Muzamil Akhtar Shabir, J.--This consolidated judgment shall decide the present appeal along with other cases referred to in the Schedules A & B attached with this judgment. The issue in all these cases relates to the age limit as to when a student can get admission in Class-IX as per the applicable rules and regulations of the Boards of Intermediate and Secondary Education functioning in the Province of Punjab.
2. This Intra Court Appeal filed under Section 3(2) of the Law Reforms Ordinance, 1972 is directed against order dated 17.12.2015 passed in Writ Petition No, 15590 of 2015 whereby the learned Single Bench of this Court allowed the constitutional petition filed by Respondents Nos, 1 and 2 along with connected petitions by suspending the examination rules of the Boards framed for regulating the age limit of a student for appearing in examination of Secondary School Certificate. We may add that the main order was passed in connected Writ Petition No, 14240/2014.
3. The minimum age of 12 years was fixed for enrolment/registration of student in Class IX in terms of Rule 1-A of Chapter 19 of the Calendar (the Calendar) of Board of Intermediate and Secondary Education, Lahore. A similar provision also exists in the Rules framed by the Board of Intermediate and Secondary Education, Gujranwala. Both the Boards shall henceforth be mentioned as "Boards".
Accordingly, the registration of the students, who did not meet with the criteria fixed by the afore- mentioned rule, was refused even though they had successfully passed 8th Class examination.
This resulted into filing of constitutional petitions on behalf of such students. Initially, a learned Single Judge of this Court dismissed Writ Petition No, 17732 of 2012, on 19.03.2013. However, another learned Single Judge subsequently took a contrary view while deciding Writ Petition No, 14240 of 2012 on 17.12.2015 (against which order the present appeal is filed) and the students who had passed 8th class examination but had not yet attained the age of 12 years were allowed to be registered for Class IX examination. In view of the conflicting decisions on the issue, a learned Single Judge of this Court on 06.05.2016 passed the following order in Writ Petition No, 14832/2016: "In the first judgment passed in WP No, 17732/12, the relief has been refused on the touchstone of the amendment referred to above. In the second judgment passed by this Court in WP No, 14240/14, the relief has been granted to the petitioner by directing that the petitioner's son be enrolled in the 9th grade. This gives rise to a conflict of opinion between two Benches of this Court for which it is deemed expedient that the matter be referred to the Hon'ble Chief Justice for Constitution of Larger Bench for the determination of the issue involved viz. Whether minimum age requirement set down by the Board offends the fundamental right of education enshrined in the Constitutional of Islamic Republic of Pakistan, 1973."
4. Vide order dated 26.05.2016 passed in WP No, 16363/2016, another learned Single Bench of this Court referred the matter to the Hon'ble Chief Justice by observing as under: "At the outset the learned counsel for the petitioner submits that due to conflicting judgments of two learned Single Benches on the question of law involved in the instant petition the matter has been referred for an authoritative determination to a learned Division Bench. Further submits that the said matter (WP No, 14832/2016) is now fixed for 02.06.2016 before the learned Division Bench headed by my learned brother Abid Aziz Sheikh, J. prays that the instant petition may also be directed to be heard by the said learned Division Bench.
The learned counsel for the respondent-Board submits that the respondent-Board has challenged one of the afore-referred judgments through ICAs No, 96 to 107 of 2016 which are pending before a learned Division Bench headed by my learned brother Shahid Jamil Khan, J. and were last fixed for 09.03.2016. The learned counsel, therefore, opposes the prayer.
In view of the fact, however, that the matter in issue appears to be pending before two different learned Division Benches, the office is directed to place this petition before the Hon'ble Chief Justice for obtaining appropriate orders thereon. "
All similar matters were thus ordered to be consolidated before this Bench. Before us other petitions were also filed in the meantime, which have all been taken up for hearing.
