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Petitioner: Mohammad Imran, etc VS Respondent: Province of Sindh through Chief Secretary and JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Asif Saeed Khan Khosa, Faisal Arab Title:Mohammad Imran, etc vs Province of Sindh through Chief Secretary and
JUDGMENT
Reported As: 2019 P.S.C. 1607 Result: Civil Petition Stands Disposed of Judgment JUDGMENT IJAZ-UL-AHSAN, J.--- The instant matters arise from judgments of the Lahore High Court, Lahore and the High Court of Sindh, Karachi before which various writ petitions were filed challenging the provisions of the law regulating schools fees of private educational institutions in the Provinces of Punjab and Sindh, respectively . FACTUAL BACKGROUND -- PROVINCE OF PUNJAB 2. Numerous private schools in Punjab filed writ petitions (W.F. No. 29724/2015, etc. listed in Appendix A to the impugned judgment dated 05.04.2018) before the Lahore High Court, Lahore challenging the vires of, inter alia, Section 7A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 ("Ordinance, 1984") as inserted by the Punjab Private Educational , Institutions (Promotion and Regulation) (Amendment) Ordinance, 2015 ("Amendm ent Ordinance 2015") and the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2016 ("Amendment Act, 2016"). The writ petitions were amended from time to time to also challenge the amendments introduced by the Punjab _ Private Educational Institutions (Promotion and Regulation) (Amendment) Ordinance, 2017 ("Amendment Ordinance, 2017") and the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017 ("Amendment Act, 2017"). Some of the students through their parents also filed writ petition's praying that
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directions be issued to private schools to charge fee in terms of Section 7A supra (W:13. No. 97269/2017, etc. listed in Appendix B to the impugned judgment dated 05.04.2018). A full bench of the Lahore High Court decided the writ petitions vide impugned judgment dated 05.04.2018 [reported as City School Private Limited v Government of the Punjab and others (PLD 2018 Lahore 509 )] as under ("LHC judgment"): 85. Fore reasons recorded in the preceding paragraphs, these petitions are decided in following terms: 1. The unaided private educational institutions can be regulated by State through licencing system under Article 18 of the Constitution. 2. The mechanism provided to determin e reasonable fee of private educational institutions, through impugned section 7-A of the Ordinance 1984, is a valid legislation. However , the complete bar on increase of fee for academic year 2015-2016 at the rate higher than the fee charged for academic year 2014-2015 through original subsection (1) of section 7-A (through Ordinance 2015) and the maximum limit in increase of annual fee @ 5% under subsection (5) of section 7-A of the Ordinance 1984 (inserted through Ordinance 2015 and Act of 2016) and maximum limit of 8% under subsection (5) of section 7-A of the Ordinance 1984 (amended through Act of 2017) are found to be unreasonable and un-proporti onate restrictions on petitioner schools fundamental rights, therefore ultra vires of the Constitution, hence struck down. The original subsection (7) of section 7-A (through Ordinance 2015) regarding refund of fee, is also read down accordingly . 3. For any increase already made in fee for academic year 2015-2016 at a rate higher than the fee charged for the class during academic year 2014-2015 or beyond 5% for next academic year i.e. 2016-2017 (after promulgation of Ordinance of 2015 and Act of 2016) and increase more than 8% for academic year 2017- 2018 (after promulgation of Act of 2017), the relevant private schools shall submit supportive material etc., justifying the above said increases, with the authority within period of 30 days from the announcement of this judgment. In case, no such material is submitted within stipulated time or said increases are otherwise not found justified by the concerned authority , the amount received more than previous academic year for academic year 2015-2016 or beyond limit of 5% for academic year 2016-2017 or beyond limit of 8% for academic year 2017-2018, as the case may be, shall either immediately be refunded to the students/parents or adjusted in the next fee bill of the school of those students. 4. The Provincial Government is directe d to notify within reasonable time "The Punjab Free and Compulsory Education Act, 2014 to ensure enforcement of fundamental rights of education under Article 25-A of the Constitution and also responsibility of private schools under section 13 of said Act. 5. The respondent Government shall frame uniform regulatory regime through rules under section 13 of the Ordinance of 1984, within 90 days of this judgment to determine the increase claimed by schools in fee by also considering the following factors:- i) The actual cost and expenses incurred and profits made by private educational institutions. ii) The quality of teachers, adequacy of building and other facilities available in the school. iii) The increase in the utility bills and other charges comparing to the previous years. iv) Payment of rent etc. on actual basis and its increase. v) The fixation and increase in fee should commensurate with the facilities being provided to students which must be examined before increase of any fee. vi) The acceptance or rejection of any proposed increase must be done through a speaking and reasoned order . vii) Time frame and deadline must be clearly spelt out in rules to file the proposed increased and its decision. viii) Fee of each grade/class should be fixed to ensure that said fee is not different for same grade/class in same campus. 6. The registering authority shall also ensure that parents are not compelled to purchase text books, uniform or other material from a particular vendor or provider and schools do not charge any amount other than tuition fee, admission fee or prescribed security from the parents. 7. The registering authority shall give representation to parents of private school in the proceeding of increase in tee and such proceeding shall be done in open and transparent manner .
