Salman Shahid vs University Of Management etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Case No. I.C.A.No.454/2016

Salman Shahid Versus University of Management and Technology, through Chairman, etc.

S. No. of Date of Order with signature of Judge, and that of parties or order/ order/ counsel, where necessary. proceeding proceeding

21.06.2021 Mr. Muhammad Zafar Sultan, Advocate, for the appellant.

Barrister Syed Ali Nauman Shah, Assistant Advocate General, Punjab.

ABID AZIZ SHEIKH, J.- This appeal is directed against the order dated 29.09.2015, passed by the learned Single Bench of this Court, whereby Constitutional petition filed by the appellant was dismissed.

2.Relevant facts are that appellant is student of University of Management and Technology, Lahore (UMT). The grievance of the appellant is that he completed thirty credit hours required for the award of degree of MS/M.Phil, therefore, requirement of submission of thesis equivalent to six credit hours by UMT is not justified. The Constitutional petition filed by the appellant in this regard was however dismissed through impugned order dated 29.09.2015 being not maintainable, hence this appeal.

3.Learned counsel for the appellant at the very outset confronted that when admittedly UMT is a private sector University, then how the Constitutional petition was maintainable. Learned counsel for the appellant in

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response submits that UMT is established under the University of Management and Technology, Lahore, Act, 2004 (Act), therefore, the University being a statutory body, Constitutional petition was maintainable and the impugned order is not sustainable.

4.We have heard learned counsel for the appellant and perused the record. The moot question require determination in this appeal is that whether constitutional petition filed by the appellant against UMT was maintainable under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). The test to determine whether UMT is a “person” amenable to judicial review can be ascertained firstly from the functions performed by UMT, and secondly the status of administrative and financial control of the government with respect to UMT. The Courts generally classified it as “functional test”.

5.The august Supreme Court in Abdul Wahab etc vs. HBL etc (2013 SCMR 1383) held that for functional test, two factors are the most relevant i.e. the extent of financial interest of the state in an institution and dominance in the controlling affair thereof. To find out whether UMT qualifies “functional test” for the purpose of maintainability of constitutional petition, it is necessary to go through the relevant provision of the Act. Under Section 14 of the Act, the administration and management of the UMT vests in the Board. Section 13 of the Act provides that the board of Governors shall consist of various individuals including members of the Board of trustees. Though some of the government officials are also members of the Board of Governors,

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however, majority members of the Board are private individuals, hence government does not have complete domination in running the affairs of the UMT. Under Section 9 of the Act, all appointments as well as terms and conditions of such appointments are determined by the Board and not by the government. The funds of UMT are also generated from private source including fee etc and government has no direct financial control on the

UMT.

6.No doubt, Governor of Punjab is pattern of the UMT and he can also appoint Rector, however, the terms and conditions of the Rector shall be determined on the recommendation of the Board, therefore, pattern is only a notional head and does not take any administrative or financial decision, which are vested with the Board consists of majority of private individuals. The holistic reading of Act shows that functions of the UMT being a private sector University, is also for private gains and profits and not exclusively for the benefit of public without any profits. Considering the above factors, it cannot be said that UMT is a “person” performing functions in connection with the affairs of Federation, Government or Local Authority for the purpose of judicial review under Article 199 of the Constitution.

7.Mere fact that UMT has been established under a statute will itself not be sufficient to treat UMT as a “person” for the purpose of Article 199(5) of the Constitution. In similar situation, in Anoosha Shaigan vs. Lahore University of Management Sciences etc (PLD 2007 Lahore 568), constitutional petition filed against Lahore University of Management Sciences (LUMS),