5. It is stated by the learned counsels for the appellants that the powers of Boards are regulated under the Board of Intermediate & Secondary Education Act, 1976 ("Act"). Section 10 of the Act specifies the powers of the Board whereas Section 21 provides for framing of rules for achieving the purpose and statutory objects assigned to the Board including the conditions for admission/registration of can didates and their eligibility for diplomas, certificates and title." Under the said power, the Boards have framed the necessary rules to regulate the eligibility criteria for admission to Class-IX. Under the rules, a student seeking admission in Class-IX must be of 12 years of age at the time of his registration with the Board. The Board registers the students on 1st August of every year. The relevant rule (Rule 1-A) was framed on 28.05.2013 and was introduced in the Calendar by the Boards on 10.10.2013. In addition to above, it was submitted that Article 25-A of the Constitution of Islamic Republic of Pakistan 1973 (the "Constitution") provides that 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. It was stated that the Punjab Education Code ("PEC") framed by the Government of Punjab ordains that the age of every child for initial admission in school for Class 1 shall be five years and the maximum age for admission to Classes XI and XIII in a college shall be 20 years and 25 years respectively (Article 29). It was thus argued before us that a student who is to be admitted in Class 1 at the age of five years cannot possibly be registered in Class IX without crossing the barrier of 13 years of age. However, taking into account the possibility that a one-time double promotion can be achieved by a student, the age of 12 years has been fixed for registration/admission of a student in Class IX as per Rule 1-A of Chapter 19 of the Calendar. According to the said provision of the Calendar, any student not having attained the age of 12 years on 1st of August is ineligible for registration in Class-IX. It was also contended before us that the learned Single Judge (in Writ Petition No, 14240 of 2012) ought to have followed the earlier judgment rendered in Writ Petition No, 17732 of 2012 instead of reaching a different conclusion on the issue. It was stated that Rule 1-A of Chapter-19 of the Calendar was applicable uniformly to all the students without any exception and thus any deviation therefrom through judicial order would result in discrimination amongst students and would result in interference in policy matters, which is not permissible.
6. The learned counsel for the respondents have argued that although Rule 1-A of Chapter-19 of the Calendar provides that a student getting admission in Class IX shall be 12 years of age on 1st of August at the time of his/her enrolment/registration with the Board but there is no criteria fixed in the statute for fixing the educational qualification required for admission to the said class. It was further submitted that the criteria laid down in PEC is not a statutory criteria as it does not have the backing of any law and, therefore, any instruction contained therein should not bind the Boards. It was also the case of the respondents that the Board has got no authority under the Act to frarhe rules restricting admission to students on the basis of their age. It was furthermore contended that the afore-referred rule has been made without independent application of mind as it was subject to dictation and recommendation of Chairmen of the Board Committee. The rule fixing the age for admission in Class-IX, it was stated, was against the fundamental rights of the students to receive education. Regarding the maintainability of the appeal, it was stated that the Chairman of the Board filed the appeal without seeking prior approval of the Board and, therefore, the same is liable to be dismissed.
7. We have heard the arguments of learned counsel for both the parties in detail and gone through the record with their assistance.
8. Rule 1-A in Chapter 19 of the Calendar was added on the basis of the decision of the Punjab Boards Committee of Chairmen (the Boards Committee), which is a committee constituted under Section 18 of the Act, taken in the meeting held on 28.05.2013. Item No, 14 of the Agenda of the meeting relating to addition of Section 1-A in Chapter 19 of the Calendar is reproduced below: "It is submitted that PBCC vide its meeting dated 29.06.2012 'fixed age limit of a student as 12 years for enrolment in Class IX by 30th June for the year of registration. The decision of PBCC has been implemented in all Boards of Punjab as a policy matter. Further, PBCC, has fixed age limit for a candidate who is to appear in Class-IX Examination, either regular or private, as 13 years on the 1st August of the year of examination.
It would be more appropriate if age limit of a student for registration in Class-IX may be fixed in accordance with age of appearance in the Class-IX examination. For that matter, we need to frame a rule in this regard. Therefore, Rule 1-A has been prepared as under: "A student getting admission in an institution in Class-IX shall be of 12 years of age by 1st August of the year of enrolment/registration with the Board. "
Decision The House unanimously approved the following addition of Section 1-A in Chapter 19 of the Board Calendar: "A student getting admission in an institution in Class IX shall be of 12 years of age by 1st August of the year of enrolment/registration with the Board."
As a result of the decision taken in the meeting of the Boards Committee, the proposed amendment was introduced in, the Calendar of the Board.
