Private School Association Islamabad VS FOP etc

Form No: HCJD/C-121

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

W.P. No. 1653-2021

Private Schools Association Islamabad through its Media Secretary Versus Federation of Pakistan through Secretary, Ministry of Federal Education and Professional Training, etc.

S. No. of Date of order/ Order with signature of Judge and that of parties or counsel where order/ proceedings necessary.

proceedings 05-05-2021 Ms Shireen Imran, Advocate for the petitioner.

Athar Minallah, C.J.- The petition in hand has been filed by the Private Schools Association Islamabad (hereinafter referred to as the ‘Association’) through the latter’s Media Secretary, namely Abdul Waheed. An authority letter, dated 03-05-021, has been attached with the petition. The said letter has been issued by the President of the petitioner Association, authorizing Mr Abdul Waheed, Media Secretary to file any case/ petition in the Islamabad High Court. It appears from the record that the petitioner Association claims to have been registered under some law. However, it is not clear from the record and the documents attached with the petition that the petitioner

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Association may have been registered under a law which would grant it the status of a juridical person. Moreover, the authority letter is a blanket permission and does not specify any particular case, let alone the matter raised through the petition in hand.

2.The petitioner Association has challenged a notification, dated 03-05-2021, issued by the Private Educational Institutions Regulatory Authority (hereinafter referred to as the ‘Authority’).

A plain reading of the impugned letter shows that the Authority has advised private educational institutions to grant concession of 20% in monthly fee of students with effect from April, 2021 till reopening of private educational institutions. The concession policy is applicable in case of such institutions which charge monthly tuition fee more than Rs.8,000/-. This policy decision has been taken in the wake of the recent spike in Covid-19 positive cases. It is not disputed that the private educational institutions were closed pursuant to letter, dated 24-04-2021, issued by the Authority.

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3.The learned counsel has been heard at length. She has contended that the policy decision was taken without affording an opportunity of hearing to the affected stakeholders. The Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013 and the rules made thereunder do not empower the Authority to issue policy guidelines in relation to the Covid-19 pandemic crisis. The learned counsel has argued that the impugned notification is bereft of jurisdiction and, therefore, it is to be declared as void ab initio.

4.It is not disputed that the impugned notification describes a policy decision taken by the Authority in the context of dealing with the Covid-19 pandemic crisis. It is also an admitted fact that there is a recent spike in the spread of the pandemic. A plain reading of the impugned notification shows that it is in the nature of an advice.

Moreover, the policy of 20% reduction is applicable to those private educational institutions which charge a fee of more than Rs.8,000/-. It is not the case of the

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petitioner Association that the policy decision notified vide the impugned notification has a confiscatory effect. The private schools are engaged in commercial profit making business. The Covid-19 crisis has exposed the human species to enormous challenges. These are indeed difficult, uncertain and extraordinary times.

This Court, vide order, dated 18-11-2020, passed in W.P. No.3383/2020 titled “Islamabad Marquees, Catering and Banquet Hall Association v. Federation of Pakistan, etc.” has observed as follows.

“a. It is a challenge, not only for the government but every citizen, to contain the spread of the second wave of the pandemic. It is not a choice but a duty of the citizens to contribute towards this national goal. The freedom of an individual and rights are subservient to the interests and rights of the public at large. The Constitution guarantees fundamental rights but simultaneously contemplates corresponding duties. It is the duty of every citizen not to infringe the constitutionally guaranteed rights of others. When a citizen acts in disregard to the interests of the general public, the constitutionally guaranteed rights are

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breached. Article 5 of the Constitution declares obedience of the Constitution and the law as an inviolable obligation of every citizen. In the present crisis, it is the duty of every citizen to demonstrably show his or her commitment to the national effort in containing the menace of the spread of the second deadly wave of the pandemic. It is important for every individual to realize that he or she, as the case may be, could be the next victim. The acts or omissions of those who do not display responsible conduct as citizens inevitably expose others to harm and expose them to the life threatening risks relatable to Covid-19. Such conduct indeed borders on criminality. In many countries such conduct is likely to expose a violator to the imposition of heavy fines, besides being sent to prison upon conviction. It is, therefore, the duty of every citizen to prevent the propagation of the Covid- 19 pandemic.

b. The decisions of the Committee are based on expert advice, which must be respected and followed in order to avert a catastrophic social, economic and life threatening crisis. The invisible enemy threatening humanity can only be defeated through a unified committed effort. The nation has no other choice but to unite and

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protect humanity from the harm of the pandemic. The constitution of the Committee has a national character and thus its decisions are not only to be trusted and respected but treated as binding. It is the duty of the NCOC to ensure implementation of the decisions of the Committee. The decisions taken in the 19th meeting held on 16.11.2020, appear to be reasonable and thus binding.”

5.The impugned notification, dated 03- 05-2021, is regarding a policy decision taken to meet the challenges of the Covid- 19 pandemic crisis. As already noted, it is not the case of the petitioner Association that the policy decision would have confiscatory effect on the private educational institutions which charge more than Rs.8,000/- fee per month. The schools were closed because of the lockdown. The ground of confiscatory effect of the impugned policy can only be taken by an individual school because then the latter will also have to establish it by bringing on record cogent and reliable evidence. This Court is not inclined to interfere with the policy decision described in the impugned notification.

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6.The impugned policy decision is, therefore, not justiciable nor this Court is inclined to exercise its extraordinary discretionary jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to interfere therewith. The petition is, therefore, accordingly dismissed. It is noted that in case the impugned policy decision is confiscatory in nature, then the aggrieved educational institution, if so advised, would be at liberty to approach the National Command and Operation Centre. The latter is the competent forum to deal with all matters relating to the Covid-19 pandemic crisis.

(CHIEF JUSTICE)

Luqman Khan/*