ROOH-UL-AMIN KHAN, J:- By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakista n 1973, Hira Bibi and Kamran Khan, the petitioners, seek issuance of an appropriate writ directing the respondents to issue them promotion certificates of F.Sc Part-I being the students of Leads Campus School & College Malakan d road Takht Bhai, Mardan, and also allow them to sit-in, in the upcoming examination of FSc 2nd year (Session 2020-2021).
2. As the petitioners are under the age of eighteen years, therefore, have filed the instant writ petition through natural guardians (their fathers). It is averred in the writ petition that Leads Campus School & College Malakand road Takht Bhai Mardan, invited applications from students for admission in FSs 1st year through prospectus, pursuance whereof, the petitioners along with other students applied for admission. They deposited the requisite fee of the College and their admissions were got finalized in the month of august 2019, followed by commencement of their classes, however , due to covid-19 pandemic under policy of the Government of Khyber Pakhtunkhwa all students of FSc 1st year throughout the Province were given walkover promotion to FSc 2nd year without taking any examination. Grievance of the petitio ners is that the respondents are not allowing them and other students of FSc 2nd year to appear in the up-coming examination of FSc 2nd year for the Session 2020-2021 on the ground of non-registration of the Leads Campus School & College with the Board of Intermediate & Secondary Education, Mardan and Private School Regulatory Authority (PSRA), hence, having no other efficacious and alternate remedy , they have approached this court through the instant writ petition.
3. The respondents have filed their para-wise comments. As per comments of respondent No.5/the Managing Director Private School Regulatory Authority (PSRA), Leads Campus School and College Malakand road Takht Bhai Mardan, is not registered with PSRA, therefore, has no legal standing in the eye of law, whereas, according to comments of respondents No.3 and 4 i.e. the Chairman and the Controller Board of Intermediate & Secondary Education (BISE) Mardan, no Institution by the name of Leads Campus School & College Malakand road Takht Bhai Mardan, is either affiliated with the BISE Madan or registered with PSRA. According to comments of respondent No.2, he and respondent No.1 being partners in the said school are litigating with each other on income and profit of school and on rendition of accounts and due to pendency of a civil suit in this regard which caused delay in registration of the Institution with the Board and the PSRA, however , the process of registration of the Institution is in the pipeline and shall be finalized soon.
4. We have heard the exhaustive arguments of learned counsel for the parties and perused the record with their able assistance.
5. It appears from record that Inamullah, the Managing Director and Muhammad Latif, the Principal, Leads Campus School & College Malakand road Thakt Bhai Mardan, respondents No.1 and 2, in a joint partnership have started a school by the name and style of "The Leads Campus School & College", Fazalabad Thakht Bhai Mardan. The said school was registered with PSRA and BISE Mardan, in the name of Amanullah respondent No.1 vide registration No.120335005812 and 0725-BISE. In the year 2017, the respondents No.1 and 2 entered into an agreement in respect of opening an another school under the name and style of "The Leads Campus School & College"
Malakand road near Tehsil Building Takht Bhai (to be referred hereinafter as the disputed school), on terms and conditions, inter alia, that (i) the profit and loss of the school shall be equally distributed between them (ii) the school shall start its function since 31.03.2017 (iii) Inamullah shall pay Rs.1500,000/- to Muhammad Latif on account of transfer of 330 students from the school of Muhammad Latif to the disputed school and thereafter for onward period both shall be entitled to equal profit and loss (iv) Inamullah shall be responsible for running the administrative affairs of the school (v) rest of functions of the school shall be performed by them with mutual cooperation and (vi) both the partners shall make rendition of account after six months etc. The petitioners along with other students were given admissions in the disputed school in FSc 1st year in the month of August 2019, however , due to covid 19 pandemic under policy of the Government of Khyber Pakhtunkhwa; all the students in the Province were given walkover promotion to FSc 2nd year, therefore, students of the disputed school did not appear in the Board exam, however , since the disputed school was not affiliated with the BISE Mardan, therefore, the petitioners/students were not promoted to the higher class i.e. FSc Part-II.
