Private Education Network (PEN) Vs Government of Khyber Pakhtunkhwa & others

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

W.P No. 3756-P/2025

Private Education Network (PEN) through Syed Anas Takreem its Authorized Representative Versus Government of Khyber Pakhtunkhwa through Chief Secretary & Others

For Petitioners: Mr. Muhammad Taif Khan, Mr. Arsalan Sareer & Mr. Abdul Samad, Advocates.

For respondents: Mr. Muhammad Inam Khan Yousafzai, AAG, Mr. Ali Gohar Durrani, Advocate & Barrister Asad-Ul-Mulk.

Dr. Nisar Khan, Director Contribution & Mr. Muhammad Arif Khan Wazir, A.D Litigation, ESSI Labour Department for respondent No.05,06 & 07.

Date of hearing: 24.12.2025

JUDGMENT

Dr. Khurshid Iqbal, J.

1.The petitioner, a registered association operating under the name and style of “Private Education Network (PEN)”, has invoked the constitutional jurisdiction of this Court, seeking, inter alia, a declaration that the (impugned) Notification No. SSP/Cant./5153-62, dated 06.01.2025, issued by the respondents, to the extent of its applicability to Private Schools, is illegal, void, and without lawful authority. The petitioner has further prayed for restraining respondents No. 05 to 07 from adopting any coercive measures against Private Schools under the Khyber Pakhtunkhwa Employees Social Security Act, 2021 (KP-ESSA, 2021), along with any other relief deemed appropriate by this Court in the circumstances of the case, in the larger interest of justice.

2.In the impugned Notification, the respondent No. 6 has, amongst a large number of “establishment”, included Private Schools as liable to make contributions under the KP-ESSA, 2021. The petitioners contend such inclusion is contrary to the existing statutory regime governing Private Schools under the Khyber Pakhtunkhwa Private School Page 1 of 6

Regulatory Authority Act, 2017 (KP-PSRAA, 2017), and the Regulations framed thereunder in 2018. Consequent upon the said notification, respondent No. 6 issued letters to Private Schools requiring submission of various employee-related records, including attendance registers, salary details, overtime records, bank account particulars of employees, registration certificates with KP-ESSA, lists of contractors or outsourced staff, and appointment letters of employees. The petitioner asserts that all such records are already maintained and are available with respondent No. 8, the competent regulatory authority for Private Schools. It is further contended that, prior to the issuance of the impugned notification, respondent No. 5 had issued recovery notices to several Private Schools demanding payment of social security contributions under KP-ESSA, 2021. The said recovery notices were challenged by the petitioner through Writ Petition No. 2813- P/2022, which was dismissed by this Court vide judgment dated 30.05.2024. The petitioner claims to have assailed the said judgment before the august Supreme Court of Pakistan, where the matter is presently sub judice. Additionally, the petitioner filed a complaint before the PSRA Grievance Redress Committee against KP-ESSI and the KP Labour Department regarding the inclusion of Private Schools in the impugned notification. The Committee, upon adjudication, unanimously resolved to convent a high-level meeting involving officials from Labour, Elementary and Secondary Education, Education, and Law Departments to deliberate upon the issue in the light of prevailing practices in other provinces and at the Federal level. Being aggrieved by the impugned notification dated 06.01.2025 and the consequential correspondence, and having no alternate or adequate remedy available, the petitioner has approached this Court through the present writ petition.

3.Upon notice, the respondents entered appearance and contested the petition by filing their respective comments, wherein they categorically opposed the relief sought by the petitioner.

4.We heard the learned counsel for the parties as well as the learned AAG at considerable length and have carefully perused the record placed before us.

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5.The sole and simple question for determination is that whether by means of the impugned Notification, the petitioner has been rightly subjected to the legal effects of the KP-ESSA, 2021, as an “establishment” within the meaning of its section 2(n).

6.The relevant text of the impugned Notification is reproduced below for quick reference:

No.SSP/Cont./5153-62. In exercise of the power conferred by Sub Section (03) of Section-1 of the Khyber Pakhtunkhwa Employees Social Security Act, 2021, the Commissioner Khyber Pakhtunkhwa ESSI is pleased to apply with effect from 1st November, 2024 the said Act, to the areas mentioned in column-1 of the following schedule hereto and to employers of establishments mentioned against each of such areas in column-2 thereof and to direct that the employees of such establishments shall be entitled to the benefits as provided in Section 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 of the said Act.

For proper appreciation of the controversy, it is necessary to examine the statutory authority under which the said notification has been issued. Sub-section (3) of Section 1 of the KP-ESSA, 2021 expressly provides that the Act shall apply to such areas, classes of persons, industries, or establishments, from such date or dates, and in respect of such benefits, as the Commissioner may, by notification in the official Gazette, specify in this behalf. The said provision, thus, confers clear and unambiguous authority upon the competent functionary to extend the applicability of the Act to specified establishments, including those not previously covered. The principal contention advanced on behalf of the petitioner is that the inclusion of Private Schools within the ambit of the impugned notification is inconsistent with, and repugnant to, the statutory regime governing Private Schools under the KP-PSRAA, 2017, and that, consequently, the provisions of KP-ESSA, 2021 are not binding upon them. To examine this contention, it is imperative to refer to the preambles of both enactments, as a key indicator of legislative intent. The preamble of KP-PSRAA, 2017 reveals that the Authority has been established for the registration, regulation, and supervision of Private Schools in the Province of Khyber Pakhtunkhwa and for matters connected therewith or incidental thereto. A plain reading of the said preamble demonstrates that the legislative focus of KP-PSRAA, 2017 is confined to regulatory oversight of educational institutions and does not extend to matters relating to social security or employee welfare benefits.

