Daily Times

While the citizens of Punjab are looking up to the ruling elite to demonstrate their leadership skills amid the spread of Covid-19, some of them are instead showing their lack of experience in decision making and governance. The provincial education minister Murad Raas recently announced a 20 per cent cut in the fee of private schools during the lockdown without having any information about the existing laws. As a result, after 25 days announcement, the government issued any official notifications in this regard. When private schools started protesting, citing the violation of the law, the incumbent authorities rushed to make amendments in the Punjab Private Educational Promotion and Regulation Ordinance 1984.

Now as per the amendment, the provincial education department is empowered to take action against the administrations of private schools that would refuse to cut their tuition fee by 20 per cent. Such schools will be sealed off for disregarding the directives of the government. The provincial education department did not inform Murad Raas about the actual legal position and rules and regulation before announcing the reduction in the fee. Subsequently, the education minister tweeted about the reduction of fee without having any knowledge of the underlying law concerning the decision. The issue created controversy among provincial minister and private school owners, with the All Pakistan Private Schools Federation rejecting the decision. On the other hand, administrations of elite private schools of the province issued challan forms notifying a reduction in fees but said that they would approach the court to challenge the decision because it was announced without paying heed to the law.

The governments of the developed countries like US, UK, European countries are already giving free school education to their nationals at both public and private sector. This is how the world is doing to mitigate the worst economic impact of COVID-19. The entire world is showing sympathy to the humanity by scarifying everything to keep the wheel of economy to the track in some way or the other. In these circumstances, All Pakistan Private Schools Federation (APPSF) offered voluntarily its more than 200,000 private schools throughout the country to the federal and provincial governments for establishing the isolation centres. All Pakistan Private Schools Federation also offered voluntarily to the federal and provincial governments, its more than 1500,000 private schools teachers throughout the country as volunteers to work in these isolation centres to serve the nation. Moreover, APPSF also created a fund for the deserving students to support their educational needs.

Under Article 25-A of the Constitution of Islamic Republic of Pakistan, 1973, the duty to provide free and compulsory education is that of the State. However, private entrepreneurs cannot be forced to provide free or cheap education. Therefore, cut on fees is an attempt on the part of the State to shift its own responsibilities onto private entrepreneurs.

It is not possible for the private schools to curtail fees at the whims and wishes of the District Registering Authorities to every student unless the government provides subsidy in the matter and pay at least half of the school fee, half should be paid by the parents

Through the impugned the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Ordinance, 2020 (VII of 2020), the Governor of the Punjab has been inserted Section 12D, thereby amending the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 in which 12D. A Special directives issued that The Registering Authority may issue special directives for closure of schools and for ensuring that students are imparted education through alternative means in special circumstances including but not limited to calamites, epidemics, floods, wars, environmental or natural disasters, or when the Registering Authority deems that physical presence of students at schools is hazardous for their health, and, the Registering Authority may also issue directions determining the fee to be charged by the schools for the period during which such special directives remain in field.

The right to get education is a fundamental right as it ultimately affects quality of life which has nexus with other fundamental rights guaranteed under Articles 4 & 9 of the Constitution. The impugned Ordinance is infringement and violative of the fundamental rights of the private schools, as guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 under its Articles 3, 4, 5, 8, 9, 18, 25, 37 and 38 and the impugned Amendment is ultra-vires of the other provisions of the Constitution, therefore, the impugned Section 12D is liable to be struck down. The Hon’ble superior Courts have to give a purposive interpretation to make the Constitution a living document. In order to maintain educational reforms amongst the students, all the restraints and limitations should be imposed with the consultation and written consent of the private school and giving the uninhibited powers to the District Registering Authorities would eliminate the educational standard of the students. The Government schools have almost failed to improve the inculcation of education to the students and over the years parents have lost trust in government run schools, according to the now defunct organization.

Majority of the parents want to send their children to private schools because they think that the private schools provide better facilities, better learning outcomes, and high quality English medium education in addition to better care for their child welfare.

Private schools conservatively educate more than 50% of children in Pakistan, and nearly 60% in Punjab. There are 207,000 private schools in all over the Pakistan. There are 117,810 in Punjab, 39,850 in Sindh, 29,660 in KPK, 6,880 in Balochistan, 4,450 in Islamabad and 9,450 private schools are working in Azad Kashmir and Gilgit-Baltistan and others areas of Pakistan. About 23 million students are studying in these 207,000 private schools. Approximately 1.5 million teachers work at these schools. On the other hand if we see the last 10-year, only in Pakistan more than 21,000 public schools decreased from 152,000 public schools to 131,000 public schools. It is important to mention here that after paying all above costs and more than 25 government taxes, out of 207,000 schools, there are 85% schools which charge below than Rs 2,000 fee. Moreover, there are 13% schools which charge below than Rs 5000 fee and only 2% schools are charging above than Rs 5000. It is very much clear that 98% schools are not in the limit of heavy fee structure. On the other hand, according to the government data per student cost in a public school is about Rs 7960 per month with poor quality of education.

