Case Summary & Legal Holding

This judicial decision was delivered by the Sindh High Court on 2018-09-03. The matter involves proceedings between (1) Bushra Jabeen and others (2) Arshad Fawad and others (3) Faraz Hussain Memon and others (4) Muhammad Amir Qazi and others (5) Saqib Farooq and others (6) Kashif Jamil and others (7) Khalid Fayyaz and others and Province of Sindh and others, officially reported as 2002 PLD 261. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Muhammad Ali Mazhar, Ashraf Jehan Title:(1) Bushra Jabeen and others (2) Arshad Fawad and others (3) Faraz

Hussain Memon and others (4) Muhammad Amir Qazi and others (5) Saqib Farooq and others (6) Kashif Jamil and others (7) Khalid Fayyaz and others vs Province of Sindh and others Case No.:(1) Const. Petition No.D-6274 of 2017 (2) Const. Petition No.D-6376 of 2017 (3) Const. Petition No.D-6822 of 2017 (4) Const. Petition No.D-6977 of 2017 (5) Const. Petition No.D-6978 of 2017 (6) Const. Petition No.D-7043 of 2017 (7) Const. Petition No.D-7570 of 2017 Date of Judgment:2018-09-03 Reported As: 2018 MLD 2007, 2018 SHC 945 Result: petitions allowed Judgment AQEEL AHMED ABBASI, J :- Above petitions have been filed by large number of students through their parents, who are studying in different grades in the private schools of respondents, whereas, a common grievance has been expressed against exorbitant increase of school fee in each academic year by the respondents schools which according to petitioners is without any lawful basis, reason or justification, and also in violation of Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001, duly amended by Amendment Act 2003 and 2005 as well as in violation of Rule 7(3) of the Sindh Private Educational Instit utions (Regulation and Control) Rules, 2002. Common relief(s) sought in the above petitions can be summarized in the following terms:- a) Direct the Respondents to act strictly in terms of Rule 7(3) of the Sindh Private Educational Institutions (Regulation & Control) Rules 2002. b) Direct the Respondent No.1-3 to enforce the provisions of the Sindh Private Educational Institutions (Regulation & Control) Ordinance 2001 and subsequent amendments of 2003 & 2005 strictly against the Respondent No.4 and 5, including provisions pertaining to admission fee, enhancement of fee and scholarship to the student. c) Direct the Respondent No.1 to 3 to take punitive action against the Respondent No.4 and 5 including but not limited to recovery and refund the excess amount received by them from the Petitioners since 2005 till July 2017 in violation of provision of Rule 7(3) of the Sindh Private Educational Institutions (Regulation & Control) Rules 2002?

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read with provisions of the Sindh Private Educational Institutions (Regulation & Control) Ordinance 2001 and subsequent amendments of 2003 & 2005. d) Declare that the sudden increase in fee structure is arbitrarily , un justified, illegal and of no legal effect. e) Permanently restrain the Respondent No.4 & 5, their employees, officers, servants, representatives or any person action for and on their behalf from receiving the enhanced amount of fees for the year 2017-2018 and for future further be restrained from increasing the fee of more than 5% on year basis so also by any means, not to take any action detrimental to the interest and wellbeing of the students in the pursuit of education. f) Any other relief which deems fit and property . g) Grant cost of Petition. 2. Notices of above petitions were issued to the respondents for various dates, whereas, in one of the petitions i.e. Const. Petition No.D-6274/2017 on 20.09.2017, following order was passed:- "20.09.2017 M/s. Muhammad Nouman Jamali and Abdur Razzaq, Advocates for Petitioners. 1. Urgency granted. 2. Exemption application is granted subject to all just exceptions. 3-4. Notice to Respondents, also to learned AAG for 27.9.2017. Till the next date no action by way of enhancement of fees or otherwise prejudicial to any student whose parent/guardian is petitioner in this petition shall be taken by the Respondent schools including and in particular but not limited by way of action on the reminder notices sent to parents/guardians in relation to enhanced fees some copies of which are annexed along with petition." 