6. Record depicts that there was a dispu te between the two partners i.e. respondents No.1 and 2 on the issue of distribution of profit, as a result, Inamullah respondent No.1, filed a suit against Muhammad Latif respondent No.2 for declaration, rendition of accounts etc in the Court of Senior Civil Judge, Mardan which was entrusted to Civil Judge-VII, Mardan. Along with the plaint, respondent No.1 had also filed an application for grant of temporary injunction restraining respondent No.2 from admission of students in the disputed school as well as restraining PSRA from its registration. The suit and the application were contested by the respondent No.2 by filing written statement and replication, respectively . He also submitted an application to the effect that respondents No.3 and 4 be directed to get the disputed school registered. Both the applications were allowed by the learned trial court vide order dated 03.07.2019. Feeling aggrieved from the order of grant of tempora ry injunction, respondent No.2 preferred an appeal against the same before the learned District Judge, Mardan which was decided vide order dated 19.02.2020. Consequently , the order of the learned trial court was modified to the extent that respondent No.1 shall adopt all possible steps to register the existing students of the school with respondents No.3 and 4 and no further admission in the Intermediate classes be made for a period of six months or till the disposal of the suit whichever is earlier . As far as question of profit and loss of business of the parties is concerned, the same was held to be decided by the trial court at the time of decision of the suit to the extent of rendition of accounts. On 30.10.2019, Inamullah respondent No.1 filed another application for restraining respondent No.2 from starting classes for Intermediate Section in the disputed school, which was contested by respondent No.2. The learned trial court after hearing both the sides, passed an interim order dated 30.10.2019, operative part of which is reproduced below:- "Perusal of record would reveal that plaintif f and defendant No.1 are partners in the school run with the name and style of Leads Campus School & College, Takht Bhai and the partnership agreement is still intact between the parties. Presently defendant No.1 is running and managing the affairs of the school as a partner and the main dispute between the parties pertains to the rendition of accounts. Perusal of record would further reveal that as per agreement/Iqrar nama dated 22.09.2018, executed between plaintif f and defendant No.1, defendant No.1 was authorized to run all the financial as well as administrative affairs of the school. Since, defendant No.1 has already started Intermediate Classes and students have already got admission in the school, therefore, if the defendant No.1 will be restrained from up-gradation of the school to Intermediate level, the student of the Intermediate classes would suf fer irreparable loss.
Although the school is registered in the name of plaintif f/partner , however , in case of up-gradation of the school to Intermediate level, plaintif f as well as defendant No.1 would share the profit and loss in accordance with the terms and conditions of the partnership agreement"
7. Feeling aggrieved, Inamullah respondent No.1 preferred an appeal before the learned District Judge, Mardan which was allowed vide order dated 19.02.2020 with the direction to respondent No.1 for taking all possible steps to regularize the admissions of existing students and shall also ensure their registration in the record of respondents No.3 and 4. The respondent No.2 was restrained to continue further admissions in Inter classes for a period of six months or till disposal of the main suit whichever is earlier .
8. The respondents No.1 and 2, instead of securing the future of the students by getting the disputed school registered with the BISE Mardan and PSRA, kept themselves busy and indulge in litigations so as to set their monetary and personal goals, therefore, the petitioners being affectees and sufferers in the battle of royals, approached this court by filing the instant writ petition during pendency of which the following order was passed by this court on 25.03.2021:- "During arguments it was disclosed that Intermediate section of the Leads Campus School & College is not registered with Private Schools Regularity Authority (PSRA) and similarly , the stude nts could not be registered with the Board of Intermediate and Secondary Education Mardan. So far their promotion to the 2nd year is concerned; counsel for both the above mentioned Institutions stated that the same cannot be granted to these students as they are neither registered with PSRA nor with any other Government College. The representatives of the respondents No.3 and 4 and counsel for respondent No.5 when confronted with the future studies and academic carrier of 22 students, who had been allegedly allowe d admissions by respondents No.1 and 2 in an unregistered institution, they requested for time to consult the relevant quarters i.e. Chairman Board of Intermediate & Secondary Education, Mardan for arrangement of some of short courses for them or any other viable solution viz to register them with the Board of Intermediate and Secondary Education, Mardan on the strength of any other Government or Private College at Mardan. The conduct and fate of the Managing Director and Principal of Leads Campus School & College shall be decided after hearing the case on merit.
In view of the above, respondents No.3 to 5 shall submit a detailed report well before the date fixed. Case file to come up for hearing on 08.04.2021. Till then the account of respondents No.1 and 2 to the extent of amount equaled to the admission and tuition fee of student, shall remain freeze."
