AMIR ALAM KHAN, J.--This judgment shall be read in Writ Petitions Nos.25707, 29842, 29482, 25809, 20092 of 1997 and 1981, 15063 16602 of 1998 as a prelude to the decision of these writ petitions on merits for the question of jurisdiction of this Court in regard to Aitchison College, Lahore is being determined herein.
2. The relevant facts are that in the recent years various causes pertaining to Aitchison College were brought to this Court thereby challenging certain acts and omissions of the Principal, Aitchison College, Lahore done or suffered in the name of the said college. The aforesaid causes were entertained and determined by Single Benches of this Court wherein either the jurisdiction was not challenged with the result that jurisdiction was assumed by default and controversy was decided on merits or the question of jurisdiction was decided and the matter being further agitated, the Division `Bench of this Court had held that this Court had. The jurisdiction to entertain and decide the matter in dispute. One of the causes ultimately reached the apex COurt who remitted the matter to this Court with the following direction: "In the facts and circumstances of the case, we would appreciate if the High Court decides the jurisdiction in the next two or three weeks and, if it comes to the conclusion that it has jurisdiction under Article 199 of the Constitution, it may also decide the Miscellaneous Applications after hearing the view-point of both the parties including the College. The petitioners are free to file appropriate application before the Hon'ble Chief Justice of Lahore High Court requesting that all the cases/writ petitions raising identical questions, as are raised in the present case, be heard by the same Judge so that there are no conflicting judgments/orders which may create complications at a latter stage."
In pursuance of the order afore-noted as also the fact that a Division Bench of this Court had held in I.C.A. No,207 of 1996 that High Court had the jurisdiction to hear and determine the \causes in regard to Aitchison College, Lahore, the matter was placed before the Hon'ble Chief Justice to constitute a Larger Bench to hear and decide the question of jurisdiction as ato. Isaid. In the background afore-noted this Full Bench was constituted to hear and determine the question as to whether Aitchison College, Lahore is a person within the meaning of the word as defined in Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 and amenable to the Constitutional jurisdiction of this Court or not.
3. Mr. A. K. Dogar, Advocate having referred to the jurisdictional facts as contained in his particular writ petition argued that the Aitchison College was conceived and established for the Chiefs of the Punjab and started functioning for them alone. The legacy continued even after the partition of the sub-continent but with the establishment of two dominions and promulgation of First Martial Law in 1958, the change was sought to be brought about by the Martial 'Law Authorities, therefore, vide Martial Law Order N0.86, which was promulgated on 22nd May, 1961, the Governor of West Pakistan was vested with the power to order the dissolution of registered societies and the governing body of any non-Government educational or training institution--to place the institution or body under the Board of Governors, to be nominated by him and to do all acts considered fit and expedient for the efficient management and control thereby including the framing of rules, regulations and statutes and removal of the Chairman and the members at any time without assigning any reason. The Martial Law Order afore-noted did also contain the ouster clause whereby the jurisdiction of all Courts including the High Court and Supreme Court was ousted in regard to the said order. Mr. Dogar continued that in pursuance of Martial Law Order No,86 Notification No,SOX- 16/25-61 (EDU) was gazetted on 11th of November, 1961 whereby the Aitchison College Society as registered under the Societies Registration Act, 1860 was dissolved, consequently the statutes and its by-laws were rescinded and the management and control of the college was placed under the Board of Governors consisting of:
(i) Governor of W est Pakistan President
(ii) General Of ficer Commanding (JOC) Member (iii)Finance Secretary Member
(iv) Education Secretary Member
(v) Brig. Abbasi W ali-Ahad Bahadur of the former Bahawalpur State.Member (vi)Col. Abdur Rahim Khan Member (vii)Major Mubarak Ali Shah Member The Principal of the college was directed to act as Secretary of the said Board of Governors while the said Board of Governors was vested with the power to control, and manage the affairs of the said college including the framing of rules, regulations and statutes. The notification afore-noted was ThIlowed by another Notification No, SOX-16/25-61 (EDU) Volume II whereby invoking the powers as contained in earlier notification of 11th November, 1961, the statutes of Aitchison College were framed' and gazetted. Mr. Dogar referred initially to Part III to contend that the authority of Aitchison College rested with the Board of Governors consisting of the Governor of West Pakistan as President and such members as may be appointed by the Governor of West. Pakistan from time to time. He then referred to sub-clause (c) whereby it was provided that the Board of Governors has been vested with the matters such as to formulate the budget of the institution for the approval of the Government, to frame, subject to the approval of the Government, regulations for the conduct of business of the Board. A reference was made to the various parts and clauses of the statutes to indicate that the virtual control and the management of the college- was that of the Government.