3. Above petitions were adjourned from time to time at the instance of respondents seeking time for filing comments. During pendency of these petitions, Court was informed that similar petitions have already been heard by a Divisional Bench of this Court, wherein, judgment has been reserved. However , the similar interim orders passed in such petitions by the learned Divisional Bench also remained operative in the instant petitions, whereas, on 07.03.2018, it was informed that another Divisional Bench of this Court in the earlier petitions in respect of same subject controversy i.e. C.P.No.D-5812/2015 (along with other connected petitions) has already announced the judgment. Such fact was brought to the notice of the Divisional Bench of this Court on 07.03.2018 when following order was passed:- "07.03.2018 M/s. Muhammad Nouman Jamali & Abdur Razzaq, advocates for the petitioners. M/s. Kamal Azfar , Khalid Javed and Muhammad Ali Lakhani, advocates for the respondents. Mr. Ghulam Shabbir Shah, Addl. A.G. Sindh. Mr. Kamal Azfar , learned counsel for the respondent No.4 in C.P.No.D-6376/2017, has placed on record the copy of judgment dated 05.03.2018, recently announced by a Divisional Bench of this Court in the connected petitions, involving the similar controversy , (i.e. C.P.No.D 5812/2015 and connected petitions), along with copies of the reported judgments, which according to learned counsel, have been mentioned in the said judgment by the Division Bench of this Court, and submits that respondents are satisfied with the judgment except clause "h" of para 39 of the said judgment. Learned counsel further submits that, in view of a judgment in the case of Multiline Associates v/s Ardershir Cowasjee (PLD 1995 SC 423) this Court may, by following the aforesaid judgment as a binding precedent, may dispose of all the connected petitions in the similar terms. Mr. Khalid Javed, learned counsel appear ing on behalf of the respondents in C.P.Nos.D-6822/2017 and 6977/2017 submits that since he has not examined the aforesaid judgment nor has been instructed by the management of City School with regard to the fate of the aforesaid judgment, therefore, requests for time to assist this Court on the next date of hearing. Learned counsel appearing on behalf of the petitioners have also requested for time to assist this Court as to whether instant petition(s) may also be disposed of in terms of the aforesaid judgment passed by the Divisional Bench of this Court in line of Multiline Associates v/s Ardershir Cowasjee (PLD 1995 SC 423) or they will assist this Court to take a different view in the instant matter and to refer the same for constitution of larger bench in case of any difference of opinion on the legal issue in the instant matter.

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At this juncture, Mr. Muhammad Ali Lakhani, learned counsel appearing for the respondent/Foundation Public School submits that some of the students in the garb of interim order operating in the connected petitions, are even not making payment of their monthly fee as per old fee structure since September, 2017, hence requests that the petitioners and such defaulting students may be directed to make payment of their monthly fee as per old fee structure, however, without charging late fee. Learned counsel for the petitioners submits that petitioners will ensure that order passed by this Court on 19.01.2018 may be complied with in letter and spirit and all the students will make payment of outstanding amount as per old fee structure, however, without payment late fee, however, requests that respondents may be directed to issue fee challans for the defaulting monthly fee without charging late fee surcharge. Such statement of the learned counsel for the petitioners is acceptable to the learned counsel for the respondents. It is expected that needful will be done within 15 days from the date of this order. It is clarified that this order will apply in all the pending petitions mutatis mutandis till further orders. Adjourned to 05.04.2018 at 12.00 noon. Interim order passed earlier to continue till next date of hearing. " 4. However , on 05.04.2018, when above petitions were taken up for hearing, the learned counsel for the respondents, while relying upon the decision of the Divisional Bench of this Court in C.P.No.D-5812/2015 (along with other connected petitions) for disposa l of above petitions in the similar terms, whereas, learned counsel for the petitioners argued that the judgment of the Divisional Bench of this Court in the above petitions is per-incuriam and contrary to law, hence of no legal effect nor it is binding on this bench, therefore, it was prayed that instant petitions may be decided on merits in accordance with settled legal position on the subje ct legal controversy . The above petitions were again taken up for hearing on 24.04.2018, when after hearing all the learned counsel for the parties at some length, a detailed order was passed, and the matter was referred to the Hon ble Chief Justice for constitution of a larger bench. The relevant paragraph 6 of the order passed by the Divisional Bench of this Court on 24.04.2018 is reproduced hereunder for the sake of brevity and ready reference:- "6. After hearing the learned counsel for the parties, and from perusal of the relevant Constitutional provisions and the Rules of Sindh Private Educational Institutions (Regulation and Control) Rules 2005 as well as the reported judgments of the Hon'ble Supreme court as referred to hereinabove by learned counsel for the petitioners, we are of the opinion that the subject controversy, relating to fee structure of private schools and its periodic increase, requires comprehensive analysis of constitutional