IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Instant appeals arise out of order dated 18th July, 2000 whereby leave was granted to examine, inter alia, the question "Whether Aitchison College enjoys the status of a 'person' within the contemplation of sub-Article (5) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973" (hereinafter referred to as 'the Constitution')
2. There is no necessity to note facts of each appeal in detail except briefly stating that respondents invoked the Constitutional jurisdiction of Lahore High Court, Lahore under Article 199, of the Constitution for redressal of their grievances against the Principal, Aitchison College, Lahore who objected the maintainability of the Writ Petitions on averment that the College is not a person within the meaning of sub-Article (5) of Article 199 of the Constitution nor it falls under the dominating control of the Provincial Government functionaries, therefore, its actions are not amenable to Constitutional jurisdiction of High Court. A Bench of learned High Court gave its decision as follows:- "The Aitchison College, the most prestigious educational institution 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 word person, as defined in sub-Article (5) of Article 199 of the Constitution, thus it is amenable to the Constitutional jurisdiction of this Court."
3. It is significant to note that prior to the partition of Pakistan and India, a Society was established under the Societies Registration Act, to run Aitchison College and it continued discharging its functions up to 1961, when Martial Law Administrator, Zone-B, issued MLO No,86, dated 22nd May, 1961 in pursuance whereof the Governor of West Pakistan was empowered to dissolve the registered societiesoetc. For sake of convenience, text of the MLO is reproduced hereinbelow: "Whereas it is expedient to improve the administration of private educational and training institution and other cultural or learned registered bodies in Zone B and to ensure their efficient management and control, in the best interest of the nation; Now, therefore, I, Lt.-General Bakhtiar Rana, SQA, MC, Martial Law Administrator, Zone B do hereby empower the Governor of West Pakistan to order the dissolution of the registered society and/or the governing body of any non-Government Educational or training institution or any cultural or learned registered body, which in his opinion needs improvement; to place the institution or body under a Board of Governors to be nominated by him and to do all acts considered fit and expedient by him for the efficient management and control thereof including the framing of rules, regulations and Statutes and removal of the Chairman and the Members at any Time without assigning any reason. No provision of this order shall be called to question in any Court including the High Court and the Supreme Court. No suit or legal proceedings shall lie against any person or authority for anything which is in good faith done or intended to be done in pursuance of this order."
Subsequently, under above MLO, a Notification No,S0X-16/25-61 (Edu) dated 11th November, 1961 was issued by the Government of West Pakistan, Education Department, Civil Secretariat, under the order of the Governor of West Pakistan. A perusal whereof indicates that in the opinion of the governor of West Pakistan, the Administration of the Aitchison College needed improvement, therefore, to achieve the object, the Aitchison College Society alongwith its Governing Bodies namely the Council and the Committee of Management were dissolved and the control of the College was placed under the control of Board of Governors. Composition of the Board of Governors was also noted in the order, according to which Governor of West Pakistan was designated to be its President alongwith six Members including General Officer Commanding (GOC), Lahore. Finance Secretary, Education Secretary, etc. And Principal of the Aitchison College was directed to act as Secretary to the said Board of Governors. It is important to note that as per clause (5) of the order, the Board of Governors was authorized to do all acts considered fit and expedient by them for the efficient management and control of the said college including the framing of rules and regulation and statutes. Admittedly, this order was not challenged according to law either by the Principal of the College Society (appellant) or anyone else having interest in the affairs of the College Society, in any manner. Therefore, by another Notification No,SOX-16/25-61
(Edu) Vol, dated 22nd January, 1962, the Government of West Pakistan, Education Department issued the statutes of Aitchison College, Lahore promulgated by the Governor of West Pakistan.
These statutes defined the authority of the Aitchison College, which is reproduced hereinbelow:-- 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,SOX-16/25-61 (Edu), dated 11th November, 1961 shall be deemed to have been made under this provision. 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. As far as the powers and duties of the President and the Principal are concerned, those were also defined as follows:-- IV--Powers and duties of the President:
(1) The President shall preside over the meetings of the Board, in the absence of the President, the Member present who is next in order of warrant of precedence shall preside.
(2) The President shall exercise the powers of the Board of Governors in the event of an emergency.
