JAWAD HASSAN, J. The Petitioners have filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") being aggrieved of by the decision of British Council to conduct examinations of "O" and "A" Levels Course being taken by their respective institutions/schools which are affiliated with the Cambridge Assessment International Education (the "CAIE"), on instructions issued by the Respondents Nos.4 to 6. The examination for "A" Level will commence from 26th of April, 2021 and the examination for "O" Level will start from 4th of May , 2021.
I. BRIEF HIST ORY OF THE CASE
2. The Petitioners axe studying "O" and "A" Levels Course in various institutions/schools at Lahore. The Respondents Nos.1 and 2 are the British Council having its office at Lahore, Islamabad and Karachi who conduct various international examinations of "O" and "A" Levels while the Respondent No.3 is an international examination body of the CAIE. The Respondent No.5, the Ministry of Federal Education and Professional Training (the "Ministry"), deal with the issue of holding examinations by the CAIE in Pakistan and other related matters. The Government of the Punjab has been impleaded as the Respondent No.6 in this petition because of its responsibilities towards making decisions about the schools and examinations conducted in the Province of Punjab. The controversy arose when the Petitioners approached the Respondents Nos.1 to 3 for taking school assessed grades instead of physical examinations during third wave of pandemic Covid-19 but their request was declined.
II. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONERS
3. Barrister Hassan Khan Niazi, Advocat e submits that holding of examinations of the Petitioners in examination halls, will offend the provisions of Article 9 of the Constitution because this exercis e will not only put in danger the lives of the Petitioners but also their families in this third wave of pandemic Covid-19 as now the young generation is also being infected with Corona Virus and currently many of the students are suffering from it. He further submits that due to the prevailing epidemic situation other countries of the world, including United Kingdom, Bangladesh and U.A.E, have given the facility of school assessed grades to their students but the Petitioners in Pakistan are being denied the said facility , which is sheer violation of Article 25 of the Constitution, affording equal protection of law to every citizen of this country . Barrister Hassan Khan Niazi, Advocate next contends that the current rate of positive cases of Covid-19 in Lahore is about 22% of total population, which is the highest rate, and also there are various directives/notifications issued by the Government of the Punjab under the Punjab Infectious Diseases (Prevention and Control) Act, 2020, whereby complete ban has been imposed on large gatherings and only outdoor activities have been allowed subject to fulfillment of the Standard Operating Procedures (the "SOPs") where the positivity ratio is above 8%. He states that as per the update information obtained by him, the Cambridge schools will continue to plan for examinations in June, 2021 where it is permitted and safe. He categorically states that it is the sole responsibility of the Respondents Nos.4 to 6 to play a pivotal role in preventing the massive risk on health as well as lives of the Petitioners by issuing substantial directions to the Respond ents Nos.1 and 2 with regard to the school assessed grades option, instead of holding in the examination centres/halls. Barrister Hassan Khan Niazi, Advocate lastly , prayed for a direction to the Respondents not to make it oblig atory upon the Petitioners to go into the examination halls for taking exams and the facility of school assessed grades be given to them. He has placed reliance on the judgments reported as Farrukh Imtiaz Khokhar v. Government of Pakistan through Secretary Ministry of Interior Islamabad and 2 others (2021 MLD 40), Muhammad Ahmad Pansota and others v. Federation of Pakistan and others (PLD 2020 Lahore 229) and Mst. Ameer Bano v. S.E. Highways (PLD 1996 Lahore 592 ).
III. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPONDENTS NOS.1 AND 2
4. Mr. Asad Javed, ASC has vehemently contested the arguments of learned counsel for the Petitioners by stating that the examinations can be held at examination venues if the guidelines and briefing on health and safety SOPs issued by the Government as well as the British Council are strictly followed. He clarifies that during the examination session, starting from 26.04.2021 to 13.06.2021, the British Council will cater approximately 90,000 students to appear in May/June examinations for the CAIE examinations across 35 cities of Pakistan with certain SOPs relating to the examination venues, candidates/students and venues staff and only for the Petitioners, who are four in numbers, the said examinations cannot be cancelled. He has placed on file various documents, including i) Health and Safety SOPs for Exams; ii) Guidelines and Briefing on Health and Safety SOPs; and iii)
Pictures (in black and white) showing some safety measures with regard to the SOPs. In support of his contentions, he has placed reliance on the judgments reported as Haris Bin Hassan Jang v. Federation of Pakistan and others (2021 CLC 413), Muneeb Tariq and another v. Punjab Public Service Commission and 2 others (2020 CLC 1591 ) and Dewan Hamid Masood Chishti and others v. Province of Punjab and others (2020 CLC 1885 ).
