2021 PLP 28 (CLC)

AHMAD ALI, J.

Through the instant constitutional petition, the petitioners pray that:- "It is, therefore, most humbly prayed that on acceptance of this writ petition, the impugned decisions/notification of Respondents may graciously be declared as illegal, unwarranted, unjustified based on mala fide and unfair, without lawful authority without jurisdiction and of no legal effect. The respondents may graciously be ordered not to extend the notification dated 15.04.2020, and not to promote the students of board examinations without exams, not to insist to close the institution in coming summer and winter vacations and all registered private educational institutions be compensated."

2. Brief background of the instant petition is that in order to curb further spread of Corona Virus (Covid-19), emergency was declared in the Province of Khyber Pakhtunkhwa and as precautionary measures, the Relief, Rehabilitation and Settlement Department of Khyber Pakhtunkhwa, vide impugned notification dated 15.04.2020 ordered that all the educational institutions, including schools, colleges, universities, academics, tuition centres, coaching and training institutes, and any other teaching institutes (public and private) shall remain close till 31st May 2020 and Examinations of all sorts were postponed till 31st May, 2020. The petitioner/Chairman Private Education Network (PEN) claims that due to closure of the private institutions, the employees thereof have been suffered a lot and the provincial government, while issuing the impugned notifications, has not associated the (PEN).

3. Learned counsel for petitioner mainly argued that due to closure of the private schools, the teachers employed in the said schools are suffering hardships, as the only income of the private schools is the fees received from the students and in the current situation, the collection of fee is difficult. Moreover, the government has also failed to compensate the private schools.

4. Be that as it may, but the private schools alone are not suffering due to the lockdown imposed by the government. In-fact all the business sectors of the country have badly affected due to the current outbreak of virus, however, the restrictions imposed by the government are for the safety of public at large, as yet there is no treatment of the disease caused by the virus which spreads speedily. Since, it is a policy matter of the government, in order to curb further spread of the virus, that private schools have been kept close, therefore, interference by the High Court in such matter is not warranted. In the case of "Asif Fasihuddin Khan Vardag v. the Government of Pakistan and others (2014 SCMR 676)" it has been held by the apex Court that:- "It is to be noted that the duty of the Court is to confine itself to the question of legality. Its concern should be whether a decision making authority exceeded its powers; committed an error of law; committed a breach of the rules of natural justice; reached a decision which no reasonable tribunal would have reached; or abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly, put, there are three grounds upon which an administrative action is subject to control by judicial review; namely, illegality which means the decision maker must understand correctly the law that regulates his decision making power and must give effect to it; irrationality which means unreasonableness; and procedural impropriety. These are only the broad grounds but it does not rule out addition of further grounds in course of time. [Tata Cellular v. Union of India (1994) 6 SCC 651]. The judicial review is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the Court that in the matter of award of a contract power has been exercised for any collateral purpose. [see: Asia Foundation and Construction Ltd. v. Trafalgar House Construction [(1997) 1 SCC 738]."

5. Learned counsel for the petitioners, when asked as to what right of the petitioners has been violated due to the impugned orders of the government, he failed to satisfy us. Similarly, no mala fide, favouritism, arbitrariness or discrimination was found on the part of government, while issuing the impugned directions. It has time and again been held by the august Supreme Court of Pakistan that the High Court is not enjoying the jurisdiction to interfere in the policy matters of the Executive as it is against the principle of trichotomy of powers, the foundational principle of the Constitution of Islamic Republic of Pakistan. The High Court in its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan can annul an "order" or a "Policy" framed by the Executive, if it is violative of the "Constitution", "law" or is "product of mala fides". Reference can be made to the cases reported as "2012 SCMR 455, 2014 CLC Lahore 1766 and 2014 SCMR 111".

6. Since the petitioners have failed to point out infringement of any legal right, violation of the constitution or mala fide on the part of government, while imposing the impugned restrictions upon the petitioner, warranting interference by this court in its constitutional jurisdiction, therefore, the petitioner in hand, being devoid of any merits, stands dismissed in limine. ZC/207/P Petition dismissed.