(3) The President shall act as Appellate Authority on any disciplinary action taken by Principal against Members of the staff.
(4) The President shall have authority to approve extra-budgetary capital expenditure up to Rs,3,000 under the head Miscellaneous".
V--Powers and duties of the Principal:
(1) The Principal shall be personally and directly responsible to the Board for the complete control, proper running and administration of the College.
(2) The Principal shall be responsible for framing the annual budget and shall - submit it to the Board for consideration before -the commencement of the financial year.
(3) The Principal shall have authority to sanction all expenditure as provided in the sanctioned budget.
(4) The Principal shall operate the accounts of the Board and the College.
(5) The Principal shall recommend to the Board all confirmations and promotions of the teaching and senior administrative staff.
(6) The Principal shall take such disciplinary action not extending to removal or dismissal as he may deem necessary against any Member of the teaching and senior administrative staff.
(7) The Principal shall have the power to appoint, suspend or dismiss any Member of the Class III or IV Staff.
(8) The Principal shall have the authority to approve extra-budgetary capital expenditure up to Rs,500 under the head "Miscellaneous".
4. It is equally important to note that later on vide Notification No,CAB-!/2-4/82, dated 29th November, 1994, Punjab Government Rules of Business, 1974 were amended in pursuance whereof the Institution of Aitchison College, Lahore was reflected to be one of the special Institutions, therefore, Education Department, Government of Punjab made the Aitchison College, Lahore to be one of its attached department but with the status of special Institution. Similarly, few other renowned Institutions of the Province of Punjab like Lahore College for Women, Lahore, Government (Central Model School, Lower Mall, Lahore, Government College Dhobighat, Faisalabad and Punjab Education Foundation, Lahore were also shown to be autonomous bodies attached with the Education Department. Interestingly, such act of the Government was also not called in question by any interested person by instituting proceeding before the Court of law. However, it so happened that the respondents in instant appeals and good many other aggrieved parties instituted Constitutional petitions against the Aitchison College, Lahore before the Lahore High Court, Lahore by invoking its jurisdiction under Article 199 of the Constitution. The petitions were opposed by appellant i,e, Principal, Aitchison College on strength of arguments that it does not fall within the definition of a person under Article 199 of the Constitution. The learned Division Bench seized with the matter overruled such objection holding that the High Court had jurisdiction to entertain and decide the matter in dispute. Against this order, one of the respondents approached this Court for redressal of his grievance but the case was remanded to the High Court by issuing following direction:-- 5."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." On remand of the case, a larger Bench was constituted and by means of impugned order dated 12-5-2000 appellant Aitchison College, Lahore has been declared to be a person under Article 199
(5) of the Constitution, therefore, aggrieved persons could invoke the Constitutional jurisdiction of High Court for redressal of their grievance. Resultantly, respective Division Benches before whom the matters were pending were directed to dispose them of on merits.
5. Khawaja Tariq Rahim, learned counsel for the appellant contended that action pf dissolving of registered Society taken by the Government of West Pakistan vide order dated 11th November, 1961 in pursuance of power conferred upon it under MLO No,86 Zone-B, 1986/61 was contrary to the provision of section 13 of the Registration of Societies Act, 1860. Therefore, it should be deemed that the Aitchison College Society, Lahore even now is the only competent body to deal with the Administration of the Aitchison College. As such a Society registered under the Registration of the Societies Act for the purposes of sub-Article (5) of Article 199 of the Constitution cannot be considered to be a person nor its action can be reviewed by the High Court in exercise of its Constitutional jurisdiction. Because such Society never works under the control of the Federal or Provincial Government nor its functions are connected with the affairs of Federation of Pakistan or the Province.
6. Mr. A.K. Dogar, learned Advocate Supreme Court for the private respondents meeting with the arguments of appellant's counsel urged that the then Governor of West Pakistan in exercise of powers conferred upon him under MLO Zone-B dissolved the Aitchison College Society, Lahore and such action on behalf of Government was evidently accepted by the Members of the Societies.
