EJAZ AFZAL KHAN, C.J.--- Petitioners in Writ Petitions Nos.2148/08, 3267/09, 810, 2148 and 3998 of 2010 (hereinafter called petitioners) have asked for an appropriate writ directing the respondents to abide by Article 106 (ii) of the Education Code of N.-W.F. P. , which provides that when two or more real brothers and sisters attend the same school or different schools in the Province, only the brother or sister in the highest class of a school shall be required to pay the full rate of fee and that the fees payable by the other brothers and sisters shall not exceed one half the ordinary rates, while petitioners in Writ Petitions Nos.859, 860, 861, 2081, 2297 of 2010 (hereinafter called as respondents) have questioned the vires of the Code on the ground that it has not been adapted through any legislation or adaptation of law promulgated after the partition of India, therefore, it being a dead letter has no Statutory force altogether. They have also questioned the vires and efficacy of the Notification issued by the Government of N.-W.F.P. Education Department No,SO(U.E)1-23/90 dated 24-8-1992 for want of it being gazetted. As both the sets of the Writ Petitions relate to the same subject matter, they are disposed of by this single judgment.
2. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
3. Before we discuss the arguments addressed at the bar by the learned counsel for the parties, it is worth while to refer to the relevant provision of the Code which reads as under:-- "(ii) when two or more real brothers and sisters attend the same school or different schools in the province, only the brother or sister in the highest class of a school shall be required to pay the full rate of fee. The fees payable by the other brothers and sisters shall not exceed one half the ordinary rates."
4. A perusal of the above quoted Article reveals that when two or more real brothers and sisters attend the same school or different schools in the Province, only the brother or sister in the highest class of his school shall be required to pay the full rate of fee while the fee payable by the other brothers and sisters shall not exceed one half the ordinary rates. The Notification issued by the Government also merits a look which reads as under:-- "GOVERNMENT OF N.-W.F.P.
EDUCATION DEPARTMENT No, SO (UE)1-23/90 DATED PESH: THE 24-8-1992 To, The All concerned.
Subject: HALF CONCESSION TO REAL BROTHER AND SISTER.
Sir, I am directed to refer to the subject noted above and advise to please ensure the following policy decision as laid down in Chapter:IV of the Education Code 1935 is strictly observed and implemented by all Educational Institutions in the Province whether owned and run by Provincial Government, private Sector missionary Schools run by army or Air Force or any other agency like the local bodies.
"When two or more real brothers and sisters attend the same School or different Schools, in the Province only the brother or sister in the highest class of a School shall be required to pay the full rate of fee. The fees payable by other brothers and sisters shall not exceed one half the ordinary rates."
5. Another notification reiterating the same has been issued by the Board. Even reminders had been issued by the Board to the District Education Officers for ensuring compliance with the above mentioned provision of the Code but of no avail. The case of the petitioners is that it is binding on all public and private Schools and there can be no exception to that. The stance of the respondents is that since the Code has no statutory sanction, it cannot be enforced. They also argued that if the petitioners have any grievance in this connection, they can approach the Regulatory Authority and that these writ petitions by-passing the Regulatory Authority cannot be entertained.
6. Now the question emerging for the consideration of this Court is who enacted this Code and what is the authority for its enactment. Answer to the question is not too far to seek. A look at the preface reveals that it was enacted and compiled under the aegis of Government of N.-W.F.P. In 1934. It being a set of regulations has been accepted and acted upon ever since then uptill now. It has also been amended from time to time as is apparent from some of the deletions and additions thereto. Another question emerging for the consideration of this Court is whether the Code is a dead letter for want of adaptation and as such cannot be enforced? Though nothing has been cited before us as could show that it has not been adapted but the practice proves otherwise.
Every business relating to the students has been dealt with thereunder. No objection whatever has been raised at any juncture about its efficacy or enforceability, let alone its vires. Even if it is assumed for a while that it has not been given any statutory sanction but decades and decades old practice shows that it was not only taken as a time honoured norm but a law having a binding force. It, for being precise and general has been applied to a large and countless number of cases.
In the case of Khan Faizllah Khan v. Government of Pakistan through the Establishment Secretary Cabinet Secretary, and another (PLD 1974 Supreme Court 291) the Hon'ble Supreme Court held that even instructions contained in Memoranda issued by appropriate Government could be regarded as being statutory provided they are expressed with precision and yet possess generality so as to be capable of application to a large number of cases. Almost all the business of the Educational.
Institutions whether public or private is regulated by this Code. Therefore, its efficacy or enforceability cannot be disputed simply because it tends to deal with the brothers and sisters studying in the same or different Schools in the Province with an element of equity or benevolence.
Nor can it be set at naught or declared ultra-vires on any hyper technical ground in the exercise of extraordinary equitable discretionary constitutional jurisdiction of this Court at least at the instance of the respondents, who have convert .The education into a commercial activity and have started earning windfall profits. Acquiescence and even estoppel would also barricade the way of the respondents to challenge the efficacy or vires of the Code, when they have not only acted upon it but a stage withdrew their writ petitions questioning its vices and efficacy as is evident from the copies of the writ petitions and orders passed thereon.
7. Quite apart from this, when the Board accepts this Code as a set of instructions and makes it binding on all private and public schools, they have no right to strike up a discordant note. It is also not correct to say that it lost its efficacy when it was not formally adapted. It by virtue of section 18(1) of the Indian Independence Act, 1947, Article 224 (1) of the Constitution of Islamic Republic of Pakistan, 1956, Article 225 of the Constitution of Islamic Republic of Pakistan, 1962 and Article 268 of the Constitution of Islamic Republic of Pakistan, 1973 continued in force, as no law has been enacted so far by the National or Provincial Assembly as could be held to be inconsistent with any of its provisions. Its efficacy, thus, remained intact throughout. We, therefore, do not agree with the learned counsel for the respondents that this is a dead letter and has no statutory force as such.
The fact that the notification communicating to the Schools to adhere to the Code has not been gazetted will not be of much significance, when the Code itself having statutory status has the force of law.
8. Yes education has become an industry and an enterprise but it should not be shorn of humanistic and philanthropic considerations, otherwise the very purpose of education which could be none else but character-building and something more than memorizing a few useful lessons, shall stand defeated. The private sector of education cannot be taken away from the umbrella of the Code so as to allow it to grow into a wild forest of money yielding trees. We, therefore, do not feel inclined to declare the Code ineffective or ultra vires. The argument' that such questions can be raised before the Regulatory Authority in view of section 13-A of the N.-W.F.P. Registration and Functioning of Private Educational Institutions Ordinance, 2001 is not without substance. We have been told that many of the petitioners have already filed complaints before the Regulatory Authority but they have not been decided so far. We, therefore, direct the Regulatory Authority to dispose of the complaints, thus, filed. Those who have not filed may, if so advised, file 'the same, which, too, are directed to be disposed of as early as possible.
9. For the reasons discussed above, these writ petitions are disposed of in the above terms.