Supreme Court Hears Constitution Petition no. 50 of 2011
Islamabad: A two member bench headed by the Honourable Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan and comprising on Mr. Justice Ghulam Rabbani heard the Constitution Petition No. 50 of 2011 (Liaqat Hussain & others VERSUS Federation of Pakistan, etc.) regarding the closing of basic education community school in the country under devaluation programme.
The petition was filed under Article 184 of the Constitution in which Federation of Pakistan through Secretary Planning and Development Division, Islamabad, Secretary Inter Provincial Coordination Division, Cabinet Secretariat, Cabinet Division, Islamabad, Secretary, Cabinet Division, Islamabad, Implementation Commission, through its Chairman, Cabinet Division, Islamabad, Project Director, Basic Education Community Schools Project, National Education Foundation, Taleemi Chowk, G-8/4, Islamabad, Province of Punjab, through Chief Secretary Punjab, Punjab Secretariat, Lahore, Province of Sindh, through Chief Secretary Sindh, Provincial Secretariat, Karachi, Province of Balochistan, through Chief Secretary Balochistan, Provincial Secretariat, Quetta and Province of Khyber-Pukhtoonkhawa, through Chief Secretary Khyber Pukhtoonkhawa, Provincial Secretariat Peshawar were made respondents with prayer that:-
1. A restraint order may kindly be passed stopping respondents No. 1 to 4 from closing down ‘Establishment and Operation of Basic Education Community Schools’ under the garb of devolution.
2. The proposed action on part of respondent No. 1 to 4 of closing down ‘Establishment and Operation of Basic Education Community Schools’ may kindly be declared to be without lawful authority and of no legal effect and be also declared to be in violation of article 25-A of the Constitution of Islamic Republic of Pakistan, 1973.
3. Process of implementation in terms of Articles 270-AA of the Constitution of Islamic Republic of Pakistan, 1973 may kindly be stopped and project of ‘Basic Education Community Schools’ may kindly be ordered to be continued, until necessary amendments are made in Constitution regarding Federal Legislative lists and thereafter through extension of time, the matter be handled in a smooth manner instead of abruptly closing down the project.
4. It is also humbly prayed that the respondent No. 1 to 4 may kindly be ordered to project jobs of employees of the project and respondents No. 1 to 4 must pay for outstanding liabilities of the project which include teachers’ salaries for the last nine months amounting to Rs. 855.493 million as per the rates given in PC-1
5. An appropriate order may kindly be passed directing respondents to convert the project into a programme as the same has been running for over 15 years and its need does not seem to be seeing any end for future decades specially with insertion of Article 25-A of the Constitution of Islamic Republic of Pakistan, 1973.
Agha Muhammad Ali Khan, ASC appeared on behalf of the petitioner and Mr. Dil Muhammad Alizai, D.A.G. (on behalf of A.G.P) appeared on Court Notice. Mr. Talib Hussain, Chief Educator, Mr. Ghulam Qasim Khan, Director (Post Devolution), Brig. (R) Sirajuddin, Project Director, Ms. Saadia Atta Ghuman, Director, Ch. Khadim Hussain Qaiser, Addl. A.G, Mr. M. Azam Khattak, Addl. A.G. Balochistan and Syed Arshad Hussain Shah, Addl. A.G. KPK appeared on behalf of respondents. The case was heard today and the bench passed the following order:-
“Mr. Dil Muhammad Alizai, learned Deputy Attorney General states that the respondents so served, have not prepared their parawise comments, therefore, they need some time to do the needful. As far as remaining respondents who have not been served, process be issued to them for the next date.
2. Ms. Saadia Atta Ghuman, Director Basic Education Community Schools Project, National Education Foundation, explains that this project, in an informal manner, is providing education to the children throughout the country, particularly, in far flung areas and presently the number of students enrolled under this project for the purpose of education is about 6 lakhs. Similarly staff/teachers responsible for running of the institutions/schools are also performing their duties despite the fact that being highly educated are not being paid even minimum wages permissible to the unskilled workers of the private Organizations but despite it they had been discharging their duties. Although the project is running from 1994 – 1995 with the financial support of the Federal Government and in different eras its name had also been changed and for the last about 16 years the project had continuously been financed by the Federal Government but in pursuance of 18th amendment as the subject of education had devolved upon the Provinces, no effective arrangement has been made between the Federal Government and the Provincial Governments to allow to continue this project because if the project is closed, about 6 lakhs of students as noted hereinbefore along with staff/teachers etc. are likely to be affected.
