2018 PLP 31 (CLCN)

MUDASSIR KHALID ABBASI, J.

This writ petition is directed against the act of respondent No.1/Chairman, Board of Intermediate and Secondary Education, Multan, regarding the denial to receive the admission forms of the petitioners.

2. Concise facts leading to filing of this constitutional petition are that the petitioners, five in numbers, being students of class 9th, submitted their admission forms to the school/respondent No.2. However, roll numbers of the petitioners were not received by the school and upon inquiry it had revealed that on account of negligence by the staff of the school, the admission forms could not be forwarded to the board. School has approached the respondent No.1 i.e. Board of Intermediate and Secondary Education, Multan to accept the admissions of the petitioners and allow them to appear in the examination being commenced from 02.04.2009 but same were not entertained by respondent No. 1, consequently, petitioners filed this constitutional petition. However, in pursuance of order dated 01.04.2009 passed by this Court, petitioners were provisionally allowed to participate in the annual examination of class 9th.

3. Respondent/board filed a written reply wherein a decision of governing body of the board 18.12.2007 was referred. Through this resolution a decision was made with regard to acceptance of admission forms by charging extra fee of Rs.500/- per day after the date of receipt of admission forms with triple the admission fee upto 10-days before the commencement of the examination. A fee of Rs.70,700/- was imposed upon the petitioners in terms of the afore-stated resolution. Petitioners, subsequently had challenged the said decision/resolution of the governing body of the board through an amendment in the pleadings of this constitutional petition.

4. Learned counsel for the petitioners has contended that the aforesaid resolution is against the fundamental rights of the petitioners in terms of Article 25-A of the constitution, according to which the state shall provide free and compulsory education to all children of the age of 5 to 16 years in such manner as may be determined by law. He has referred Articles 31 and 37(a) and has placed reliance on "Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others" (PLD 2012 Supreme Court 224) and "Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others" (PLD 2003 Lahore 752).

5. On the other hand, learned counsel for respondent No.1 has vehemently opposed this petition and states that impugned decision has been passed at the strength of the Punjab Board of Intermediate and Secondary Education Act, 1976, he has referred section 21 of the Act ibid. He has also referred section 29 of the Act envisaging the ouster clause and in this context he has relied on "Zafar ul Hasssan v. The Republic of Pakistan (through Cabinet Secretary, Government of Pakistan)" (PLD 1960 SC 113) seriously contesting the maintainability of this writ petition.

6. I have given conscious thought to the submissions made by learned counsel for the parties and also perused the record.

7. Primary question for determination in this case is that the decision under challenge has some statutory strength at its back and as to whether the same is offensive to the fundamental rights of the petitioners with particular reference to Article 25-A of the Constitution.

8. Affairs relating to organize, regulate, develop and control intermediate and secondary education are governed by section-10 of the Punjab Boards of Intermediate and Secondary Education Act, 1976, in following terms:- "10(1) Subject to the provisions of this Act, a Board shall have power to organize, regulate, develop and control Intermediate education and Secondary education."

9. Section 21 of the Act empowers the board to make rules regarding the admissions and examinations, which reads as under:- "

21. A Board may make rules consistent with this Act and the regulations to provide for: (ii) the conditions of admission of candidates to the examinations held by it and their eligibility for diplomas, certificates and titles."

10. So far as the regulations made under the Act are concerned, regulation 4(26) explicitly provides that any decision of the Board shall be included under rules. The said regulation is reproduced as under:- "

4. The Board shall have the power to make Rules consistent with the Act and the Regulations, on all or any of the following matters in addition to those given under section 21 of the Act: (26) All matters not provided for in the Act or Regulations but decided by the Board to be included under Rules.

11. The afore-cited provisions of law make it clear that the decision taken by the board which is under challenge before this court has been passed at the statutory strength of the Boards of Intermediate and Secondary Education Act, 1976 and the regulations made thereunder.

12. Now the question remains before this Court is that the decision dated 23.10.2007 made by the board regarding imposition of Rs.500/- per day after the date of receipt of admission forms with triple fee for such candidates upto 10-days before the commencement of examination is offensive to the fundamental rights of the petitioners as envisaged in Article 25-A and other allied Articles of the Constitution.

13. No doubt that the provision of education by a state is of fundamental right of a citizen which cannot be taken away through any subordinate legislation, however, in this particular case Board of Intermediate and Secondary Education is a body corporate having its autonomous status and the very purpose is to run the educational affairs. The affairs are being regulated by the Act and the decisions taken by the Board. Imposition of late fee charges is somewhat a policy decision by the board to regulate the admissions smoothly and properly and the object is to curb any delay or hindrance in the examination process which in my view cannot be termed as violative of any provision of the constitution. Rather, it may be termed as a policy decision and until and unless same is not suffering from any illegality or arbitrariness or established mala fide, it is not open for this Court to annul the same. Reliance is placed on "Dossani Travels Pvt. Ltd. and others. v. Messrs Travels Shop (Pvt.) Ltd. and others" (PLD 2014 SC 1). What has been discussed above, this petition does not succeed and is dismissed with no order as to cost. MQ/N-20/L Petition dismissed.