Hub of Private Educaiton Network (HOPE) Vs Government of Khyber Pakhtunkhwa & others

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

W.P Nos. 7776-P/2025

Hub of Private Education Network (HOPE) KP through its Authorized Representative Versus Government of Khyber Pakhtunkhwa through Chief Secretary & Others

For the Petitioners: Mr. Muhammad Muazm Butt, Advocate.

For the Mr. Muhammad Riaz Painda Khel, Respondents: AAG; Mr. Saadat Ullah Khan Tangi, Advocate.

Date of hearing: 31.10.2025

JUDGMENT

Dr. Khurshid Iqbal, J.

1.The petitioner—a registered Association under the name and style— “Hub of Private Education Network” (HOPE)—in this constitutional petition sought our indulgence in the matter related to “Cluster Based Examination System”, a certain mechanism the Board of Intermediate and Secondary Education, Peshawar (respondents 2-4/hereafter as Board) has introduced for conduct of examinations of the secondary and higher grades students. Spelling out what it calls “worst education crisis” of Pakistan, and also giving some details in that perspective, the petitioner states that the cluster examination system seeks “to centralize examinations in large, distant, and congested centers”. It, then, objects that the cluster system compels thousands of students, notably, the girls, to travel long distances to reach the cluster examination halls. It pleads that the cluster system has resulted in widespread logistical, academic, psychological, and financial hardships for students and their families, particularly female students, rural communities and those coming from the economically disadvantaged families. It contends that the stakeholders, such as, parents and teachers, were: firstly, not consulted while the cluster system was introduced; and secondly, it could be considered by the Board of Governors and not through an executive action; further contending that no meeting of the Board of Governors as per section 7 of the Khyber Pakhtunkhwa Board of Intermediate and Secondary Education (Act, 1990) was convened for the purpose. The petitioner adds that the cluster system also Page 1 of 6

affects students’ rights under the international conventions, such as, the UN Convention on the Rights of the Child (CRC) and the UNESCO’s “World Declaration of Education for All”, creating international obligations for Pakistan. Another point the petitioner presses is that under section 5 of the Act 1990, only the Board, not its head, is competent to organize, regulate, develop, and control intermediate and secondary education. In this context, it maintains that no academic rationale, consultation process, or policy paper has been provided to its members and the general public. In this factual matrix, the petitioner asserts that the cluster system of examination is against articles 4, 25, 25-A, 37 and 38 of our 1973 Constitution, as well as, the international instruments referred to above.

2.We heard Mr. Muazzam Butt, learned counsel for the petitioner, Mr. Saadtullah Tangi, leaned counsel representing the Board, and Mr. AAG for the Provincial Government, and perused the record made available before us, including a copy of the Minutes of the Board’s Meeting No. 59th, held on 02.10.2025, submitted today.

3.We shall start off with the applicable law. Under section 10 (2) (i) and (ii) of the Act 1990, the Board has the power— to hold and conduct examinations pertaining to intermediate education, secondary education, Pakistani and classical languages and such other examination as may be determined by Government;

[T]o lay down conditions for admission to its examinations, to determine the eligibility of candidates and to admit them to such examinations [.]

Regulation No. 3 of the Schedule/The First Regulations of the Board (ref. section 32 of the Act 1990) provides that subject to the control of the Chairman, the Controller of Examination shall be in-charge of the examination sector of the Board. Regulation No. 4 provides that a Joint Action Committee, inter alia, shall have a superintending and controlling role for standards of teaching and examination. Lastly, there are Rules contained in Calendar of the Boards, 1995. Chapter XII of the Rules govern the constitution of the examination centers. Rule 3 which begins with a non-obstante clause, empowers the Chairman to constitute a place as a center of examination under special circumstances on such terms as may be determined by him.

4.It follows from the above that it is the Board alone which has the power to conduct examinations, including notably the constitution of examination centers. In this respect, the roles of the Chairman, the Controller of examinations and the Joint Action Committee have been defined.

5.The Board, in its 59th meeting held on 02.10.2025 unanimously approved “The Cluster Based Examination System”. For sake of quick reference, the extracts are reproduced below:

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“Board of Intermediate and Secondary Education, Peshawar Extracts Taken from the Minutes of BOG Meeting No. 59th held on 02.10.2025 at BISE, Peshawar Item No. 23 Consideration and Approval of the Cluster Based Examination System in the BISE, Peshawar

In line with the commitment of policy makers to uphold examination integrity, its fairness and get rid of cheating culture, it is proposed to adopt Cluster Based Examination System in BISE, Peshawar. Under this system, student from different examination centers are mixed and reassigned with designated cluster or centers during examination. This approach aims to:

Minimize Reduce opportunities for cheating and Malpractice collusion among student Enhance Ensure impartial assessment by Creditability eliminating biases from school-based exam administration Promote Equity Create a level playing field for all students by standardizing examination conditions

The BoG is requested to please accord approval for the Cluster Based Examination System in BISE, Peshawar with immediate effect.

BoG Decision: Approved.”

6.The argument of learned petitioner’s counsel that the cluster system examination is lacking legal sanction, has no force. The reason is that conduct of examination by the Board is an administrative duty and devising an efficient and effective system is a policy matter of the Elementary and Secondary Education Department in tandem with the Board. It is in fact the consultation with parents and students that is missing in the law, the relevant rules and regulations, and the policy. In a rights-based perspective, the significance of public deliberation through a participatory approach could not be simply brushed aside as it will lend democratic legitimacy to the system. While such an approach will be more encouraging if adopted, the Board being the sole responsible institution may do it if considers necessary. On this score alone, however, the cluster system examination could not be struck down. On balance, however, the vested interest groups in the deliberative process may not venture to offer help that may threaten their stakes in the given milieu. The goals the cluster system seeks to pursue could not be doubted, nor could ill intention be attributed to the Board as a public institution. While we cannot discuss the pros and cons of the system, a bare perusal of the Minutes referred to above, transpires that the cluster system examination appears to discourage cheating, ensure impartiality in assessment, and to equally treat students of all schools, both public and private. We are informed, as it is even otherwise an open secret, that constitution of examination Page 3 of 6

halls for students of private schools in their own buildings, have diverse socio-cultural and economic implications for public schools, usually referred to as government-run schools.