9. In compliance with the order (supra), respondent No.3 submitted report, according to which the Chairman Board BISE, Mardan, showed inability to accom modate the students of the disputed school, as under the law he was not permissible to grant the relief of registration to the students in FSc 1st years because such exercise is neither provided in the rules nor he is competen t to do so. The only way out for saving two years of the students was, however , suggested to be that on taking admission by the students in any recognized Institution, the BISE Mardan/respondent No.3 shall register them for 1st year exam expected to be held in June 2021 and in this way, at least their one year can be saved. In view of the above, this court directed respondent No.2 to arrange admissions of the students in 1st year FSc in a recog nized and affiliated college with BISE, Mardan, followed by registration of the students. The admission and registration cost/fee was directed to be borne by the respondent No.2. As in pursuance of Government Policy , all the students of FSc 1st year were given walkover promotion to FSc 2nd year by the respective Boards without taking any examination, therefore, BISE Mardan was directed to treat the petitioners at par with other students of FSc 1st year and allow them promotion to FSc 2nd year, as per formula already applied to the other students.
10. On 22.04.2021, learned counsel for respondent No.2 apprised this court that pursuant to the directions of this court, the petitioners have been given admissions in the Genius School & College Takht Bhai Mardan. In this respect he produced a copy of the certificate, however , to avoid further complications and multifariousness of the litigations, representative of BISE Mardan was directed to confirm the status of the said Institution. On the next date i.e. 09.06.2021, representative of BISE Mardan informed the court that status of Genius School & College has been verified which is duly registered with PSRA. In this view of the matter , the issue of admission of the students and their examination of FSc 2nd year was resolved, however , controversy of granting admissions to the students by respondents No.1 and 2, in an un-registered school was adjourned to 16.06.2021 for decision.
11. From the facts and circumstances discussed above, we have noted with great concern that the respondents No.1 and 2 while entering into a sale transaction of an unrecognized and an un-registered school admitted students/petitioners in FSc classes. Both made the students and their parents believe that they would be able to appear in the coming Board examination, but due to dispute between them over the income of the disputed school, the students were kept in lurch. Allegedly , the process of registration of the disputed school started on the direction of the learned trial court in a suit filed by respondent No.1 but due to untoward attitude of respondents No.1 and 2, they failed to got the school registered, which not only resulted in mental anguish of the students but also deprived them from taking examination. In pursuance of order dated 25.03.2021 passed by this court, the PSRA considered the matter in detail and an opportunity of hearing was provided to both Inamullah and Muhammad Latif respondents No.1 and 2. The PSRA 's report would reveal that co-owners of the disputed school and College are manipulating facts and are driven by pettiness and motive to make money only. They are neither serious in imparting education nor worried about the welfare and future of the students enrolled in the disputed school. The disputed school could not be registered with the PSRA due to litigation between respondents No.1 and 2 over title and rendition of accounts etc. The act of admitting students in an un-registered school by respondents No.1 and 2 is sheer violation of section 21 of the Khyber Pakhtunkhwa Private School Regulatory Authority Act 2017, (Act of 2017)which for the sake of convenience and ready reference is reproduced below:- "S.21. Registration of Schools:' (1) No school shall be opened or operated in the Province, irrespective of its affiliation if any with the Inland or foreign Board or certificate awarding body or students assessment and testing body , as the case may be without registration with the Regulatory Authority .
(2) The school shall be registered for such a period and its renewal shall be done in such a manner as the Regulatory Authority may prescribe by regulations.
(3) No Board shall af filiate a School without the same being registered with the Regulatory Authority .
(4) If a Board de-af filiates any school the Regulatory Authority shall forthwith suspend its registration and notify it to the school to show cause as to why its registration should not be revoked".
Section 22 of the Act of 2017, provides penalties for contravention of provisions of section 21, in the following circumstances:- "S.22.Penalties:- (1) Whoever opens or operates a School without registration with the Regulatory Authority shall be fined by the Regulatory Authority of:-
(a) rupees two hundred thousand in case of high, higher secondary school and intermediate college or an institution of equivalent level; and
(b) rupees fifty thousands in case of a Montessori, Kindergarten, a tuition academy or centre, primary , lower middle and middle schools or an institution of equivalent level.
