Maintainability of Constitutional Petition against Public Sector Universities

Maintainability of Constitutional Petition against Public Sector Universities Case Laws Constitutional Law Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Maintainability Solutions - Constitutional Law Mr. Justice Abid Aziz Sheikh in his judgment has decided the issue regarding maintainability of constitutional petition against public sector universities in Writ Petition No. 3363 of 2014.

1. This order will decide preliminary objection raised by respondents to the maintainability of instant constitutional petition as well as W.P.No.24245 of 2015, W.P.No.33902 of 2015, W.P.No.7958 of 2016 & W.P.No.10494 of 2014 filed against Government College University, Lahore (GC University).

2. The above referred writ petitions are filed against G.C University under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). Learned counsel for G.C. University raised preliminary objection that these writ petitions are not maintainable because G.C. University is not a “person” within the meaning of Article 199 of the Constitution as it is not performing functions in connection with the affairs of federal or provincial governments. He argued that Government must have absolute, unfettered and exclusive financial and administrative control over particular organization for the purpose of maintainability of constitutional petition. Submits that as Government has no financial and administrative control over G.C. University therefore, writ petition is not maintainable. To elaborate he submits that though G.C University has been established under “The Government College University Lahore Ordinance, 2002 (Ordinance) however, under Section 3(5)(6) & (7) of the Ordinance, the G.C. University is an independent body corporate competent to acquire and hold property. Similarly Section 4(b)(c)(i)(j)(L)(m) and (aa) of the Ordinance prescribe powers of the G.C. University which are independent of government control. He also referred to Sections 7, 9, 10, 12, 13, 19, 20, 21, 26(2), 33, 40, 42 & 49 of the Ordinance to argue that the affairs of G.C. University are run and controlled by Syndicate and Vice Chancellor who are independent of Government. Submits that though Governor of Punjab is Chancellor of University but he is only ceremonious head and actual control is with Syndicate, which is independent. He concludes that the case of G.C. University is at par with case of Lahore University of Management Sciences (LUMS), decided in “Anoosha Shaigan Versus Lahore University of Management Sciences through Chancellor and others” (PLD 2007 Lahore 568) where in similar circumstances, august Supreme Court held that writ petition is not maintainable against LUMS.

3. Learned counsel for petitioners in response to above objection also referred to various provisions of the Ordinance and submitted that not only the Government of Punjab has direct administrative control over G.C. University but even financial control is indirectly with the Government of Punjab. Submits that Governor of Punjab being Chancellor of University, acts on advice of Chief Minister of the province under Article 105 of the Constitution, therefore, it is actually the Chief Minister who is controlling the affairs of University. Submits that under Rules of Business, Government College University is attached department of government therefore, these constitutional petitions are maintainable. They placed reliance on “Pakistan Defence Officers’ Housing Authority and others Versus Lt. Col. Syed Jawaid Ahmed” (2013 SCMR 1707), “International Islamic University, Islamabad and others Versus Dr. Shameed Tariq and others” (2015 PLC (C.S.) 1336), “Aitchison College, Lahore versus Muhammad Zubair and another” (PLD 2002 SC 326), “Shafique Ahmed Khan and others versus Nescom through Chairman, Islamabad and others” (PLD 2016 SC 377), “Haroon-ur-Rashid versus Lahore Development Authority and others” (2016 SCMR 931).

4. I have heard the learned counsel for the parties and perused the record with their able assistance on the question of maintainability of these constitutional petitions against G.C. University. Question whether constitutional petitions are maintainable under Article 199 of the Constitution against G.C. University has direct nexus with litmus test i.e. if G.C. University is under administrative and financial control of government or performing functions for the benefit of the public and not for private gain or profit and therefore, fall within definition of “person” under Article 199 of the Constitution. The august Supreme Court termed this test a “function test”. To find out if G.C. University qualifies “function test”, it is necessary to go through the relevant provisions of the Ordinance. Section 9 of the Ordinance deals with authority of Governor of Punjab, who shall be the Chancellor of University. The Chancellor will preside over the convocation of University, he is empowered to annul any order and proceedings of any authority or officer of University, if same are not in accordance with the Ordinance, the Statutes, the Regulations or the Rules. The Chancellor has powers to assent to statute, he may also remove any person from the membership of any authority for any of the reason prescribed under Section 9(6) of the Ordinance. Section 11 of the Ordinance deals with the powers of Chancellor to cause an inspection or inquiry into the affairs of the University, whereas according to Section 11(4) the Chancellor may advice the Syndicate and in case the Syndicate failed to carry out the advice of Chancellor, the Vice Chancellor shall comply with direction of Chancellor. Sub-Section 7 of Section 9 specifically provides that in the performance of his/her functions under the Ordinance, the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution. Article 105 of the Constitution provides that Governor will act on the advice of the Chief Minister. This means that the Chancellor of G.C. University in performance of his functions and powers under the Ordinance will act and be bound by the advice of Chief Minister of the Province of Punjab.

5. Under Section 11-A of the Ordinance, Ministry of Education, Government of Punjab shall be pro-chancellor of G.C. University and performs such functions as delegated to him by Chancellor. Section 12 deals with the appointment of Vice Chancellor and provides that government shall determine, by notification, the qualification, experiences and other relevant requirements for the post of Vice Chancellor and will also determine the terms and conditions of service of Vice Chancellor. Section 12 further provides that the Chancellor shall appoint Vice Chancellor for a period of four years or during the pleasure of the Chancellor. Under Section 13, the Vice Chancellor shall be the principal executive and academic officer of the University. Under Sections 14 & 15, the Registrar and Treasurer of G.C. University are to be appointed by the Chancellor on the recommendation of the government. Under Section 17, Resident Auditor of G.C. University shall be taken from audit department of government on deputation.

6. Section 20 deals with the formation of Syndicate and provides that Vice Chancellor will be the Chairman of Syndicate whereas its members will include Secretary Education Department, Secretary Finance Department, Secretary Law and Parliamentary Affairs Department, Chairman University Grants Commission, one female Vice Chancellor of any public university, Chairman Board of Intermediate, two members of constituent colleges to be nominated by government and two members of affiliated colleges nominated by the government, EDO Education Lahore, three members of provincial assembly. It is relevant to note that the number of members to constitute quorum of Syndicate is eight whereas government nominees and officials referred above are more than double of the quorum required for the meeting of the Syndicate. Section 21 deals with the powers and duties of Syndicate, which include administrative and financial control of G.C. University. It is clear and obvious that majority members of Syndicate being from either government officials or government nominees, actually, indirectly it is the Government of Punjab which is controlling the Syndicate.

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