IN THE SUPREME COURT OF PAKISTAN 
 
   (CONSTITUTIONAL JURISDICTION) 
 
 
 
 
PRESENT: 
 
 
Mr. Justice Iftikhar Muhammad Chaudhry, CJ. 
 
 
Mr. Justice Khilji Arif Hussain 
 
 
Mr. Justice Tariq Parvez 
 
Const. Petition No.50 and 69 of 2011 
 
Fiaqat Hussain and others 
 
 
 
(Const. P.50/2011) 
Iqbal-ur-Rehman Sharif and others  
 
(Const. P.69/2011) 
...Petitioners 
Versus 
The Federation of Pakistan thr. Secretary Planning and Development 
Division, Islamabad and others 
…Respondents 
 
For the petitioners: 
 
Agha Muhammad Ali Khan, ASC 
 
 
 
 
 
Mr. Ejaz Muhammad Khan, AOR(absent) 
(in Const. P.50/2011) 
 
 
 
 
 
 
 
 
 
 
 
Syed Ali Zafar, ASC 
 
 
 
 
 
Raja Abdul Ghafoor, AOR 
 
 
 
 
 
(in Const. P.69/2011) 
 
Amicus Curiae 
 
 
Mr. Makhdoom Ali Khan, Sr. ASC 
 
On Court Notice:  
 
Maulvi Anwar-ul-Haq, 
 
 
 
 
 
Attorney General for Pakistan 
 
 
 
 
 
Mr. Dil Muhammad Alizai, Dy. A.G 
 
 
 
 
 
Mr. Sulman Siddique, Chairman, FBR 
 
 
 
 
 
Mr. Waqar Masood, Secy. Finance 
 
For respondent No.1: 
 
Ch. Muhammad Azam, Secy. P & D 
 
 
 
 
 
Mr. Muhammad Asif Sheikh (Advisor) 
 
 
 
 
 
Mr. Saif-ur-Rehman (Asstt. Chief) 
 
 
 
 
 
Mr. Manzoor Ahmad Lucky, SO 
 
 
 
 
 
Respondent No.2: 
 
Nemo 
 
Respondents No.3-4: 
 
Mr. Khalid Mehmood SO 
 
Respondent No.5: 
 
Nemo 
 
Respondent No.6: 
 
Mr. Jawad Hassan, Addl. A.G. Pb. 
 
Respondent No.7: 
 
Mr. Muhammad Qasim Jat, ASC 
 
 
 
 
 
a/w Muhammad Sajan,  
Director, Non-Formal, Education 
(On behalf of A.G. Sindh) 
 
Respondent No.8: 
 
Mr. Amanullah Kanrani, A.G. Balochistan 
 
Respondent No.9: 
 
Mr. Naveed Akhtar, Addl. A.G. KPK 
Const.P.50 & 69/11 
2 
 
 
 
 
 
Mr. Hadayatullah Khan, Dy. Secy. 
 
 
 
 
 
Mr. Amanatullah, SO 
 
 
 
 
 
Ms. Saadia Atta Ghuman, Director, NEF 
 
Respondent No.10: 
 
Mr. Kamal Azfar, Sr. ASC 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR 
 
Dates of hearing:  
 
20 & 21.10.2011 
 
JUDGMENT 
 
 
Iftikhar Muhammad Chaudhry, CJ.— In the Devine Holy 
Book, the Quran, Allah Almighty has declared the superiority of Adam 
over the angles because of knowledge and emphasized as under:  
“And He taught Adam the nature of all things; then He 
placed them Before the angels, and said: “Tell Me The 
nature of these if ye are right”. 
They said: “Glory to Thee: of knowledge We have none, 
save what Thou Hast taught us: in truth it is Thou Who 
art perfect in knowledge and wisdom. [2:31-32]” 
Thus, in Surah Taha the Prophet (P.B.U.H) has been asked to pray in 
the following words:  
“Lord increase my knowledge. [20: 114] ” 
The Quran says that We send the Prophets to teach people wisdom. In 
Surah Baqra (Heifer) it is ordained:  
“But the best of provisions is right conduct so fear me, O 
ye that are wise”. (2:197).  
2. 
  
