2011 CLD 23
[Quetta]
Before Qazi Faez Isa, C.J. and Syeda Tahira Safdar, J
MUHAMMAD SHOAIB ---Petitioner
Versus
PROJECT DIRECTOR, NATIONAL ICT SCHOLARSHIP PROGRAM, MINISTRY
OF INFORMATION TECHNOLOGY, ISLAMABAD and another ---Respondents
C.P.No.709 of 2009, decided on 1st March, 2010.
(a) Constitution of Pakistan ---
----Art. 199 -Constitutional petition Application for scholarship -Petitioner who was one of the
applicants had completed the prescribed Registration Form and provided particulars about his
academic achievements and mentioned his preference of universities as sought in the
Registration Form -Petitioner recorded his four preferences; viz; National University of
Science and Technology; COMSATS . Institute of Information; Balochistan University of IT
and Ghulam Ishaq Khan Institute -Petitioner fulfi lled the scholarship programme criteria and
obtained the requisite marks and was designated as 'qual4fled', pursuant to the test given by
National Testing Service -Petitioner then proceeded to second preference university namely
'COMSATS' as instructed by t he authorities -When petitioner was found not to meet the said
university's entrance criteria, he proceeded again as instructed to third preference -Authorities,
in circumstances, were not Justified to allege that transfer of the petitioner to third preferen ce
was without approval.
Salahuddin v. Frontier Sugar Mills and Distillery Limited PLD 1975 SC 244; Province of N. -
W.F.P. v. P.T. Corpn. PLD 2005 SC 670; Zahoor Ahmed shah v. Pakistan Medical and
Dental Council 2005 MLD 718; New Jubilee Insurance Co. Lt d. v. Collector of Customs
1997 MLD 2770; Abdul Razzak v. Federation of Pakistan PLD 1998 Lah.394; Benazir
Bhutto v. Federation of Pakistan PLD 1999 Kar.39; Amin Farooq v. Vice -Chancellor 1993
CLC 474; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612 a nd Zainul Abidin v.
Multan Central Co -operative Bank Ltd. PLD 1966 SC 445 ref.
(b) Constitution of Pakistan ---
----Arts. 29 & 37 ---Functions of State and Principle of Policy ---Provision of education was
function of the State --No reason existed for igno ring the requirements of Art.37(c) of the
Constitution whereunder the State would make technical and professional education
generally available and higher education equally accessible to all on the basis of merit ---
Article 29 of the Constitution, providing Principles of Policy, required each organ or
Authority of State to act in accordance with those principles.
Attiya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161; Benazir Bhutto v. Federation
of Pakistan PLD 1988 SC 418 and Employees of the Pakista n Law Commission v. Ministry
of Works 1994 SCMR 1548 ref.
(c) Companies Ordinance (XLVII of 1984) ---
----Ss. 15, 29 & 30 -Memorandum and Articles of Association -- Government controlled
Company --Appointment of Directors of such company ---Power to appoint Directors and
Chairman mentioned in the Memorandum, vested in the Federal Government --Remaining
Directors were to be selected by the Secretary Ministry of Information Technology ---
Directors appointed under Article of the Memorandum though designated as 'I ndependent
Directors' could be removed even before the expiry of their terms --In view of the fact that six
Directors were Federal Government employees and the remaining were chosen by the
Selection Committee constituted by the Federal Government without se curity of tenure, it
was clear that the control of the company vested in a substantial manner in the hand of the
Government.
(d) Constitution of Pakistan ---
----Art. 199 ---Powers of High Court to issue writ ---Scope -Two-fold power vested with High
Court to issue writs ---In the first place, the person to whom High Court would issue such a
writ must be within the territorial jurisdiction of the court; and in the second, the impugned
act done or proceedings taken by a person must have been done or taken w ithin the territorial
jurisdiction of the court.
H. Shakil Ahmed for the Petitioner.
Muezzin Qureshi for Respondent No.1.
Qahir Shah for Respondent No.2.
Date of hearing: 8th December, 2010.