IV. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPONDENT NO.3.
5. Furtherance to the arguments delivered by learned counsel for the Respondents Nos.1 and 2, Mr. Muhammad Shahnawaz Khan, Advocate submits that the Petitioners have no locus standi to file this petition because firstly , they have not attached with this petition any document showing that they are enrolled as students to take "O" and "A" Levels examinations. Secondly , the CAIE is a private entity and has no direct relationship with the Petitioners.
He next contends that this is a matter of policy decision and this Court cannot exercise constitutional jurisdiction under Article 199 of the Constitution in such like matters. He adds that the CAIE, being a UK entity , is run/managed under the laws of the UK, hence, it does not come within the territorial jurisdiction of this Court. He has referred to the previous School Examination Session-2020 for the CAIE Program whereby British Council and Cambridge International have safely conducted examinations of about 33,000 candidates in the months of October and November , 2020 by following all Covid-19 SOPs issued by the Government of Pakistan as well as the World Health Organization (the "WHO"). He explains that the cordoned off and bifurcated walking areas for the candidates with markings to maintain six feet social distance all the time while going towards the examination hall during the previous session was maintained/arranged, which will also be strictly adopted in the upcoming examinations.
Therefore, there should be no excuse left on part of the students, including the Petitioners, for not taking examinations. He has also placed reliance on the case law cited by learned counsel for the Respondents Nos.1 and 2.
V. SUBMISSIONS MADE BY THE LEARNED ASSIST ANT ATTORNEY GENERAL
6. Ms. Sadia Malik, Assistant Attorney General for Federation of Pakistan, on instructions of Jawad Akram, Joint Secretary (Policy), Ministry of Federal Education and Professional Training, Islamabad, submits that the issue of closure and opening of schools has been discussed in detail in the Inter-Provincial Education Ministers Conference (the "IPEMC") and a decision based on the evidence collected by the National Command and Operation Centre (the "NCOC") has been made, whereby it has been decided that the institutions/schools will re-open on 19.04.2021 and conducting of examination for CAIE will also be allowed. She explains that the British Council and the Cambridge authorities have assured the Government that they will fully comply with all the existing SOPs while conducting examinations, where the mandatory social distance of 6-feet and wearing masks by the students/candidates will be compulsory . Therefore, the Petitioners can sit in the examination venues/halls after fulfilling all the mandatory requirements given in the SOPs.
VI. ARGUMENTS ADVANCED BY THE LEARNED ADDL. ADVOCA TE GENERAL
7. Barrister Umair Khan Niazi, Additional Advocate General, Punjab, while support ing arguments advanced by the learned Assistant Attorney General, submits that pursuant to the decisions taken in the meeting of the IPEMC, held on 18.04.2021, the Higher Education Department, Government of the Punjab (the "Education Department") has also issued notification dated 19.04.2021 with certain directions to the educational institutions, which are reproduced hereunder for ready reference:- i. All educational institutions including Colleges and Universities in high positivity districts of Sargodha, Lahore, Bahawalpur , Chiniot, RY Khan, Faisalabad, Bhakkar and Sheikhupura will remain closed across the board from 19th April, 2021 on staggered basis to prepare for Board exams. ii. All educational activities in colleges in the above mentioned eight districts except Intermediate class will remain suspended till further orders. iii. All International Examinations will be conducted as per schedule already notified, however , O' Level Examination will commence from May 10th, 2021. iv. All Universities across the province may continue academic activities as per notification of HEC, Islamabad. v. SSC and HSSC Examination in Punjab will be held as per revised schedule issued by PBCC.
He, while inviting attention of the Court towards the direction mentioned at clause-iii of the said notification, submits that the International Examinations, including "O" and "A" Levels examinations, will not be postponed and in this regard, all the SOPs already issued by the Primary and Secondary Healthcare Department, from time to time, will be followed in letter and spirit. He further submits that this is a matter of policy decision and this Court cannot take cognizance of such like matter .
8. Arguments heard. Record perused.
VII. MOOT POINT
9. The moot point, which needs determination of the Court in the instant petition, is as under:- a) Whether this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution, can interfere in the matter of an educational institution which does not come within its territorial jurisdiction.