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which was also established under a statute, was held to be not maintainable by this Court as no financial or administrative control of the government is extended to LUMS. For convenience, relevant observation in above- cited judgment is reproduced hereunder:- “On account of the above case law, I am of the considered view that the absolute control over the management of a body/an organization by the federation etc., is a condition most important for declaring it to be a "person" performing its functions in connection with the affairs of the Federation etc; the Federation etc. should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions. Such control must be absolute, unfettered, unbridled and exclusive, besides, the State must also have the financial control of the Organization; the power of hiring and firing the employees thereof appointing and removing the management body meant for running the routine affairs of the Organization. But from the Presidential Order of 1985, though the President is the Chancellor of the LUMS, but this is notional and more with the status of a Patron-in-Chief; in practical terms except for the nomination of the persons on the Board or the Council, he does not have the administrative or policy-making control, which is the authority of the Board of Trustees and the Council of LUMS, which manages its affairs. It has been rightly pointed out by the respondents counsel that the funds to LUMS are not being provided by the Government on regular basis, those are generated by the LUMS itself either from the fees or the donations and may be occasionally in the nature of donation, the government also contributes, but this contribution cannot be held to be within the concept of "financial control" of the Organization. The judgments cited by the learned counsel, for the p e t i t i o n e r , i n t h e l i g h t o f t h e c a t e n a o f j u d g m e n t s f r o m t h e respondents' side which have been discussed above, not only are distinguishable, rather do not apply to the facts and circumstances of the present case”.

8.Similarly, in case of Forman Christian College (F.C. College), which was also established under Forman Christian College, Lahore Act, 2004, this Court in Aown

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Abbas Bhatti vs. Forman Christian College etc (PLD 2018 Lahore 435) held that as there is no administrative and financial control of the government on the F.C College, therefore, the constitutional petition is not maintainable. Relevant extract of the judgment is reproduced hereunder:-

“ It, therefore, follows from above that the FC College, being a private entity, is not in dispute, and the language of the Act of the Parliament reflects the legislative intention. The FC College does not fall within the definition of a 'person' for which a test has been determined above because the setup of the Board of Governors of the FC College is not under the dominative control of the Federal or the Provincial Government, and the FC College does not get any operating funds from the Government. Therefore, when both the "administrative" and the "financial" control of the Government over Respondents is lacking, I am constrained to hold that the FC College is not a "person" within the meaning of Article 199(5) of the Constitution, which could be held to be performing its duties in connection with the affairs of the Federation or the Province. If the Parliament in its wisdom creates a juridical person through the legislative process and does not provide for the control of the Government over it, then obviously it is intended not to bring it within the ambit of a 'person' in the context of Article 199 of the Constitution”.

9.This Court while applying the functional test to a private bank (UBL) in case reported as Noor Badshah vs. United Bank Limited etc (2015 PLC (C.S) 468), held that bank being a private entity, is not amenable to constitutional jurisdiction. Same view was also expressed by Islamabad High Court in Pervaiz Akhter Bhatti vs. Federation of Pakistan etc (2020 IHC 146) and Sindh High Court in Abdul Sami Memon etc vs. Federation of Pakistan etc (2020 PLC 125). Similarly, Hon’ble Supreme Court in Pakistan Olympic Association etc vs. Nadeem Aftab Sindhu etc (2019 SCMR 221) held that Pakistan Olympic Association though promoting sports in Pakistan but being not substantially controlled by the

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government cannot be subject to judicial review. Relevant part of Apex Court judgment is as under:- “Before parting it is found pertinent to mention that indeed, the promotion of sports in Pakistan holds paramount importance and the participation of athletes in international sports events is a matter of immense pride and prestige for the entire nation, however, in the tide of such emotions we cannot lose sight of the fact that a body which is operating independently and is admittedly not being substantially controlled by either the Federal or Provincial Government or any other governmental body and considering the fact that the instant matter does not involve a violation of any of the fundamental rights, the internal functions of the Association cannot, in the facts and circumstances, be subjected to judicial review under Article 199 of the Constitution. Therefore, it is held that the decision of the learned High Court in holding a writ to be maintainable against the Association was erroneous and cannot be sustained”.

10.In view of above discussion, we have no manner of doubt that UMT is a private sector university and not performing functions in connection with the affairs of Federal or Provincial Government or Local Authority in terms of Article 199(1)(a) of the Constitution, hence not amenable to judicial review.

11.For reasons recorded above, the writ petition was not maintainable, hence lawfully dismissed through impugned order. Accordingly, this appeal being meritless is also dismissed.

(MUHAMMAD SHAN GUL) (ABID AZIZ SHEIKH)

JUDGE. JUDGE

Approved for Reporting.

JUDGE

M.Sajid/Rizwan