Inasmuch as after having taken over the affairs of Aitchison College, the Board of Governors was constituted which was headed by the Governor of the West Pakistan alongwith senior officials of defence and the Civil Secretariat. In addition to it, the Governor was authorised to nominate the Members of Board of Governors, who after every three years as per statutes of the Aitchison College had been appointing new Members and up-till now they are discharging their functions under the presidentship of the Governor of the Province of Punjab. Therefore, this fact abundantly makes it clear that dissolution of Societies has taken place effectively and the affairs of the Society are being run by the Board of Governors for improvement of the Institutions and such action cannot be reversed after the lapse of a period of about 40 years.
7. Learned counsel for the appellant raised above contention before High Court, which was repelled. Relevant observations therefrom are reproduced hereinbelow:-- "The plea that the Martial Law 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 situations may be ignored (which may not be possible for the Government has always remained a Member of the Society as also the contributor), the their factor is very much existing in the present case for MLO No,86 had clearly ordained that certain' nongovernmental 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 whereafter statutes of the same was also provided for. Needless to add here that the Martial Law Order had an overriding effect.
8. Learned counsel for the appellant in support of his above contention has relied upon the case of Farzand Ali v. Province of West Pakistan PLD 1970 SC 98. A perusal whereof peruades us to follow the principle laid down therein. Relevant para. Therefrom is reproduced hereinbelow:-- "Be that as it may, since this is not a direct challenge to the right of such persons to be Members of the Assembly but only a collateral attack upon their right to participate in the proceedings of the House in respect of the impugned Constitutional Amendments themselves, I do not consider it necessary to deal with this question any further as I have held that even assuming that they were disqualified they participated, in the proceedings bona fide in assertion of a claim of right and, as such, the legislative measures passed by the Assembly with their participation were protected by sub-clause (d) of clause (1) of Article 110 of the 1962-Constitution."
Applying the above test on the facts of the instant cases, one can conveniently observe that even if for sake of arguments it is presumed that dissolution of the Aichison College Society, Lahore was unwarranted under MLO No,86, Zone-B, because a registered society can only be dissolved under section 13 of the Registration of Societies Act, 1860 but even then argument so raised cannot prevail because under Article 250 of the Constitution of 1962, all such actions of the Martial Law Authority including promulgation of Martial Law Order were protected, therefore, it would be deemed that by providing the Constitutional protection, action of dissolving Aitchison College Society, Lahore stands validated.
9. Mr. A.K. Gogar, learned Advocate Supreme Court referred to the case of Muhammad Afzal v.
Governor, Lahore Division PLD 1963 SC 401 as well as Aziz-ur-Rehman Chaudhry v. M. Naseer-ud-Din and others PLD 1965 SC 236. Relevant para. From the case of Aziz-ur-Rehman (ibid) is reproduced hereinbelow:-- "It has next to be considered whether, even though the validity of the said orders and acts cannot be challenged, the action purported to be taken thereunder can be questioned, on the ground that they were not in accordance with the Martial Law Order. If these were completed acts and the protection given by Martial Law Regulations Nos.88 and 93 was available for such acts, then the language of clause 2 of Martial Law Regulation No,88 as amended by Martial Law Regulation No,93, renders them immune from attack. The latter Regulation has expressly widened the immunity so as to include any 'order made or anything done whether the order of the thing is within the scope of the Regulation or Order or not, or whether the Authority making the order or doing a thing had jurisdiction in the matter or not'. Furthermore, under this even persons authorised by or under a Martial Law Regulation or Order to perform any function or exercise any power would be Martial Law Authorities within the meaning of the said Regulations. Thus the Provincial Goverment and the Administrator would have also become Martial Law Authorities pro tanto for the purposes of the said Martial Law Order No,104 and their acts would not have been open to question whilst those Regulations Nos. 88 and 93 were in force. If those acts were consummated acts, then on the principle of past and closed transactions those acts will still enjoy the same immunity given to them by those Regulations by reason of the provisions of Article 250 of the Constitution."