It was submitted that this vesting of the control and management of the affairs of the college had taken place in pursuance of Martial Law Order No,86 and since the Martial Law Orders are held to be of the legislative nature, therefore, the Aitchison College is to be treated on the same footings as a statutory corporation. He relied on the following cases Muhammad Afzal v. The Commissioner, Lahore Division and the Estate Officer, Lahore Improvement Trust PLD 1963 SC 401, Gulab Din v.
Major A. T. Shaukat and others PLD 1961 (W.P.) Lahore 952, Allah Bakhsh v. District Magistrate, Jhang and 2 others PLD 1978 Lahore 765, Mujeeb-ur-Rehman Shami v. Principal, Aitchison College, .Lahore and 2 others 1994 CLC 342. He then referred to sub-Article (5) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to contend that bare reading thereof reveal that "person" includes any body politic or corporate, any authority under the control of Federal Government or of a Provincial Government or any Court or Tribunal other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to armed forces of Pakistan. Elaborating his argument, he submitted that various expressions and clauses are used in this sub-Article disjointedly meaning thereby that every expression used or clause incorporated in the said Article is independent and is to be interpreted as such. He specifically dilated on the word "under the control of the Federal Government or a Provincial Government". A reference was also made to the meaning and definition of the word "control" as contained in Black's Law Dictionary and it was submitted that if any authority, corporation or a body politic is shown to be funded by Government or the dominative control thereof is with the Government then there is no escape from the proposition that it is included in the definition of the person. Reliance was placed on The Deputy Managing Director, National Bank of Pakistan, Principal Office, Jinnah Avenue, Dacca and others v. Ataul Huq PLD 1965 SC 201 at page 206, The University of Dacca v. Zakir Ahmed PLD 1965 SC 90, Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd., Tokhat Bhai and 10 others PLD 1975 SC 244, Ajay Hasia v. Khalid Mujib AIR 1981 SC 487, Humayun Khan v. Messrs Ghee Corporation of Pakistan Ltd.
And 2 others PLD 1984 Lahore 35 at page 38, Muhammad Nazir Khan v. Dr. Mubashar Hasan and others PLD 1974 Lahore 49, Aftab Ahmad Warsi v. Punjab Road Transport Corporation 1991 PLC (C.S.)
484 and Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Limited and others 1988 CLC 1890. It was then submitted that the education is one of the affairs of the Province and the college is performing function in regard thereto, therefore for all intent and purposes it is a "person" within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973. The following judgments were generally referred on the subject. "The University of Dacca through its Vice-Chancellor and the Registrar, University of Dacca v. Zakir Ahmad PLD 1965 SC 90, Salahuddin and 2 others v. Frontier Sugar Mills and 10 others PLD 1975 SC 244, "Miss Misbah Masood v. Principal, Government College for Women 1997 MLD 2397, Riaz-ul-Haq v. Selection Committee Constituted for Admission to Bolan Medical College through Secretary, Principal, Bolan Medical College, Quetta and 6 others 1997 SCMR 1845, Abdul Sattar v. Government of Sindh through the Secretary, Karachi and another PLD 1978 Karachi 59".
4. Schedule I attached to Punjab Government Rules of Business, 1974 was specifically referred and it was submitted that Entry 8 relates to the. Education Department wherein Aitchison College, Lahore has been described under special institutions and as per Rule 2, sub-clause (2) it is one of the attached departments for it is described as such in sub-rule. Similarly, in sub-Rule (3) which deals with allocation of business, it has been ordained that the business of Government shall be distributed amongst several departments in the manner indicated in Schedule II. It was argued on the strength of the above said rules that State or Government is very much exercising the control over the college, therefore, it is the instrumentality of the State. He also referred to the allocation in the budget to argue that since the financial aid is being provided by the Punjab Government, therefore, the effective control is that of the State/Government, hence the college falls within the definition of person amenable to the jurisdiction of this Court. It was also argued that the expression "under the control" as used in Article 199(5) of the Constitution of Islamic Republic of Pakistan,1973 does not necessarily mean "financial control" and in this regard he fell back on his earlier argument that in Black's Law Dictionary the meaning of the word "control" has been given to mean to exercise restraining or directing influence over, to regulate; restrain; domitiate; curb; to hold from action; overpower; counteract; govern. It was submitted with reference to M/s. Huffaz Seamless Pipe Industries Ltd. Noted (supra) that it is enough that dominative control is that of the Government. He also referred to case of Majeeb-ur-Rehman Shami v. The Principal, Aitchison College, Lahore 1994 CLC 342 to contend that in a well-considered judgment this Court has held that Civil Court has the jurisdiction to entertain and determine a case in regard to Aitchison College, Lahore. It was, thus concluded that Aitchison College is a person within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973, hence amenable to the Constitutional jurisdiction of this Court.