provisions as well as determination of the scope and application of provisions of Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 and Sindh Private Educational Institutions (Regulation and Control) Rule 2005, in the light of judgments as referred to hereinabove, keeping in view the amended provisions of Rule 7(1) and 7(3) of Sindh Private Educational Institutions (Regulation and Control) Rules 2005, as it may lead to a different conclusion as drawn by a learned Divisional Bench of this Court in the case of Shahrukh Shakeel Khan & others V/S Province of Sindh & others [C.P.No.D-5812/2015 (and other connected petitions). Accordingly, in the light of judgment of the Hon'ble Supreme Court in the case of Multiline Associates v/s Ardershir Cowasjee (PLD 1995 SC 423), we would refer this matter to the Hon'ble Chief Justice for constitution of a Larger Bench so that subject dispute relating to fee structure of private schools and its periodic increase may be finally decided in accordance with law. Since the matter is of public importance as interest of large number of students and their parents is involved, we would direct the office to place the matter before the Hon'ble Chief Justice immediately so that appropriate order may be passed by the Hon'ble Chief Justice in this regard." 5. The matter was accordingly placed before the Hon'ble Chief Justice, Sindh High Court, who vide order dated 02.05.2018 on the office note placed by the Assistant Registrar (Writ)/Incharge Cause Roster (AS), constituted a larger bench comprising of three members i.e. Mr. Justice Aqeel Ahmed Abbasi, Mrs.Justice Ashraf Jahan and Mr. Justice Nazar Akbar . However , record shows that an application was filed under Section 151 CPC by Mr. Kamal Azfar , learned counsel for the respondent in C.P.No.D-6376/2017 on administrativ e side before the Hon'ble Chief Justice stating therein that the bench constituted by the Hon'ble Chief Justice comprising of three members, is a full bench and not a larger bench which should have been constituted pursuant to Court's order dated 24.04.2018 in C.P.No.D-6376/2017, however , such objection was overruled by the Hon'ble Chief Justice vide order dated?

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21.05.2018 in the following terms:- "The above matters may continue to be heard before a larger bench comprising three Hon'ble Members already constituted by the Hon'ble Chief Justice vide order dated 02.05.2018." 6. The aforesaid larger bench however , in view of the fact that one of the Hon'ble Member of the bench, namely , Mr. Justice Nazar Akbar , expressed his inability to hear these cases was reconstituted by the Hon'ble Chief Justice vide his order dated 25.05.2018, and in place of Mr. Justice Nazar Akbar , Mr. Mustice Muhammad Ali Mazhar was included as Member of this larger bench. Thereafter , instant bench proceeded to hear the above petitions on various dates, whereas, no objection whatsoever , has been raised by any of the learned counsel for the parties, either regarding any of the Members of the bench, or objection as to the strength or number of the Members of the bench. During the course of hearing the aforesaid petitions, Mr. Faisal Naqvi Advocate, shown appearance on behalf of some of the private schools, who were party in earlier petitions, which were disposed of by Divisional Bench of this Court in the case of Shahrukh Shakeel Khan and others VS Province of Sindh through Chief Secretary , Sindh and others (C.P.No.D-5812/2015 and other connected petitions), however , such schools are not the party in these petitions. Learned counsel argued that either , such schools may be pleased as party or he may be heard in above petitions on the subject controversy , as according to learned counsel, any decision by this larger bench of this Court in above petitions is likely to effect the interest of his clients. Since instant petitions were already heard at length by this larger bench, which was reconstituted by the orders of the Hon'ble Chief Justice, whereas, objection was also raised on behalf of learned counsel for the petitioners, therefore, instead of allowing such schools to be impleaded as party in these proceedings at this belated stage, learned counsel was permitted to make his submissions on their behalf and to assist the Court in respect of subject controversy involved in these petitions. Mr. Faisal Naqvi Advocate being satisfied by such arrangement, has accordingly assisted the Court at length during the course of hearing of instant petitions on various dates. 