10. Thus, following the above observation, we are of the opinion that there is no further scope of discussion in this behalf and it is held that action of dissolving the Aitchison College Society, Lahore by the Governor vide Order NSOX-16/25 (Edu) dated 11th November, 1961 in exercise of power derived by him under MLO-86, Zone-B being a past and closed transaction could not be re-opened through a collateral proceedings. In continuation of these observations it may further be noted, that appellant independently never challenged order dated 11th November, 1961 passed by Governor of Punjab dissolving the Aitchison College Society. Therefore conclusion would be that the Society was rightly dissolved by the Governor on 11th November, 1961 and due to such order it has now become part of Education Department as a special institute. Therefore the Principal of the College who also acts as Secretary of the Board of Governors of Aitchison College, Lahore is not empowered strictly speaking without the consent of Board of Governors to question the dissolution of the Society and if he has acted independently in this behalf, his such action shall be contrary to the stand of the Board of Governors. Howedver, we leave this question for examination by the Board of Governors that if instant legal proceedings have been launched by the Principal, Aitchison College challenging the very existence of the Board of Governors then what should be its consequence.
11. Learned counsel for the appellant next contended that the Institution of Aitchison College does not fall within the definition of a person under sub-Article (5) of Article 199 of the Constitution. In support of his arguments, reliance was placed by him on PLD 1975 SC 244, 2000 SCMR 928, PLD 1969 Dacca 352, 1997 MLD 2261, AIR 1975 SC 1329. Therefore, any action by the Management of Aitchison College cannot be subjected to judicial review by the High Court in its extraordinary Constitutional jurisdiction.
12. Learned counsel for respondents argued that Institution of Aitchison College does fall within the jurisdiction of a person for the purpose of Article 199 of the Constitution. As in pursuance of MLO No,86, its management was taken over by the Board of Governors headed by the Governor of the Punjab who is also Constitutional Head of the Province and amongst others Secretaries of Finance and Education Departments, Government of Punjab as well as General Officer Commanding, Lahore Cann. Are Members of the Board of Governors in their official capacity and they are appointed Members of Board of Governors under Statutes of Aitchison College framed by him in exercise of the powers conferred upon him under MLO No,86 (Zone-B). In addition to it, the Provincial Government in exercise of the powers conferred upon it under Article 139 of the Constitution had amended the Punjab Government Rules of Business as back as in 1994 and to provide Constitutional protection to the Institution it has been brought within the folds of Education Department of the Province as a special Institution. Therefore, according to him viewed from any angle, the status of the College would be of a person for the purpose of Article 199(5) of the Constitution. He referred to the judgments reported in PLD 1965 SC 201, PLD 1965 SC 90, PLD 1975 SC 244, PLD 1974 Lahore 49, PLD 1984 Lahore 35, 1991 PLC (C.S.) 484, AIR 1981 SC 487, in support of his contention.
13. We have already held hereinabove that the dissolution of the Society was accepted by its Members and all other concerned persons who had interest in its affairs inasmuch as, when the Governor in exercise of powers conferred upon him under MLO No,86 (Zone-B) issued on 11th November, 1961, dissolved the Aitchison College Society, its Governing Bodies i,e, a Council and Committee of the Management and rescinded its Statutes and by-laws and placed the management and control of the College under the Board of Governors, no action was taken by questioning it before the judicial forums, therefore, now no exception can be taken against its such acts which have taken place in continuation of dissolution of Society. In addition to it, the Government of West Pakistan Education Department issued the Statutes of the Aitchison College, Lahore promulgated by the Governor of West Pakistan, which have provided device to have dominating control over the sovereign status of the Institution to deal with its affairs by formulating the budget of the Institution for the approval of the Government. Most important aspect of the case is that after the dissolution of the Aitchison College Society, this Institution in 1994 was treated as a special Institution of the Province of the Punjab and to provide it a Constitutional protection, the Governor of the Punjab in exercise of his powers under Article 139 of the Constitution amended the Punjab Government Rules of Business. According to amendment in the Schedule of the Rules of Business, the Aitchison College has been brought under Administrative Control of the Education Department of the Province.
