2013 S C M R 764
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ
PETITION REGARDING MISERABLE CONDITION OF THE SCHOOLS: In re
Constitution Petition No.37 of 2012, decided on 11th February, 2013.
Constitution of Pakistan---
----Arts. 25-A & 184(3)---Constitutional petition under Art.184(3)
of the Constitution regarding condition of schools in all the Provinces
of Pakistan---Right to free education---Scope---Illegal occupation of
school buildings---School staffs being paid salaries despite providing
no services---Existence of ghost schools---Appointment of Commission(s)
by the Supreme Court to carry out survey of schools---Supreme Court
observed that some of the schools situated in the Provinces were not
being used for the purpose of imparting education to the students, and
were either illegally occupied by the police or by other Government
departments; that executive authorities despite being fully aware of
Art.25-A of the Constitution were reluctant to improve the education
sector inasmuch as different schools had been abandoned for one or the
other reason but still monthly/annual expenditure were being incurred on
such schools in terms of salary etc.; that no progress had been made as
required by Art.25-A of the Constitution for providing free and
compulsory education to all the children between the ages of five to
sixteen years inasmuch as no laws had been promulgated on the subject by
the Provinces; that education departments of Provinces had admitted
existence of ghost schools; that it was not understandable why concerned
officials were not taking initiatives or making laws to improve the
education sector including removing of encroachments upon schools and
taking steps to stop payments etc. to staff, which were getting salary
without providing services; that education sector was the most important
social service and the Government was bound to pay full attention to it
in order to raise the standard of education and to ensure that the
children were well educated---Supreme Court gave directions for
appointment of all District and Sessions Judges or the Additional
District and Sessions Judges at district/tehsil/taluka headquarters of
all the provinces including Islamabad Capital Territory, as
Commission(s) to carry out survey of schools functioning in their
respective areas to determine as to how many schools were functioning
fully and how many ghost schools were present in their districts; to
determine as to how much of the education funds were being spent for the
purpose of imparting education to the children and what was the ratio
of children studying in their respective areas; to determine as to what
were the reasons for encroachments/illegal occupation of school
buildings and why cases concerning such encroachments were not being
expedited by the courts and why no action was taken against
encroachers--- Supreme Court further directed that Presidents or
Secretary Generals of respective District/Tehsil Bars should also be
associated with the Commission(s), if needed, in order to carry out
physical inspection and submit reports.
Zulfiqar Hussain Noon, Applicant (in C.M.A. No.14 of 2013).
Rehmat Ullah Bilal, Applicant (in C.M.A. No.300 of 2013).
Azam Khan Khattak, Additional A.-G., Syed Naseer Shah, DS, Education
and Nizzam-ud-Din Mengal, Director (Schools) for Government of
Balochistan on Court's Notice.
Syed Arshad Hussain Shah,
Additional A.-G., Syed Naseer Shah, Deputy Secretary, Jamal-ud-Din,
C.P.O. (E&S) Edu. Deptt. and Hadayat Ullah, S.O. (Litigation) for
Government of Khyber Pakhtunkhwa on Court's Notice.
Jawwad Hassan, Additional A.-G. and Ali Hussain Malik, Additional Secretary for the Government of Punjab on Court's Notice.
Muhammad Qasim Mirjat, Additional A.-G., Syed Ashraf Ali Shah, Special
Secretary Education Department and Muhammad Javed, OSD Litigation (E)
for the Government of Sindh on Court's Notice.
Professor Waqar
Arshad, Director and Muhammad Ahmed, Assistant Director for Secretary
CADD and Chief Commissioner ICT on Court's Notice.
Date of hearing: 11th February, 2013.