VIII. DETERMINA TION BY THE COUR T (a) JURISDICTIONAL DEFECT
10. First of all, I would like to discuss the issue of territorial jurisdiction. The term 'jurisdiction' means the authority of a person or an authority or a legal forum to decide a matter in accordance with law. According to, Black's Law Dictionary 11th Edition by Brayan A. Garner , p-1017 the term Jurisdiction has been defined as:- "A court's power to decide a case or issue a decree....A geographic area within which political or judicial authority may be exercised "
The term jurisdiction implies to power of a Court to hear, determine and adjudicate upon a controversy by exercising its legal as well as judicial authority. The concept of jurisdiction has its genesis in the physics power of a Court to issue process to persons within the reach of the Court. The Honorable Supreme Court in "Province of Punjab through Secretary to Government of Punjab, Communication and Works Department, Lahore and another v. Messrs Muhammad Tufail and Company through Muhammad Tufail (deceased) through Legal Heirs" (PLD 2017 Supreme Court 53) made a comprehensive analysis of the genesis, scope and nature of the term jurisdiction and held that:- "the concept of jurisdiction of a Court encompasses (i) territorial jurisdiction, (ii) pecuniary jurisdiction and (iii) subject matter jurisdiction. The concept of jurisdiction has its genesis in the physical power of a Court to issue process to persons within the reach of the Court. Shorn of all extraneous frills' this is the essence of jurisdiction. A Court is to decide matters when persons relating thereto are within its reach. This basic jurisdiction is then regulated by defining the limits of that 'reach' by setting pecuniary limits, or by assigning different 'subjects' within one territory to dif ferent Courts"
11. This Court in its recent judgment titled as "Bahoo Dying Industries (Private) Limited v. Sui Northern Gas Pipelines Limited and others" (PLD 2021 Lahore 186) also examined the meaning and scope of the term and observed that:- "The concept of jurisdiction has its genesis in the physical power of a Court to issue process to persons within the reach of the Court. The jurisdiction of a legal forum/court includes its (i) territorial jurisdiction, (ii) pecuniary jurisdiction and (iii) subject matter jurisdiction. Jurisdiction is always conferred upon the courts by a law and it cannot be decided by the parties inter se. Territorial jurisdiction refers to a court's power over actions and parties within the bounds of a particular territory . If a court does not have territoria l jurisdiction over the events or persons within it, then the court cannot give a binding decision regarding the rights of parties."
12. The Division Bench of Sindh High Court in "Muhammad Ahmed Siddiqui and another v. Abdul Abid Advocate and another" (PLD 2021 Sindh 1) interpreted the term jurisdiction by holding that:- "(t)he word and expression jurisdiction refers to the legal authority to administer justice in accordance with the methods and avenues provided subject to the limitation imposed by law. Whenever any jurisdic tion is conferred to any court of law subject to a number of prerequisites, then such prerequisites should be complied with."
The jurisdiction of a legal forum/Court includes its (i) territorial jurisdiction; (ii) pecuniary jurisdiction; and (iii) subject matter jurisdiction. The jurisdiction is always conferred upon the Courts by a law and it cannot be decided by the parties inter se. The territorial jurisdiction refers to a Court's power over actions and parties within the bounds of a particular territory . If a Court does not have territorial jurisdiction over the subject matter within it, then it cannot give a binding decision regarding the rights of the parties. Jurisdiction of High Court under Article 199 of the Constitution is equitable and therefore can be exercised only in a valid and lawful manner and not otherwise. The august Supreme Court of Pakistan in "Syed Iqbal Hussain Shah Gillani v. Pakistan Bar Council through Secretary , Supreme Court Bar Building, Islamabad and others" (2021 SCMR 425) expressed similar opinion while holding that:- "the exercise of jurisdiction unde r Article 199 of the Constitution by the High Court is equitable and discretionary in nature. The High Court exercised such discretion in a lawful and valid manner on the basis of well entrenched principles on the exercise of such discretion."
In the instant case, the Respondent (CIAE) is beyond the territorial jurisdiction of this Court and in stricto sensu, not amenable to jurisdiction of this Court. b) DECISION ON MERIT
13. Now coming to the merits of the case, it is pertinent to mention here that in a matter of policy decision, this Court cannot interfere as it squarely falls within the executive domain of the authorities. It is observed that a well- structured system of trichotomy of power is provided under the Constitution, which serves dual purposes. At one hand, it defines the scope and functions of each organ of the State that it is empowered and required to perform under the scheme of Constitution but most importantly it envisages that the powers and functions of the other limb of the trio must-not be interfered and encroached upon by any single limb of the State. The theory of separation of power is thus the hallmark of the Constitution and therefore a policy decision chalked out by the Executive limb of the State must not be interfered with by the Judicature unless it is evident that the same is illegal, unconstitutional, mala fide, discriminatory or in violation of fundamental right as provided and guaranteed under the Constitution.
