1. ' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, following prayer has been made:- "Under the circumstances, it is most respectfully prayed that the Rules and Regulations of the respondent-University with regard to deposit of tuition fee may kindly be declared to be against the law and against the Fundamental Rights of Citizen as guaranteed under the Constitution of Islamic Republic of Pakistan, 1973.
2. ' It is further prayed that the respondent be directed to issue Tuition Fee Challan Form of first instalment of Semester No.6 of BS (Honors) Applied Accounting and the petitioner be allowed to deposit the same.
3. ' It is further prayed that respondents be further directed to mark presence of the petitioner from the start of the Semester No.6 for every class and in all subjects.
4. ' It is further prayed that during the pendency of the .Instant Writ Petition, the petitioner may kindly be allowed to attend classes of Semester No.6 of BS (Honors) Applied Accounting.
5. "Any other relief that this Honourable Court deems appropriate may also be granted".
2. Facts of the case succinctly required for determination of the constitutional petition in hand are that the petitioner is a student of the university being run under the name "The University of Central Punjab, Lahore", being managed by the respondent-authority of B.S. (Applied Accounting) Honors Degree with Registration No.LIF1OBSAA2042. She has been on attendance/enrolled with the respondent-Authority for the last three years and had already completed five semesters out of total eight semesters of the above cited degree. After successfully completing her 5th semester though the petitioner was promoted to 6th semester, but unfortunately she could not deposit course-fee due to financial restraints within the stipulated period given by the respondent- Authority. In this regard the oral request made by the petitioner was acceded to by the respondent-Authority and the time period 'of depositing the 1st instalment was extended till 8th March, 2013 with a fine of Rs.1000. Subsequent to that on 29th March, 2013, the petitioner filed an application with the respondent-authority while making prayer for issuance of Challan Form for depositing the 1st instalment, however no clue is available on the record qua fate of the said application, but the petitioner preferred to file the instant petition on 9th April, 2013.
6. ' This Court in terms of order dated 9th April, 2013 allowed the petitioner provisionally to attend the classes with direction to respondent-Authority to mark her attendance in the relevant register.
7. Subsequently on 14th June, 2013, an order was passed by this Court directing the respondents to ensure checking/marking of papers of the petitioner of 6th semester and also to allow her to participate in the forthcoming Exam of the semester. During pendency of the instant petition, an offer was repeatedly made on behalf of respondent-Authority that the petitioner may be allowed to bifurcate 6th semester into two subjects each and she would be compensated in special semester classes likely to commence in August, 2013 and as such there would be no loss of even a day for the petitioner to complete her program/degree well within the stipulated time as mentioned in the prospectus, but such offer was brushed aside/declined by the petitioner.
3. While opening his arguments, learned counsel for the petitioner has heavily attacked the Ordinance by which the respondent-Authority was established which is called "The University of Central Punjab, Lahore, Ordinance, 2002 Punjab Ordinance No. XXIV of 2002". While referring section 6 of the said Ordinance, learned counsel for the petitioner has vehemently argued that as Government of the Punjab is the Patron of the said university and majority of the Board of Governors are the public functionaries, therefore, this Court has ample powers under the Constitution of Islamic Republic of Pakistan, to pass appropriate order/direction. Learned counsel has placed his reliance on the dictum of law laid down by the august Supreme Court of Pakistan in the case of "Pakistan Telecommunication Company Limited through General Manager and another. v. Muhammad Zahid and 29 others" (2010 SCMR 253), wherein in paragraph 19 of the judgment the august Supreme Court of Pakistan4has observed as under:-- ' With regard to issuance of the writ by the High Court under Article 199 of the Constitution, in the case of Atchison College Lahore through Principal (supra), the phrase 'person' used in clause (5) of the Constitution including the status of the Board of Governors of the said College and control of Board of Governors over the college and nature of its composition was intensively dilated upon in view of the relevant provisions of Article 199 of the Constitution and on examination of the undisputed facts of the case; this Court held that appellants college falls within meaning of connotation of the word 'person' and the college exercised sovereign and public powers, as well as; being one of the statutory functions of State involved in providing education taking over its management, on amending of the Provincial Rules of Business and the Board of Governors in the circumstances would be regarded as 'person' performing functions in connection with the affairs of the Province notwithstanding the fact that the Atchison College was not receiving any financial assistance from the Provincial Government".
8. ' Learned counsel has further referred section 16 of the Ordinance, wherein the word "Regulations" has been defined, which is reproduced as under"- "Regulations.---The Board may, by notification, make Regulations for the administration and management of the affairs of the University".
9. ' Learned counsel submits that the word "Notification" has not been defined in the aforesaid Ordinance, therefore, the plain meaning of the same would be derived from the Punjab General Clauses Act wherein "Notification" has been defined under section 2(41), which is reproduced below:- "notification' shall mean a notification published under proper authority in the official Gazette".