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8. An effective parents/students complaint handling procedure be established by using modern information technology . Further the procedure shall also be laid down for expeditious disposal of those complaints. 9. A complete data of teachers and supporting staff being hired by private schools 'should be obtained by registering authority , showing educationa l qualifications/experience and track record of teachers and supporting staff on annual basis. 10. A periodic inspection of private school be carried out to check the provision of facilities to students as undertook by private schools at the time of registration and thereafter from time to time. 86. The petitions in appendix A & B are disposed of in terms of Order of the Court including directions given in Para 85 above. Aggrieved, the Government of Punjab filed C.A. No. 134- L/2018 with leave of this Court granted on 15.09.2018 in the following terms:- After hearing learned counsel for the parties, leave to appeal is granted in this case to consider inter alia the following questions: i) Whether while passing impugned judgment the Hon'ble Lahore High Court has considered that a law should be interpreted in such a manner that it should be saved rather than destroyed. ii) The Court should lean in favour of upholding constitutionality of legislation and it is incumbent upon the courts to be extremely reluctant to strike down law as unconstitutional. (iii) Where more than one interpretation is possible one which would make the law valid and the other void the Court' must prefer the interpretation which favours validity . (iv) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two. (v) A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. (vi) If a case can be decided on other or narrower grounds,the Court will abstain from deciding the constitutional question. (vii) Mala fides will not be attributed to the Legislature. (viii) Amendments were made in The Punjab Private Education Institution (Promo tion and Regulation) Ordinance, 1984 in light of Articles 3 and 18 of the Constitution to safeguard the communi ty against arbitrarily increase in school fee and stopping profiteering and commercialization of education; the legisla ture through regulatory function can impose maximum limit of fee regarding the unaided schools. (ix) Amendments were made after hectic exercise reviewing the trend of increase of fee by private schools from the years 2008 to 2015 and comparing it with the inflation rate during this period. (x) The right of profession, occupation and trade under Article 18 of the Constitution is not an absolute right rather amenable to licensing system, therefore, the State could impose maximum cap regarding the fee enhancement. (xi) The provisional legislature is within its rights to declare that increase of fee for more than 8% in a particular year is forbidden by law . The right to trade is subject to qualificatio n under Sections 3,5,7-A, 8,9 and 12 of the Ordinance, 1984 and Rules 11 and 12 of the Rules, 1984. (xiii) Reasonable classification on the basis of intelligible differentia is permissi ble between Schools, who are charging less then Rs.4000/- and those are charging fee for more than Rs.4000/- for applicability of Section 7-A. (xiv) Amendments made in September , 2015 through Ordinance with express provision of retrospective effect regarding the fee deposited in August, 2015, is permissible under the law . 2. Let the appeal be prepared on the available record with the liberty to the parties to add thereto. 3. On the oral request of the learned Additional Advocate Generals all petitioners who had approached the Lahore High Court (Listed in Appendix A and B of the impugned judgment are impleaded as parties). The office shall issue notices to them. They may filed their concise statements within two weeks. The learned Additional Advocate General shall file an amended memorandum of parties within one week. FACTUAL BACKGROUND -- PROVINCE OF SINDH