JUDGMENT
QAZI FAEZ ISA, C.J .---The Ministry of I nformation Technology (I.T.) and
Telecommunication Division, Government of Pakistan acting through Secretary, Ministry of
Information Technology, Government of Pakistan, Member, Telecom Ministry of
Information Technology, Government of Pakistan and Additio nal Finance Secretary,
Ministry of Finance, Government of Pakistan subscribed to Memorandum and Articles of
Association of National ICT R&D Fund (hereinafter "the Company"). The Company was
incorporated as a company under section 32 of the Companies Ordina nce, 1984 on 28th
November, 2006. The objects, for which the Company was established, included the
following: --
"(1) To transform Pakistan's economy into a knowledge based economy by promoting
efficient, sustainable and effective information and communic ation technology (the
"ICT") initiatives through synergic development of industrial and academic resources.
(2) To focus on, implement and allocate Research and Development Fund (R&D
Fund) to key priority areas in the ICT sector of Pakistan including: --
(a) Capacity building of human resources;
(b) National productivity enhancement;
(c) ICT market development;
(d) ICT product development;
(e) Multicultural support programme; and
(f) Development of ICT infrastructure
(3) To implement and ke ep focused on other priority areas for R and D Fund
allocation, including, (a) development of ICT infrastructure, (b) creation of a secure
cyberspace environment, (c) creation and management of local content, (d)
establishment of an effective policy and (e ) the launch of education policies that
utilize and encourage the expansion of ICT capacities and ICT consumption.
(4) To devise effective, efficient and transparent management of the Fund provided by
the Federal Government of Pakistan in furtherance of the development of the ICT
industry, products, services and research oriented projects.
(7) to enhance the national ICT related human resource development capacity
manifold by facilitating industrial demand through focused human resource capacity
buildin g including (a) Promotion of education to all segments of the society; (b)
creation of industry driven human resource 'development, (c) creation and
development, through ICT, formal and informal learning networks for communities;
and (d) Development of an IT-trained workforce."
2. The Company instituted the "National ICT R & D Fund National ICT Scholarship Program
2009" (hereinafter the "Scholarship Program"). The stated Vision in the Scholarship Program
document was "to provide access to the deserving an d talented youth from rural marginalized
areas to enter the ICT profession and become world -class ICT professionals to serve
Pakistan" And he stated Objectives included, "Providing best quality ICT undergraduate
education available in Pakistan to deserving talented youth specifically from rural
marginalized areas of Pakistan".
3. The Company invited applicants to avail of the Scholarship Program. The petitioner was
one such applicant. The petitioner completed the prescribed Registration Form and provided
particulars about his academic achievements and mentioned his preference of universities as
sought in the Registration Form. The petitioner recorded his preferences, as under: --
Sr.No. Preference University Name Selection Code
1st Preference National University of Science and Technology 1401
2. 2nd Preference Comsats Institute of information 1201
3. 3rd Prefernece Balochistan University of IT 1101
4. 4th Preference Ghulam Ishaq Khan Institute 1501
4. The instruction page of the Registration F orm stipulated that for Balochistan University of
Information Technology, Engineering and Management Sciences, COMSATS Institute of
Information Technology, Institution of Business Administration and National University of
Sciences and Technology, "the appl icants are not required to apply directly to the universities
and appear in their entrance exam. Admission shall be granted based upon the applicant's
performance in ICT -Scholarship Award Test". The petitioner took the prescribed test and
obtained 87 marks and was declared qualified by respondent No.1 and the university
allocated by respondent No.1 to the petitioner was COMSATS Institute of Information
Technology (COMSATS).