7.As far the petitioner’s argument that the cluster system tends to compel students to travel long distances to reach the cluster examination halls, and widespread logistical problems having been resulted, suffice it to say that it is the bounden duty of the Board to address such issues. We cannot presume that the Board is oblivion to such problems which naturally arise in the conduct and management of examination. Learned counsel representing the Board, shared with us a copy of a letter dated 20.09.2025, of the Elementary & Secondary Education Department, which notes that the cluster system worked successfully in the Annual-I examination, 2025, and for this reason the competent authority decided to order its province-wide implementation. If those who devised the cluster system and tested it earlier are satisfied that it has worked well, we don’t think that other people, notably the petitioner should become worried. Likewise, the constitution of the cluster examination hall in a place easily accessible to all, particularly those belonging to economically disadvantaged groups, female students and rural communities, are no less pressing issues which the Board will not visualize and/or address in a timely and efficient manner.

8.Learned counsel for the petitioner specifically stressed what he called “psychological problems” to the students of the schools associated with it. We can’t go into this issue, too. If at all, any evidence has emerged, the petitioner or any aggrieved person may approach to the Board. The petitioner seems to perceive disadvantage to the students of its associated schools being used to a certain environment. That aspect, however, has to be palpably seen against the larger goal of weeding out widespread cheating and unfair means in examinations. Even otherwise, it becomes the responsibility of the petitioner’s associated schools to psychologically prepare their students for such an examination.

9.Adverting to the fundamental rights perspective now, we do not see any indication of the cluster-based examination system’s conflict with such rights. As we have discussed above, the Board has the legal authority under the Act 1990, the Rules and Regulations. All the students of secondary and higher classes who stand as candidates for the examination are treated according to law; their clustering in one examination hall also negates discrimination. Article 25-A has no application at all as it obligates the State to provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law. As far articles 37 and 38, those are part of the principles of policy which set out broader goals for socio-economic development. We are mindful of the fact that the principles of policy despite being programmatic in Page 4 of 6

nature, requiring progressive realization, need to be seen in harmony with the fundamental rights and with a dynamic approach to meet the challenges of the day. It seems rather naïve to stretch such constitutional provisions so much as the petitioner prays before us.

10.In the same manner, the 1989 UN CRC, and the 1990 Unesco’s initiative spell out broader principles of access of all to education, equality of opportunity and quality consideration (CRC: article 28) and the full development of the child’s personality (CRC: article 29). True, article 12 of the CRC recognizes children’s right to express their views freely in all matters affecting them, with their views given due weight in accordance with their age and maturity. This can be interpreted as hearing children’s voices in decision- making processes related to their education, including potentially the design and implementation of assessment methods. This, however, is conditional to their age and maturity and understanding. The Board may do it if deems appropriate. On a more critical note, it may be observed that the cluster-based examination system may not be sufficient as the sole tool for discouraging cheating and unfair means in examinations; and that there is a dire need of uprooting rote learning and doing away with putting children in the stress of do-or- die environment.

11.This Court has already expressed its opinion in Malik Farman Ullah Khan v. The Controlling Authority, BISE etc, rendered on 29.05.2023 in W.P No. 348-B/2023, in which constitution of examination hall was disputed. A more broaden principle has been pronounced by the august Supreme Court in Khyber Medical University and others Vs Aimal Khan and others (PLD 2022 Supreme Court 92). The relevant points are reproduced below for quick reference:

4.It has been time and again held by this Court that courts must sparingly interfere in the internal governance and affairs of educational institutions. It is simply prudent that the courts keep their hands-off educational matters and avoid dislodging decisions of the university authorities, who possess technical expertise and experience of actual day to day workings of the educational institutions. Every university has the right to set out its disciplinary and other policies in accordance with law, and unless any such policy offends the fundamental rights of the students or violates any law, interference by the courts results in disrupting the smooth functioning and governance of the university. It is, therefore, best to leave the disciplinary, administrative and policy matters of the universities or educational institutions to the professional expertise of the people running them, unless of course there is a violation of any of the fundamental rights or any law.

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5.This self-restraint by the courts in matter of educational institutions is based on the wisdom that academic freedom and institutional autonomy of the universities must be protected and safeguarded. Academic freedom is not merely liberty from restraints on thought, expression, and association in the university, but also that the university should have the freedom to make decisions about the educational matters including disciplinary matters. As "it is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university; who may teach, what may be taught, how it shall be taught and who may be admitted to study.

12.The conclusion of the above discussion is that the introduction of the “Cluster Based Examination System” is the power of the Board according to the relevant law, rules, and regulations, and that it is a policy matter. We found no violation of Articles 4, 25, 25-A, 37, and 38 of the Constitution. It is an established principle of law that the High Court’s normally avoid interference in the internal matters of educational institutions unless an act or omission of an educational institution violates fundamental rights or is in conflict with the law. Resultantly, this petition is dismissed.

Announced.

Sd x x x x x

JUDGE

Sd x x x x x

JUDGE

(D.B):

Justice Syed Arshad Ali & Justice Dr. Khurshid Iqbal

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