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3. Several private schools in Sindh filed constitution petitions (C.P. No. D-813/2005, etc.) before the High Court of Sindh, Karachi challenging the vires of, inter alia, Section 6 of the Sindh Private Education Institutions (Regulation and Control) Ordinance, 2001 ("Ordinance, 2001") as amended by the Sindh Private Education Institutions (Regulation and Control) (Amendment) Act, 2003 ("Amendment Act, 2003"). On a statement of the learned Additional Advocate General Sindh made on 17.10.2014 that on the promulgation of the Sindh Right of Children to Free and Compulsory Education Act, 2013 ("Act, 2013") the Ordinance, 2001 stood repealed, the High Court of Sindh disposed of C.P. No. D-813/2005, etc. as being infructuous. Review applications against the said order were filed by, inter alia, the Government of Sindh on the ground that such assumption of repeal was factually incorrect as the Act, 2013 was enacted pursuant to Article 25-A of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"). Be that as it may, in the meantime the parents of students filed various constitution petitions (C.P. No. D-5812/2015, etc.) before the High Court of Sindh, Karachi seeking implementation of the Ordinance, 2001 and the Sindh Private Education Institutio ns (Regulation and Control) Rules, 2002 ("Rules, 2002"). A division bench of the High Court of Sindh disposed of all the constitution petitions vide judgment dated 07.10.2016 [reported as Shahrukh Shakeel Khan and 2 others v Province of Sindh through Chief Secretary and 4 others (PLD 2017 Sindh 198)] as under:- To conclude: (a) With regards ultra vires of sub-rule 7(3) as stated in the foregoing, the grievan ce of the schools in not on the mechanism of such increase, rather it is on the quantum (5%) of such increase, thus the question is about--the determination of this percentile which requires taking into consideration of many_ factors like cost of doing business, minimum salaries payable, taxes, cost of utilities etc., requiring cons ideration of facts and taking of evidence, which is beyond the scope of the writ jurisdiction as being agitated by the private schools in the present petitions and as such no illegality has been shown that above sub-rule is inherently violative of Article 25 of the Constitution, thus such petitions of schools are dismissed; (b) With regards arbitrary increases in fees by private schools, it is evident from the forgoing discussion that the current mechanism provided for in the form of the said Ordinance and rules though looks glossy , however , the loggerhead position of parents against the schools and vice versa is a clear depiction of the fact that private schools are not following the said mechanism and there is no compulsion on these to do so from the Department. It is painful to note that no statement has been provided by the Department as to its receipt of each year's audited accounts report from private schools and its enforcement of the restricted 5% increase of the tuition fees. Department to strictly act in accordance with law and to ensure compliance of the rules and regulations and submit quarterly reports to this court in respect of such audit and 5% rule. Petitions filed by parents/students are thus allowed in the term that respondent schools shall only increase tuition fees no more than 5% per annum from the date of their registration for three years and in case there has been no re-registration after the said period of three years, fees shall not be increased unless school re-registers itself; and (c) The respondent schools who have increased their tuition fees over 5% per annum for the last three years from the date of their respective registration /re-registration, no further enhancement be permitted until their re- registration whereupon enhancement be regulated in strict compliance of Sub-rule 7(3) of the Rules 2002. Aggrieved, various schools filed appeals (C.A. No. 7 to 16-K/2017) with the leave of this Court dated- 26.01.2017, which were ultimately disposed of by consent vide order dated 04.04.2017 in the following terms: 4. Therefore, by consent of all present the order dated 17.10.2014, review whereof is pending in the referred to constitution petitions, in exercise of the powers conferred under Article 187(1) of the Constitution to do complete justice is set aside, consequently , the petitions which were disposed of as having become infructuous are resurrected to the same position as on 17.10.2014 and will be deemed to be pending adjudication. That since the said petitions are yet to be decided, therefore, without dilating upon the merits of the case these appeals are allowed by setting aside the impugned judgment and the matter is remanded to the Sindh High Court to be decided afresh... 4. Pursuant thereto, a designated division bench of the High Court of Sindh disposed of C.P. No. D-5812/2015, etc. and C.P. No. D-813/2005, etc. vide judgment dated 05.03.2018 [reported as Shahrukh Shakeel Khan and 2 others