10. ' Learned counsel argues that "Notification" which is not published in official Gazette is llegal. In support of his contention, learned ;ounsel for the petitioner has placed -eliance on the dictum of law laid down by he august Supreme Court of Pakistan in the ;ase of "Government of the Punjab, Food )epartment through Secretary Food and mother v. Messrs United Sugar Mills Ltd. And another"
11. (2008 SCMR 1148). For ready reference, the same is reproduced as under:-- "----S. 3(1)----West Pakistan General Clauses Act (VI of 1956), S. 2(41)----Control, supply, distribution, disposal of foodstuffs by notified order---Scope--- Notified order---Connotation--- Notified order would mean notification through publication in official Gazette and not by passing an order and keeping same in office of department concerned---Notification not published in official Gazette would be invalid--- Notified declaration could take effect from date of publication in Gazette and not from any prior date".
12. ' Learned counsel has further placed his reliance on the case of "Province of Punjab through District Coordination Officer, Okara and others" (2011 SCMR 1856), which is reproduced as under:- --S. 3----Interpretation of words/ expressions--- Principle--- When definition of any word/expression is not provided in the statute concerned, then in such an eventuality the word/expression used in a statute must be construed in terms of General Clauses Act, 1897".
13. ' The same view was also affirmed by the august Supreme Court of Pakistan in the cases of "Muhammad Siddique v. Market Committee Tandlianwala" (1983 SCMR 785), "Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal heirs and others" (1991 SCMR 2180) and "Muhammad Suleman and others v. Abdul Ghani" (PLD 1978 SC 190).
14. ' While reiterating his arguments, learned counsel contends that it is part of the activism in the whole world that there is a concept of , late fee in the educational institutions and such concept has been given the theory of "Late Fee Deposit Policy" and this provision is available in most of the universities of the world ranking, but in the instant case the rules and regulations which have been formulated on the basis of notification, which itself is not published in the official Gazette, are nullity in the eyes of law and no one can be denied the right of education which is guaranteed in the Constitution of Islamic Republic of Pakistan, 1973, and that too only due to financial restraints. In such circumstances, learned counsel has prayed for acceptance of this petition and issuance of direction to the respondent-Authority to accommodate her it all eventualities.
4. On the other hand, learned counsel appearing on behalf of respondents Nos.1 to 4 has raised preliminary objection that the petitioner is not a registered student till today with the University and she was given sufficient time to deposit her course fee, but she has opted to approach this Court for issuance of direction which is uncalled for Adds that this petition is not maintainable keeping in view the prayer made in the instant petition. It is argued that the petitioner has entered into a civil contract, which has not been fulfilled by the petitioner herself. Learned counsel submits that as per Higher Education Commission, there is requirement of 70% attendance to sit in the examination whereas as per university rules, there is requirement of 80% attendance and such 10% margin has been kept intact only to favour a student. Adds that the petitioner was allowed to sit in the mid term examinations and her attendance was also marked, but despite that she has not deposited the course fee till today. Learned counsel submits that as the petitioner is not a duly registered student till today, therefore, any superstructure raised by an unregistered student and having deficient ratio of attendance would create bad precedent in the education institutions and would hamper the sanctity of educational institutions.
5. Arguments advanced pro and contra have been heard and available record perused.
6. As far as maintainability of the constitutional petition in hand is concerned, there is no cavil to this preposition that this Court can come for the rescue of any person if it appears that his/her fundamental right provided/guaranteed under the Constitution has been infringed. Apart from this education is ultimate of any nation regarding character-Building which squarely requires that the public at large be given opportunity of education. This Court is conscious of the fact that in the instant case the petitioner has been denied the right of education on the basis of being not in a position to deposit the tuition-fee as per schedule offered by the respondent Authority which in conflict to the fundamental rights guaranteed = under Articles 9, 14, 18 and 20 read with Article 37
(c) of the Constitution. Reliance in this regard is placed upon the dictum of law laid down in the case of "Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others" (PLD 2007 Karachi 116), wherein it has been held as under:-- ' Arts. 9, 14, 18, 20, 37(c) & 199---Sindh Medical Colleges Act (V of 1987), S. 3---Constitutional petition---Educational institution Right of education----Vires of statutory rules----Candidate was given admission in medical college on Self-Finance Basis---- Authorities directed the candidate to furnish bank guarantee regarding college dues for five years----Plea raised by the candidate was that demand of such bank guarantee was unreasonable, harsh and discriminatory, which was in fact to help the rich at the cost of poor---Validity---Right to education was a fundamental right covered by Arts. 9,14 18 and 20 read with 37(c) of the Constitution and, therefore, any unreasonable restraint, hindrance or condition on its exercise would be ultra vires the Constitution,---- irrespective-------- of whether the same was imposed by an administrative, or executive act, by some statutory rule or even by the statute itself----Condition of furnishing bank guarantee was unreasonable inasmuch as it was neither fair nor meant to achieve any-------- useful purpose--- -Such condition placed the less opulent in disadvantageous position as compared to the more opulent; nor same was reasonable, in the sense that besides being unfair served no useful purpose----High. Court declared the condition of depositing of bank guarantee for five years' fee contained in prospectus to be both unreasonable and unconstitutional and of no legal effect--- High Court restrained the authorities from giving effect to the condition of furnishing of bank guarantee---Constitutional petition was allowed in circumstances".