9. Article 29 of PEC provides that the age for admission to Class-I shall be five years. The said Rule is reproduced below: "29. The minimum age for admission to Class I shall be 5 years and the maximum age for admission to Classes XI and XIII in a college shall be 20 years and 25 years respectively."
10.The decision in Writ Petition No, 17732 of 2012 was made on the basis of Article 29 of PEC by holding that the minimum age for admission to Class 1 is 5 years which would require a student to attain the age of 13 years to get admission in Class IX. The relevant portion of the judgment is reproduced hereunder:
6. The main issue in this case is with respect to the age requirement for registration for taking Class IX Examination as the same is a Board Examination. In this case the relevant Board is the Faisalabad Board of Intermediate and Secondary Education. In terms of the Rules the minimum age for appearing in Class IX Examination is 13 years. Admittedly neither of the petitioners are 13 years. Both the petitioners are under age. The question that has arisen in these petitions is whether this Court should allow the petitioners to take the examination despite the clear Rule which set out the age criteria. The thrust of the petitioners' case relies on the order passed in Writ Petition No, 3352 of 2012 on 16.03.2012. I have reviewed the order. Since it does not record its reasons, the reliance on the said order does not advance the case of the petitioners. Admittedly, the minimum age for admission to Class 1 is fixed at 5 years. In terms of the minimum age requirement, a student should be 13 years old in Class IX. The Rules are to regulate the age requirement for Classes IX and X. Therefore, I find that the respondents have not committed any illegality by refusing registration to the petitioners for Class IX Examination, as they are bound by the Rules. The petitioners have tried to plead a case of discrimination, however, there is nothing on the record to show that the petitioner are being discriminated against by the respondents. To the contrary an effort was made by the respondents to consider the cases of the petitioners, however, their age does not fulfill the age required for registration in Class IX. Since both U., petitioners are under age, no right is being prejudiced as they will take the Class IX Examination in the next session when they fulfill the age requirement. No case for interference is made out.
11. While deciding Writ Petition No, 14240 of 2014, another 'learned Single Judge of this Court, however, held that there is no statutory age requirement for a student to enroll in the school in primary and elementary classes. The portion which is relevant is reproduced as under:
5. The above officers frankly concede that there is a disconnect between the primary, elementary and secondary educational systems prevalent in Punjab, as far as, age and qualification of the students is concerned. The disconnect clearly manifests itself in the present case, where the petitioner was enrolled as a student in the primary school at an age of less than five years and has passed the examination of 8th class at the age of 10 and has applied to be enrolled in 9th class, however, his age is less than 12 years and under the impugned section he cannot be admitted to the 9th class.
6. In view of above submission, it is clear that the primary elementary and secondary school systems lack integration and continuity. There is no requirement of age to enter the primary or elementary education system while the secondary education system for the first time introduces the age of 12 years for the 9th class and is silent regarding the educational qualification. It is the responsibility of the Education Department, Government of the Punjab to come up with policy which harmonizes this disconnect and protects the interests of the students of primary and elementary school system, who are enrolled at an early age. The Chief Secretary, Punjab, is directed to deliberate on this matter at the earliest so that a holistic and overarching education policy is evolved that ensures that primary, elementary and secondary education is a seamless, continuous process, protecting the most valuable and formative years of the young students.
7. As far as the instant case is concerned, the son of the petitioner (student) is less than 12 years of age and has already passed 8th grade, he cannot be left in a lurch and out of school for two years till he attains the age of 12 years, as that would not only waste the prime years of his life, but being out of education might also dampen his interest in pursuing future education, which can be fatal for a civilized society. Right to education is now a fundamental right, besides it is an integral part of right to life under Article 9. The disconnect between educational systems is a serious lapse on the part of the Provincial Government for which the students could not be allowed to suffer. The inchoate and incomplete education system is impairing the fundamental rights of the young student, who has approached this Court through his mother. In order to safeguard his fundamental right to education, which includes right to continuous education, the respondents Board is, directed to enroll the son of the petitioner in 9th grade subject to verification that the young man has duly passed his 8th Grade Examination in accordance with law but shall disregard the age of the student. Consequently this petition is allowed.