7. Mr. Amar Naseer Advocate, while leading arguments on behalf of the petitioners has vehemently opposed the continuous exorbitant increase of school fees for each academic year by the respondents, which according to learned counsel, besides having no legal or factual justification, is being increased in violation of Rule 7(1) & (3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005. It has been contended by the learned counsel for the petitioners that petitioners, like most of the students studying in the private schools and their branches/campuses of respondents, are compelled to take admissions in private schools for the reason that Government has failed to provide free and compulsory education to all children upto 5 - 16 years in terms of Article 25-A of the Constitution, whereas, accor ding to learned counsel, most of the students belong to middle or lower middle class, and cannot afford to pay the exorbitant fee and its yearly enhancement arbitrarily being determined by the respondent private schools, in violation of Law and the Rules framed for such purpose. Per learned counsel, the private schools do not only get the fee structure fixed from the Government functionaries as per their own choice at the time of Registration and Re-registration, but also manage to get the approval of yearly enhancement of fee in excess of 5%, in violation of Rule 7(3) of Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, whereas, neither any Notice to the students or their parents has been issued, nor any justification is submitted before the Registration Authority for seeking yearly enhancement of school fees. Learned counsel for the petitioners has argued that to provide education or to impart knowledge is a Noble Cause and service, which can be adopted as a profession or occupation as well, however , it cannot be treated at par with a free market trade or business activity , which determines its own unlimited profits, as per formula of demand and supply . On the contrary , per learned counsel, to get free and comp ulsory education is a fundamental right of every children, justice like right of life, which also includes right of education as well. Per learned counsel, importance of such right has been duly recognized by inserting the Constitution provisions which include Article 3, 4, 18, 25 and 25A of the Constitution of Islamic Republic of Pakistan. According to learned counsel for the petitioners, respondents have violated the provisions of Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001, duly amended in 2003 and 2005, as well as the provisio ns of Rule 7(1) and (3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, while increasing the yearly tuition fee over and above 5% of the last fee schedule, whereas, Registration Authority has failed to enforce the above legal provisions of law, and to restrain the private schools from enhancing the school fee exorbitantly , much in excess of 5% of the maximum limit as provided

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under Rule 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005. Learned counsel for the petitioners while explaining the scheme of law as envisaged in the Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001, has referred to Section 3, which according to learned counsel, provides that no Institution shall be established or continued except in accordance with the provision of Ordinance, whereas, Section 4 provides that any person intending to establish or continuing any existing institution is required to make an application to the Registering Authority in the prescribed form accompanied by such documents and fee as may be prescribed, whereas, in terms of Section 5 of the Ordinance, 2001, after inquiry and inspection by the Committee, recommendations are to be made to the Registering Authority , who is required to pass appropriate order for granting or rejecting the application while recording reasons after hearing the parties. Similarly , according to learned counsel, Section 6 provides the mechanism for Registration of an institution and issuance of certificate of registration to the applicant in such form and containing such terms and conditions as may be prescribed. Learned counsel for the petitioners has also referred to the Proviso (ii) of sub-section (I) of Section 6, which according to learned counsel, provides that fee structure of an institution shall be fixed with prior approval of the Government . Learned counsel for the petitioners has also referred to Section 15 of the Ordinance, 2001, which provides that Government may make Rules to carry out the purpose of this Ordinance, and has also referred to Section 15 sub-section (2) (C), which according to learned counsel, relates to provision of facilities to students, fixation of tuition fee and other sum to be realized from the student of an institution . After having referred to above provisions of the Ordinance 2001, learned counsel for the petitioners has also referred to the relevant provisions of Sindh Private Educational Institutions (Regu lation and Control) Rules, 2005, with particular reference to Rule 7(1), (2) and (3) of the Rules, 2005. According to learned counsel, Sub-Rule (1) provides that Inspection Committee is authorized to recommend the fee structure of an institution, after detailed inspection of the institution at the time of Registration or Renewal of Registration of the institution to the Registering Authority , whereas, Sub-Rule (2) provides that the fee schedule once approved, shall not