MUHAMMAD YUNUS SURAKHVI, C J.---This appeal, by way of leave of the Court, has been filed to challenge the correctness and legality of the judgment passed by the High Court on 6-6-2003, whereby Writ Petition No.83 of 2001 filed by respondent No.1 was accepted and a direction was issued to the appellants that the order of the Controlling Authority (Prime Minister of Azad Government of the State of Jammu and Kashmir) about the affiliation and registration of the Quaid College of Education for Elementary Teachers, Bhimber (hereinafter to be referred as the Quaid College) be implemented. A further direction was also issued to the appellants to announce the result of the students who appeared in various examinations either with the permission of the Court or otherwise.
2. The necessary facts, giving rise to the present appeal, are that respondent No.1 filed a writ petition in the High Court of Azad Jammu and Kashmir on 1-8-2001. In the writ petition the respondent sought a declaration that the order dated 21-7-2001 passed by the appellants was against the law and rules. A direction was also sought that appellant No.1 be directed to affiliate the Quaid College and examination forms of 117 students be ordered to be accepted and they should be allowed to participate in the examination to be held on 17-8-2001. A further direction was sought against the Director of Education for the registration of the Quaid College and that appellant No.2 herein may be directed to arrange for examination of the students to be held on 17-8-2001.
Subsequently the writ petition was amended and finally the amended writ petition was filed on 22- 4-2003. The appellants herein filed amended written statement on 29-4-2003.
3. After hearing the parties, a learned Judge in the High Court accepted the writ petition vide his impugned judgment dated 16-6-2003. It is the aforesaid judgment of the High Court which is the subject-matter of present appeal.
4. In support of appeal it was vehemently contended by Ch. Muhammad Azam Khan, the learned counsel for the appellants, that under Chapter 4, Section III, para. 12 of the Calendar of AJ&K Board of Intermediate and Secondary Education, Mirpur, 1992 (hereinafter to be referred as the Calendar of Board), every educational institution which wants affiliation with the Board shall, after obtaining permission from the Government, apply to the Education Board for recognition before 31st January of the year and respondent No.1 applied for the first time for recognition on 3-11-2000, as such the respondent is not entitled to claim admission/permission for its students to participate in the examination for the year 2000-2001. The learned counsel also contended that respondent No.1 through political influence got the order for registration from the Prime Minister who ordered that "keeping in view the attached record, do the needful". Under law after the lapse of 2/3rd period of the whole educational session, the students cannot be registered. According to notification dated 28-8-2000 the final date for admission in the Education Colleges was fixed as 20-102000 and after that date, no student could be granted admission in the Colleges and the Education Board cannot grant registration to such students and from the record of respondent No.1, it is amply proved that there was no student in the Quaid College prior to 20-10-2000. The learned counsel pressed into service the submission that respondent No.1 has not got registration of the college with the authorities. There was no regular college and the Directorate of Education, Research and Curriculum, reported that there is only one part time teacher in the aforesaid college. The said Directorate wrote a letter to the Secretary Education that the Prime Minister be apprised of the situation for withdrawal of his orders. It was further contended that respondent No.1 got the orders issued through underhand means and political influence against the law. The learned counsel also contended that respondent No.1 had not come in the High Court with clean hands. Examination fee was not deposited within time and the Quaid College was neither registered nor affiliated but all these facts were concealed, as such the discretionary relief could not have been granted in favour of respondent No. 1. The learned counsel further maintained that the basic order for refusal of affiliation of the Quaid College was issued on 12-12-2000 but respondent No.1 has not challenged this order due to which the writ petition was not competent. The learned counsel pressed into service the submission that the observation made by the High Court that "it was the fundamental duty of the Chairman of the Board to carry out the direction of the Controlling Authority but it is most unfortunate that in this case, direction of the Controlling Authority was not carried out by the Chairman of the Board" is against the law. The learned counsel explained that firstly there was no direction in accordance with law issued by the Prime Minister; secondly the Controlling Authority, which is Government, can only issue direction according to the AJ&K Board of Intermediate and Secondary Education Act, 1986 and the rules framed thereunder. There was no order of the Controlling Authority according to law and the Chairman of the Education Board acted perfectly in accordance with law. The learned counsel also vehemently argued that the finding recorded by the High Court that "Fundamenal right of equality before law has been violated" is against law because respondent No.1 never applied for its affiliation according to law. The respondent never started the classes according to the schedule issued by the Education Board. No registration fee was deposited in time and no examination forms were submitted according to the schedule issued by the Education Board for conducting the examinations, therefore, the question of violation of Fundamental Right does not arise. The learned counsel further contended that it is amply proved from the record that most of the students, whom the respondent wanted to participate in the examination, were not the students of the Quaid College at the time of closing of admissions. The applications were submitted to the Prime Minister on different dates after the closing of the admissions. The issuance of directions, after a considerable time of the start of classes, is against the law. The learned counsel lastly maintained that the Prime Minister only wrote on the simple application for considering the same according to law and no order was issued by the Government in accordance with law.