Most private schools in Pakistan operate on rented premises. Rents increase by 10% per annum. Typically every 3 to 5 years, lease agreements are renewed, at which point landlords aggressively renegotiate lease terms. Landlords know schools have limited options because their cost of relocation is very high. The compounded impact of annual rent increase (10%) and end-of-term lease renegotiation (any percentage) is an average of 15-20% or more per year. Staff & teacher salaries account for approximately 50% of the fee income of private schools. Teachers’ salaries are revised upwards, on average, from 10% to 20% per year but based on performance appraisal; in some cases, the increases are far higher. Average electricity expenses across Pakistan have increased by 27% per annum over the last few years. Private schools pay the “commercial tariff”, which is the highest tariff category. In addition, many private schools operate generators for back-up power. Maintaining generators is prohibitively expensive.

After December 2014, private schools have exponentially increased their expenditure on the provision of security – a fundamental responsibility of the state. There are also other escalating costs of construction and capital items construction cost (steel, cement, paint, wood, etc.) has increased every year by at least 25% per annum. An additional 16% GST has further affected this cost. Over the past 3 years, on average, computer equipment has increased by 25% per annum, laboratory equipment by24% per annum, school furniture and fixtures by 23-25% per annum, vehicles by 32%, etc with an additional 16% GST! Many private schools use diesel generators. The capital cost of generators has increased by an average of 28% per annum. The above investments are depreciated in the annual expense of private schools, since capital is not free – it has a cost.

It is not possible for the private schools to curtail fees at the whims and wishes of the District Registering Authorities to every student unless the government provides subsidy in the matter and pay at least half of the school fee, half should be paid by the parents. This will be a major facilitation for masses. It is legal obligation of the State to provide subsidy and to avoid exploitation of the private school administration who are also citizen of Pakistan and are protected by Articles 3, 4, 9, 18, 25-A, 37 and 38 of the Constitution of Islamic Republic of Pakistan, 1973.

The impugned Amendment is an exparte decision of the Government without associating and hearing the private school administration and has been imposed by the government forcefully and no office bearers of the All Pakistan Private Schools Federation has been associated before promulgation of the Ordinance. Therefore, private schools federation was not even part of the consultation. This is totally violation of Supreme Court’s orders which allows schools to increase fee and government cannot interfere the matter. Schools have their own expenses including paying salaries to the teachers and employees, rents of schools buildings, electricity charges and even taxes of the government. So how is it possible to decrease the school fees at the behest of the Government or District Registering Authorities from their own pocket. It has also been ordered by the Government that no private school would terminate the services of the teaching and non-teaching staffers during the lockdown while the administrators are bound to pay full salaries to all staffers.

The fetter imposed by the Government on its own authority irrespective of the objective realities is both contrary to the Constitution and the Statute. The impugned section 12D gives unfettered and arbitrary powers to the Registering Authorities, therefore, in its application it is ex-facie irrational. It has been held by the Honourable Supreme Court in a number of judgments that an authority vested with discretion to decide must structure the same and exercise it in a lawful manner and must not fetter its own discretion. Profiteering ought to be controlled, not legitimate profits or revenue. Some of the expenses are beyond the schools’ control, particularly the effect of inflation and devaluation of currency which are practical considerations that ought to be kept in mind while striking a balance.

Articles 25(3) and 27(2), give rights to the citizen and limits the State’s authority which cannot, under the guise of regulation, prohibit things. If the State regulates, the Court will decide whether it conforms to the exception or makes an inroad into the plenary part of Article 18, and if it does, the Court will strike such Regulation down as unconstitutional. The Article 3 of the Constitution thus schools should be allowed to receive fees/increases on the touchstone of justifiability. There is nothing on record to establish that parents cannot pay the fees and are being exploited.

The matter falls within a larger framework of the meaning of fundamental rights and the extent of regulation which is permissible and cannot be curtailed by regulation. While no body can claim a right greater than that given by the Constitution, there are certain rights within certain rights which are so inherent and fundamental that they are beyond the domain of regulation and the right enshrined in Article 18 is one such right. Therefore, the impugned Ordinance offends and is unconstitutional accordingly.

The school owners cannot be placed at the mercy of the District Registering Authorities. Article 25A supra should not be used to impose an obligation on private businesses which would tantamount to letting the State abdicate its responsibility under the said article if this Hon’ble Court holds that by regulating the limitations and fees of expensive schools, the State is fulfilling its duty to provide free education. In these circumstances the impugned “Punjab Private Educational Institutions (Promotion & Regulation) (Amendment) Ordinance, 2020 (VII of 2020)” must be struck-down being ultra-vires of the Constitution. We also recommend, the government declare exemption from all the 25 taxes imposed on private schools till the achievement of 100% education rate.

The writer is The President of All Pakistan Private Schools Federation and his mail ID is president@pakistanprivateschools.com