5. Dr. A. Basit, Advocate besides adopting the argument of Mr.A.K. Dogar, vociferously argued that the grants are being received by the College from the Government and since the financial aid is being provided by the Government, therefore, the effective control is that of the Government. It was also argued that the Board of Governors is nothing but an extended hand of Government which controls and manages the administration of the college. He specifically referred to Part VII of the statute which deals with the conduct of meetings and argued that in statute No,4 (ibid) it is provided that the decision shall be taken by the majority Board members and the members are nothing but the persons nominated by the Governor. He further argued with reference to statute No,5 of Part IX to contend that any person serving or deputed to serve in connection with the affairs of the province in any capacity shall on such day as hereinafter referred to at the "said date" as may be informed in the case of each stands transferred for service under the Board and tile Board in respect of the aforesaid persons shall exercise all such administrative, disciplinary and finical powers as were exercisable by Government to any lower authority provided the Board shall not be competent to dismiss, remove from service or reduce in rank any such persons but may initiate any disciplinary proceedings against him and refer the case to the appointing authority for further action. It was, thus, argued that manifestly the total control is that of the Government and since the statutes of the said college were being framed under the Martial Law Order which are of legislative nature, therefore, there is no escape from the conclusion that the college is a person within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973.
6. In reply Mr. Ejaz Betalvi, Advocate narrated the factual background of the creation of Aitchison College and submitted that the said college was established by a society duly registered under the Societies Registration Act, 1860. He argued that the said society is still intact for the Act under which it was formed was not taken of the statute book by the Martial Law Order No,86 or any other Martial Law Order. The society was registered on 13-12-1886 and in its meeting held on 11-10-1886 the council of the college framed first statutes which were filed along with the memorandum of association with the Registrar of Societies. The present statutes were framed on 29-5-1961 under Martial Law Order No,86 whereby purportedly the action was taken for the dissolution of the society meaning thereby that for 75 years the Aitchison College existed in its own right and followed its statutes framed by the society. It was then argued that--Martial Law was proclaimed on 7-10-1958 with the result that the civil Government was taken over, therefore, certain measures were adopted to run the Government as also for the judiciary, resultantly the Laws (Continuance in Force) Order, 1958 was promulgated on 10th of October, 1958. Some institutions of great significance were physically taken over by the Martial Law Authorities such as Progressive Papers Limited, Punjab Club but nothing of the kind happened in regard to the Aitchison College. The argument was developed on the premises that the Martial Law. Administrator Zone-B, Lahore, issued Martial Law Order No,86 on .1.5-1961 thereby empowering the Governor of Punjab to dissolve the body. The Government of Punjab in Education Department issued circular on 11-11-1961 thereby dissolving the society itself. It was maintained that this change was not brought by the M.L.O. But by an executive order passed by the Secretary of Education. It was then argued that dissolution of Society has been provided in section 13 of the Societies Registration Act, 1860 and although the said Act was still on the statute book as per the intent of Laws (Continuance in Force) Order, 1958 yet the society was dissolved, under the umbrella of Martial Law Order No,86 which could not be so done. The argument was that the society continued to exist and only the nomenclature of the same was changed. This change too was stated to be only marginal as the Board of Governors was made instead of Council and Committee of Management. The change appears to be in the nomenclature wily while the membership remained the same. Reference was also made to Martial Law (Repeal) Order of .7th June, 1962 whereby protection was provided to the various acts done by Martial Law Authorities and it was ordained that act duly done by Martial Law Authorities would also be protected. It was argued that act duly done means and include "acts done in accordance with law" and since the society was not dissolved by following the provisions of section 13 of the Societies Registration Act, 1860, therefore, it was not an act duly done. The societies still continue in the field and as there is no dominative control nor any financial control nor any administrative control, therefore, college is not a person within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973. As far the three tests laid down in the case of Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. And others 1998 CLC 1890, it was submitted that there is no funding by the Government either directly or indirectly and the institution is being run entirely through its own resources. Reference was made to the budget for the year 1994-95. In regard to the plea of donations, it was submitted that it could not be taken to be financial assistance for it depends upon the discretion of a person who gives the donations. As far the substantial and dominative control, it was submitted that it was not the Government agency, Governor is just a member and the power to control and run the institution is vested with the Board of Governors. Decisions are taken by Board of Governors by majority of the members present in the Board. He referred to the case of Muhammad Farrukh Fayyaz v. Aitchison College, Lahore and another 1997 MLD 928. He also relied on the decision of adjudicating authority of E.O.B.I. In regard to Aitchison College and letter written to the Secretary in regard to cess on private educational institutions. Reference was also made to Sabhajit Tewary v. Union of India and others AIR 1975 SC 1329, Ajay Hasia v. Khalid Mujib AIR 1981 SC 487, Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd, Tokhat Bhai and 10 others PLD 1975 SC 244 at page 257 and Shamsher Khan & Co v.
