of cases. If the litigant public is permitted to take all sorts of disputes to the High Courts without first availing of the other remedies available to them, under law, it will not only necessarily increase the work-load of the High Courts but would also defeat the provisions of law by which the said remedies have been made available.
Such a spree on the part of the litigant public would, if we may say so, amount to abuse of the Constitutional jurisdiction which is to be exercised by the High Courts in exceptional cases to provide justice which cannot be otherwise obtained by the aggrieved parties."
Learned Assistant Advocate-General has taken a similar objection that against impugned order, dated 13-5-1995, an appeal is competent under section 10 of the Ordinance to the Secretary Education, but this wholesome and adequate remedy has not been availed of. In reply no explanation has been rendered by the petitioner's learned counsel as to why the statutory remedy of appeal under section 39 of the University of Punjab Act and under section 10 of the Ordinance has been availed of. The dictum/observations of the Supreme Court are, therefore, clearly attracted and on this ground as well this petition is liable to be dismissed.
13. It may be noted that when the learned counsel for the petitioner had almost completed his arguments, Mr. Mahmood Khan, Chairman of the Society/College, filed an application seeking permission to engage another counsel. This permission was declined as it was noted that no justification for djournment was made as the learned counsel had substantially completed the arguments. Instead the aforesaid Mahmood Khan was given the opportunity to address the Court, which he did. He merely repeated what had already been stated by the learned counsel.
14. It is relevant to observe that while private sector has to and can play effective role in the field of education but it cannot be permitted to provide substandard education at a high cost to be borne by the students and their parents. The provisions of the Ordinance are quite wholesome but unfortunately have not been strictly applied by those upon whom the duty of the application of the provisions of the Ordinance has been cast. In this case, as in some other cases dealt by me, I have noted that institutions are allowed to run in breach or in relaxation of section 3 of the Ordinance.
Section 3 is worded in a negative form and it prohibits an institution from running unless it is registered in accordance with the provisions of the Ordinance and the rules. An institution is said to commence running when it admits the students, receives fees etc., from them and starts imparting education/instructions. This running cannot take place without prior registration. As has been noted, in this case the petitioner-College was allowed to operate without prior registration. No action such as envisaged under section 11 of the Ordinance has been initiated against the institution. At no stage the affected or prospective students have been warned by public proclamation or otherwise that the petitioner-College is not registered and, therefore, it cannot run and that the students should avoid the same. The result is that either by misrepresentation or by design, the students get admitted and later on face complications due to non-registration/non- affiliation of the institution. It is clear to this Court that if timely and vigilant action is taken by the respondents, complications such as presently arising can be avoided and the students spared the agony and the monetary loss. This Court can only hope that in future the relevant authorities would take timely and necessary action, as noted above.
15. For what has been stated above, it is held that the action of the respondent in denying registration as well as affiliation to the petitioner-College is well within the limits of law and the petitioner-College has failed to show that the same is, in any manner, without lawful authority.
Resultantly, this petition is dismissed with costs.
16. A copy of this judgment shall be sent to Secretary to the Government of Punjab, Education Department, Lahore, as well as the Vice-Chancellor of the respondent-University for action in accordance with observations made in para.14 of the judgment.
Petition dismissed.
1998 C C 649 [Lahore] Before Sayed Najam-ul-Hassan Kazmi, J MUHAMMAD SHAFI---Petitioner versus Mst. NAZIR BEGUM and another---Respondents Civil Revision No,296 of 1988, heard on 16th July, 1997.