5. Controverting the arguments raised by the learned counsel for the appellant, Ch. Muhammad Siddique, the learned counsel for respondent No.1, argued that the Prime Minister of Azad Jammu and Kashmir was the Controlling Authority of the Board of Intermediate and Secondary Education, Mirpur. On 14-5-2001 the Prime Minister, Controlling Authority of the Education Board, passed an order for the registration and affiliation of the Quaid College with the Education Board but this order was not acted upon. Respondent No.1 again moved an application before the Prime Minister, Controlling Authority of the Education Board, on 21-6-2001. On 23-6-2001 the Prime Minister again passed an order that in the light of the order dated 14-5-2001 the order regarding the affiliation and registration of the Quaid College may be passed but this order too was not acted upon. The learned counsel for respondent No.1 referred to the AJ&K Board of Intermediate and Secondary Education Act, 1986 and submitted that under section 14, subsection (4), of the said Act, it was the duty of the Chairman of the Education Board to ensure that the provisions of the Act and the rules made thereunder and directions of the Controlling Authority are faithfully observed and carried out and the Chairman shall exercise all the powers necessary for the purpose. He submitted that under the provisions of the relevant law, it was the basic duty of the Chairman of the Education Board to carry out the directions of the Controlling Authority but in the instant case, the violation of the above provision of law has been committed by the appellants. It was further maintained by the learned counsel that when a direction was given by the Controlling Authority, then, it was enjoined upon the Chairman of the Education Board to affiliate the Quaid College with the Education Board and it was also obligation of the Director of Education to register the said College. The learned counsel vehemently urged that every body is equal before law but lry violating Fundamental Right No.15, enshrined in the Azad Jammu and Kashmir linerim Constitution Act, 1974, a clear discrimination was committed by the appellants between the Islamia Education College, Pallandri and the Quaid College. According to the learned counsel, the result and performance of the Quaid College was of much higher standard than Islamia Education College, Pallandri but that college was registered whereas the registration of the Quaid College was declined. Thus it was urged that a clear discrimination has been committed by the appellants.
6. The High Court has accepted the writ petition filed by respondent. No.1 mainly on the following grounds:--
(i) That the Controlling Authority of the Education Board ordered the appellants to affiliate and register the Quaid College but the appellants did not pay heed to the direction of the Controlling Authority while under section 14(4) of the AJ&K Board of Intermediate and Secondary Education Act, 1986, it was the fundamental duty of the Chairman of the Education Board to carry out the directions of the Controlling Authority but it is most unfortunate that in this case the direction of the Controlling Authority was not carried out by the Chairman of the Education Board. The Prime Minister of the time also issued a direction to the Director of Education for registration of the Quaid College and he was bound to implement the order of the Prime Minister. He had no authority or jurisdiction to disobey the order of the Prime Minister but he has not acted upon the direction of the Prime Minister and also did not register the Quaid College; (ii)that the violation of principle of equality before law was committed by the appellants as both the Islamia Education College, Pallandri and the Quaid College applied for affiliation and registration of the Colleges and the students of both the colleges appeared in the examinations.