5. The petitioner therefore proceeded to COMSATS, but it transpired that the petit ioner did
not meet the admission criteria of COMSATS. In this regard the petitioner states in paragraph
6 that COMSATS required 60% marks, whereas the petitioner had obtained 58%, accordingly
he requested for transfer his third preference university namely Balochistan University of
Information Technology, Engineering and Management Sciences, Quetta (BUITEMS) and
request of the petitioner was acceded to by respondent No.1. The respondent No.1 however
disputes that it accorded approval to the petitioner for h is transfer to BUITEMS. BUITEMS
(respondent No.2) has filed a separate counter -affidavit and in its paragraph 3, inter alia
states, that, "the Ministry of Information and Technology, being scholarship awarding
Institute has referred the petitioner to BUITE MS at Quetta on scholarship basis under
National ICT R and B Fund Scholarship Program, 2009 through said scholarship scheme and
on the recommendations of the respondent No.1, the petitioner was granted admission and
was allowed to regularly attend the clas ses." In this regard, BUITEMS has also attached letter
No.ICT/Scholarship/09/04, dated October 12, 2009, of respondent No.1, which is reproduced
hereunder:
"Mr. Abdul Qadeem Kakar
Deputy Registrar Academics
Balochistan University of Information Technolog y,
Engineering and Management Sciences,
Jinnah Town, Samungil Road, Quetta.
Subject: INCLUSION OF STUDENTS NAMES -IN-THE ADMISSION LIST
Dear Sir,
This is to thank you for your cooperation and participation in National ICT
Scholarship Program.
We w ould like to inform you that details of the 18 students who have opted for
BUITEMS as their preferred educational Institute, have successfully secured the
scholarship award through successfully passing the National ICT Scholarship
program screening test, a re attached as enclosure with this letter.
National ICT R & D Fund would like to request that these students' names may be
considered as admitted students and their fees will be duly paid by the National ICT R
& D Fund under the National ICT Scholarship Program 2009, after the signing of
contract with your reputed university.
Sincerely,
(Sd.)
M. Ali Iqbal
D.M. Coordination"
This referred to attached list mentioned the name of the petitioner at serial No.18.
Accordingly, the denial of respondent No.1 t hat it had not accorded approval is controverted
from the respondent No.1's own letter.
6. The dispute which compelled the petitioner to file this petition is respondent No.1's letter
dated 26 -10-2009, contents whereof are reproduced here under:
"ICT/S cholarship/09/05
October, 26, 2009
Mr. Abdul Qadeem Kakar
Deputy Registrar Academics
Balochistain University of Information
Technology, Engineering and Management
Sciences, Jinnah Town, Samungil Road, Quetta.
Subject: REMOVAL OF STUDENT'S NAME FROM THE NICTSP 2009
STUDENTS LIST AT BUITEMS
Dear Sir,
This is with reference to our letter Reference No.ICT/Scholarship/09/04, in which we
have sent you the list of 18 students who have opted for BUITEMS as their preferred
institute under the NICTSP 2009.
Through this letter, we would like to inform you that one of the students, Mr.
Muhammad Shoaib son of Mr. Abdul Haleem had been allocated to another
participating university/institute, per his preference in the registration form of
NICTSP 2009. Therefor e, his name should be excluded from the said list of students.
National ICT R & D Fund will not be responsible for the payment of any university
dues on his behalf.
Sincerely,
(Sd.)
Faward Younus
Project Director, NICTSP.
Copy to: Engr. Ahmed Farooq Bazal
VC, BUITEMS"
Surprisingly, the respondent No.1 did not inform the petitioner about the aforesaid decision,
let alone issuing the petitioner a notice and or according him an opportunity to be heard. The
petitioner has assailed this aforesaid lett er/decision of the respondent No.1.
7. Mr. Muezzin Qureshi, learned counsel for respondent No.1 has opposed the petition and
has filed a comprehensive counter -affidavit. The following legal objections have also been
taken: --
(a) That respondent No.1 is not amenable to writ jurisdiction as the respondent No.1 is
not a "person performing functions in connection with affairs of the Federation", and
in this regard reliance is upon the following cases:
(i) Salahuddin v. Frontier Sugar Mills and Distillery Limited PLD 1975 SC 244.
(ii) Maqsood Ahmed Toor v. Federation of Pakistan 2000 SCMR 928
(iii) Province of N. -W.F.P. v. P.T. Corpn. PLD 2005 SC 670.
(b) That this court does not have territorial jurisdiction and in support of such contention
responde nt has placed reliance upon the following precedents: --
(i) Zahoor Ahmed Shah v. Pakistan medical and Dental Council 2005 MLD 718.
(ii) New Jubilee Insurance Co. Ltd. v. Collector of Customs 1997 MLD 2770.