14. We have also attended above proposition from another angel that Society of Aitchison College had lost its status due to Notification dated llth November, 1961 issued by the Government of West Pakistan, Education Department, Civil Secretariat issued in the name of the Governor of the Province, in pursuance of MLO No,86 (Zone-B). The MLO No,86 (Zone-B) had bestowed two types of powers upon the Government namely to dissolve the registered body and also to place the Institution under control of the Board of Governors to be nominated by him and to do all acts considered fit and expedient by him for the management and control thereof (emphasis provided) including the framing of rules and regulation and Statutes etc. There is no dispute that after the issuance of the Notification, the Management of the College came under the control of Board of Governors comprises of at least three designated senior officers from the civil administration i,e, Secretary Education and Finance and an Officer from Defence Force of Pakistan i,e, General Officer Commanding alongwith other renowned personalities including old students etc. But perusal of Rules would indicate that they had control over the College for efficient Management. Amongst the Members of Body of Governors, its official Members enjoy these powers more effectively being representatives of the Provincial Government and the Defence.
' It may not be out of context to remind here that both the Secretaries of Provincial Government are administrative heads of their respective departments, according to the Provincial Rules of Business.
In their such capacity, both of them deal with matters pertaining to education and finance of the Province respectively. As per Schedule-1, Rules 2(ii), 2(xii) and 3(i) of the Rules of Business, the Education Department consist of number of attached departments including Director Public Instructions (Colleges), Punjab. By means of valid law i,e, MLO No,86 (Zone-B), the Aitchison College virtually has been brought under the control of Provincial Government for the reasons assigned hereinbefore as well as for an most important reason i,e, the President of the Board of Governors himself is a Constitutional Head of the Province, being the Governor, whose powers and functions have been defined under the Constitution of 1973, therefore, whenever a body consisting of a Governor and the Secretary of the Province as well as the General Officer Commanding of the Defence acts under the valid law i,e, MLO No,86 and exercises their jurisdiction in pursuance of the provisions of such law, it would be deemed that they have the statutory control over the body being headed by them. Therefore, such body would be deemed to be working for the affairs of the Province. This aspect of the case can be examined from another angle namely that if the Board of Governors of Aitchison College was not under the dominating control of Provincial Government then what was the necessity to grant it Constitutional protection by bringing it within the folds of Education Department by amending the Provincial Rules of Business being promulgated by the Provincial Government through the Governor of the Province under Article 139 of the Constitution.
15. There is yet another angle to examine the proposition under consideration i,e, the Board of Governors has framed Statutes in exercise of the delegated powers to deal with the different affairs of the Institution including determination of the terms and conditions of the service of Members of staff of the Institution and other officers and servants of the Board as well as acquiring the service of any employee of the Provincial Government on deputation to manage or look after the affairs of the College. The Board of Governors is also authorized to formulate the budget of the Institution for the approval of the Government. Essentially, when the Government functionaries are involved by an Institution in its affairs to this extent that latter agrees to transfer its officer on deputation and also approve the budget of the Institution then no other conclusion can be formed except the Institution is one of the component of a Provincial set-up, subscribing its full participation in respective field. As in the case in hand, Aitchison College, Lahore after having entering into the folds of the Provincial Education Department, is discharging its functions towards imparting education like other educational Institutions functioning in the Province under the command of the Education Department.
16. Learned counsel for appellant also stated that the Aitchison College cannot be deemed to be under the control of the Provincial Government because it is not getting any financial assistance from the Government.
But in our opinion merely on account of non-getting financial assistance, the Aitchison College cannot be considered to be an educational institution not functioning under the control of Provincial Education Department through the Board of Governors headed by the Governor as its President. In this behalf, it would not be out of context to point out that there are certain Provincial Educational Institutions who have sufficient means to generate funds for its functioning but still they are deemed to be under the dominating control of the Government as its affairs are being regularized or being run by adopting such mechanism in which the Constitutional Head of the Province i,e, Governor can directly participate. Examining the proposition in hand, adverse to above reasons namely that if the Governor of the Province being its President and other officials belonging to the Provincial Government have only the ceremonial representation in the Board of Governors and the affairs of the College can be run without their participation by the private Members of the Board of Governors, then what was the object to take over the management of the College by promulgating MLO No,86 (Zone-B) because prior to taking over the management and the control of the College under this provision of law, the College was already functioning under the control of a registered Society. Under MLO No,86 control of Aitchison College was taken over as back as on 11th November, 1961 by means of issuing Notification in exercise of powers conferred upon the Government because latter had considered it fit and expedient for the efficient management and control of the College to ensure its improvement and to satisfy the will of law i,e, MLO No,86 (Zone-B). Admittedly, a ceremonial head or official participants would not make improvement unless it had not taken over management and control of the Institution, therefore, we are of the opinion that notwithstanding the fact that the Aitchison College is not receiving any financial assistance from the Provincial Government but as its management and control and all other matters relating to run its affairs through a statutory body functioning under the system which has been provided under MLO No,86 (Zone-B) vests in Provincial functionary, therefore, the Institution would fall within the definition of a person under Article 199(5) of the Constitution. At this stage it would be appropriate to make reference to the case of University of Dacca through its Vice-Chancellor and another v. Zakir Ahmed PLD 1965 SC 90. In this report while interpreting the word a person with reference to Article 98(2) of the Constitution, 1962, read with definition of a person [under section 3(39) of the General Clauses Act] as well as in view of the provision of section 3 of the Dacca University Ordinance (No, XXIII of 1961), it was held as follows:-- "It is clear from this definition that the University is an association of persons who have been constituted by the statute into a body corporate and, therefore, the University comes within the definition of a person given in the General Clauses Act. Again under Article 242 of the Constitution a person is defined as including any body politic or corporate. As such even under this definition the University comes within the category of a person under the Constitution."