12. Under the Act of 2017, any person intending to establish or continue an existing educational Institution shall submit an application to the Registration Authority i.e. PSRA. By introducing the Act of 2017 and establishment of PSRA, the main concern of the Provincial Government was to regulate the affairs of the Private Schools and to given an even handed treatment to each and every Institution to improve the functioning and imparting education of schools in the Private Sectors, but in vain, as still some of the schools' owners have converted their un-authorized, unregistered and un-af filiated schools as money making machines by raising and charging fee of their whims and wishes, so much so demanding money from students in the name of donations and other pretexts. The Khyber Pakhtunkhwa Private Schools Regulatory Authority Regulations, 2018 (Regulation 2018) provides that with the repeal of the Khyber Pakhtunkhwa Registration and Functioning of Private Educational Institutions Ordinance, 2001, the regulatory powers of the Board stand ceased and as such the Board shall not receive any application for registration of a school, whereas all pending applications shall be transferred to PSRA. For registration of schools by the Regularity Authority , a committe e constituted under the name of "Norms and Standard Committee", consisting of nine members has been empowered to determine the mandatory requirements for establishment of schools or continuation of an existing school or charge of category of a school subject to fulfillment of the notified norms and standards duly approved by the Regulatory Authority as provided in Para 5(3) of the Regulation 2018.
13. This shall not come as a surprise, since not much is required to open a private school. We were not shown a single instance that the PSRA while processing the registration of a school offering secondary education for 9 and 10 grade classes or Intermediate classes, has enquired from the applicant/owner about physical infrastructure including but not limited to land, building, sufficient open space for sports and other physical activities during school hours, libraries, laboratories, water & sanitation, electricity, boundary wall, toilet, classroom-teacher ratios, classroom-students ratios, health and safety of students in normal and disastrous situations as well as security measures in place as required under regulation 5(3) of the Khyber Pakhtunkhwa Private Schools Regulatory Authority Regulations, 2018. Despite repeated and persistent demands of the court, learned counsel and representative for PSRA could not show that any of its officials has paid, at least, a ceremonial visit of any school in the last three years to see if the registered schools have maintained the minimum requirements. Similarly, representatives of the Boards of Intermediate and Secondary Education of the Province, being remained affiliating authority of the Private Schools also do not invested in past much into the monitoring the affiliated schools. The three important stake-holders viz the Board, the Regulatory Authority and the students or their parents have no interaction or stage for co-ordination. The lack of collaboration amongst the above stake-holders, has definitely given free hand to private sector education providers with the power and authority not to care or ensure minimum level of quality education. Undoubtedly, the regulatory framework and legal instruments are available but the problem is inefficiency of regulatory authority i.e. PSRA and the Board to physically control the private sector education providers to ensure minimum level of quality education and bridging the information gap amongst them for knowing about the existence of unregistered and unaffiliated schools in the Province and respective jurisdiction of the Board.
14. The crux of the above discussion is that conduct of respondent No.1 and 2 viz making business from the noble profession of imparting education in an un-registered school and college is a worst example of playing with the future of innocent students which is not only violative of the provisions of section 21 of the Act of 2017 and Para-5 of the Regulation 2018, but the owners of the school i.e. respondents No.1 and 2 have rendered themselves to a penal action i.e. committing an intentional fraud and cheating the public at large, therefore, they are not only liable to be dealt with under section 22 of the Act of 2017 by the PSRA but also under the relevant provisions of the Pakistan Penal Code.
15. The worthy District Police Officer (DPO) Mardan, is directed to depute a competent and an honest Police Officer, not from the concerned Police Station, to make enquiry and investigate into the matter for taking necessary penal actions, if anyone, is found in nefarious business of imparting education in the fake and un- registered school named above.
16. The worthy Chief Secretary Government of Khyber Pakhtunkhwa shall also constitute a committee for probing into the matter that how an un-registered Institution was allowed to impart education to students of FSc, despite the fact that the controversial position of the disputed school was in the knowledge of authority of the concerned quarters.
17. This writ petition is disposed of in the above terms. The Additional Registrar (Judicial) of this court is directed to send copy of this judgment to the Chief Secretary Government of Khyber Pakhtunkhwa and the DPO, Mardan for doing the needful under the relevant law. Steps and actions taken by them shall be intimated to this court through the Additional Registrar (Judicial), without any delay. th th