Karachi Water and Sewerage Board and another 1988 CLC 1891 at page 1893.
7. The Government view-point was presented by the learned Advocate-General. He espoused the view of Mr. Ejaz Betalvi by maintaining that the preponderance of the judgments dealing with the Aitchison College are to the effect that Aitchison College is not a person as visualized under Article 199(5) of the Constitution of the Islamic Republic of Pakistan, 1973 and this is based on a well- accepted principle. Reference was made to oft-repeated case of Muhammad Farrukh Fayyaz v.
Aitchison College, Lahore and another 1997 MLD 928. Need it be mention here that the judgment of this case was challenged in I.C.A. And the decision was reversed thereby holding that Aitchison College is a person within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 though on merits the result went against Muhammad Farrukh Fayyaz. It was argued that the judgment in ICA in the case of Farrukh Fayyaz noted supra was rendered in limine, therefore, it may not be treated as precedent. Reliance was placed on the case of Muhammad Rafique Tarar v. Justice Mukhfar Ahmad Junejo, The Chief Election Commissioner of Pakistan and 6 others PLD 1998 Lahore 461. It was added that no funding was being made by the Government and that if at all some funding is made that does not mean that Government is exercising its control.
8. We have heard the learned counsel for the parties at length as is evident from the lengthy and elaborate arguments afore-referred. The position that emerges from the above-noted arguments is to the effect that the Aitchison College was conceived and established by a society registered under the Societies Registration Act, 1860, which society framed its statutes and continued to manage its affairs in accordance therewith for good 75 years. The members of the society contributed towards the funds which became the financial source of the same and the said source continued to be replenished by donations and the contributions which were made from time to time by philanthropists as also the members of the governing council of the society. However, with the promulgation of first martial law in this country in the year 1958, a need was felt to manage and regulate the affairs of certain educational institutions which were managed and run by the societies, therefore, Martial Law Order No,86 was promulgated whereby the Governor of the then West Pakistan was vested with the power to order the dissolution of the registered society and/or the governing body of any non-Governmental institutions or training institution or any cultural or learned registered body which in his opinion needs improvement; place the institution or a body under Board of Governors, to be nominated by him and to do. All other acts as considered fit including the framing of rules, regulations and statutes. It was also ordained that no Court including the High Court and the Supreme Court shall have power to call in question anything done in good faith or intended to be done under this Order. In pursuance of the above said Martial Law Order, a notification was issued which was gazetted on 11-11-1961 by the Secretary, Education Department whereby it was ordained that the society exercising control and managing the affairs of the Aitchison College is dissolved and the management thereof is vested with the Board of Governors which were also nominated vide said notification as follows:--
(i) Governor of West Pakistan, President
(ii) Commissioner, Bahawalpur Division Member
(iii) Brigade Commander of Bahawalpur IV ember.
(iv) Director of Public Instruction Member
(v) Syed Inayat Hussein Shah Member
(vi) Mr. Muhammad Nawaz Gardezi, Member
(vii) Sirdar Muhammad Ayub, Vice-Chairman, Municipal Member ' The above said notification was followed by another Notification dated 22-1-1962 whereby the statutes of the college were framed thereby establishing the authority of the Aitchison College and describing the power of the said authority with special reference to the power and duties of the President as also that of the Principal and the various sub-committees were also defined. Part VII of the statute dealt with the conduct of the meetings while Part VIII specifically mentions that the Principal of the college shall act as Secretary to the Board and Part IX of the said statutes comprehensively deals with the persons serving in connection with the affairs of the Province who have been sent on deputation to the college or were required to be sent to the Board/college in so far as their salary, pension and disciplinary action is concerned. It is not denied that the college is being run and managed under the Board of Governors appointed under the umbrella of Martial Law Order No,86. The Martial Law Orders were `sub protected by the Constitution of 1962 and were held to be of legislative nature. If any authority is needed, reference may be made to the cases of Muhammad Afzal v. The Commissioner, Lahore Division and the Estate Officer, Lahore Improvement Trust PLD 1963 SC 401, Gulab Din v. Major A.T. Shaukat and others PLD 1961 (W.P) Lahore 952, Allah Baldish v. District Magistrate, Jhang and 2 others PLD 1978 Lahore 765, noted supra. Since the statutes were framed in the exercise of the powers conferred by Martial Law Order No,86, therefore, the status of such statutes partakes the character of statutory instruments/statutory rules and are to be enforced in the like manner. It is, thus, obvious that the rule of master and servant cannot be attracted in the facts and circumstances of this case which even otherwise is legacy of past and is being disapproved in the modern theory of administration of justice. The promulgation of Martial Law Order No,86 was not a vain attempt for it was found by the Martial Law Authorities of the time that certain societies existing in the non-Governmental spheres are not managing its affairs efficiently and in accordance with law. It was, therefore, decided to take over such societies so as to bring them under the umbrella, of the Government so that the guarantees are extended to the employees of such an institution as also certain acts are protected like any other statutory body. It was this decision that the Aitchison College was also taken over by the Government thereby replacing the statutes framed by the society with that of the one promulgated by the Government.
