P L D 2007 Karachi 116

Before Sabihuddin Ahmed, C.J., and Ali Sain Dino Metlo, J

IMDAD HUSSAIN---Petitioner

Versus

PROVINCE OF SINDH through Secretary to Government of Sindh, Karachi and 3

others---Respondents

Constitutional Petition No.D-24 of 2006, decided on 10th March, 2006.

Per Ali Sain Dino Metlo, J; Sabihuddin Ahmed, C.J. agreeing.

(a) Constitution of Pakistan (1973)---

----Art. 9---Term "life"---Scope, import and applicability---Term "life" used in Art.9 of the
Constitution is of very wide import and includes all those rights which are necessary for living a
quality life befitting human dignity, as such the term "life" cannot be limited to mere vegetative
or animal life.

(b) Constitution of Pakistan (1973)---

----Arts. 9, 14, 18, 20, 37(c) & 199---Sindh Medical Colleges Act (V of 1987), S.3---
Constitutional petition---Educational institution---Right of education---Vires of statutory rules---
Candidate was given admission in medical college on Self Finance Basis---Authorities directed
the candidate to furnish bank guarantee regarding college dues for five years---Plea raised by the
candidate was that demand of such bank guarantee was unreasonable, harsh and discriminatory,
which was in fact to help the rich at the cost of poor---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 statute itself---Condition of furnishing bank guarantee
was unreasonable inasmuch as it was neither fair nor meant to achieve any useful purpose---Such
condition placed the less opulent in disadvantageous position as compared to the more opulent;
nor same was reasonable, in the sense that besides being unfair it served no useful purpose---
High Court declared the condition of depositing of bank guarantee for five years' fee contained in
prospectus to be both unreasonable and unconstitutional and of no legal effect---High Court
restrained the authorities from giving effect to the condition of furnishing of bank guarantee---
Constitutional petition was allowed in circumstances.
Per Sabihuddin Ahmed, C.J.--

Right of education is part of right to life guaranteed under Article 9 of the Constitution and,
therefore, Section 3 of the Sindh Medical Colleges Act, 1987 cannot be so construed as to enable
the Government to make a rule permitting deprivation of a guaranteed fundamental right under
the Constitution and, therefore, the stipulation in question has to be treated as ultra vires the rule
making power conferred by section 3 of the Act.

Muhammad Iqbal Khan Niazi v. Vice-Chancellor University of Punjab PLD 1979 SC 1; Ahmed
Abdullah and 62 others v. Government of Punjab and 3 others PLD 2003 Lah. 752; Ms. Benazir
Bhutto's case PLD 1988 SC 416; Mian Muhammad Nawaz Sharif v. President of Pakistan and
others PLD 1993 SC 473; Shehla Zia v. WAPDA PLD 1994 SC 693; Sharaf Faridi v. Federation
of Islamic Republic of Pakistan PLD 1989 Kar. 404; Government of Balochistan v. Azizullah
Memon PLD 1993 SC 341; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and
Shaikh Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 rel.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Statutory rules---Judicial

review---Statutory rules can always be questioned and struck down on the ground of being
unreasonable.

Saleh Muhammad v. Traffic Manager, Karachi Port Trust PLD 1961 (W.P.) Kar. 349; S.M.
Sharif v. Federation of Pakistan PLD 1981 Lah. 74; Muzzafar and others v. Evacuee Trust
Properties through Deputy Administrator 2002 CLC 1819 and Karachi Building Control
Authority and 3 others v. Hashwani Sales and Services Ltd. and 3 others PLD 1993 SC 210 rel.

Per Sabihuddin Ahmed, C.J. agreeing with Ali Sain, Dino Metlo, J

(d) Constitution of Pakistan (1973)---

----Arts. 8, 22 & 199---Sindh Medical Colleges Act (V of 1987), S.3---Constitutional petition---

Right of education---`Statutory rules framed by Government in exercise of powers conferred by
the statute' and `bye-laws or regulations' made by any other authority---Distinction---Statutory
rules, per se could not be struck down on the grounds of unreasonableness---Principles.

A statutory rule made by the Government itself in exercise of powers conferred by statute as
distinguished from a bye-law or a regulation made by any other authority could not be struck
down on the grounds of unreasonableness per se. A validly made rule under S.3 of the Sindh
Medical Colleges Act, 1987 would remain effective unless it is found to be repugnant to the Act
itself. On the other hand, if regulations or bye-laws were to be made by any other subordinate
authority they could always be struck down on the grounds of being unreasonableness.

Asif Ali Abdul Razzak Soomro for Petitioner.

Muhammad Qasim Mir Jat, A.A.-G. for Respondents Nos. 1 and 2.

Kamaluddin for Respondent No.3.

Khalid Anwar and Anwar Masnoor Khan (A.G.), Amicus Curiae.

Dates of hearing: 9th and 10th March, 2006.

