QAZI FAEZ ISA, C.J.---This common judgment will dispose of Constitutional Petitions Nos.194 and 216 of 2013, which pertain to the same subject matter and involve the same questions of law. Syed Nazir Agha is a practicing advocate and has filed C.P. No.194 of 2013, and Constitutional Petition No.216 of 2013 has been filed by Mr. Abdul Qayum, who describes himself as a social worker. Both the petitions have been filed as public interest litigation and neither petitioner seeks any personal relief. Constitutional Petition No.216 of 2013 is limited in scope and complains as it does only 'about non-provision of text books to the students of Government schools and seeks a direction that the Government of Balochistan and the Balochistan Text Book Board (the respondents) be directed to provide text books to students. Syed Nazeer Agha in addition to seeking the provision of text books also seeks direction for provision of free education to the students of class 1 to class 10 and uniforms, transport, accommodation, libraries and playgrounds for them. He has also sought a direction for the establishment of more educational institutions for girls and that teachers should regularly attend to their teaching duties and in the case of absenteeism their salaries to be withheld.
2. Syed Nazir Agha stated that the Government of Balochistan is violating the mandatory directions contained in Article 25A of the Constitution of the Islamic Republic of Pakistan ("the Constitution"), reproduced hereunder:-- 25A. Right to education.-- 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."
Both Mr. Agha and Mr. Kamran Murtaza, the learned counsel for the petitioner in Constitutional Petition No.216 of 2013, stated that the Government Text Book Board ("the Board") is neglecting to print sufficient number of text books and those that are printed are not delivered on time for the onset of the new school year. It is contended that the Constitution was amended and Article 25A was inserted therein through the Constitution (Eighteenth Amendment), Act, 2010, whereby an obligation was cast upon the State to provide free and compulsory education to all children from the age of five to sixteen, and that 'Right to Educationhas now been categorized as a Fundamental Right. Mr.Agha referred to the following precedents:--
(1) Nasreen Khetran v. Government of Balochistan, 2012 PLD Balochistan 214,
(2) Student of Government Girls College v. Government of Balochistan, 2012 CLC 168,
(3) Aamer Raza Ashfaq v. Minhaj Ahmed Khan, 2012 SCM R 6,
(4) Chief Justice of Pakistan v. President. Of Pakistan, PLD 2010 Supreme Court 61 and
(5) Fiaqat Hussain v. Federation of Pakistan PLD 2012 Supreme Court 224.
3. We had appointed Messrs Ali Ahmed Kurd and Hadi Shakil Ahmed, Advocates as amici curiae.
The learned amici stressed the need for education and the extreme importance for students to have the necessary tools to accomplish this task. They stated that there is no proper monitoring mechanism to ensure that the schools that are built with the resources of the Government are actually functioning as such. They further stated that non-attendance of teachers in Government schools is endemic and that there is a complete failure to monitor all aspects of Government schools, consequently full benefit is not derived from the resources allocated to the provision of education. It was also pointed out that in remote areas, Government school buildings are misused by other departments or by influential persons of the area and teachers either do not attend or else do so sporadically.
4. Mr. Shai Haq learned Assistant Advocate General ("Asst. AG") stated that the Government of Balochistan is committed to the implementation of Article 25A of the Constitution, which fact is reflected in the promulgation of, the Balochistan Compulsory and Free Education Ordinance, 2013.
He further stated that the Government of Balochistan has earmarked 13.72% of its total budget (including development and non-development budget) for the Education Department for the fiscal mentioned the total number of Government schools, teachers employed therein and students attending such schools, reproduced hereunder: A. TOTAL NUMBER OF SCHOOLS: SCHOOLS BOYS GIRLS TOTAL Primary 7781 2773 10554 Middle 630 428 1058 High 527 207 734 Higher Secondary 24 18 42 Grand Total: 8962 3426 12388 B. TOTAL NUMBER OF TEACHERS: MALE FEMALE TOTAL 33958 16693 50651 C. TOTAL NUMBER OF STUDENTS: BOYS GIRLS TOTAL 642488 429784 1072272 The learned Asst. AG however conceded that there had been some problems in the distribution of text books on account of the education being made free and compulsory up to the age of sixteen, i.e. Matriculation, and to attend to this requirement additional books had to be printed for which budgetary allocation had not been made and as such additional amounts had to be secured. The problem was also compounded because of the late receipt of the demand for additional finances from the Board; he however assured us that these issues have now been resolved. In this regard he stated that certain initiatives have been taken, including ensuring that the representatives of the departments of Finance and Education (Schools) attend the meetings of the Board for better coordination as well as to ensure better transparency. A time frame has also been prescribed requiring that financial demands from the Board is received by the Finance Department well in time to enable timely allocation to be made in the forthcoming budget. As regards the provision of uniforms, transport, accommodation and other things he stated that the resources of the Government were limited and the Government is struggling to provide for basic necessities first, such as Schools, teachers, books and the maintenance of buildings.