The plea that the Martial Law C Government having also promulgated President Order (Post- Proclamation) No,1 of 1958 i.e Laws (Continuance in Force) Order, 1958 whereby the existing laws remained in force meaning thereby that the Societies Registration Act, 1860 having remained in field, the society managing the affairs of the Aitchison College could not have been dissolved without having recourse to section 13 of the Societies Registration Act, 1860 which provides for the dissolution of the societies registered under the Act is also not tenable for more than one reason: firstly it is admitted that as a matter of fact the college is being run under the statutes framed in pursuance of Martial Law Order No,86. Secondly, the change was brought about somewhere in the year 1962 when the present statutes were promulgated and they have been accepted by the college authorities without any demur. Needless to add that the college or the society has not come forward to challenge the same by way of any proceedings before a Court of law. Thirdly, it is highly doubtful that this decision could also be taken in defence to the petition filed against the college by various aggrieved persons. Fourthly, the position of Martial Law Orders being different than the ordinary law which shall have to be given effect because the society itself was dissolved and superseded in exceptional circumstances. Fifthly, it is provided by section 13 of the same Act that whenever any Government is a member of or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved without the consent of Government of the Province of registration. The provision afore-referred refer to three situations where the consent of the Government of the Province of registration is required: firstly where the Government is a member of the society; secondly where the Government is a contributor; thirdly when it is otherwise interested in any society. It would be seen that even if the first two situation's may be ignored (which may not be possible for the Government has always remained a member of the society as also the contributor), the third factor is very much existing in the present case for M.L.O. No,86 had clearly ordained that certain non-Governmental societies are not managing the affairs of the different colleges, therefore, the Governor of West Pakistan was vested with the power to supersede such societies so as to effectively managing the affairs thereof. The three situations as contemplated in this section are disjunctively mentioned, therefore, they are to be read independent of each other. It is, thus, obvious that the provisions of section 13 of the Societies Registration Act, 1860 were also complied with for the Government proceeded to dissolve the society simultaneously creating Board of Governors for the management of the college where after statutes of the same was also provided for. Needless to add here that the Martial Law Orders had an overriding effect.
9. The other plea of the learned counsel for the respondent that the Martial Law Government of 1958 did take certain steps whereby the institutions of some repute were physically taken over such as Progressive Papers Limited and Punjab Club but nothing of the kind happened in regard to Aitchison College may not be dilated upon any further for the very promulgation of the statutes where by the Board of Governors was set up who had taken over the control and management of the college is enough to conclude that the control was taken over by the Government. Confronted therewith, learned counsel for the respondent came up with the arguments that change was only marginal for previously it was the Council and presently it was the Board of Governors. If the two bodies are seen in this perspective, the one appears to be the replica of the other. This argument has also not impressed us for the reason that the society itself was dissolved and the old statutes were replaced with that of the present statutes. The change was brought about as a matter of fact with certain powers and control of the Government which were previously not vested in the Council nor were available as such under the old statutes. The authority of the college was vested in the Board of Governors which was headed by the Governor of West Pakistan as President and the members which were nominated and appointed by the Governor. Seen from whatever angle, it is established that the society/college is being managed and governed under the statutes framed in pursuance of Martial Law Order No,86 which are held to be of legislative nature, therefore, the guarantees as extended to the employees of every other corporation would also be applicable and extended to the employees, the students as also the employer vis-a-vis the college and the Principal hence the cause if any would be justiciable before this Court. Reference may be made to the case of Mubjeeb-ur-Rehman Shami v. Principal, Aitchison College, Lahore 1994 CLC 342 wherein the question of jurisdiction of the Civil Court was decided in a different scenario and on different set of acts but the underlying them being that the acts and omission on the part of the Principal or any other authority of the college done and suffered in the name of college can be the subject-matter of judicial scrutiny.