JUDGMENT

ALI SAIN DINO METLO, J.---Petitioner Imdad Hussain Abbasi whose daughter Miss Benazir
Abbasi was selected for M.B.,B.S. course against one of the seats reserved for Institution
Educational Assistance Programme (IEAP), also called as self-finance seats, for the year 2005-
2006 in Chandka Medical College, Larkana, has challenged the condition of depositing bank
guarantee for five years' fee as contained in paragraph 28 of the prospectus issued by the Liaquat
University of Medical and Health sciences, Jamshoro, to which the college was affiliated. Under
the said programme, a fee of Rs.2,00,000 per year was payable on yearly basis, which the student
(Miss Benazir Abbasi) had paid by the due date. According to the petitioner, the condition of
furnishing bank guarantee in advance for fee of five years was discriminatory, unreasonable and
unduly harsh. Discriminatory, in the sense that it helped the rich at the cost of the poor. For a
common man banks provided the required guarantee only on his depositing the entire amount of
five years' fee. A student, whose parents were not able to make arrangement of five years' fee in
advance, had to lose his seat in favour of less meritorious student, whose parents were able to
make the arrangement. Unreasonable, in the sense that in presence of condition of payment of
fee on yearly basis there was no justification for obtaining bank guarantee. In the event of
student's failure to deposit the yearly fee within time, the rules already provided adequate
provision for striking out his/her name from the roll of the college/institution. Unduly harsh, in
the sense that though the fee was payable on yearly basis, the parents of the students were
required to deposit money equal to five years' fee in advance in bank for obtaining the guarantee
and while the said amount remained deposited in the bank, they were required to pay fee from
their pocket every year.

2. prima facie the condition of furnishing bank guarantee, being unreasonable, was liable to be
struck down in the light of the precedent of the case of Muhammad Iqbal Khan Niazi v. Vice
Chancellor University of Punjab PLD 1979 SC 1 but after the promulgation of Sindh Medical
Colleges Act, 1987, a doubt was expressed at the preliminary hearing as to whether the
prospectus carrying force of statutory rules could be questioned on the touchstone of
reasonableness. With a view to clarify the doubt Messrs. Khalid Anwar and Anwar Mansoor
Khan were requested to assist as amicus curiae. Both the learned amicus curiae supported
petitioner's point of view and contended that statutory rules can always be questioned and
examined on the touchstone of reasonableness and further contended that the condition in
question being derogatory to the fundamental right of education was ultra vires the Constitution.
In support of their opinion they relied upon various precedents, including the case of Ahmed
Abdullah and 62 others v. Government of Punjab and 3 others PLD 2003 Lah. 752 in which
Tassaduq, Hussain Jillani, J. (as his lordship then was) speaking for the full bench observed that
right to education was included in the right to life guaranteed under Article 9 of the Constitution.

3. Right to life guaranteed by the Constitution cannot be restricted to a right of bare breathing.
The penal laws of the country already provided adequate safeguard against manslaughter and
other offences affecting human body. The Constitution envisages establishment of a welfare state
according to the norms of the modern civilized society and, therefore, its provisions, specially
the provisions about fundamental rights, cannot be interpreted in a pedantic way. The term "life"
used in Article 9 is of very wide import and includes all those rights which are necessary for
living a quality life befitting human dignity. It cannot be limited to mere vegetative or animal
life.

4. In his landmark judgment given in Ms. Benazir Bhutto's case PLD 1988 SC 416 Muhammad
Haleem, C.J., (as his lordship then was) considerably enlarged the scope and meaning of liberties
guaranteed under the chapter of fundamental rights and emphasized for interpreting them in the
light of the principles of policy and the objectives resolution made substantive part of the
Constitution in the shape of Article 2-A. Notwithstanding Article 30(2) according to which the
principles of policy are not justifiable, they were regarded as conscience of the Constitution,
containing solemn commitments with a vision to establish a welfare State according to the
requirements of modern society and not mere hollow hopes or pious promises. According to his
lordship the liberties guaranteed in the shape of fundamental rights, if purposefully defined in the
light of the principles of policy and the objectives resolution, would serve to guarantee genuine
freedom; freedom not only from arbitrary restraint of authority but also freedom from want, from
poverty and destitution and from ignorance and illiteracy. There can be no use of freedom of
press to an illiterate population. Availability of fundamental rights in the book of Constitution
without their awareness will be of no use and awareness can be achieved only through education.
Thus, the constitutional provisions regarding fundamental, rights need to be widely interpreted so
as to cover all those rights which may be necessary for their exercise i.e. without which they
cannot be achieved.