ORDER
In response to order dated 24-1-2013, a report (C.M.A. No.725 of 2013)
has been submitted under the signatures of Dr. Faizullah Pechuho,
Secretary Education, Government of Sindh but no report has however been
filed by the Chief Secretary, Sindh in compliance to the directions of
this Court. Mr. Rehmat Ullah Bilal, Coordinator, Sindh Rural Development
Society, also submitted additional documents (C.M.A. No.728 of 2013),
perusal whereof indicate that some of the Schools situated in different
parts of the Province of Sindh are not being used for the purpose of
imparting education to the students, and either have been illegally
occupied by the Police or the other Government Departments. Same is the
position in the Provinces of Balochistan, KPK and Punjab. We fail to
understand why the Executive Authorities being fully aware of the
provision of Article 25-A of the Constitution are reluctant to improve
the education sector inasmuch as the Schools have been abandoned for one
or the other reason but the monthly/annual expenditures are being
incurred in terms of the salary etc.
2. This case is pending for
the last about one year and despite issuance of directions from time to
time, no progress has been made as is required under the Constitution
and the law for ensuring enforcement of fundamental right of providing
free and compulsory education to all children between the ages of five
to sixteen years inasmuch as the laws have not been promulgated on the
subject. Only reports have been submitted time and again that
preliminaries are being completed to do the needful. It may not be out
of context to note that in the 18th amendment Article 25-A was
incorporated in the Constitution to be one of the fundamental rights
that the State shall 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 but despite lapse of about more than two years, no
progress has been made. Surprisingly, baseless and false reports have
been filed before the Court but some credible information had been
received through the Coordinator, Sindh Rural Development Society about
the state of affairs of the education institution, in the Province of
Sindh. The education departments of the other provinces also admitted
that there are Ghost Schools or the property owned by the Schools have
been occupied and without taking effective steps, the officers travel
from their Provincial Headquarters to Islamabad for attending the cases
before the Court but without showing any progress and we are unable to
comprehend as to why they are not willing to take the benefits of the
orders of the Court or act on their own initiative and make laws to
improve the education sector including getting removed encroachments and
also of stopping the payments etc. to the staff who are getting salary
without providing services. Having left with no option, we are of the
opinion that as far as the education sector is concerned, it is one of
the most important social service and the executive Government is duty
bond to pay full attention in order to raise the standard of education
and to ensure that its children are well educated but here the things
are otherwise. However under the circumstances, we direct the Provincial
Government(s) through Chief Secretaries or the Secretary Education(s)
to implement the orders of this Court in letter and spirit and in the
meanwhile in order to have a clear picture we appoint all the District
and Sessions Judges or the Additional District and Sessions Judges at
the District/Tehsil/Taluka Headquarters of all the Provinces including
ICT, as Commission(s) to carry out survey of the Schools functioning in
their areas to determine:--
(i) As to how many Schools are functioning fully;
(ii) As to how many Ghost Schools are in their districts;
(iii) As to how much of the education funds are being spent for the purpose of imparting education to the children;
(iv) As to what is the ratio of the children studying in their areas;
(v) As to what are the reasons for encroachments of the said School
buildings and why they are being used either as Baitkah/Autak or for the
purpose of Houses by occupying forcibly some portions of the same and
why actions against encroachers have not been taken; and
(vi) In
case there exists litigation between the education department(s) and
private person(s) who had allegedly encroached upon the property of
Schools, as to why the cases are not being expedited by the Courts,
particularly, in view of the fact that if there is no stay order, why
actions have not been taken and who are responsible for ¬all these
illegalities or irregularities.
3. The District and Sessions
Judges of all the Provinces including ICT may undertake this task with
the assistance of their Additional District and Sessions Judges, keeping
in view the workload of each District/Tehsil/Taluka. The President or
the Secretary General of the respective District/Tehsil Bar(s) shall
also be associated, if need be, in order to carry out physical
inspection and submit reports. Copy of this order be sent to the
Registrars of all the Provincial High Courts including the Islamabad
High Court, for the purpose of submitting report as early as
possible within a period of 30-days, after receipt of this order.
4. Mr. Rehmat Ullah Bilal, Coordinator, Sindh Rural, Development
Society, may also assist the District and Sessions Judge(s), if need be.
The Chief Secretary(s), Secretary Education(s) and all the District
Education Officer(s) shall extend, full cooperation to the District and
Sessions Judge(s) or the Additional District and Sessions Judge(s) for
ensuring accomplishment of the tasks assigned to them.
5. Adjourned to 18-3-2013.
MWA/P-1/SC Order accordingly.