10. The other point argued with vehemence by the counsel for the parties as also the learned Advocate-General appearing on behalf of the Government is to the effect that Aitchison College is not a. Person as visualized in sub-Article (5) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The meaning and definition of the word "person" as used in the said Article is not exhaustive but inclusive for it is ordained therein; "person" includes anybody politic or corporate, any authority on or under the control of Federal Government, or of a Provincial Government----.
Learned counsel for the petitioner very strongly relied on the word "under the control" to contend that the word "control" has been defined in the Black's Law Dictionary as follows: "to exercise restraining or directing influence over, to regulate; restrain; dominate; curb; to hold from action; overpower; contract; govern."
It was further argued that the word "control" does not necessarily mean "financial control" for in the meaning of the word as given in the Black's Law Dictionary financial control is not mentioned. He developed his argument and very rightly, by urging that a cursory glance at the statutes would show that the control of the erstwhile society has been taken away with the replacement of their Council with that of Board of Governors, who has come to exercise the total control. He referred to the authority of the Aitchison College which has been described in para.III of these statutes:-- III-Authority of the Aitchison College
(1) The management and control of the College shall vest in a Board of Governors consisting of the Governor of West Pakistan as President and such Members as may be appointed by the Governor of West Pakistan from time to time, but for a period not exceeding three years at one time. The relevant appointments made under the Governor of West Pakistan's Order No, S.O.X.-16/25-61 (Edu), dated 11th November, 1961 shall be subject to the other provisions of these statutes, the Board shall have full powers to administer and manage the institution and in particular in respect of the following matters:--
(a) to acquire and dispose of property and generally to enter into contracts, in conformity with the purposes of these statutes;
(b) determination of the terms and conditions of service of the Principal and other members of the staff of the institution and of other officers and servants of the Board;
(c) to formulate the budget of the institution for the approval of Government;
(d) to set up an Executive Committee, Sub-Committee and other Standing Committees as may be required for carrying out the purposes of these statutes;
(e) to delegate powers to the President, the Executive Committee, Sub-Committee, Standing Committee, the Principal, the staff of the institution and other officers and servants of the Board; and
(f) to frame, subject to the approval of Government, regulations for the conduct of business of the Board. A bare reading of the statutes would reveal that in Part III of the said statutes, a power has been given to the authority of the Aitchison College as follows:- To formulate the budget of the institution for the approval of the Government. It further says in clause (0 ibid:-- "To frame subject to the approval of the Government regulations for the conduct of business of the Board." In clause (iv) of statute No,4, it is ordained that the President shall have the authority to approve extra-budgetary capital expenditure up to Rs,3,000 under the head miscellaneous. Dr. A. Basit, Advocate also referred to Part IX of the said statutes which are extensive and deal with the person dealing with the affairs of the Province which was sent on deputation to the Board. The said clause needs to be incorporated herein for its proper appraisal which is as follow:-- IX.--(i) Any person serving or deputed to serve in connection with the affairs of the Province in any capacity shall on such day hereinafter referred to as the "said day" as may be notified in the case of each stand transferred for service under the Board.
(ii) The aforesaid person shall on and from the said day, be entitled to receive their pay and allowances from the Board and such pay and allowances shall not be less than what they were entitled to receive immediately before the said day.
(iii) If any such person is on probation on the said day, he shall be eligible for confirmation on the expiry of the probationary period fixed in his case; provided that the Board is satisfied that his work and conduct during the period of probation under the Board has been satisfactory. If the work and conduct of such person has not been satisfactory, the Board shall have the discretion to extend the period of probation up to the permissible limit or to revert him to the lower post or, in the case of a person who has been recruited direct, to discharge him, the provisions of clause (v) below shall apply to his case.
(iv) The aforesaid persons shall be governed by such rules the Board may make: Provided that such rules shall not be less favourable than the rules by which they were governed immediately before the said day: Provided further that until such rules are made by the Board, the aforesaid persons shall continue to be governed, so far as may be by the rules applicable to them immediately before the said day.
(v) The Board, in respect of the aforesaid persons, shall exercise all such administrative, disciplinary and financial powers as were exercisable by Government or any lower authority: Provided that the Board shall not be competent to dismiss, remove from service or reduce in rank any such person, but may initiate any disciplinary proceedings against him and refer the case to the appointing authority for further action.