12. There is no doubt that the Board has the power to organise, regulate, develop and control Intermediate Education and Secondary Education and to lay down conditions for admission to its examinations, to determine the eligibility of candidates and to admit them to such examinations in terms of Section 10 of the Act. Similarly, the Board has the power to make rules, inter alia, to lay down the conditions of admission of candidates to the examinations held by it and their eligibility for diplomas, certificates and titles (see Section 21 of the Act). It is the case of the Boards that in determining the age limit for admission to Class 9, they took into account Article 29 of PEC providing the age of 5 years for admission to class 1. PEC, however, does not appear to have any statutory underpinning. The learned counsels for the Boards nonetheless insisted that age limit for admission to Class-1 is also reinforced by Article 25-A of the Constitution, which presupposes the admission to Class-1 by a child of 5 years.
13. Article 25-A of the Constitution provides for the right to education. It is reproduced as under: "The Slate 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." (emphasis supplied)
This Constitutional provision only deals with the compulsory duty of the State for furnishing or providing children of 5 to 16 years with free education. On its own, this Article does not clearly specify or lay down that only children of 5 years of age shall be admitted to Class-1. Although this Article provides that the manner of providing education may be determined by law, it does not call for restricting the right of child to receive education by imposing age restrictions. The words "in such manner as may be determined by law" mean the way in which a thing is required to be done or is to be achieved through promulgation of a law.
14. The Government of Punjab has framed the Punjab Free and Compulsory Education Act, 2014 pursuant to Article 25-A of the Constitution which provides for the manner for providing free education to children from five years to sixteen years. Section 5 of the said Act is the relevant provision, which reads as under: "5. Special provisions for education.--If a child above five years of age has not been admitted in any school or after admission, could not complete education, the local government shall, in the prescribed manner, develop a mechanism to ensure admission of the. child in a school according to age, previous class and other circumstances."
This provision clearly brings out the manner of providing education to children of five years of age as mandated by Article 25-A of the Constitution. A careful perusal of the said Act shows that it does not provide anywhere that a child having less than five years of age cannot be admitted to Class-1.
The circumstances in which this law would place a child in school are materially different from the one with which we are dealing with in these appeals. The -students in these appeals have successfully qualified their academic career up to Class-8 and are seeking admission in Class-IX, which is being denied to them by the Boards on account of Rule 1-A in Chapter 19 of the Calendar.
Article 25-A of the Constitution is, therefore, of no help to, the appellant Boards.
15. Imposing age restrictions on right to receive education would be negation of the right to life and to receive education as provided in Articles 9 and 25-A of the Constitution as right to life includes the right to receive education. Reliance in this behalf may be placed on Abdul Rahim Ziaratwal and another us. Federation of Pakistan and others (2014 SCM R 873) wherein the Honourable Supreme Court of Pakistan treated the basis amenities of life including the right to receive education, health cover and infrastructure, etc. as fundamental rights of citizens. It is also wrong to contend, in our opinion, that the Act, the Calendar and the PEC draw their strength on the basis of the afore- referred Article. PEC is simply a code being followed by the. Boards but it is not made under the authority of any statute or the Act. At the most, PEC can be treated as Code containing directions for regulating the education sector. Therefore, neither the Board nor any other person or authority could be declared to be bound to follow the same to the exclusion of other powers vested in the Board or in violation of rights of the parties.
16. The Act relates to the constitution and functioning of the Board. Section 21 provides for the powers of the Board to make-rules as follows: "21. Power of a Board to make rules.--A Board may make rules consistent with this Act and the regulations to provide for: --
(i) The inspection of the institutions and reports, returns and other information to be furnished by them.
(ii) The conditions of admission of candidates to the examinations held by it and their eligibility for diplomas, certificates and titles;
(iii) The manner and form in which accounts of Board shall be maintained;
(iv) Such other matters as may be required under the regulations to be provided in the rules."