' It is to be seen that both the learned counsel for parties in support of their respective contentions have relied upon the case of Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd. PLD 1975 SC 244. In this case following test has been laid down to determine whether functions of a body can be considered to be function of a person for the purpose of the Constitution:- "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of , the Federation or a Province; otherwise not."
Applying the above test on the facts of instant cases, we feel no hesitation in drawing inference that the Board of Governors, Aitchison College, Lahore headed by the Governor of the Province as its President alongwith other officers i,e, Secretaries Education, Finance and General Officer Commanding as well as unofficial Members are involved in providing education which is one of the responsibility of the State and by taking over its management and control the Board, exercises sovereign powers as well as public powers being a statutory functionary of Government who in order to provide it full legal/Constitutional protection had brought it into the folds of its Education Department by amending the Provincial Rules of Business as back as in 1994 and even if for sake of arguments if it is presumed that no financial aid is being provided to the College from the Provincial Public exchequer, even then, the College remains in dominating control of the Provincial Government through Board of Governors. Therefore, the above test stands fully satisfied and we are persuaded to hold-that organization of the Aitchison College, Lahore falls within the definition of a person.
19. Learned counsel for the appellant stated that this Court in the case of Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others .2000 SCMR 928 has held that if an organization is not performing the functions of the State involving some exercise of the public powers, would not fall within the definition of a person. As far as this legal proposition is concerned there is no cavil with it but in this report matter under examination of this Court, was relating to allotment of the residential plots reserved for the Government employees under different categories by the Federal Government Employees Housing Foundation, and because foundation was registered with the Registrar of Companies under section 32 of the Companies Ordinance, 1984 as a limited company by guaramee, therefore, it was, held that because the foundation does not enjoy the status of statutory corporation and controlled by the Federation and neither is performing any sovereign function of the State, therefore, against it writ is not competent. Learned counsel has also heavily relied upon the case Syeda Sayeeda Bano and another v. Province of East Pakistan and others PLD 1969 Dacca 352. In this case services of the petitioners being Assistant Teachers were terminated in pursuance of a resolution passed by the Managing Committee of the School, therefore, both of them invoked the jurisdiction of the High Court to impugn the resolution of the Managing Committee and notice of the determination of the service of petitioners. As petitioners instituted writ petition under Article 98(2) of the Constitution of Pakistan, 1962, therefore, question for consideration came up as to whether the Managing Committee of a private school receiving grant from Provincial Government falls within the definition of a person. In this context, it was resolved that the Members of the Managing Committee of private school are not performing functions in connection with the affairs of the Province of East Pakistan and merely for the 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.
The rule laid down in above case would not be applicable because in instant cases the Members of the Board of Governors are not representing to a private College and they represent to such Institution whose management has been taken over in pursuance of provisions of law by the Governor of the Province and its affairs are being run under Presidentship of the Governor who derives powers from a valid statutory law and exercises such powers with the aid and assistance of the Provincial Government through its Secretaries of Education and Finance as well as by the assistance of the Defence Forces of the Pakistan as its General Officer Commanding, Lahore and the Institution being run by them has come under the Administrative control of the Education Department. Therefore, this authority has not advanced the case of the petitioner in any manner.