5. In the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993
SC 473 it was observed that fundamental rights provided in the Constitution required to be
construed in consonance with the changed conditions of the society and must be viewed and
interpreted with the vision to the future. In the famous case of Shehla Zia v. WAPDA PLD 1994
SC 693 Saleem Akhtar, J (as his lordship then was) after elaborately reviewing the views of
American and Indian Courts was pleased to observe that the guarantees under the Constitution
were of wide import enabling a man not only to sustain life but to enjoy it with human dignity
which cannot be achieved without food, clothing, shelter, education, health care, clean
atmosphere and unpolluted environment. In the cases of Sharaf Faridi v. Federation of Islamic
Republic of Pakistan PLD 1989 Kar. 404, Government of Balochistan v. Aziz Memon PLD 1993
SC 341, Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Shaikh Liaquat Hussain
v. Federation of Pakistan PLD 1999 SC 504 it was held that right of access to justice was also
included in the right to life guaranteed by Article 9 of the Constitution.

6. The importance of education can be visualized from the fact that the very first Qur'anic
revelation (Surah XCVI) was for reading and writing and the Holy Prophet (p.b.u.h.) declared
pursuit of knowledge obligatory upon every Muslim, male as well as female, even if one might
have to go to China. Thus, from religious point of view also pursuit of education is one of the
religious obligations of a Muslim, practice of which is guaranteed by Article 20 of the
Constitution. Similarly, freedom of profession guaranteed under Article 18 cannot be enjoyed
without technical and professional education vowed to be made generally available to all on the
basis of merit under Article 37(c). In the modern civilized society, education is equally important
for living a dignified life guaranteed under Article 14.

7. Viewed from all angles, it is abundantly clear that right to education is a fundamental right
covered by Articles 9, 14, 18 and 20 read with Article 37(c) of the Constitution and, therefore,
any unreasonable restraint, hindrance or condition on its exercise will be ultra vires the
Constitution, irrespective of whether the same was imposed by an administrative or executive
act, by some statutory rule or even the statute itself. In the present case, the condition of
furnishing bank guarantee is unreasonable inasmuch as it is neither fair nor meant to achieve any
useful purpose.

8. As regards the doubt about questioning statutory rules on the touchstone of reasonableness
expressed at the preliminary hearing of the petition, it may be clarified that statutory rules can
always be questioned and struck down on the ground of being unreasonable. In this regard
reference may be made to the cases of Saleh Muhammad v. Traffic Manager, Karachi Port Trust
PLD 1961 (W.P.) Kar. 349; S.M. Sharif v. Federation of Pakistan PLD 1981 Lah. 74; Muzzafar
and others v. Evacuee Trust Properties through Deputy Administrator 2002 CLC 1819 (Lahore)
and Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Ltd. and 3
others PLD 1993 SC 210. In the first case, a division bench of the erstwhile High Court of West
Pakistan (Karachi Bench), while discussing grounds on which statutory rules and bye-laws could
be treated as ultra vires, clearly held that the rules and bye-laws framed under a statute were
liable to be struck down if they were found to be unreasonable and the same view has been
reiterated in the remaining cases. A rule which is not fair and does not serve any useful purpose
cannot be said to be reasonable. As mentioned above, in the present case the condition of
furnishing bank guarantee was neither fair, in the sense that it placed the less opulent in
disadvantageous position as compared to the more opulent, nor reasonable, in the sense that
besides being unfair it served no useful purpose.

9. It was for the above reasons, recorded now, that we, by our short order dated 10-3-2006, had
declared the condition of depositing bank guarantee for five years' fee contained in paragraph 28
of the prospectus, to be both unreasonable and unconstitutional and thus of no legal effect and
had restrained the respondents from giving effect to it.

10. Before concluding, we gratefully acknowledge the assistance rendered by Messrs Khalid
Anwar and Anwar Mansoor khan as amicus curiae.

(Sd.)
Ali Sain Dino Metlo, J

SABIHUDDIN AHMED, C.J.--With profound respects I am doubtful whether a statutory rule

made by the Government itself in exercise of powers conferred by statute as distinguished from a
bye-law or a regulation made by any other authority could be stuck down on the grounds of
unreasonableness per se. In my humble view, a validly made rule under section 3 of the Sindh
Medical Colleges Act would remain effective unless it is found to be repugnant to the act itself.
On the other hand, if regulations or bye-laws were to be made by any other subordinate authority
they could always be struck down on the grounds of being unreasonableness.

2. Nevertheless, I entirely agree with my learned brother to the extent that right of education is
part of right to life guaranteed under Article 9 of the Constitution and, therefore, section 3 of the
Act cannot be so construed as to enable the Government to make a rule permitting deprivation of
a guaranteed fundamental right under the Constitution and, therefore, the stipulation in question
has to be treated as ultra vires the rule making power conferred by section 3 of the Act.
Therefore, I am entirely agree with the conclusion recorded by my learned brother Ali Sain Dino
Metlo, J.

(Sd.)
Sabihuddin Ahmed, C.J.

M.H./I-22/K Petition allowed.