(vi) Salary for leave in respect of the aforesaid persons earned before the said day shall be debitable to Government and the salary for leave earned after the said day shall be paid by the Board.
(vii) If any person, as aforesaid, is entitled to pension, his pension shall be sanctioned by Government and the Board shall pay to Government such contribution towards the pension as may in each case be determined by Government.
(viii) The entire Provident Fund Accounts of the aforesaid persons shall be closed with Government and the accumulations transferred to the Board."
It is, thus, obvious from the reading of the various clauses of the statutes that the Government has an effective control over the affairs of the college. This control is not a marginal or illusory but deep and pervasive. It was held in M/s. Huffai Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Limited and others 1998 CLC 1890 as follows:-- "It is, thus, clear that the companies/corporations registered under the Companies Ordinance, 1984 which are funded by the Federal or Provincial Government and which are under dominative control of State (Federal Government, Provincial Government) and which provides amenities of life to citizens are in substance instrumentalities/agencies of the State which discharge the function, which fall within the area of police power of State. Action/orders or such institutions are administrative actions and are subject to judicial review of this Court." In the above said judgment, Mian Allah Nawaz, J., as he then was, who spoke for the Court reviewed the total case-law on the subject and reached the conclusion afore-noted. At another place, it has been observed as follows:-- "With the march of time, the activities of State had multiplied manifolds. Today, the Government is the regulator and dispenser of special services, large number of benefits including jobs, contracts, licences, quotas, mineral rights, leases of State land and utility services to its citizens. The Government has assumed the role of even enterpreneur. Normally, the State does not involve itself 'entrepreneurial activities through its bureaucracy, but enters these fields with the help of corporations/instrumentalities, which might be created under some 'statutes or might be registered under the Companies Ordinance, 1984. This increases the largess of State and enhances the magnitude of range of Governmental functions. Should these activities/functions of such instrumentalities be immune from principles of check and balance embedied in the constitution?"
The answer to the said question has been found in negative by reviewing various judgments of our own country as well as that of the other countries and it has been held that since the corporation remained under the dominative control of the Government, therefore, amenable to the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel for the respondent tried in vain to rely on Sabhajit Tewary v. Union of India and others AIR 1975 SC 1329. Unlike our own country wherein the word "person" has been used in sub-Article (5) of Article 199, the word "authority" has been used in Article 12 of the Constitution of India. The word "authority" as used in Article 12 of the Constitution of India is also not exhaustive but inclusive. The judgment afore-referred has not been followed in their own country and it can be so said that by the rule laid down in the subsequent judgment, the judgment afore- referred is impliedly overruled. In a case of Ajay Hasia v. Khalid Mujib AIR 1981 SC 487. Mr. Bhagwati, J. Observed as follows:-- "It is immaterial for determining whether a Corporation is an authority whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The Corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act or it may be, a society registered under the Societies Registration Act or any other similar statute. Whatever be its genetically origin, it would be an 'authority' within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessm ent of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Article
12. A juristic entity which may be 'State' of the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. (Case-law discussed.) In the instant case, the Regional Engineering College, Srinagar is one of the 15 Engineering Colleges in the country sponsored by the Government of India. The college is established and its administration and management are carried on by a society registered under the Jammu and Kashmir Registration of Societies Act, 1898. Having regard to the memorandum of association and the rules of the society, it was held that the society is an instrumentality of the agency of the State and the Central Governments and it is an 'authority' within the meaning of Article 12. The composition of the society is dominated by the representatives appointed by the Central Government and the Governments of Jammu and Kashmir, Punjab, Rajisthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu and Kashmir and even if another monies are to be received by the society, it can be, done only with the approval of the State and the Central Government. The rules to be made by the society are also required to have the prior approval of the State and the Central Governments and the accounts of the society have also to be submitted to both the Governments, for their scrutiny and satisfaction.. The society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the reviewing committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the society can be disposed of in any manner without the approval of both the Governments. The State and the Central Government have even the power to appoint any other person or persons to be members of the society and any member of the society other than a member representing the State or Central Government can be removed from the membership of the society by the State Government with the approval of the Central Government.
The Board of Governors which is in charge of general superintendence, directions and control of the affairs of society and . Of its income and property is also largely controlled by nominees of the State and the Central Governments. Thus, the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the society."