(iii) Abdul Razzak v. Federation of Pakistan PLD 1998 Lah.394
(iv) Benazir Bhutto v. Federation of Pakistan PLD 1999 Kan 39.
(v) Amin Farooq v. Vice -Chancellor 1993 CLC 474.
(c) Reliance has also been placed on Rule 11 of the NICTSP 2009 -Top-level Merit List
and Seat Allocation Rules, which st ipulates as under:
No provision for re -allocation or transfer of any candidate to any other university or
discipline once the allocation is completed and made public."
8. Mr. Qahir Shah, learned counsel for respondent No.2 stated that BUITEMS is prepar ed to
continue providing education to the petitioner as the petitioner meets with BUITEMS
educational criteria, provided respondent No.1 does not take/remove the petitioner from the
Scholarships Program and respondent No.1 continues to provide the agreed f inancial support.
Mr. Qahir Shah has also referred to the agreement executed between the respondents Nos. 1
and 2 and states that there is no provision therein, which entitles respondent No.1 to cut -off
funding of a student once he or she has been referred to respondent No.2. He has also referred
to clause 6.7 of such agreement, which is reproduced hereunder: --
"No student shall be expelled by the Institution unless agreed by the Company and
reasons for which shall be intimated to the Company in writing."
According to the learned counsel expulsion of a student has to be initiated by the Institution,
which in the instant case is BUITEMS, and BUITEMS has not asked the Company to expel
the student.
9. Mr. H. Shakil Ahmed, learned counsel for the petitione r in response to the legal objections
stated that all the subscribers of the memorandum and Articles of Association of the
Company are government employees and funds of the Company are provided by the
Federation through Ministry of Information Technology. He further stated that the
Registration Form is the only document signed by the petitioner, and the same clearly shows
that it has been issued by the Ministry of Information Technology and the monogram of the
Government of Pakistan is affixed on the same. Learned counsel further states that Part IV(a)
of the Registration Form states that in respect of four universities, including COMSATS and
BUITEMVMS, applicants were not required to apply directly to the universities and appear
in their entrance exam and a dmission thereto was to be granted based upon the applicant's
performance in ICT Scholarship Award Test. Learned counsel further states that the
petitioner qualified in the said test and therefore could not have been dislodged from
COMSATS but with a view to resolve matters amicably the petitioner agreed to be
transferred to BUITEMS with specific approval of respondent No.1. Learned counsel states
that in contract Part IV(b) of the said Registration Form requires that in respect of six
universities mention ed therein applicants are required to register and appear in the exam of
such universities. He further contends that Rule 11 is not applicable as the transfer took place
with the consent of respondent No.1 and in any event the said Rules were enacted on 7 -8-
2008 whereas there was no rule in place on the date when the Registration Form was
submitted by the petitioner, i.e. on 27 -3-2009, and lastly that the said rules are not statutory
rules nor have the same been notified. Learned counsel has placed reliance upon following
cases:
(i) Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612.
(ii) Zainul Abidin v. Multan Central Co -operative Bank Ltd. PLD 1966 SC 445.
10. The first aspect which requires consideration is whether the petition is maintainable.
Learned counsel for respondent No.1 has cited a number of precedents, which require
examination. In Salahuddin v. Frontier Sugar Mills (supra) the honourable Supreme Court
interpreted the phrase "performing functions in connection with affairs of the Federa tion or a
Provincial as under:
"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 org anization 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 per son, performing
functions in connection with the affairs of the Federation or a province; otherwise
not."
We thus need to determine whether (1) education is a function of the State, (2) whether the
control of the Company vests in a substantial manner in the hands of Government and (3)
whether the bulk of the funds are provided by the State. Provision of education undoubtedly
is a function of the State. It would not be out of place to quote from Article 37 of the
Constitution:
"37. Promotion of social ju stice and eradication of social evils.
The State shall ---
(a) promote, with special care, the educational and economic interests of backward
classes or areas;
(c) make technical and professional education general available and higher education
equall y accessible to all on the basis of merit?
The importance given by the framers of the Constitution to the Principles of Policy can be
gleaned from Article 29, which inter alia stipulates: --
"29. Principles of Policy.