The afore-referred section provides that a Board may make rules consistent with the Act and regulations and restricts the right of the Board to make rules to the matters listed therein. Although under Section 21(ii), the Board may prescribe by rules conditions of admission of candidates to examinations but the restriction being placed by the Board on the students' right to education by fixing their age is not made out by the reading of Section 21 of the Act. The Act or the regulations framed by the Board with the Government's approval do not provide for any restriction on the age of the students which may tantamount to preventing a student from seeking admission in Class IX.
Moreover, such a restriction even it can be located in the statute or the regulations framed thereunder would be in violation of the fundamental right of education guaranteed by the Constitution. Besides Article 25-A relates to free and compulsory education and binds the State to determine by law the manner in which free and compulsory education is to be provided to children. This Article is framed in positive language which does not provide any lawful basis for the Board to restrict the right of education to aspiring students of Class-IX who have not yet attained the age of 12 years.
17. The age at which children can start going to school can vary from country to country and there is no universal standard. There are divergent opinions as to what is the optimum time to begin school. There is, however, near unanimous opinion that there is no universally best age to start learning to read. Kay Margetts, a professor of early childhood studies at the University of Melbourne in Australia, says that how well young children settle in their first "real" schools can have long-term implications on their education. To base a child's readiness for school on age seems reckless and irresponsible, particularly when that readiness will vary enormously according to cultural background, personality and temperament, family structure, economics, and gender. Professor Robin Alexander of Cambridge University's Faculty of Education states that "getting right the quality of early years provision, wherever it takes place, is more important than an endless debate about the school starting age" (When is the best age to send your child to school? by Anther Rowan published in the Telegraph Weekly World Edition).
18. It was argued before us that the Boards have determined the minimum age of 12 years for Class-IX keeping in view various studies conducted at international levels whereby educational level of students of various age groups has been determined. The Boards Committee laid down the criteria keeping in view the average ability of a child at a particular age. This exercise of power by the Chairmen of Boards Committee, in our opinion, does not have any sanction in law. There is nothing in the. Act or in the Rules that authorizes the Boards Committee to make a decision fixing the age of the students for the purposes of admission to Class-IX. Section 18 of the Act deals with the Committees of Board, which reads as under:-- "18. Committees of Board.--(1) The Board shall have a Joint Academic Committee which shall serve all the Boards constituted or re-constituted under this Act.
(2) A Board shall have the following committees, namely:--
(i) the. Finance Committee;
(ii) the Appointments Committee;
(iii) Committee for appointment of paper-setters and head examiners; and
(iv) Committee of courses.
(3) In addition to the committees mentioned in sub-section (2) of this section, a Board may appoint such committees or subcommittees as it may deem necessary.
(4) A committee may appoint such sub-committees as it may consider necessary."
Section 19 of the Act stipulates that the constitution, functions and duties of committees shall be such as may be prescribed by regulations. Section 20 of the Act grants the power to make regulations to the Board, it reads as under:-- "20. Power of a Board to make regulations.--(1) A Board may, subject to the approval of the Government, frame. regulations, not inconsistent with the provisions of this Act, to carry out the purposes of this Act; provided that--
(i) a Board shall not propose draft of regulations effecting the Constitution or power of any authority of the Board until such authority has been given an opportunity of expressing an opinion in writing upon the proposals;
(ii) the draft of regulations shall be forwarded to the Controlling Authority and shall not be effective until it has been approved by the Controlling Authority; and
(iii) A Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials and other employees which is not in conformity with rules made by the Government.
(iv) (2) In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for:--
(a) the terms and conditions of service of the employees of a Board, including matters relating to grant of leave to, and retirement of such employees;
(b) the Constitution of pension or provident fund or both for the benefit of the officers and other employees of a Board;
(c) the admission of institutions to the privilege of recognition and the withdrawal of recognition; Explanation--The terms and conditions should be in conformity with rules applicable to Government servants carrying equivalent pay scales and other benefits.
(d) a general scheme of studies, including the total number of subjects to be taught and the duration of courses; and
(e) all other matters required under any of the provisions of this Act to be prescribed by regulations."
