Ahtsham Ul Haq vs Board Of Governers Distt. Public School etc.

ICA No.719-2013

Ahtasham ul Haq Board of Governors etc 25.06.2014 Mr Zafar Iqbal Chohan, Advocate for appellant. Ms Firdous Butt Assistant Advocate General.

Faisal Zaman Khan, J. This Intra Court Appeal is directed against the judgment passed by a learned Single Judge of this Court on 14.06.2013 in W.P.No.13996-2013 through which, writ petition, filed by the appellant, was dismissed.

2.The facts as narrated in the writ petition are that appellant was appointed as senior teacher with District Public School & College Depalpur, District Okara (herein after called DPS & College). Subsequent thereto he was promoted as lecturer (Chemistry) and then Assistant Professor (BS-18). Thereafter, upon announcement of a post of Controller of Examination of Board of Examination of all Campuses of DPS & College Okara, appellant was appointed as Controller.

3.Upon a complaint made by respondent No.3, services of the appellant were terminated

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on 09.05.2012. On filing of a representation before the Chairman, Board of Governors, he was reinstated in service on 01.02.2013.

4.Thereafter, in a meeting held by the Board of Governors on 30.05.2013, his services were again terminated by way of recalling the order of reinstatement.

5.Feeling aggrieved of the termination order, writ petition was filed by the appellant. Through judgment dated 14.06.2013 passed by a learned Single Judge of this Court, the same was dismissed on the score that DPS & College do not fall within the mischief of the definition of a person as contemplated in Article 199 of the Constitution of the Islamic Republic of Pakistan as the respondents are not performing any functions in connection with the Federation, a Province or a Local Authority.

6.Learned counsel for the appellant contends that the Board of Governors of respondents is headed by the District Coordination Officer Okara and all permanent members are employees of Government of the Punjab, hence, a writ was maintainable against the respondents. He further contends that even if respondents do not fall within the mischief of the definition of a person,

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even then a writ could be maintained on the basis of violation of fundamental rights. He relies upon PLD 2009 SC 507 [Human Rights Commission of Pakistan and 2 others vs Government of Pakistan and others ]. He further argues that DPS & College is established on the same lines as the Aitchison College Lahore has been. On the strength of judgments reported as PLD 2000 Lahore 489 [Muhammad Zubair Akram vs Aitchison College, Lahore] and PLD 2002 SC 326 [Aitchison College, Lahore through Principal vs Muhammad Zubair and another], he contends that both the institutions are at par and when a writ can be maintained against Aitchison College so can it be against the respondents.

7.On the other hand, learned Law Officer appearing for the respondents submits that the Charter annexed alongwith the writ petition does not signify anything which could suggest that any legal sanctity is attached to the said charter; the Charter has neither been registered nor is being recognized by the Federation, a Province or a local authority, so as to bringing it within the ambit of a government owned institution. She also submits that DPS & College is not a registered organization under any law which

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could bring it within the definition of a person, hence the learned Single Judge rightly held that a writ cannot be maintained against the respondents.

8.We have heard learned counsel for the appellant as well as the learned Law Officer and have also gone through the record. We tend to agree with the submissions made by the learned Law Officer in so far as that the appellant has not been able to show any document by virtue of which, this can be ascertained that DPS & College are registered institution owned by the Government or a Local Authority or performing functions in connection with the affairs of the Federation, a Province or a Local Authority so as to bring the same within the ambit of Article 199 of the Constitution. We are also in agreement with the finding rendered by the learned Single Judge of this Court that there is no nexus between the Constitution of Aitchison College Lahore and DPS & College. In this regard, we have examined PLD 2002 SC 326 [Aitchison College, Lahore through Principal vs Muhammad Zubair and another] and PLD 2000 Lahore 489 [Muhammad Zubair Akram vs Aitchison College, Lahore] which are clearly

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distinguishable and not applicable on the case of the appellant.

9.From the perusal of the above judgments, it is revealed that Aitcheson College Lahore was established under the Societies Registration Act 1860, however with the promulgation of First Martial Law in 1958 a need was felt to manage and regulate the affairs of certain educational institutions which were managed and run by the Societies, whereafter, Martial Law Order No.86 was promulgated through which Governor of West Pakistan was invested with the power to order dissolution of registered Society or the governing body of an institution. He was further allowed to place such an institution under Board of Governors to be nominated by him. Upon this, a notification was issued in which it was ordained that Society which was managing the affairs of Aitcheson college was dissolved and the management was vested with the Board of Governors, who were nominated through a notification. Above notification was followed by another notification dated 22.01.1962 through which Statute of the Aitchison College was framed. In essence, the management of Aitcheson College was run under Martial Law

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Order No.86, which was subsequently protected under the Constitution of 1962. Since the Statute of Aitchison College was framed in exercise of Powers under Martial Law Order No.86, therefore, the statute took the character of statutory instrument/statutory rules and could be enforced.

(The above history has been borrowed from PLD 2000 Lah 489 [Muhammad Zubair Akram vs Aitchison College, Lahore].

10.In view of the above, it is clear and obvious that there is no nexus between the Board of Governors established for running the affairs of Aitchison College Lahore which was under a special dispensation and outcome of exceptional circumstances and Board of Governors of DPS & College. Only because of inclusion of the Government officials in its Board of Governors would not award DPS & College the status of the Aitcheson College. Even otherwise, the appellant has not been able to show any registration, statue, rules or other dispensation, which could show that DPS & College is a Government owned or a registered organization. In the above perspective, the argument of the learned counsel is misplaced.

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11.The other argument raised by the learned counsel to the effect that in case of violation of fundamental right, a writ can be issued even to a private person. We have gone through the judgment cited by him, reported as PLD 2009 SC 507 [Human Rights Commission of Pakistan and 2 others vs Government of Pakistan and others] and found that the said judgment is absolutely on a different premise and context in so far as that the same relates to Bonded Labour System (Abolition Act 1992) read with scope of Section 100 and 491 of the Code of Criminal Procedure coupled with powers of this Court exercised in a writ of habeas corpus as contemplated in Article 199 of the Constitution.

12.For a while, if this is assumed that a writ was maintainable, the appellant has not been able to show that his services were governed by any Statutory Rules, because of which he could maintain a writ. In view of the judgments rendered by the Honourable Supreme Court of Pakistan reported as PLD 2010 SC 676 [Pakistan International Airline Corporation and others vs Tanweer ur Rehman and others], PLD 2011 SC 132 [Pakistan Telecommunication Co.

Ltd through Chairman vs Iqbal Nasir and

ICA No.719-2013

others], 2010 SCMR 1484 [Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another vs M.Tufail Hashmi], 2013 SCMR 840 [Habib Bank Ltd vs The State] & 2013 SCMR 1383 [Abdul Wahab and others vs HBL and others] in cases of disputes regarding the terms and conditions of an employee, where he is not governed by statutory rules, a writ cannot be maintained.

13.In view of what has been discussed above, we are constrained to hold that the judgment passed by the learned Single Judge is unexceptionable and warrants no interference by this Court, therefore, this Intra Court Appeal fails and the same is dismissed.

(AMIN UD DIN KHAN) (FAISAL ZAMAN KHAN)

JUDGE JUDGE

Irfan*

APPROVED FOR REPORTING