PLD 2011 Lahore 479 (PLP)

NASIR SAEED SHEIKH, J.

The petitioner is employed as Senior Clerk with the Board of Intermediate and Secondary Education Multan. He wanted to appear in B.A. Part II Examination of the University of Sindh for which purpose he applied before the Board for necessary approval and was allowed to appear in the B.A. Part-I Examination of the University of Sindh vide order dated 14-4-2009. The petitioner then wanted to appear in B.A. Part-II Examination of the same university and he moved an application before the Chairman Board of Intermediate and Secondary Education Multan/respondent No.1, for necessary approval through written application entertained on 2nd of December, 2010. The petitioner is not being allowed to appear in part-II Annual Examination of the University of Sindh for obtaining B.A. Degree. Through the instant writ petition, a request has been made for issuing an appropriate direction to the respondent No.2 to allow the petitioner an opportunity and permission to appear in the B.A. Part-II Examination of University of Sindh.

2. The learned Legal Advisor of the respondents has appeared in this case today on court's call. The learned counsel has been asked as to under which provision of law, the Chairman Board/respondent No.2 can raise any objection to the appearance of the petitioner in B.A. Part-II Examination of the University of Sindh while his previous request for appearing in B.A. Part-I Examination in the University of Sindh was allowed on 14-6-2009. The learned counsel for the respondents could not point out any legal provision on the basis of which, respondents could deny to allow the petitioner right to appear in B.A. Part-II Examination of the University of Sindh.

3. The education is the fundamental right of every citizen and the respondents cannot deny the right of the petitioner to acquire knowledge and to appear in B.A. Part-II Examination of the University of Sindh. The petitioner has placed on record two office orders dated 19-1-2011 with respect to Nasir Abbas Shamsi Caretaker of the said Branch and order dated 3-2-2011 in respect of the Estate Officer Muhammad Afzal allowing the said persons to appear in the B.A. examination. It thus appears that the petitioner has been denied this right to appear in Part-II of B.A. examination without any just and reasonable cause and the act of the respondents in denying the right to the petitioner of appearing in BA Part-II examination of University of Sindh is discriminatory in nature. Article 4 of the Constitution of the Islamic Republic of Pakistan reads as follows:- "4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen whenever he may be, and of every other person for the time being within Pakistan. (2) In particular (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;. (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do. The Hon'ble Supreme Court of Pakistan in a judgment reported as Punjab Road Transport Corporation v. Zahida Afzal and others (2006 SCMR 207) has dealt with this proposition of law' in to following manner: - "The Constitution of a country is a kind of social contract which binds people, society and a State. The terms of the contract foster feelings of interdependence of belonging to an entity and of adherence of law. An honest commitment to the goals set out in the Constitution ensures promotion of nationhood and stability of the system. In view of Article 4 read with Article 5(2) of the Constitution, it is the duty of each and every organ of the State and people of Pakistan- to work within the framework of Constitution and law as law laid down by this Court in the following judgments:-- (1) Ch. Zahoor Elahi "s case PLD 1975 SC 383 and, (2) Zahid Rafique's case PLD 1995 SC 530. " In another judgment reported as Professor Yameen-ud-Din Advocate v. Lahore Graveyard Committee and another (2003 CLC 1718 at pages 1720 and 1721), the following principle of law as laid down by this Court:- "

4. Supreme Court has prescribed the duties of the public functionaries in Shaukat Ali's case PLD 1997 SC

342. The relevant observation is reported as under:- "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concepts of fairplay and social justice. The State functionaries like Railways are expected to act fairly and justly in a manner which should not give to anyone any cause of complainant on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure that no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences granted by the Railway, will be treated fairly."

5. Subsequently, the Hon'ble Supreme Court after interpreting section 24(A) of General Clauses Act laid down principle that public functionaries are also obliged to act justly and fairly in accordance with law without any element of discrimination and squarely within the parameters of law in Messrs Airport Support Services case 1998 SCMR 2268" In a reported judgment Naeem Ahmad v. Chief Administrator, Auquf (2004 CLC 599) it was observed as follows: "It is settled principle of law it is duty and obligation of each and every public functionary to act in obedience of the Constitution as is envisaged by Article 5(2) of the Constitution, which was interpreted by the honourable Supreme Court in "Ch. Zahoor Elahi's case" (PLD 1975 SC 383). In another judgment reported as Hazir (Pvt.) Limited v. Pakistan International Airlines Corporation and another (1993 MLD 1308 at page 1316) a Division Bench of Karachi. High Court has interpreted Article 4 of the Constitution of Islamic' Republic of Pakistan in the following manner:-- "In a State governed by the Constitution and law every citizen has a right to enjoy the protection of law and to be treated in accordance with law. In this country, the right is enshrined in Article 4 of the Constitution of Islamic Republic of Pakistan." Since academic career of the petitioner is involved and the B.A. Part-II examinations in which the' petitioner wants to appear are to be held on 21st of February, 2011, this writ petition is allowed. The respondents are directed to accord the necessary sanction to the petitioner in-writing to appear in the forthcoming examinations of the University of Sindh. The respondents shall also facilitate, the petitioner while allowing the appropriate leave for the said purpose.

4. This writ petitions is accepted with no orders as to costs. M.H./M-821/L Petition allowed.