Similarly, the Holy Prophet (Peace be upon him) has 
emphasized on acquiring knowledge in the following words: 
“Seek knowledge from the cradle to grave.”  
In another Hadith, it has been said:- 
“Seek knowledge even as far as China.” 
While comparing an “Alam” with a martyr, the Holy Prophet (P.B.U.H.) 
has said: 
“A drop of sweat of the brow of thinker is better than the 
thousand blood drops of the martyr” 
Const.P.50 & 69/11 
3 
On another occasion it has been said:  
“Whoever seeks a way to acquire knowledge Allah will 
make easy his way to Paradise” [Sahih Muslim] 
Stressing on the need of knowledge, the Holy Prophet (P.B.U.H.) has 
said: 
“Seeking 
knowledge 
is 
obligatory 
upon 
every 
Muslim”.[Sunan Ibn Majah] 
Dr. Maurice Bucaille in a book titled, “The Bible, The Quran and 
Science” has proved that Islam is a scientific religion emphasizing on 
the need of scientific inquiry. 
3. 
 
The education for the development of society/nation had 
also not escaped from the vision of Quaid-e-Azam, the founder of 
Pakistan. In the Presidential Address at All India Muslim League, 
Lahore on March 23, 1940, he said: 
“Come forward as servants of Islam, organise the people 
economically, socially, educationally and politically and I 
am sure that you will be a power that will be accepted by 
everybody.”  
He also said:- 
“You must concentrate on gaining knowledge and 
education. It is your foremost responsibility. Political 
awareness of the era is also part of your education. You 
must be aware of international events and environment. 
Education is a matter of life and death for our country”. 
4. 
 
In the successful life of an individual, the education plays 
an important role. Generally, it is considered to be the foundation of 
society which brings economic wealth, social prosperity, political 
stability and maintaining healthy population. In case of deficit of 
educated people, the further progress of the society is stopped. 
Educated individuals enjoy respect among their colleagues and can 
effectively contribute to the development of their country and society 
by inventing new devices and discoveries.  
5. 
 
Main purpose of education is to educate individuals so that 
they get prepared to form the next generation of leaders. It will yield 
Const.P.50 & 69/11 
4 
strong families and strong communities.  Education plays an important 
role to promote knowledge and understanding of rural communities.  
In almost all societies, receiving education and attending school is 
necessary to achieve success. It is the key to move forward and 
ultimately succeed in life. For preparing the children and young people 
to effectively participate in the development of the society, the schools 
play a vital role. The knowledge and wisdom can only be gained 
through the experience of learning. It is important to note that the 
teachers are the most important factors for an innovative society 
because teachers' knowledge and skills not only enhance the quality 
and efficiency of education, but also improve the prerequisites of 
research and innovation.  
6. 
 
In the Constitution of Islamic Republic of Pakistan, through 
the 18th Constitutional Amendment Article 25A has been added which 
identifies the education as one of the fundamental rights of the people. 
The said Article reads as under:  
“The State shall provide free and compulsory education to 
all children of the age of five to sixteen years in such 
manner as may be determined by law.” 
7. 
 
Generally, the education is either formal or informal. 
Formal education is imparted through the medium of educational 
institutions, e.g. school, colleges, etc., set up in the public and the 
private sectors. Informal education is a general term for education 
outside of standard school set up. It refers to various forms of 
alternative education, such as non-schooling or house-schooling, etc. 
In Athenian society, some countries had schools having teachers and 
pedagogues. Pedagogues shared some qualities with specialist 
informal educators. They were family attendants (often slaves) whose 
duties were to supervise, and be with young sons of master. They 
used to take the boys to school and sat with them in the classroom. 
The teacher only taught boys their letters, the pedagogue taught them 
how to behave. It is argued that in Britain, the first adult educators 
were the missionaries who came from Ireland or from continental 
Europe. For many centuries, the church remained the greatest 
educational force in the country [Kelly 1970: 1]. The Clergy, the 
formal religious leadership, had a duty to teach which they did through 
Const.P.50 & 69/11 
5 
preaching, talking with people and through more specialized means 
such as schooling. From the late 1370s, Preachers started to spread 
the gospel around Britain. By the middle of the fifteenth century parish 
libraries were established. In the seventeenth century, the academies 
and charity schools were also established. In the nineteenth century, 
there was great increase in informal educators, particularly associated 
with the emergence of philanthropic organizations, such as, YMCA 
(founded in 1844). 
8. 
 