The performance of the students of the Quaid College remained remarkable and exceptionable but the College whose performance was remarkable has not been registered while the Islamia Education College, Pallandri has been registered and affiliated with the Education Board. In this view of the matter, a clear cut discrimination has been committed by the appellants and a violation of Fundamental Right No.15, enshrined in the AJ&K Interim Constitution Act, 1974, was also committed by the appellants; and
(iii) that the contention of the learned counsel for respondents (appellants herein) that 117 students of the Quaid College, who appeared in the examination by the order of the Court, were not eligible because their admission forms were submitted after the last date which was fixed by the Education Board for the admission forms of P.T.C. and C.T. Examination, has no substance because they deposited the amount and fee before 20th October, 2000. According to the order of the Court, only those students were allowed to participate in the examination whose admission forms and fee have been deposited before 20th October, 2000."
7. After hearing the respective contentions of the learned counsel for the parties and perusing the impugned judgment passed by the High Court, it may be stated that under Chapter 4, section III, para.12, of the Calendar of Board, every educational institution which wants affiliation with the Board shall, after obtaining permission from the Government, apply to the Board for recognition before 31st January of the year and respondent No.1 applied for the first time for recognition on 3- 11-2000, as such the respondent is not entitled to claim admission/permission for its students to participate in the examination for the year 2000-2001. According to notification dated 28-8-2000 the final date for admission in the education colleges was fixed as 20-10-2000' and after that date, no student could be granted admission in the colleges and the Education Board cannot grant registration to such students and it is amply proved from the record that prior to 20-10-2000 there was no student in the Quaid College. The Quaid College was not registered with authorities concerned. The Directorate of Education, Research and Curriculum reported that there is only one part time teacher in the said college. The Directorate wrote a letter to the Secretary Education that the Prime Minister be apprised of the situation for withdrawal of his orders. The observations of the High Court, referred to in para. No.6 of this judgment, are not based on sound and cogent legal reasons. It may be pointed out that under section 11 of the AJ&K Board of Intermediate and Secondary Education Act, 1986, it has been provided that "Government shall be the Controlling Authority of the Board". Therefore, the orders of the Prime Minister dated 14-5-2001 and 23-6-2001 on a simple application are worth nothing unless a notification would have been issued by the Government in accordance with the provisions of the Rules of Business. As no notification was issued and only the Government was the Controlling Authority, therefore, the orders passed by the Prime Minister, Minister of Education or Member Legislative Assembly (Ch. Khadim Hussain), cannot be construed to be Government orders in the eye of law unless the same have been issued in accordance with the Rules of Business. The aforesaid orders of the Prime Minister were not properly processed in accordance with the Rules of Business and as such the notifications were not issued on the basis of these orders, therefore, the appellants were not oblige to obey these orders. Even if the above orders of the Prime Minister are construed to be the orders of the competent authority, the same should have been passed in accordance with the provisions of the Calendar of the Board or the Act of 1986.
8. Chapter 4, section III, paras.11 and 12 of the Calendar of Board provide as under:-- "11. Unless specifically permitted by the Board, no institution desiring recognition shall admit students until the recognition is finally granted.
12. The institution desiring recognition shall make an application on a form prescribed by the Board before 31st January of the year in which it is desired to start classes: Provided (i) the last date for submission of applications for recognition in the case of Institution maintained by the Government shall be 15th July of the year: Provided (ii) the delay in submitting an application may be condoned by the Board in special circumstances. "
Since neither the Quaid College was registered nor it was affiliated with the Education Board, therefore, it was not entitled to claim the admission/permission for its students to participate in the examinations for the year 2000-2001. Even the basic order for refusal of affiliation of the Quaid College was issued on 12-12-2000 which was not challenged by respondent No. 1 . Thus in this view of the matter, the writ petition was not competent. The applications were submitted to the Prime Minister on different dates after closing of admissions. Therefore, issuance of direction after a considerable time is against the law.