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v Province of Sindh through Chief Secretary and 4 others ( PLD 2018 Sindh 498 )] as under ("SHC DB judgment"): 39. The foregoing analysis, discussion and conclusions may be summed as follows (and it must be kept in mind that this summation is for convenience only , and must be read in the light of the foregoing analysis and discussion): a. Schools can be regulated in terms of the second condition of Article 18, and the 2001 Ordinance and the 2005 Rules set up a regulatory regime that is a licensing system within the meaning of the said condition. b. The fees that the schools can charge and the salaries etc. payable by them to staff (i.e., their output and input prices), and any changes or increases therein, can be regulated in terms of the second condition. c. There is however a distinction between what is a reasonable restriction in terms of the Indian provisions and a reasonable regulation for purposes of the second condition of Article 18. In particular , the latter must be regarded as moving within a narrower and more restricted locus than the former . d. The initial "fee structure" determined under the regulatory scheme, in terms as set out in the statutory provisions noted above, is unobjectionable. e. The manner in which any increase in school fees is to be treated, in terms of Rule 7(3), is ultra vires Article 18 of the Constitution. In particular , the one-stage procedure adopted is constitutionally impermissible. Rather , it is the two-stage procedure with reversal of onus that is compatible with what is permissible in terms of the second condition. Rule 7(3) is, therefore hereby quashed and declared to be of no legal effect. Subject to what is stated below , the respondents are restrained from giving effect to this provision. If at all the Provincial Government wishes to regulate the increase in school fees it must do so in a constitutionally permissible manner . Again subject to what is stated below , unless proper rules are framed in this regard there is, with the quashing of Rule 7(3), no regulation for purposes of the increase in school fees. f. Since it is clear that the Provincial Government does, in fact, wish to regulate the increase in school fees, it is directed to frame constitutionally permissible rules within 90 days of this judgment, whether by suitable amendments to the 2005 Rules or otherwise. In summary , the framework to be put in place must include the following elements: (i) the increase in school fees should apply t two-stage procedure outlined above or some permissible vacant thereof; (ii) all stakeholders (including in particular pare is and guardians) must be given proper notice of any application to increase school fees and an adequate opportunity of taking objections or making any suggestions in relation thereto; (iii) the acceptance or rejection of any proposed increase must be done by a reasoned order; (iv) a proper and detailed procedure for this purpose must be clearly articulated, and applicable timeframes and deadlines clearly set out; (v) since the number of schools that come within the scope of the 2001 Ordinance is very large and the administrative capacity of the concerned Department of the Provincial Government appears to be limited, there must be proper provision for dealing with a large number of applications, any delays and backlogs in processing the same and there should also be some provision for interim measures while the proposed increase is being considered and/or finalized. g. Till such time as the proper regulatory framework is put in place in terms as above, Rule 7(3) shall continue to remain in force for the interim period. If the rules cannot be framed within the stipulated 90 days the Provincial Government or any stakeholder (e.g., a parent) may file an application in the lead petition (CP D-5812/2015), seeking a suitable extension in time. However , the Provincial Government shall have to properly explain and give reasons for the delay . The Court may make such orders and give such directions on the application as it deems appropriate, including extending the period for which Rule 7(3) is to continue. It is clarified that if no stich application is filed, then the interim continuance of Rule 7(3) shall come to an end on the expiry of the 90 day period. h. The regulation of the salaries and terms and conditions of the staff, including teachers, is permissible and no exception can be taken to the relevant provisions of the 2001 Ordinance and the 2005 Rules in this regard. Aggrieved, some schools filed appeals (C.A. No. 1023/2018, etc.) with the leave of this Court granted on 02.08.2018 in the following terms:- It has been argued, inter alia, that the provisions of Rule 10 of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 are ultra vires of proviso (ii-b) to Section 6(1) of the Sindh Private Educational Institutions (Regulations and Control) Ordinance, 2001 (the Ordinance ); that the said Rule is absolutely
