The Constitution of Pakistan, 1973 Developed by Zain Sheikh

SALEEM RAZA AND OTHERS

V/S

THE STATE

Constitution of Pakistan (1973) Arts. 199, 8,4 & 25-

The petitioner after having passed O Level’s exam., appeared in A Level’s exam., but awaiting the result, she applied for admission with the Lahore University of Management Science (the LUMS) for BSC. (Honours)/BA-LLB Programme, which has been declined to her with the advice that she must improve her A Level’s result, whereas according to the petitioner at that time, A Level’s result was not yet announced, which was subsequently declared and the petitioner had obtained 3 A’s therein. It is this refusal which has been challenged by the petitioner through the present writ petition on the ground of being illegal, arbitrary, whimsical, unlawful, unreasonable etc., and violative to the provisions of Article 8, 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.

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 tht 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 petitioner, in the light of the catena of judgments from the respondents’ side which have been discussed above, not only are distinguishable, rather do not apply to the facts and circumstances of the present case.

Therefore, when both the “administrative” and the “financial” control of the Federation over respondent No. 1is lacking, I am constrained to hold that LUMS is not a “person” within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which could be held to be performing its duties in connection with the affairs of the Federation or the Province. Resultantly, this writ petition against the respondents is incompetent, which is hereby dismissed. [p. 570, 575] A & H