(1) The principles set out in thi s Chapter shall be known as the Principles of Policy,
and it is the responsibility of each organ and authority of the State, and of each
persons performing functions on behalf of an organ or authority of the State, to act in
accordance with those Principle s insofar as they relate to the functions of the organ or
authority;
(2) In respect of each year, the President in relation to the affairs of the Federation and
the Governor of each Province in relation to the affairs of his Province, shall cause to
be p repared and laid before the National Assembly or, as the case may be, the
Provincial Assembly, a report on the observance and implementation of the Principles
of Policy, and provision shall be made in the rules of procedure of the National
Assembly or, as the case may be, the Provincial Assembly, for discussion on such
report."
The honourable Supreme Court too has stressed the significance of the Principles of Policy.
In Attiya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161, it held that: --
"There i s no reason for ignoring the requirements of Article 37(c) of the Constitution.
No doubt, aforesaid Article occurs in the Principles of Policy and is not directly
enforceable nevertheless Article 29 of the Constitution requires each organ or
authority of S tate to act in accordance with those Principles. In Benazir Bhutto v.
Federation of Pakistan PLD 1988 SC 418 this court described these Principles of
Policy as conscience of the Constitution and the basis of all executive and legislative
action. In Employe es of the Pakistan Law Commission v. Ministry of Works 1994
SCMR 1548 it was held that the provisions relating to Fundamental Rights ought to
be read together with the directive Principles of Policy."
The second aspect of control of the Company Article 3 3 of the Articles of the Association of
the Company provides that the first directors of the Company will be the aforesaid
subscribers to the memorandum, all of whom are government servants, whereafter Article 34
governs the matter. The same stipulates as under:
"34. Number of Directors:
The Board of Directors may consist of minimum of twelve (12) directors, who shall
be nominated and appointed by the Federal Government and the Chief Executive
Officer appointed by the Board shall be deemed to be the thi rteenth (13th) director as
provided in section 200 of the Ordinance. Out of the twelve (12) Directors to be
nominated by the Federal Government: --
(i) five (5) shall be Ex -Officio office bearers in the Federal Government;
(ii) one (1) shall be the chai rman of the Authority;
(iii) three (3) shall be selected from amongst the nominations made by the licensees;
(iv) two (2) shall be selected from amongst the nomination made by the scientific and
academic community; and
(v) One (1) shall be a corporat e management executive with management experience
at a senior position in multinational or international companies"
The power to appoint Directors and Chairman mentioned in clauses (i) and (ii) of Article 34
vests in the Federal Government as stipulated in Article 35. The remaining directors are
selected by a Selection Committee of three Directors constituted by the Secretary Ministry of
Information Technology (clause (iii) of Article 35). Directors appointed under Article 34(iii)
and (iv) though designat ed as 'Independent Directors' can be removed even before the expiry
of their term (Article 37) by a resolution passed with a simple majority (Article 40). In view
of the fact that six directors are Federal Government employees and the remaining are chosen
by the Selection Committee constituted by the Federal Government without security of tenure
it is clear that the control of the Company vests in a substantial manner in the hands of the
Government.
Lastly, it needs considerations wherefrom the bulk of th e funds of the Company have been
provided. The respondent No.1 has not made any specific disclosure in this regard. Article 4
of the memorandum of Association however stipulates that the fund has been "provided by
the Federal Government" to the Company. Th e fact that both the Registration Form and the
Scholarship Program documents also mention the Ministry of Information Technology,
Government of Pakistan further supports the presumption that the Government of Pakistan
has provided funds to the Company for the Scholarship Program.
The case of Maqsood Ahmed Toor (supra) also does help the respondent No.1 as it was held
therein, that, "persons, including body corporate, can be regarded as person performing
functions in connection with affairs of Federation e tc. if functions entrusted to them are
indeed functions of State or if control of organization vests substantially in hands of
Government."