(a) Civil Procedure Code (V of 1908)- ----0.IX, R.13---Setting aside of ex parte decree---Application of petitioner (not a party in ex parte proceedings) was dismissed by Trial Court on the ground that the same did not affect petitioner nor he could feel himself aggrieved therefrom---Even otherwise, application for setting aside ex parte decree appeared to be misdirected effort inasmuch as petitioner himself had taken up similar position as accepted in impugned decree---Petitioner in his own application for setting aside of decree had openly declared that power of attorney had never been executed by deceased lady in favour of defendant---Petitioner, thus, was left with no grievance to question validity of decree which did nothing except declaring that power of attorney claimed by defendant from deceased lady was illegal, ineffective and nullity in law-Suit culminating into ex parte decree had been filed for same purpose alleging that deceased lady had never executed any power of attorney in favour of defendant-Such suit having been decreed, petitioner taking same stand could not have any locus standi or reason to file application for setting aside ex parte decree--- Petitioner's application for setting aside ex parte decree was, therefore, absolutely mala fide, unwarranted, and untenable, and was, thus, rightly dismissed. [p. 652] A
(b) Civil Procedure Code (V of 1908)--- ----O.IX, R.13 & S.115---Application for setting aside ex parte decree---Petitioner who was not a party to suit had claimed that he being heir of deceased lady, his heritable right was affected by such decree--Petitioner's application for setting aside such decree had been dismissed and finding of Trial Court was maintained by Appellate Court---Validity---Contents of ex parte decree showed that such decree did not conclusively determine question relating to heirs of deceased lady and if such issue was raised in subsequent suit for division of property of deceased lady, same would be decided by Court on its own merits and decree in question, would nct debar claimants from proving their plea of being alleged heirs of deceased lady---No rights of petitioners were, thus, affected by decree in question---Application for setting aside same was not maintainable in circumstances. [p. 652] B Nemo for Petitioner.
Fazal-e-Miran Chauhan and Tariq Bilal for Respondents.
Date of hearing: 16th July, 1997.
' This order shall dispose of Civil Revision No,296 of 1988, directed against the order, dated 17-7- 1988, passed by the learned Additional District Judge, Rawalpindi, whereby the appeal of Muhammad Shafi petitioner was dismissed and order of learned trial Court, dated 30-7-1987 was affirmed.
2. A suit for declaration was filed by Mst. Nazir Begum respondent No,1 herein to the effect that the general power of attorney No,978, dated 7-10-1981, purporting to have been executed by late Mst.
Assi mother of Mst. Nazir Begum (plaintiff in the suit) was a forged document and as such ineffective as against the right of the successor of the Mst. Assi and same be ordered to be delivered up. As consequently relief a decree for injunction restraining Muhammad Ismail (defendant in the suit) from exercising any power on the basis of the said document was claimed.
The suit was decreed an ex parte on 7-12-1983.
3. Muhammad Shafi son of Abdullah, the petitioner herein (now represented as his heir) filed an application for setting aside the ex parte decree, dated 7-12-1983 wherein he claimed himself to be an heir of Mst. Assi. It was stated that no power of attorney was executed by Mst. Assi in favour of Muhammad Ismail but still the decree was challenged notwithstanding the fact that the decree was by itself to the effect that the power of attorney claimed by Muhammad Ismail was nullity in the eye of law. The application was filed on 10-4-1984. An application under section 5 of the Limitation Act was also filed by seeking condonation of delay. From filing of the contents under section 5 of Limitation Act, it appears that the main application was purportedly filed under Order IX, Rule 13 of C.P.C., though no section was mentioned in the title thereof. Reason being that if the application was under section 12(2), C.P.C., there would have been no need to apply under section 5 of the Limitation Act, as the decree having been passed on 7-12-1983, the application being filed on 10-4-1986 could not be said as barred by time.
4. The application of Muhammad Shafi was dismissed by learned Civil Judge vide order, dated 30- 7-1987. The appeal filed theiragainst was also dismissed by the learned Additional District Judge, Rawalpindi on 17-7-1988. In this revision petition, two orders of the learned Courts below have been assailed.