3. We have considered the submissions made by her and also enquired from the Project Director Brig. (R) Siraj ud Din who has also filed reply. He contends that the project must continue for providing education in informal manner because on account of continuation of this project from 1994 the students were receiving education and appearing in the examinations before the Federal and the Provincial Educational Boards and they are getting education which is fundamental right of the children/citizens of this country under the Constitution. Contents of paras No. 3 to 9 of his reply for sake of convenience are reproduced herein below:
“3. The project of “Establishment & Operation of Basic Education Community Schools in the Country” succeeded the earlier projects and schools/employees of those projects were merged into it. The project now runs all over Pakistan with 15101 Basic Education Community Schools and 561000 students. There are a number of employees with 10-15 years of service in this project. The project was placed in National Education Foundation; on 14.6.2007 as a separate dedicated unit for execution and Chairman National Education Foundation was also to be the Chairman BECS Project. National Education Foundation is a creation of statute and came into being with the promulgation of National Education Foundation Ordinance No.XX of 2002. The project has its own PC-1 approved with the cost of Rs.7000 million with initial implementation period of four years, later extended for two years i.e. till June, 2012.
4. That Pakistan is signatory to various international treaties like Millennium Development Goals, Education for All, Convention for Elimination of all sorts of discrimination against women, 1996. Achieving goals in education and literacy are the basic components of these treaties. Keeping in view these commitments/ treaties Pakistan was expected to achieve a literacy rate of 85% by the year 2015 while ensuring gender balance. However it was not possible due to heavy cost of establishing formal schools and weak economic conditions. Pakistan had to adopt an approach which was fast track and less costly; thus the establishment of non-formal basic education schools which are 40 times cheaper to establish and 4-5 times less costly in maintenance.
5. That basic aim of this project is to develop community schools in dis-advantaged communities’ especially remote rural areas with one teacher for around 30 to 40 students. This was based on the concept of home schools with one teacher, one school and multi-grade teaching methodology. The successful schools could be converted into formal primary school. The project has been a success and it is imparting education to around 561,000 students all over Pakistan at present. It is also working in far flung areas administered by Federal Government, Islamabad Capital Territory , FATA, FATA, Gilgit-Baltistan and AJ&K.
6. That another basic aim of the Project is to benefit girls/women as is evident from clause 15 item No.9 at page 22 of main paper book which reads as “Extend free and flexible learning opportunities to girls who otherwise are deprived and have no less opportunities for acquisition of primary education, due to poverty, social taboos, etc.” similarly under clause 6 at top of page 24 of main paper book it is stated as “Expand the coverage of NFBE, and literacy and skill development training, with a focus on girls education.” And at page 35 bottom it reads “Empowerment of rural women who are the main beneficiaries of the BECS. The project will help increase their standard of living”.
7. That through letter dated 10.5.2011 Planning and Development Division Islamabad decided to close down the project being handled by Federal Government, this includes project in question. The answering respondent has raised this issue at various forums to the effect that under the law the contemplated action could not be taken and that with the closure of this project 5,61,000/- students and around 15,101/- teachers and 1000/- administrative staff will be rendered jobless. The community schools running with success in Pakistan will be closed. Internationally this issue has been closely monitored by United Nations and international education concerns. It will result in creating an embarrassing situation for Pakistan and international donors donating for educational pursuits in Pakistan may pull their hand in this behalf. Pakistan is already amongst the 9 worst Nations in the World as far as education/literacy is concerned.
8. The author of the Project envisaged its conversion into a regular programme vide Para 8, Page 13 of the PC-1 approved by ECNEC.
9. The Federal Government has already withdrawn its decision of devolution in case of another project of defunct Ministry of Education, namely Provision of Quality Education Opportunities for Students of Balochistan & FATA, 3 PMUs, vide IPC Division letter No.P.1 (20)/2011/IC-I dated 25 June 2011. In addition there are other organizations which have not been transferred/devolved to provinces including National College of Arts Lahore.
It may be noted that as per the above reply submitted by respondent No.5 the project ought to be continued functioning for more than one reasons stated hereinabove. Beside it, its concluding para indicates that the Federal Government had already withdrawn its decision of devolution in case of another project of defunct Ministry of Education, namely Provision of Quality Education Opportunities for Students of Balochistan & FATA, 3 PMUs, vide IPC division letter No.P.1 (20)/2011/IC-I dated 25 June 2011. This aspect of the case is sufficient to support the contention of the petitioners. However, before taking any final decision the request so made on behalf of the respondents for adjournment to file parawise comments is accepted. Office is directed to supply the copies of the reply submitted by Brig. (R) Siraj ud Din who shall furnish the same in the Court extra copies during course of the day along with annexure. Copy of the instant order be also supplied to them. All the respondents are required that in the interest of the education of about six lakhs children and also to ensure guarantee of their fundamental rights envisaged under Article 9, 14, read with 25-A of the Constitution to take a decision so the children may continue receiving education along with staff already posted on the project.
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Supreme Court of Pakistan
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