As regards the case of Province of N. -W.F.P. v. Pakistan Telecommunication Corporation
(supra) the question before the honourable Supreme Court was whether the concession as
regards non -payment of tax was available to Pakistan Telecommunication Corporation (the
successor of the Pakistan Telegraph and Telephone Department) under Article 165 of the
Constitution and Rule s 156 of the N. -W.F.P. Local Councils (Octroi) Rules, 1984. The
matters for consideration in the instant petition are neither the same nor similar. The cited
precedent also did not involve the interpretation of Article 199 agitated by the respondent
No.1.
11. That with regards to respondent No.1's second objection of territorial jurisdiction none of
the cases cited by the learned counsel are attracted to the facts of the instant petition. Herein
the petitioner is aggrieved by respondent No. l's letter dat ed October 29, 2009 addressed to
respondent No.2 at Quetta, where the petitioner is receiving education. Accordingly, the
cause of action has clearly occurred within the jurisdiction of this court. It will be useful to
reproduce sub clause (a) of clause (1 ) of Article 199 of the Constitution of Islamic Republic
of Pakistan:
"Jurisdiction of High Court .--Subject to the Constitution, a High Court may, if it is
satisfied that no other adequate remedy is provided by law: --
(a) on the application of any aggr ieved party, make an order: --
(i) directing a person performing, within the territorial jurisdiction of the court,
functions in connection with the affairs of the Federation, a Province or a Local
Authority, to refrain from doing anything he is not permi tted by law to do, or to do
anything he is required by law to do; or [emphasis added] (sic).
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction
of the court by a person performing functions in connection with the aff airs of the
Federation, a Province or a local authority has been done or t e n without lawful
authority."
Thus a two -fold power vests with this court to issue writs. In the first place, the person to
whom a High Court issues such a writ must be within the territorial jurisdiction of the court
and in the second, the impugned act done or proceedings taken by a person must have been
done or taken within the territorial jurisdiction of the court. De -seating the petitioner and
cutting -of his funding are acts don e within the territorial jurisdiction of this court.
12. In view of the aforesaid the two legal objections (a) and (b) above are without merit and
not attracted to the facts of this petition and the petition is held to be maintainable. As regards
legal o bjection (c) the answer of Mr. H. Shakeel Ahmed, learned counsel for the petitioner is
sufficient reply. It would also not be out of place to quote the following from the National
Education Policy, 2009: --
"The paradigmatic shift requires that the object ives of the education policy would be
to serve the interest of the students and learners rather than all those, who develop
policy or implement programs."
13. The question that now requires consideration is whether the petitioner, is entitled to the
following relief claimed by him:
(a) That the impugned action/decision of the respondents, whereby the name of
the petitioner has been excluded from the list of students, to which the
respondents have given scholarship, is illegal, void, mala fide, violative of
principles of natural justice and of no legal effect.
(b) That the petitioner being eligible in all respect is entitled to attend the classes
of Bachelor of Science in Computer Engineer (B.S.C.E) on scholarship basis
and he cannot be deprived from th e same in any manner.
(c) Pending disposal of the petition, the operation of impugned decision may be
suspended and the petitioner may be allowed to attend the classes on
scholarship basis."
Admittedly the petitioner fulfilled the Scholarship Program c riteria and obtained the requisite
marks and was designated as 'qualified' pursuant to the test given by the National Testing
Service. He then proceeded to his 2nd preference university, namely COMSATS, as
instructed by respondent No.1 and when found not t o meet the said +university's entrance
criteria proceeded, again as instructed by respondent No.1, to BUITEMS (respondent No.2).
The respondent No.1 wrongly alleged that transfer of the petitioner to BUITEMS was without
its approval, but respondent No.1's own letter dated October 12, 2009, controverts this. Under
the circumstances the petitioner cannot be faulted and is entitled to the reliefs prayed for.
14. In view of the interim orders the petitioner's studies were thankfully not disrupted. The
petitio n is therefore, allowed. In view of the fact that the respondent No.1 wrongly contended
that it never gave approval to the petitioner for transfer of his scholarship to respondent No.2
and for suppressing its letter dated October 12, 2009, which was a very material document,
Rs.5,000 costs are also imposed. Counsel for respondent No.1 must be careful in future to
ascertain all relevant facts before filing pleadings in court.
H.B.T./ 108/Q Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.