14. The Honorable Supreme Court of Pakistan in "Ghulam Rasool v. Government of Pakistan through Secretary , Establishment Division Islamabad and others" (PLD 2015 Supreme Court 6) held that "it is also a settled law that the Courts should ordinarily refrain from interfering in policy making domain of the Executive." The apex Court in "Watan Party and another v. Federation of Pakistan and others" (PLD 2013 Supreme Court 167) examined the rationale behind the doctrine of non-interfering in policy matters on the basis of well-entrenched rule of trichotomy of power devised by the Constitution and held that:- "We are afraid that at the instance of petitioners, in order to expedite the progress of the Project, we cannot assume the functions of policy making or determining the priorities of various development projects in the country , which are the exclusive domain and functions of the Federal and Provincial Government, as the case may be, who have their own ministries, departments, commissions and consul tants, etc. for policy making, determining the priorities of various development projects and its implementation. It is pertinent to mention here that under the scheme of the Constitution having its structure based on trichotomy of power amongst its different organs i.e. legislature, executive and judiciary , each of its organ has to work and exercise its authority strictly within its mandate, without encroaching upon or usurping the jurisdiction/functions of any other organ of the State." The august Supreme Court in "Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others" (2011 SCMR 1621 ) also came to the same conclusion with respect to general principle and its exception. The Court ruled:- "As regards the jurisdiction of the High Court is concerned, normally the Court cannot adjudicate on Government policy unless the policy , on the face of it, is outcome of mala fide on the part of Executive." Further reliance can also be placed on "Pakistan Engineering Council v.
Federation of Pakistan and others" (2021 MLD 453), "Sher Zaman and 4 others v. Government of Balochistan, Secondary Education Department Civil Secretariat, Quetta through Secretary and 2 others"
(2021 CLC 532), "LESCO v. Muhammad Shoaib and others" (2020 PLC (C.S.) 654), "Asmatullah Janejo v.
Federation of Pakistan through Secretary and others" (2020 PLC (C.S.) 1196), "Malik Muhammad Hashim Awan and another v. Chief Secretary Government of Punjab, Lahore and 3 others" (2017 PLC (CS.) 1085 ), "Messrs Baloch Distillery and Sugar Mills through Chief Executive v. Secret ary Industries and Commerce Department. Government of Sindh and another" (PLD 2017 Sindh 313), "Sharafuddin v. The Executive Engineer and 6 others" (2017 CLC Note 227), "Muhammad Iqbal v. Governm ent of Punjab through Chief Secretary , Punjab and another" (2015 PLC (C.S.) 1503 ) "Messrs Alzair Travel and Tours (Pvt.) Ltd. through Chief Executive and 10 others v. Federation of Pakistan through Ministry of Religious Affairs and 16 others" (2014 CLC 1766 ); "Ministry of Inter Provincial Coordination v. Major (R) Ahmad Nadeem Sadal and others" (2014 CLC 600), "Safdar Jamil and others v. Vice-Chancellor and others" (2011 CLC 116), "Syed Ali Abbas Gardezi and another v. Government of Pakistan through Secretary Establishment Division, Islamabad and 3 others" (2010 PLC (C.S.) 478), "Aqsa Manzoor v. University of Health Sciences, Lahore through V ice-Chancellor and 3 others" ( PLD 2006 Lahore 482 ).
15. This COVID-19 Pandemic situation obligated the Government of Pakistan to come up with a new controlling institution namely 'National Command and Operations Center' ("NCOC"), which later on emerged as an example of representative governance. NCOC was established on 31.03.2020 and functioning as the "nerve center for timely decision-making" on COVID-19. NCOC acts as the implementation arm of the NCC, the government's lead agency in the anti-COVID-19 campaign. One of NCOC's key functions is to ensure effective coordination between Federal and Provincial Governments to deal with the pandemic. Now, NCOC is working as one-window operation to collaborate and articulate the national efforts against COVID-19, enhance inform ed decision-making and ensure implementation of decisions of the NSC and NCC.