be increased at any time during the academic year. According to learned counsel, Sub-Rule (3) of Rule 7, provides that the fee may be increased upto 5% of last fee schedule, subject to proper justification and approval of the Registration Authority , whereas, any increase in school fee over and above 5% is not permissible. Learne d counsel for the petitioners has argued that the private institutions (Scho ols) have been given reasonable autho rity to determine their own fee structure at the time of Registration as well as at the time of Renewal of Regis tration after every three years, however , per learned counsel, through Rule 7(2) & (3), a reasonable restriction has been imposed only to the effect that fee schedule once approved shall not be increased, at any time during acade mic year, and thereafter , yearly fee may be increased upto 5% of last fee schedule however , subject to proper justification and approval of the Registering Authority . Learned counsel for the petitioners has argued that once an opportunity has been provided to the respondents/private schools regarding fixation of their fee structure at the time of Registration and also at the time of Renewal after three years, whereas, Annual 5% increase of fee is also permitted in terms of Rule 7(3), the respondents are not justified in law and fact to argue that the limitation placed by the legislation on such yearly increase of school fee violates their right to carry on business and profession of their choice as guaranteed under Article 18 and 25 of the Constitution. Per learned counsel, in terms of Article 18 of the Constitution the right of a citizen to enter upon any lawful profession or occupation, and to carry on any lawful business or trade is not an absolute right, on the contrary , it is subjec t to such qualification as may be prescri bed by law, therefore, according to learned counsel, the contention of the respondents that any restriction on their right to enhance the school fee in any manner would violate their constituti onal right or amounts to creating any unreasonable restriction, is totally misconceived and contrary to the constitutional provisions as well as the provisions of Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001, and the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005. Learned coun sel for the petitioners has referred to the provisions of Section 6 of the Ordinance, 2001, which according to learned counsel, provides for the mechanism for Registration of an Institution, as well as fixation of fee structure with the prior approval of the Government and also regulates the pay scales, allowances, leave and other benefits to be admissible to the teachers and other staff of an institution. Learned counsel has also referred to Section 15 of the Ordinance, 2001, which according to learned counsel, authorizes the

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Government to make Rules to carry out the purposes of the Ordinance, 2001, and also provides for criteria for Registration of Institution, facilities to the students, fixation of tuition fee and other sums to be realized from the student of an institution. According to learned counsel, the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, have been framed by the Government pursuant to powers given under Section 15 of the Ordinance, 2001, whereas, Rule 7 provid es a criteria for registration of an institution as well as the mechanism for fixation of fee structure at the time of Registration of Institution (School) as well as Renewal of Registration after every three years and also prescribed a limit of 5% for enhancement of yearly fee by the institution for each academic year, however , respondents have made exorbitant increase in school fee during last several years in violation of above Rules, and without approval of the competent authority , which may be declared as illegal, and the respondents may be directed to refund such amount or to adjust the same against fee for future months accordingly . After having made out submissions on the merits of the case while referring to the relevant constitutional and legal provisions of Ordinance 2001 and Rules, 2005, in this regard, learned counsel for the petitioners has als assailed the finding of the learned Divisional Bench of this Court as recorded in C.P.No.D- 5812/2015 in the case of Shahrukh Shakeel Khan and others v. Province of Sindh and others reported as 2018 SBLR Sindh 922 and has argued that the finding as record ed by the learned Divisional Bench in sub-para e, f and g of Para 39 of the judgment is contrary to law, and based on misinterpretation of Article 18, 19 and 25 of the Constitution and also in violation of provisions of the Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001, and the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005. Per learned counsel, the order passed by the Divisional Bench of this Court is per-incuriam as the learned Divisional Bench has failed to take into…

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