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unreasonable and travels beyond the scope of the said proviso, therefore the interpretation of the learned High Court regarding the said Rule on the touchstone of the words "commensurate with its fee structure" contained in proviso (ii-b) to Section 6(1) supra is not well-founded, rather is against the settled principles of interpretation enunciated by the Courts: Furthermore, Mr. Shahzad Ma Elahi, learn ed counsel (for the petitioners in C.Ps No.2066, 2067 and 2529 of 2018 ) argued that there can be no arbitrary cap in the Rules on the increase in fees which should be determined on a case to case basis. It is also argued that Rule 7(1) is ultra vires the Ordinance. 2. To consider , inter alia, the aforementioned submissions, leave to appeal is granted. The operation of paragraph 37 of the impugned judgment shall remain- suspended till the disposal of this appeal. Other schools filed appeals (C.A. No. 1095/2018, etc.) with the leave of this Court granted on 18.09.2018 in the following terms: After hearing the learned counsel for the petitioner , we are inclined to grant leave to appeal in these petitions inter alia on the following points:- i. Whether Rule 7(3) of the Sindh Private Educational Institutions (Regulation & Control) Rules, 2005 (Rules), is violative of Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution)? ii. Whether the impugned judgment dated 5.3.2018, has erroneously declared Rule 7(3) of the Rules as violative of Article 18 of the Constitution, without examining the relationship and implication s of Article 23 and 25A of the Constitution on Article 18 of thereof? iii. Whether the impugned judgment dated 5.3.2018, has failed to consider that the proposed regulatory framework in the impugned judgment of a two-stage procedure is completely impractical, non-implementable and leads to unfettered discretion? The petitioners have provided a list of all the schools (marked as Annex-A) which have either been respondent petitioners before the High Courts or this Court. These schools shall be deemed to have been arrayed as respondents in this case and notices be issued to them and to the existing respond ents. Let these appeals be listed for hearing along with other connected appeals including the appeal arising out of C.P. No.1762-L/2018 on 04.10.2018. 5. In the meantime, the parent of students filed various new constitution petitions (C.P. No. D-627 and D- 6822/2017, etc.) before the High Court of Sindh, Karachi seeking similar relief as in C.P. No. D-5812/2015, etc. The new constitution petitions were heard by a different division bench of the High Court of Sindh which referred the matter to the Hon'ble Chief Justice of the High Court of Sindh for formation of a larger bench. A full bench was constituted which heard and allowed the new constitution petitions vide judgment dated 03.09.2018 [reported as Bushra Jabeen and 367 others v Province of Sindh through Chief Secretary and others (2018 MLD 2007 )] ("SHC FB judgment") as under: 28. To sum up hereinabove discussion, and while keeping in view the ratio of the judgments of the Hon'ble Supreme Court as declare as under:- I). The right to carry on any lawful trade, business or profession as guaranteed under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, is a fundamental right of every citizen of Pakistan, however , is not absolute or unfettered right as it is subject to qualifications, regulations and reasonable restrictions, as may be prescribed by law. 11) The judgment of the learned Divisional Bench of this Court in the case of Shahrukh Shakeel Khan and others v. Province of Sindh and others (PLD 2018 Sindh 498), to the extent, whereby , it has been held that "provisions of Rule 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 are ultra vires to Article 18 of the Constitution, as it provides one-stage procedure, which is constitutionality impermissible, and further , that the right to carry on any lawful trade, business or profession as guaranteed under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, is not subject to reasonable restriction, as permissible under Article 19(1)(g)(6) of the Indian Constitution", is not in conformity with Pakistan Electronic Media Regulatory Authority through Chairman and another (PLD 2014 Sindh 630) and Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others (PLD 2016 Supreme Court 692), therefore, does not lay correct
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