5. Article 25A of the Constitution has made the Right to Education a Fundamental Right and calls for free and compulsory education to be provided to all children from the ages of five through to sixteen, therefore, the Government has to ensure compliance with the Constitutional directive.
There are two aspects to Article 25A, firstly, the provision of free education and, secondly, it being compulsory that all children, boys and girls, attend school from the age of five through to the age sixteen, i.e. From 1st Class till the 10th Class or matriculation. Whilst the Government may be making some efforts towards the provision of free education no effort appears to be made to ensure compulsory education. The State has to ensure that all children get to school and remain in school, but unfortunately the duty cast upon the State is not even close to fulfillment and amongst children the girls are being neglected the most. Merely, constructing a school and providing A free text books is not enough to get the children to school. An environment needs to be created, whereby there is desire on the part of the parents to send their children to school and the school environment is such that it beckons children who would be unhappy to miss school.
6. We can take notice that Government school buildings generally are badly designed and with little regard to their functional aspect. The cement structure vandalized and with peeling paint, presents a haunted look. After the schools are constructed they rarely receive a fresh coat of. Paint.
School buildings, are inscribed by political slogans and with the slogans of those propagating their own view f or agenda, rather than learning pictures. Government school teachers appear to be disinterested in their pupils, which is self evident by their non attendance and the local administration apathetic to the present condition of education in the province. Usually, in rural areas schools do not even have a small boundary wall to mark out the school property and to protect it from marauding goats, sheep and cattle thereby ensuring the survival of the plants and trees that may be planted within the premises of the school. It is with dismay that one can state that it is a rare school in Balochistan which has within its premises a single tree or plant.
7. The people of the area even sometimes do not know that there is a school in their area, since the possession of the school building has been taken over by another department, its officers or an influential person of the area without any resistance or objection by the teacher/s or by the District Education Officer ("DEO"). A simple way to ensure against such practice would be to enter into the revenue records of the area the ownership of the land, and building of the school and that the same is the property of the Education Department of the Government of a plaque or painting/writing the same on or in the front of the school building.
8. The school buildings that are constructed often do not take the environment into consideration, rendering such buildings very cold in the winter and extremely hot in the summer. Since schools are normally not provided with electricity to run fans in the hot months, and with no gas to heat them in winter the school building should be checked and readjustments should be made taking into consideration the environment. Architectural design has made considerable strides and buildings can be easily designed/remodeled to make them functional, visually appealing, environmentally friendly, and structurally sound to attend to the seismic risk of the area.
9. That there also appears to be a very weak mechanism, if at all any, in place to ensure that those who have been engaged to teach actually attend to their duties. In innumerable cases it has been found that the people of the area in which a particular school is situated are not even aware of the teacher/s employed or posted there. If a teacher attends to his/her teaching duties daily it is primarily dependent upon the teacher's own conscious and nothing else. There are also cases where although there are a number of teachers employed in a school on paper and drawing salaries on a monthly basis, only one or two attend to their duties which reflects the dismal state of the education system in Balochistan.
10. That whilst we appreciate that the Government has increased the budget earmarked for education we are concerned that by simply throwing money at a problem will not ensure the attendance of children in schools or ensure that they be educated. There are a number of issues that have to be addressed at different levels. Schools should be welcoming, teachers should be in attendance and the school buildings and their land must not be encroached upon. Text books should also be distributed on time and to all students. A nation rises to excellence or remains mired in ignorance primarily depending on the education of its children. By simply making the Right to Education a Fundamental Right does not ensure that the children are educated. Concrete and sustained steps have to be taken to provide free and compulsory education. This requires all the more attention in a country that proclaims to be an Islamic Republic.
11. The first Revelation from Almighty Allah commanded humanity to, Read! Reading and the acquisition of knowledge is stressed by our Lord, who is Most Generous having taught the use of the pen, and increased our comprehension about things unknown.
Read! In the name of your Lord Who has created. He has created man from a clot.
Read! And your Lord is the Most Generous. Who has taught by the pen.
He taught humanity that which he knew not.