Section 20 stipulates that the Board may provide for regulations with the approval of the Government to carry out the purpose of the Act and its sub-rule (2)(d) provides that the said regulations may provide for a general scheme of studies, including total number of subjects to be taught and the duration of courses. The afore-mentioned provisions of the Act do not authorize or empower the Boards Committee to frame any rules by placing restriction upon the age of the students for the purposes of their enrolment/registration in Class-IX. As mentioned earlier, Rule 1-A in Chapter 19 of the Calendar was introduced on the basis of the decision of the Boards Committee taken in its meeting held on 28.05.2013. The afore-mentioned provision in the Calendar, therefore, has no legal basis and is liable to be struck down. Be that as it may, it appears that the Boards Committee in a backhanded way is in fact fixing the age for entry of the students in Class-1, which it is otherwise not authorized to do under the Act.
19. The Honourable Supreme Court in Judgment reported as Fiaqat Hussain and others versus Federation of Pakistan through Secretary Planning and Development Division, Islamabad and others (PLD 2012 SC 224) has held as under: "4. In the successful life of an individual, the education plays an important role. Generally, it is considered to be foundation of society which brings economic wealth, social prosperity, political stability and maintaining health population. In case of deficit of educated people, the further progress of society is stopped. Educated individuals enjoy respect among their colleagues and can effectively contribute to the development of their country and society by inventing new devices and discoveries.
5. Main purpose of education is to educate individuals so that they get prepared to form the next generation of leaders. It will yield strong families and strong communities. Education plays important role to promote knowledge and understanding of rural communities. hi almost all societies receiving education and attending school is necessary to achieve success. It is the key to move forward and ultimately succeed in life. For preparing children and young people to effectively participate in the development of the society, the schools play a vital role. The knowledge and wisdom can only be gained through the experience of learning. "
20. Keeping in view the observations of the Supreme Court in the afore-referred judgment and considering the facts of the case, we are not impressed by the argument that abilities of children of particular age are to be taken into consideration for applying age restrictions as this would tantamount to restricting the right of an individual to receive education which is his fundamental right and is included in the right to life provided in the Articles 9 and 25-A of the Constitution.
Besides the Boards Committee is not empowered to .impose restriction on education that is nether provided by the Constitution or the Act and its decisions to impose age restriction on education by restricting admission to Class IX do not have support or backing of any law. The Committee has been constituted under Section 18 of the Act in order to maintain uniformity in working of the Boards but the scope of working of this committee is restricted to the powers 14 vested vide the Act and not beyond the same. The decisions of the committee may be used to regulate the working of the Boards but its decisions cannot be implemented beyond the scope of its jurisdiction provided by the law. Even otherwise, the manner of providing education is to be determined by the State and not by the Boards or the Committees constituted under the Act. The reliance by the appellant on Clause 29 of PEC or amendment made to the Calendar is without any legal justification. In any event, the students that have been denied registration by the Boards have already shown their ability to entry in Class-IX by successfully undergoing the rigors of school for eight grades. These students have shown that even though they were admitted to schools earlier than five years, they adequately adjusted to new physical and social experiences and coped well with academic challenges. ,It would be a mockery to not allow them to seek education when their skills have shown them to be fully equipped to get admission in Class-IX.
21. We are in agreement with the observations made by the learned Single Judge in Chamber that there is no connection between education at primary, elementary and secondary levels of education in the educational system prevalent in Punjab. The Act cannot regulate the primary and elementary educational system and cannot prevent a student from receiving such education at any age. In such situations students who have passed 8th class cannot be deprived from receiving further education on the ground that they are underage as per the criteria fixed by the Board for admission to Class-IX.
22. For what has been discussed above, we dismiss this appeal filed by the Board along with other connected appeals (mentioned in Schedule A) and uphold the decision of the learned Single Judge passed in Writ Petition No, 14240/2014 and connected Constitutional petitions including Writ .Petition No, 15590/2015 out of which this appeal has arisen and hold. that the placing of age restriction through Rule 1-A of Chapter 19 of the Calendar for seeking admission to Class- IX is ultra wires the Constitution and the Act and is accordingly set aside. The writ petitions filed' by the students and their parents, the details of which are provided in the Schedule B, for seeking registration' and admission are allowed and the Boards are directed to register students who seek admission in Class-IX without age restriction. We further order that the other directions given by the learned Single Judge in Writ Petition No, 14240/2014 shall also be followed in letter and spirit.