In a case reported as Administrator, Municipal Committee, Kotli and another v. Muhammad Abdullah and 3 others 2001 YLR 3367 it was observed at page 3371 in a following manner:- "Notification issued by the Collector, Land Acquisition under section 4 of the Land Acquisition Act could not be cancelled by the Prime Minister by passing an order on the application of respondent that the land may be de-awarded."
It was further observed in the aforesaid authority that the notification issued under section 4 of the Land Acquisition Act could be cancelled only by a notification as contemplated by section 21 of the General Clauses Act, 1897. Thus, the mere order on the application submitted by the respondent to the Prime Minister that the land may be de-awarded is not sufficient in the eye of law to stop the acquisition proceedings initiated by the Collector Land Acquisition. It was also observed in the said authority that a person who challenges the bona fide of a public functionary or who contends that the public functionary acted malafidely, he is under obligation to establish his case on convincing and cogent legal evidence.
In another case reported as Major Muhammad Aftab Ahmed (Retd.) v. Azad Jammu and Kashmir Government 1992 SCR 307 it was observed by this Court that writ jurisdiction cannot be exercised to direct a person or authority to give effect to an unlawful order of any competent authority. It was held that the order of Prime Minister for the appointment as Superintendent of Police of a retired Army Officer being violative of rules was not enforceable by the High Court in writ jurisdiction.
9. The contention raised by Ch. Muhammad Azam Khan, the learned counsel for the appellants, that examination fee was not deposited within time and the Quaid College was neither registered nor affiliated but all these facts were concealed, as such the discretionary relief could not have been granted in favour of respondent No.1, seems to be correct as the writ is always issued in favour of a person who comes in the Court with clean hands. Since respondent No.1 did not come in the High Court with clean hands, therefore, the Quaid College was not entitled to grant of any relief by issuing a writ in its favour.
10. The contention of Ch. Muhammad Siddique, the learned counsel for respondent No.1, is that both the Quaid College and the Islamia Education College, Pallandri applied for their registration and affiliation and the performance of the Quaid College has been of much higher standard than that of Islamia Education College, Pallandri but despite that the Quaid College, has been discriminated as the same was neither registered nor affiliated but on the other hand the Islamia Education College, Pallandri has been affiliated and registered. Be that as it may, at this stage we cannot compare the performance of the Quaid College and the Islamia Education College, Pallandri simply for the reason that the credentials of Islamia Education College, Pallandri have not been placed on record by any of the partiers. Therefore, we cannot say with definiteness as to why the Islamia Education College, Pallandri was registered and affiliated while the Quaid College was neither registered nor affiliated. It is just possible that Islamia Education College, Pallandri might have been registered and affiliated on the basis of its own merits but so far as the case of the Quaid College is concerned, it did not fulfil the prerequisites for its registration with the Government and affiliation with the Education Board, as such the same could have neither been registered nor affiliated.
11. Another point stressed by the learned counsel for respondent No.1 is that 117 students, whose admission forms were sent for appearing in the examination, were ordered to appear in the examination by the order of the Court and as such the hoard should be directed that their result may be announced. In our view the permission granted to these students for appearing in the examination was conditional one, therefore, in case we order for dismissal of the writ petition filed by respondent No.1, then obviously these students cannot get any benefit although they appeared in the examination on the order of the Court, which was clearly conditional, but when the writ petition is ordered to be dismissed by us, they cannot get the benefit of their Appearance in the examination, conditionally under the order of the Court.
12. In the light of what has been stated above, by accepting this appeal, we set aside the impugned judgment passed by the High Court on 16-6-2003 and we order for the dismissal of the writ petition filed by Respondent No. 1. In the peculiar circumstances of the case, we pass no order as to costs.