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P L D 2007 KARACHI 116

IMDAD HUSSAIN

V/S

PROVINCE OF SINDH THROUGH SECRETARY TO GOVERNMENT OF SINDH

Per Sabihuddin Ahmed, C.J.

Constitution of Pakistan (1973) Art. 9, 14,18,20,37©,199–

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.

Viewed from all angles, it is abundantly clear that right to education is a fundamental right covered by Article 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 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.

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.

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.

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 learned brother Ali Sain Dino Metlo.J. [p. 120, 121, 122] A, B, D & F

Petition allowed.

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