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, the petitioner has made prayer in the following terms:- "In view of the above submissions, it is most respectfully prayed that the impugned PM&DC letter dated 12.03.2018 (Annexure-H) may kindly be set aside and declared as illegal, unlawful, unwarranted and without jurisdiction in the interest of justice and equity.
It is further prayed that respondent No, 1/PM&DC may kindly be directed for migration of the children of the petitioner namely Syed Ali Irtaza and Wajiha Fatima Syeda from Ras-Al-Khaimah Medical and Health .Sciences University, UAE to CMH Medical College, Lahore Cantt. to save their future in the interest of justice.
Any other relief which this Hon'ble Court deems fit and appropriate may also be awarded".
2. Facts of the case, succinctly required for disposal of the constitutional petition in hand, are that petitioner was performing duties in Higher Colleges of Technology-CERT (UAE), but, as per certificate (Annexure-A) his services were terminated on 17th March 2016 and he had to leave UAE along with his family due to the circumstances beyond his control. Two children of the petitioner namely Syed Ali Irtaza and Wajiha Fatima Syeda were studying at Ras-Al-Khaimah Medical and Health Sciences University, UAE, who had passed three years in Bachelor of Dental Surgery Program over there. The petitioner filed an application to the President, Pakistan Medical and Dental Council seeking migration of his children from Ras-Al-Khaimah Medical and Health Sciences University; UAE, to a recognized dental college in Pakistan, which was allowed by the PM&DC vide Notification No,22-FM/Council-2016/ 295395 dated 6th January 2017. However subsequently, vide Notification No,PF.65-F-2018-(Student Registration)/ 305309; dated 12th March, 2018, the earlier permission extended by the competent authority in this regard was withdrawn.
3. While opening his arguments, learned counsel for the petitioner submits that the petitioner was working in Higher Colleges of Technology-CERT (UAE), but his services were terminated on 17th March 2016 and he had to leave UAE along with his family due to the circumstances beyond his control. It is argued that the children of the petitioner namely Syed Ali Irtaza and Wajiha Fatima Syeda were studying at Ras-Al-Khaimah Medical and Health Sciences University, UAE and have successfully completed three years in Bachelor of Dental Surgery Program. Adds that the petitioner filed an application to the President, Pakistan Medical and Dental Council seeking migration of his children from the aforesaid University of UAE to a recognized dental college in Pakistan, which was allowed by the PM&DC vide its notification dated 6th January, 2017, subject to furnishing of documentary proof from Embassy/ Ministry of Interior of Security concerns and unavoidable circumstances which led to forced migration as well as undertaking on an affidavit that the student shall appear in NEB Examination after acquiring the degree to be registered as a practitioner, which were duly fulfilled. Adds that subsequent to that NOC was also issued in favour of both the students by the CMH Medical College, Lahore, on 22nd December, 2017. Learned counsel submits that vide letter dated 12th September, 2017, PM&DC besides aforesaid two conditions added one condition with reference to procuring IBCC Equivalence Certificates without basing the same on any decision of the Executive Committee in violation of Section 83(2) of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008. It is submitted that vide notification dated 12th March, 2018, the earlier permission with reference to migration from RAK College of Dental Sciences UAE to CMH Lahore Medical College was withdrawn. While referring Section 24-A of the General Clauses Acts, learned counsel submits that any order passed by the authority should be based on justiciable reasoning, but in the instant matter, the earlier permission has been withdrawn by the PM&DC through a non-speaking order. Learned counsel submits that it is settled principle of law that once a benefit/right has been accrued by an act of the government in favour of any person, the same cannot be withdrawn afterwards. It is argued that both the children/students have been restrained from continuing their education from March, 2016. Learned counsel lastly submits that the proceedings carried out by the PM&DC with reference to withdrawal of permission qua migration being without the decision of the Executive Committee as well as being passed without assigning any good reasoning, which too is against the basic norms of natural justice, hence are liable to be set aside. Learned counsel for the petitioner has placed his reliance upon the dictums of law laid down in the cases of 'Messrs M. Y. Electronics Industries (Pvt.).
Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others' (1998 SCMR 1404), "Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited" (PLD 2002 Supreme Court 208), "Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others" (2007 PLC (C.S.) 824) and "Mst. Basharat Jehan v. Director Genl, Fedl Government Education, FGE1 (C/Q) Rawalpindi and others (2015 SCMR 1418).
4. On the other hand, learned Law Officer assisted by learned counsel representing PM&DC has opposed this petition. It is submitted that the earlier permission granted by the PM&DC was granted on wrong premises, therefore, the same was subsequently withdrawn vide notification dated 12th March, 2018. Learned counsel submits that Section 21 of the General Clauses Acts empowers the competent authority to withdraw earlier order in case the same is based on wrong assumption. It is argued that in pursuance of the directions passed by the august Supreme Court of Pakistan in its salutary judgment rendered in the case "Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others" (2018 SCMR 1956), ad hoc committee was constituted and the said committee after perusing the record has proceeded to withdraw the earlier permission granted in favour of both the students.
5. Arguments advanced pro and contra have been heard and record available on file perused.
6. Prior to touching upon the merits of the constitutional petition in hand, this Court is overwhelmed by a query which has struck in the mind of the Court what are the basic functions of a State, either it is a welfare or an Islamic State, in existence. A bird eye view of the aforementioned systems of the State governance would lead to the conclusion that 'Right to Education' is and ought to be a 'sine- qua-non' for each and every system irrespective of the fact whether the same has been incorporated or not by the State in its manifesto.
7.Bare perusal of "Preamble" of the Constitution of Islamic Republic of Pakistan, 1973, shows the intent of legislation. The, framer of the said document has raised the superstructure upon the teachings of "Holy Quran and Sunnah" as 'grund-norm'. A passage from Preamble is reproduced as under: -
(i) Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.
(ii) "Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought expression, belief faith, worship and association, subject to law and public morality".
Article 2-A of the Constitution though was inserted and made part of the Constitution at a belated stage through an amendment dated 10th March, 1985 enabling objective resolution to form part of the substantive provisions of the Constitution in the spirit of the aforesaid teachings. Article 37 of the Constitution of Islamic Republic of Pakistan further lend support to this concept while providing a cover to other branches of education on a broader spectrum. Said provision of the Constitution reads as follows:- (a).--- (b).--- (c). make technical and professional education generally available and higher education equally accessible to all on the basis of merit;
8. In the instant case it is most unfortunate that the petitioner along with his family besides a number of other families was compelled to leave United States of Arab Emirates on sectarian basis only due to one reason that he was follower of a particular Islamic school of thought. Perusal of the "prayer clause" of the instant petition reflects that at said particular time son and daughter of the petitioner namely Syed Ali Irtaza and Wajiha Fatima Syeda were studying in Bachelor of Dental Surgery. Program in a very reputed university of United States of Arab Emirates, but due to said unfortunate aspect which has already been pointed out, both of them were forced to leave their educational institution on sectarian basis. After being deserted from United States of Arab Emirates, continuity in the education was erupted and both children of the petitioner had no other alternative except to leave United States of Arab Emirates to reach their own soil. Soon-after reaching their own destination, both of them moved an application seeking permission from PM&DC to get admission in any professional institution to continue with their professional education, which they were forced to leave on a foreign soil due to unavoidable circumstances.
The application of both son and daughter of the petitioner namely Syed Ali Irtaza and Wajiha Fatima Syeda was taken into consideration by the competent authority and was allowed by the PM&DC vide Notification No,22-FM/ Council-2016/ 295395 dated 6th January 2017 when they were assured accommodation by CMH Medical College, Lahore, due to their meritorious credentials.