(Surah Al-Alaq (96) verses 1-5)
The yearning for education and knowledge and its attainment is condensed in prayer form, requiring us to say, "My Lord increase me in knowledge" (Surah Ta-Ha (20) verse 114). These verses of the Holy Qur'an demonstrate the prime importance in acquiring education and knowledge in Islam. It has been noted that in the Holy Quran there are 704 verses in which either the word knowledge (ilm) or its derivatives are used. The total number of Qurani verses that use the words related to writing is 319.
12. The Prophet Muhammad, upon whom be peace, and blessings, by his example further established the importance of education. He sought the help of even the enemy, who were captured in, battle, and who were literate, by requiring them to teach reading and writing to Muslims and earn their freedom. Zaid bin Thabit, who became famous as one of the scribes of the Quranic revelations, learnt reading and writing in this way. The Prophet, peace be upon him, said Seek knowledge from the cradle to the grave.
The ink of the scholar is more holy than the blood of martyr.
The acquisition of knowledge is a duty incumbent on every Muslim, male and female.
Excessive knowledge is better than excessive praying. Knowledge is maintained only through teaching.
The learned ones are the heirs of the prophets: They have knowledge as their inheritance; and he who inherits it, he inherits a great fortune.
One scholar has more power over the devil than a thousand devout men.
You should either be a scholar, or a student, or a listener, or a lover of (knowledge) and scholars, and you should not be the fifth which will make yot perish. The fifth point is: To hate IN and its people. he who seeks it, adores Allah; he who dispenses instruction in it, bestows alms; and he who imparts it to others, performs an act of devotion to Allah.
13. That despite the unquestionable emphasis on acquiring education and knowledge, regrettably, things have come to such a pass where the torch bearers of knowledge are shot at and schools bombed, sadly in the name of ethnic cleansing, or being falsely canvassed to be contrary to Islam.
And the voice of ignorance (jahliyah) seeks to drown out the Truth; and we are becoming apologetic to those who want to put out the light of education. The Constitution recognizes the Right to Education which Islam has long advocated, it is time that we ensure this right for all children,.
14. That the issues raised in these petitions are multidimensional and in respect of many of the matters specific directions can be issued whereas in respect of others we can only make observations, which we hope that the Government of Balcohistan and the Board will give careful consideration to.
15. These petitions are being disposed of by passing the following specific directions:--
(1) The Government of Balochistan to carry out a physical audit of the schools situated in each district of Balochistan and maintain a hardcopy as well as a computerized / photographic record with the names of the teacher/s employed / posted at each school and periodically update the same.
(2) The Government of Balochistan should measure the lands on which schools are situated and relevant entries be made in the revenue records to secure the same and to prevent the encroachment and illegal transfer of school properties.
(3) The Government of Balochistan to ensure that school buildings display in a conspicuous place the fact that it is a school and within the school building there should be disclosure of the teachers employed at each school.
(4) The Government of Balochistan should inform the Board about the number of subjects and the books that are required for the next academic year well in advance and the Finance Department should make necessary allocation in the budget.
(5) The Board should print and distribute school books in a timely manner to ensure that the same are available when the academic
(6) The principal or teacher/s of each school should maintain a record of children attending school and mark their daily attendance.
(7) The Education Department, Government of Balochistan should devise a comprehensive format for inspection of schools and the DEO should ensure that such inspection is carried out periodically in his/her district.
(8) The Government of Balochistan should take tangible measures to ensure that all children, boys and girls, from the age of five through sixteen attend school.
16. We also take this opportunity to make the following observations for the consideration of the Government of Balochistan:--
(1) School buildings should be designed and constructed in accordance with the prevailing physical environment, ensuring that the school looks welcoming, is environmentally friendly and does not require frequent maintenance. In this regard the Government may consider not to have the facade of the school building and walls plastered or painted and instead retain the brick-look, which will result in considerable saving of cost and also ensure the same continues to look presentable;
(2) Those who are killing/attacking teachers or destroying schools should not be given coverage on the media to propagate their views or advocate their cause or justify such acts. Such organizations may also be proscribed under the Anti-Terrorism Act, 1997, if they are not already proscribed.
(3) Spread the message of Islam, through the media and other sources, advocating reading, writing and acquiring knowledge as a religious duty of all Muslims, as well as being a requirement of the Constitution, and to propagate that all children from the ages of five through to sixteen, both boys and girls, are required to attend school.
17. These petitions are disposed of in the aforesaid terms, with no order to costs. In conclusion, we would like to thank Messrs Ali Ahmed Kurd and Hadi Shakeel Ahmed for their assistance and invaluable suggestions.