It is, thus, obvious from the rule of law laid down in the said judgment that while determining as to whether certain college or authority is under the administrative/dominative control of the Government, its birth and the original established may not be relevant for it is not the determining factor to conclude that it is not under the dominative control of the Government. On the contrary, the present statues of the society managing the affairs is to be looked at to conclude whether the State-Government is exercising control. Again the factor such as the composition of the society (the composition of the Board of Directors in the instant case) is to be seen as to whether it is dominated by the representative appointed by the Central Government or the Provincial Government or to see as to whether the dominative control is that of State Government. As pointed out earlier in the instant case the budget of the college is to be sent to the Government for its approval and then all questions at a meeting of the Board are to be decided by majority of votes of members present and voting. The Board of Governors is nothing but an extended hand of Government, it is headed by the Governor of the Province, therefore, it cannot be successfully argued that the State control is only marginal. Learned counsel for the respondent has also relied on the case of Muhammad Farrukh Fayyaz v. Aitchison College, Lahore and another 1997 MLD 298 a judgment rendered by a Single Bench of this Court. The said judgment was, however, set aside by a Division Bench of this Court in I.C.A. No,207 of 1996. Confronted therewith, learned counsel for the respondent submitted that the judgment in the I.C.A. Cannot be treated as binding precedent for the main case itself has been dismissed in limine. Reliance in this regard was made to the case of Muhammad Rafique Tarar v. Justice Mukhtar Ahmad Junejo, the Chief Erection Commissioner of Pakistan and 6 others PLD 1998 Lahore 461. The argument was made in complete oblivion of the facts as also the law applicable thereto. While it is true that the matter having been decided in limine cannot be considered to be binding precedent, it is equally true that the very judgment rendered in the case reported as Muhan-imd Farrukh Fayyaz v. Aitchison College, Lahore and another 1997 MLD 298 was appealed against and was set aside on the question of jurisdiction of this Court. Additionally, with all respect to the learned Judge in Chamber, we do not tend to subscribe to the view taken in the said judgment for the various aspects as noted in our judgment has not been taken into consideration by the learned Judge in Chamber. Learned counsel for the respondent also went to the extent of relying a judgment dated 20-4-1995 of Adjudicating Authority of E.O.B.I., wherein, the college was directed to contribute towards the Employees Old-Age Benefit. Strangely enough the stand point of the college as incorporated in the said judgment was to the effect that they are statutory body hence not liable to pay the contribution. The reliance of learned counsel for the respondent on the said judgment is also not of much use in deciding the question involved in the case. The case of Salahuddin and 2 others v. Frontier Sugar Mills and 10 others PLD 1975 SC 244 has been discussed at length in the case of M/s. Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. And others 1998 CLC 1890 to reach the conclusion that where the dominative control is that of the Government, the corporation or the authority shall be deemed to be an instrumentality of the State hence amenable to the jurisdiction of this Court, therefore, the said judgment need not be dilated upon. As far the case of Shamsher Khan & Co. v.
Karachi Water and Sewarage Board and another 1988 CLC 1891 is concerned, suffice it to say that in the said case the Central Public Works Department Code was not shown to be having any statutory force and as such Karachi Water and Sewerage Board was held to be corporate body and not a Government Department The rule laid down in the above said case has no applicability in the facts and circumstances of the present case for, it is established on record that the Government control over the college is not only deep but also pervasive. The other judgments relied by the learned counsel for the petitioner generally in regard to the educational institutions are not relevant, therefore, we have refrained from burdening this judgment with the ratio and the rule of law laid therein.
11, We had also asked the learned counsel for Aitchison College to produce on record as to how much donations have been received by the college from the Government, whereupon certain loose papers were presented in Court but on being asked about an entry in the said papers which reads as "central support", the learned counsel did promise to give us the split up- of the same but it, was not produced till such time that the judgment was reserved. It has not been produced even thereafter, therefore, I would not comment upon the said aspect of the matter but it goes without saying that the education is one of the important affairs of the Provincial Government and there is always a budgetary allocation for the same. The Item No,8 in Schedule I of the Punjab Government Rules of Business, 1974, relates to Education Department with a special reference to special institution such as Aitchison College, Lahore and Sadiq Public School, Bahawalpur.
The said institution is no doubt mentioned in the head of autonomous bodies but it is common knowledge that even the autonomous bodies do get financial aid from the Government which even otherwise is the obligation of the Government. The Aitchison College is the most prestigious educational institutions of the country having huge property of its own and large establishment which is being governed by the Board of Governors and the dominative control of the said Board is that of the Provincial Government, therefore, it falls within the definition of the word "person" as defined in sub-Article (5) of. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, thus, it is amenable to the Constitutional jurisdiction of this Court.
12. The reference sent to this Court is answered accordingly. Before parting with this judgment I may also thank the learned counsel for the parties who assisted us brilliantly well in this case.