15. ' It was further held as under:- "Right of education is part of right to life guaranteed under Article 9 of the Constitution and, therefore, section 3 of the Sindh Medical Colleges, Act, 1987 cannot be so construed as to enable the Government to make a rule permitting deprivation of a guaranteed fundamental right under the Constitution and, therefore, the stipulation in question has to be treated as ultra vires the rule making power conferred by section 3 of the Act".
16. ' Further reliance is placed on the cases of "Muhammad Iqbal Khan Niazi v. Vice-Chancellor University of Punjab" (PLD 1979 SC 1), "Ahmed Abdullah and 62 others v. Government of Punjab and 3 others "(PLD 2003 Lah. 752) and "Government of Balochistan v. Azizullah Menton" (PLD 1993 SC 341).
17. ' In Article 9 of the Constitution, the word life has been given prominence. If the word life is taken in a broader sense, the same cannot be limited to life without knowledge especially when the same is referxed to a human being. We being Muslims acknowledge the importance of education in broader sense as compared to any other section of society of the world. The importance of the same has been visualized from the Qur'anic revelation. The life of Holy Prophet (P.B.U.H.) and teachings of other most prominent dignities of Islam have made acquiring the knowledge obligatory upon the Muslims irrespective of colour, caste, creed or sect. The thought of acquiring knowledge not only has been sanctioned in the teachings of Islam, rather same has been made obligatory in any case, that is why the same has been made part of Article 20 of the Constitution.
18. From religious point of view pursuit of education is one of the religious obligations of a Muslim. The first five Verses revealed to Prophet Muhammad (P.B.U.H.) were that of Surah Alaq, which relate to acquiring knowledge and thus that has been stressed upon. Further during the famous war Badar' in history of Islam, the POWs were not punished rather they were given the task of teaching, which further reflects the importance of acquiring education and knowledge.
19. ' Prophet Muhammad (P.B.U.H.) has expounded the importance of seeking knowledge in the following words:-- "It is obligatory for every Muslim, male or female, to acquire knowledge".
20. "Attain knowledge from the cradle to the grave".
21. "Acquire knowledge even if you have to travel to China".
22. ' Hazrat Ali (A.S.) has expounded the importance of seeking knowledge in the following words:-- "Educate a woman, educate a nation".
23. "Knowledge and wisdom are really the privilege of a faithful Muslim. If you have lost them, get them back even though you may have to get them from the apostates".
24. ' In the Divine Holy Book, the Qur'an Allah Almighty has declared the superiority of Adam over the angels because of knowledge and emphasized as under:-- 'And He taught Adam the nature of all things; then He placed them Before the angels, and said: "Tell Me The nature of these if yours are right".
25. ' They said; "Glory to Thee: of knowledge We have none, save, what Thou Hast taught us: in truth it is Thou Who art perfect in knowledge and wisdom".
26. ' Moreover, education plays an important role in the successful life of an individual and education is considered, to be the foundation of society and further progress of society is stopped in case of deficit of educated people. While dealing with a similar matter, the august Supreme Court of Pakistan in the case of "Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others" (PLD 2012 Supreme Court 224) has observed as under :- "---Art.. 25-A----Right to education---Education plays an important role in the successful life of an individual---Generally, education is considered to be the foundation of society which brings economic wealth, social prosperity, political stability and maintaining healthy population---Further progress of society is stopped in case of deficit of educated people---Educated people enjoy respect among their colleagues and can effectively contribute to the development of their country and society by inventing new devices and discoveries----Islam is, a scientific religion emphasizing on the need of scientific inquiry---- Need, purpose and kinds of education and as under the mandate of Quran and Ahadith, elucidated".
27. ' Though this Article pertains to basic education, but education as a whole without limitation of age, or grade has its own importance and sanctity as referred above.
28. ' It is very unfortunate aspect of the instant case that a. Female student was made to suffer only because of financial restraints, although it is a famous saying that "Education of a woman is instrumental in growth and nourishment of a nation". The basic ideology behind establishment of universities is, to provide opportunity of acquiring knowledge to the public at large and the commercialization of the same, if any, is of secondary importance. In the instant case it seems otherwise. Though this aspect has been brought in the notice of this Court, however this Court has shown restraint while limiting itself only to issuance of direction to the respondent-Authority. The petitioner who has already passed five semesters out of total eight semesters, cannot be ordered to be reverted back and lose the golden time of her .Age which even otherwise cannot be compensated by any stretch of imagination.
7. For the foregoing reasons, this Court is persuaded to accept this petition. Resultantly , direction is issued to respondent-Authority to accommodate the petitioner forthwith, restore her enrolment, receive course-fee and provide equal opportunity of appearance in the examination, which has already commenced.