However subsequently, vide notification No,PF.65-F-2018-(Student Registration)1305309; dated 12th March, 2018, the earlier permission in this regard was withdrawn. Although earlier permission was granted by the authority subject to furnishing of documentary proof from Embassy/ Ministry of Interior of Security concerns and unavoidable circumstances which led to forced migration as well as undertaking on an affidavit that the student shall appear in NEB Examination after acquiring the degree to be registered as a practitioner, which were duly fulfilled Even the requisite NOC was also issued in favour of both the students by the CMH Medical College, Lahore, on 22nd December, 2017 while allowing to continue their studies in the final year over there. The authority/PM&DC vide letter dated 12th. September, 2017, besides aforesaid two conditions added one condition with reference to procuring IBCC Equivalence Certificate without any legal justification because it is requirement of a student while entering into a professional education. In the instant case, both the students had already initiated professional education and they were at final leg of completion of their professional Degree. So the condition of IBCC was not applicable in the given circumstances. It is worth mentioning here that vide impugned notification dated 12th March, 2018, the earlier permission with reference to migration from RAK College of Dental Sciences UAE to CMH Lahore Medical College was withdrawn in a slipshod manner, which is reflective from bare reading of the same, which reads as follows:- "The Executive Committee considered the matter regarding migration from RAK College of Dental Sciences, UAE to CMH Lahore Medical College and Institute of Dentistry, Lahore in 4th year BDS class.
Regarding migration of the applicants from overseas it was unanimously decided that the previous decision of the Executive Committee and Council shall stand null and void as it is against the Regulations and earlier communication established will be withdrawn.
The applicant will be regretted accordingly".
9. Perusal of the notification, by which earlier permission was withdrawn by the authority, shows it is violative of basic principle of natural justice as no notice was issued for withdrawal and also an opportunity of hearing was denied which is part and parcel of every statue irrespective of the fact whether the same is embodied therein or not. The same is also hit by the principles enunciated by the superior courts from time to time. While dealing with a similar situation, the august Supreme Court of Pakistan in the case titled "Pakistan and others v. Public-at-Large and others (PLD 1987 Supreme Court 304) has observed as follows.-- "--When a public authority is to be exercised for resolving a controversy regarding rights and liabilities, the decision would not be rendered without proceedings in which the person affected is also afforded an opportunity of hearing.
It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi-penal consequences and/deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognized as a basic right".
It is further in defiance of Section 24-A of the General Clauses Act. It would be advantageous to go through the same, which reads as under:-- [24-A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, of or person such power shall be exercised reasonably fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any, enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially].
In' the instant case right of education is being denied to both the children of the petitioner only due to act of a forum which has earlier granted permission to them after fulfilling all legal requirements considering it special circumstances beyond the control of the petitioner or family. The denial in this regard is in conflict to the fundamental rights guaranteed under Articles 4, 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---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 statue itself----"
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 referred to spirit of the Constitution which is based upon the teachings of "Holy Quran and Sunnah" where 'knowledge' is given preference as a recognition of a human being. 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.
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 banked 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 certainly was not Islamic teaching. This aspect further reflects the importance of acquiring education and knowledge.
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".
"Attain knowledge from the cradle to the grave".
"Acquire knowledge even if you have to travel to China".
Hazrat Ali (A.S.) has expounded the importance of seeking knowledge in the following words:- "Educate a woman, educate a nation".
"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".
In the Divine Holy' Book, the Qur'an, Allah almighty has declared the superiority of Adam over the angles 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 your are right".
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".
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".
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. In the case in hand, both the children of the petitioner have already successfully completed three years in Bachelor of Dental Surgery Program. They have been blocked to continue with their studies from March, 2016. They cannot be ordered to be reverted back and waste further golden time of their age on the basis of legal niceties/technicalities. They have already suffered a lot, hence cannot be compensated for the loss due to an act of authority by any stretch of imagination in the given circumstances.
10. For the foregoing reasons, this Court is persuaded to accept this petition. The impugned notification bearing No,PF.65-F-2018-(Student Registration)/ 305309; dated 12th March, 2018 having been passed without any legal justification as well as being against the basic norms of the Constitution is hereby set-aside.
11. Petition Accepted.