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7.Contrary to this, the preamble of KP-ESSA, 2021 categorically provides that the Act has been enacted to provide social security benefits to certain employees and their dependents in cases of sickness, maternity, employment injury, or death, and for matters connected therewith and ancillary thereto. Section 2(k) of the Act defines an “employee” in the widest possible terms, encompassing any person employed, whether directly or indirectly, for wages or otherwise, to perform skilled, unskilled, supervisory, clerical, manual, or other work in or in connection with the affairs of an industry or establishment, subject only to specifically enumerated exclusions. Likewise, Section 2(ag) defines a “secured person” as a person in respect of whom contributions are or were payable under the Act, while Section 2 (ak) defines “wages” comprehensively so as to include all forms of remuneration payable to a secured person, subject to limited statutory exclusions. Most significantly, Section 20(1) of Chapter III of KP-ESSA, 2021 mandates that every employer shall, in respect of every employee, pay to the Institution a contribution at the prescribed rate of six percent of wages. These provisions, read conjointly, leave no doubt that the Act is intended to apply broadly to all establishments employing persons for wages, unless expressly excluded.

8.Learned counsel for the petitioner sought to draw support from certain provisions of KP-PSRAA, 2017, including Section 13 relating to the constitution of the Private Schools Regulatory Authority Fund and Section 27 concerning settlement of disputes. Section 13 merely provides for the sources and composition of the Authority’s fund, including grants, fees, fines, and contributions for training and welfare of teachers and employees, while Section 27 confers exclusive jurisdiction upon the Regulatory Authority for resolving disputes pertaining to registration, fees, infrastructure, and other regulatory matters between schools, parents, and the Government. A careful examination of these provisions reveals that none of these deals with the subject of social security contributions or statutory employee welfare schemes. The reliance placed upon these provisions is, therefore, misplaced, as they neither override, nor do restrict the operation of KP-ESSA, 2021.

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9.Likewise, the argument that Private Schools do not fall within the definition of “establishment” is no longer res integra. This issue has been settled by the Supreme Court in The Citizens Federation and another v. Director, SESSI and others (2010 SCMR 1659).

12.So far as the issue of functioning of some educational institutions on charitable basis is concerned, in our opinion, it will not place their case on any higher pedestal to exclude them from the applicability of such definition, as such character of charitable nature of an additional benefits offered /extended under the Ordinance of 1965, to their employees. As a matter of fact proverb 'charity begins at home' will be squarely applicable to their cases to justify a fair conclusion that when they are extending /facilitating education in the country on charitable basis, why should they not contribute under the Ordinance of 1965 to extend their quality of charity and benevolence in favour of their own employees. We have already discussed in detail all the relevant case law, most of which, referred by Mr. Sarwana, learned ASC, is squarely applicable to the facts and circumstances of this case, and thus leaves no further room for debate open on the point whether or not an educational institution, either being run on commercial or charitable basis can be subjected to the regime of Ordinance of 1965, in view of the definition of word 'establishment' under section 2(11) of the Ordinance. Thus, we hold that the impugned judgment by the learned Division Bench of the High Court, being inconsonance with the law earlier laid down by this Court, is unexceptionable and not open to interference.

The above view was affirmed in an unreported judgment dated 20.09.2012 of the apex court, rendered in Civil Appeal No.342 of 2007 titled Punjab Employees Social Security White Rose Girls High School, Institution, etc. vs. Faisalabad.

10.Recently, this court has relied on the above view in the judgment, dated 30.05.2024, passed in Writ Petition No. 2291-P/2022, filed by Hub of Private Education KPK v. Government of Khyber Pakhtunkhwa and others.

7.The essence of the ibid judgments of the apex court are that all the educational institutions, either being run on commercial or charitable basis can be subjected to the regime of Ordinance of 1965 in view of the definition of word 'establishment' under section 2(11) of the Ordinance and there is no escape from the fact that the respondent is an Establishment for the purpose of contribution of Social Security under the Ordinance of 1965.

11.Thus, it is held that Private Educational Institutions fall within the statutory definition of “establishment” in light of the relevant statutory provisions and settled legal principles. Paragraphs 6 and 7 of the judgment ibid have dealt with the matter exhaustively, and the same reasoning squarely applies to the present case. It is also an admitted position that the present petitioner had earlier challenged Page 5 of 6

similar recovery notices before this Court through Writ Petition No. 2813-P/2022, which was dismissed by this Court vide judgment dated 30.05.2024. Although the petitioner claims that the said judgment has been assailed before the august Supreme Court of Pakistan and is pending adjudication, the fact remains that, as of today, the judgment of this Court holds the field and is binding. Judicial discipline and the doctrine of consistency require that this Court should not take a view contrary to its own earlier judgment on the same issue between similarly placed parties, particularly when the earlier decision has not been set aside or suspended by a superior forum.

12.In view of the foregoing discussion, it is an inescapable conclusion that KP-PSRAA, 2017 and the Regulations of 2018 are confined to the regulation and supervision of Private Schools and have no nexus whatsoever with the provision of social security benefits to employees. The provisions relied upon by learned counsel for the petitioner do not advance the petitioner’s case, as they neither exclude Private Schools from the definition of “establishment” nor bar the application of KP-ESSA, 2021. On the contrary, KP-ESSA, 2021, being a beneficial welfare legislation, is rightly applicable to Private Schools, which undeniably fall within the ambit of “establishment.” Consequently, the point for determination is answered in the affirmative; and it is held that the impugned notification has been validly issued in exercise of statutory authority, and that no illegality or infirmity can be attributed thereto. The writ petition is, therefore, dismissed.

Announced.

(Shahid Ali *JSS*) 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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