16. In the case of "Haris Bin Hassan Jang v. Federation of Pakistan and others" (2021 CLC 413), this Court while dealing with the question of banning political gathering due to the COVID-19 situation on the ground that it is apprehensive to the fundamental right of life provided and guaranteed by the Constitution, observed that SOPs issued by the Government as a safety preventive measures to cope up with the pandemic disease are binding and obligatory upon the participants of such gatherings, if holding such gatherings is permitted by the Government, under Article 5(2) of the Constitution. It was held that:-"The word "inviolable" used in Article 5(2) of the Constitution means that it is never to be broken and infringed. In the case of President Balochistan High Court Bar Association and others v. Federation of Pakistan and others (2012 SCMR 1784 ), august Supreme Court of Pakistan has held that "to be loyal to the State is the basic duty of all citizens and they have to be obedient to the Constitution and the law, wherever they may be. Thus, adherence to the Constitution and the Law by the citizens is mandatory . Non-compliance of the Constitution and the Law makes a citizen liable for action, in accordance with law". It would also include principles of natural justice, procedural fairness and procedural propriety . Laws are always made not to be violated but to be obeyed. In Suo Motu Case No. 15 of 2009 (PLD 2012 SC 610) august Supreme Court of Pakistan held that "it is expected from every citizen of Pakistan that he shall be loyal to the State and the basic duty of every citizen is to be obedient to the Constitution and law as ordained under Article 5 of the Constitution." Respect for law is never maintained by force but by the appreciation of the reasons, appreciating its veracity and through obedience. Unfortunately , sometimes, the law falls in crisis due to misunderstanding or lack of vision.
17. The case law referred by learned counsel for the Petitioners does not debar the Petitioners from sitting in the examination halls. In Muneeb Tariq Case (supra), this Court directed the relevant government authority to conduct examinations as per schedule by strictly following the restrictions guided in the SOPs. The Petitioners could not point out any sort of discrimination since the Respondents are undertaking examination not only in Pakistan but also in other part of the world as well and therefore the questioned actions of the Respondents cannot be adjudged on the scale of discrimination and inequitable treatment. Moreover , the Respondent Punjab Government has also issued schedule for examination within the province, meaning thereby , no such exemption is given to all other students of the province studying in public or private sector by the Provincial Government. Therefore, even from analogical perspective, the prayer of the Petitioners cannot find any favorable support. The fundamental right of life under Article 9 of the Constitution envisages that Respondents must chalk out all necessary SOPs for the safety of students who are appearing in examinat ion, duly convey the same to the students, which are binding on them being sovereign command within the meaning of Article 5(2) of the Constitution and most importantly ensure that the SOPs are being observed by the students and those conducting exams at the examination centers. The Respondents Nos.1 and 2 have submitte d the written SOP; which according to it, have been duly conveyed to all the students who are going to undertake the upcoming examination and perusal of the SOP makes it abundantly clear that a strict criteria for the safety of the students have been ensured by the Respondents and all the guidelines issued by Respondents Federal and Provincial Governments have been duly complied with not only in the SOPs for the children but also in arrangements plans prepared for examination centers with respect to necessary seating gaps and prevention of overcrowding at a particular examination center .
18. In the light of foregoing, learned counsel for the Petitioners have not been able to make out an exceptional case due to jurisdictional barrier and being policy decision, as discussed above. Moreover , the apprehensions voiced by the Petitioners to advocate cancellation of the examination have effectively been repelled and adequately been addressed by the Respondents, which does not only lead to the way where next grade is waiting for the students after the cross-road of assessment through examination. However , at the same time all the protocols for their safety against the pandemic is also ensured, as students, the future of the country , deserve it the most, requires it the best. As in the words of John Donne 'for whom the bell tolls; it tolls for thee..'. The writ is being devoid of merit is dismissed.
19. Before parting, as subject of educational career of number of students of "O" and "A" Levels is involved, therefore, this Court, being custodian of rights of the students, directs the Respondents to conduct examinations as per the scheduled dates in the light of decision taken by NCOC in the meeting held on 18.04.2021, relevant part of the Minutes of Meeting are reproduced as follows: I. NCOC special session on education was held today . Minister education charged the session, SAPM health and provincial health and education ministers attended the session.
O/A/AS level exams will be held as per schedule, whereas, national be exams will be held as per new schedule.
The Respondents are also directed to strictly observe the SOPs with proper staff monitoring and ensuring to make that the SOPs are monitored and if they need any assistance from the Federal or Provincial Government, they may do so by informing the concerned departments who shall make sure that the SOPs issued by the NCOC, and then by their respective British Council, as mentioned above, which are now become part of this file, shall strictly be observed without any fault in letter and spirit and stricto sensu. The Court acknowl edges the assistance of learned counsel for the parties.