18. Learned counsel also referred to the case of Sabhajit Tewary v. Union of India and others AIR 1975 SC 1329. As per facts of the case, Council of Scientific and Industrial Research asked for an order declaring two letters to be discriminatory and violative of Article 14. The two letters relate to recommendations of the Finance Sub-Committee of the Council of Scientific and Industrial Research with regard to remuneration of Stenographers. It may be noted that in Article 199 (5) of the Constitution of Islamic Republic of Pakistan word 'a person' has been used, whereas in Indian Constitution instead of using word 'a person' the word an authority' has been used. As far as the Council of Scientific and Industrial Research is concerned, it has status of a Society registered under the Societies Registration Act. As per its Rule 3, Prime Minister of India is the ex officio President of the Society and under Rule 30 Governing Body consists of inter alia some persons appointed by Government of India, representing the administrative Ministry under which the Council of Scientific and Industrial Research is included, and the Ministry of Finance and one or more members appointed by the Government of India. Another feature of the status of the Society is that the Government of India is authorized to terminate the membership of any member or at one and, the same time of all members other than the ex-officio members of the Governing Body. Therefore in view of these features, it was concluded that the Society of the Council of Scientific and Industrial Research is not an authority within the meaning of Article 12 of the Constitution. The writ petition was dismissed. In our opinion, this judgment as well is not applicable on the facts of instant cases. As it has been discussed hereinabove that presently affairs of the Aitchison College are not being governed by a Society under the Societies Registration Act, 1860 because on promulgation of MLO No,86 (Zone-B), the Society was dissolved on 2nd May, 1961 and since then its affairs are being run by the Board of Governors initially notified on 11th November, 1965. In 1994, by amending the Provincial Government Rules of Business, the management of the Aitchison College, Lahore has been brought under the control of the Education Department, therefore, on account of such distinction, principle of law discussed in this judgment cannot be applied on these cases.
19. After having dealt with the judgments, which were relied upon by the learned' counsel for the appellant, we consider it appropriate to make reference to the judgments, which were referred by the learned counsel in support of respondents. In this behalf, he referred to the case of M/s. Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Limited and others 1998 CLC 1890. In this case, after reviewing the judgments on the subject, it has been held that any Company/Corporation 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 and is discharging functions, which fall within the area of the police power of State are amenable to the writ jurisdiction of the High Court under Article 199 of the Constitution.
23. Learned counsel for respondents also referred to the case of Ajay Husia v. Khalid Mujib AIR 1981 SC 487. Relevant para. Therefrom is ' reproduced hereinbelow:-- "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 statue 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. 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 Government 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, Rajasthan and Uttar Perdesh 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 Governments. 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 Government 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 that 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 incharge 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 wording of the society."
20. After having gone through the above observation from the case of Ajay Haia, no further discussion is called for because now after the dissolution of Aitchison College Society, it is a fact that in pursuance of MLO No,86 (Zone-B) dated 2nd May, 1961 read with Notification No,S0X16/25-61
(Edu) dated 11th November, 1961, the Board of Governors of the College is enjoying position of juristic person and the then Governor in capacity of President of the Board of Governors in exercise of the powers conferred upon him by the Notification dated 11th November, 1961 has promulgated statutes to regulate the affairs of the College including the one to formulate budget of the Institution for the approval of the Government, specifying the powers and duties of the President as well as the powers and duties of the Principal and the most important power, acquiring powers to transfer the services of any person serving or deputing to serve in connection with the affairs of the Province in any capacity to the Board of Governors for the purpose of discharging duties in the Aitchison College, Lahore, mainly for the purpose of running the affairs of the management efficiently and also having control over the Institution which is busy in parting education being renowned Institution. Therefore, the Board of Governors of Aitchison College, Lahore squarely falls within the definition of a "person" under Article 199(5) of the Constitution of Islamic Republic of Pakistan. Thus for the forgoing reasons, the appeals are dismissed and impugned judgment dated 12th May, 2000 passed by Lahore High Court, Lahore is upheld. No order as to costs.
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