5. Learned counsel for the petitioner has not entered appearance instead a written request has been made, which was strongly opposed by the learned counsel for the respondent. Record reveals, that the respondent has been grumbling for the delay in the case and for early hearing of the case an application has been filed. From the order sheet, it is observed that the revision is pending since 1988. Vide order, dated 28-3-1996 passed in Civil Miscellaneous 492-C of 1996, seeking, vacation of the stay order, it was not directed that the civil revision shall be fixed for 23-4- 1996. On 26-5-1997, the case was adjourned, as the learned counsel for the petitioner sought time to prepare his brief as to whether the revision was maintainable. Order, dated 13-11-1996 also reveals, that the case was adjourned at the request of the learned counsel for petitioner, which adjournment was opposed but was allowed in the interest of justice. In order, dated 4-12-1996, it was observed that the case could not proceed as the learned counsel for petitioner was on general adjournment. It was directed that the matter being old one it should be fixed in the last week of February, 1997. Order, dated 6-5-1997 reveals that a request for adjournment was made on behalf of the learned counsel for the petitioner, as he was stated to be busy in the Session of National Assembly. Serious objection was taken by the learned counsel for respondent as the matter was pending for last about eight years. The learned counsel appearing on behalf of the counsel for the petitioner, undertook that if the matter would be fixed after 29-5-1997, no further adjournment would be sought again. In this view of the matter, last opportunity was given by the Court and case was ordered to be fixed for 23-6-1997. In order, dated 26-6-1997, it was observed that the hearing of the petition was not concluded on account of the fact that unnecessary adjournment were being sought. The office was therefore, directed to fix the case on date in third week of July, 1997, with the observation that the petitioner and his counsel both shall appear before the Court on that date to be fixed by the Office and to argue the case without further delay. In this background, I decline the adjournment and proceeded here with the case.
6. Arguments of the learned counsel for respondent has been heard. Record perused.
7. The petitioner. Muhammad Shafi, who is now represented by legal heirs, filed an application for setting aside the decree, dated 7-12-1983 on the ground that he was one of the heirs of Mst. Assi.
The two Courts below, dismissed the application. In the first instance, the learned trial Court found the application to be barred by time and did not see any justification for condonation of delay. It was also observed that the petitioner was not a necessary party and in his absence, a valid decree could be passed. The learned trial Court also noticed that an order, dated 14-12-1985 Exh. P/1 was passed by the learned Civil Judge in a suit titled "Muhammad Shafi v. Hussain Khan whereby the suit for declaration to the effect that he was son of late Mst. Assi was unconditionally withdrawn and accordingly dismissed by the Court. It was thus, observed that the petition was wholly misconceived and untanable. The learned Additional District Judge in appeal, after reappraisal of the whole controversy found that no decree having been passed against Muhammad Shafi, his application for setting aside of the decree was not competent. It is also observed that the petitioner did not have any right to challenge ex parte decree, unless he has established himself as heir of Mst. Assi (deceased).
8. After review of the order passed by the learned Courts below and the material on record, it is observed that no illegality has been committed by two learned Courts below nor their findings suffer from any jurisdictional error. The learned Courts below rightly observed that the decree under challenged did not affect the petitioner nor he could himself to be aggrieved therefrom. Even otherwise, the application appears to be a misdirected effort, inasmuch as, the petitioner himself takes up similar position as accepted in the decree. The petitioner Muhammad Shafi in his own application for setting aside of the decree, openly declared that Mst. Assi had never executed any power of attorney in favour of Muhammad Ismail. This being so, is he left with no grievance to question of validity of the decree, which did nothing accept declaring that the power of attorney claimed by Muhammad Ismail form Mst. Assi was illegal, ineffective and nullity in law. Mst. Nazir Begum filed the suit for the same purpose alleging that Mst. Assi had never executed any power of attorney favouring of Muhammad Ismail. This suit was decreed. Obviously, the petitioner taking same stand, could not have any locus standi or reason to file the application for setting aside of the decree. The application was, therefore, absolutely mala fide, unwarranted and untenable.
9. It appears that the petitioner was under erroneous impression as if the ex parte decree determined the legal heir of Mst. Assi. The review of that decree would show that only power of attorney was questioned on the ground of having not been executed by Mst. Assi and no further relief for distribution of property of the late Mst. Assi among the legal heir was either claimed or granted. Even during hearing of the revision of learned counsel for the respondent frankly conceeded that the decree under reference does not conclusively, determining the question relating to the heirs of late Mst. Assi and if such issue is raised in subsequent suit for division of the property of Mst. Assi among the legal heir, the issue will be decided by the Court in the said suit and own pits merits and the present decree will debar the decision of heirs interest on merits nor the petitioner will be debarred from proving his plea of being alleged son of Mst. Assi. In view of this, the apprehension in mind of the petitioner, if any, will be uncalled for.
' For the reason above, there is no merit in this civil revision, which is accordingly dismissed. No order as to cost.