In the late 1960s and early 1970s, non-formal education 
became part of the international discourse on education policy. It was 
related to the concepts of recurrent and lifelong learning. Tight (1996: 
68) suggested that the latter concepts had to do with the extension of 
education and learning throughout life. Non-formal education is about 
acknowledging the importance of education, learning and training 
which takes place outside recognized educational institutions. Fordham 
(1993) suggested that in the 1970s, four characteristics were 
associated with non-formal education, namely, relevance to the needs 
of disadvantaged groups; concern with specific categories of persons; 
a focus on clearly defined purposes; and flexibility in organization and 
methods. In Pakistan, like so many other countries, there are formal 
and informal types of education. 
9. 
 
In most of the countries, the education is free of cost from 
primary to post graduate level. In the Nordic countries, education is 
mostly free. In Norway and Finland no fee is charged even from 
foreign students enrolled at a university. Greece and Argentina provide 
free education at all levels including college and university. In Brazil, 
free education is offered by the Ministry of Education. In Sri Lanka free 
education is provided at different levels, where government funded 
schools, such as national schools, provincial schools and priven provide 
free education at primary and secondary level, while assisted schools 
and semi governmental schools provide the same at subsidized rates.  
10. 
 
It is interesting to note that free education has long been 
identified with ‘sponsored education’. During Renaissance, it was 
common practice among rich dignitaries to sponsor for a young man 
as his patron. In the late 18th Century, Thomas Paine was amongst the 
earlier proponents of universal free public education, which was 
Const.P.50 & 69/11 
6 
considered to be radical idea at that time. In United States the idea of 
responsibility of government to provide compulsory education as free 
of cost, was adopted during the late 19th Century.  
11. 
 
It 
is 
an 
established 
fact 
that 
Human 
Resources 
Development is a key to all successes. Unfortunately, Pakistan even at 
present is amongst the countries which have the lowest literacy rate. 
In order to keep pace with the developed nations of the world increase 
in literacy rate is one of the essential requirement. Even otherwise 
Pakistan was committed to increase its literacy rate to 70% by the 
year 2000. An overview of efforts in this regard is given below: 
i. 
Village Aid Programme: This programme was launched in 
collaboration with UNESCO in 1953. It was basically a 
community development programme and basic education was its 
one component. Under this programme about 800 Village 
Literacy 
Centres 
were 
established. 
It, 
however, 
was 
discontinued.  
ii. 
Adult Functioal Literacy Project (AFL) – (Television Literacy 
Programme 1975-1981): 
The First literacy programme through distance learning jointly 
run by the Allama Iqbal Open University and Pakistan Television 
Corporation was launched at national level in 1975. Beneficiaries 
of the project were 109100 persons at the cost of Rs.11.914 
million and cost per literate was Rs.11.3. 
iii. 
Literacy Programme of LAMEC/NETCOM (1981-1991): 
The most effective literacy programme launched in 1981 was the 
Programme of “Literacy and Mass Education Commission 
(LAMEC) known as NETCOM afterward. The Commission was 
establishment in 1981 with the following objectives:- 
- 
Identification 
of 
needs 
and 
specific 
areas 
of 
education and training to raise.  
- 
To evolve strategies for launching formal and non-
formal programmes. 
- 
For the promotion of skills of the masses for self-
employability. 
- 
Resource mobilization.  
 
12. 
 
The Commission planned and implemented following very 
useful projects:- 
 
Const.P.50 & 69/11 
7 
(A) 
100% Literacy Islamabad Project 1983-84: 
Through this Programme 2060 persons were made literate on 
experimental basis. 
(B) 
The National Literacy Plan (1983-88): 
The Plan aimed to make 15.0 million persons, aged 10 plus, 
literate in a period of five years (1983-88) at a cost of Rs.750.0 
million. Only two components of the Plan could be implemented 
i.e. (i) Community viewing Centres (Television Literacy Centres) 
and (ii) Adult Literacy Centres (face to face teaching). The 
project was modified and re-designed in 1984 as National 
Literacy Project (NLP). Under the Project 4712 Literacy Centres 
with enrolment of 99,955 students were established by June 
1986 when the Project was stopped abruptly. Under this 
programme about 96,115 illiterates were made literate at a cost 
of Rs.67.526 million. 
(C) 
Television Literacy Centres:  
Under this programme nine literacy lessons were telecasted from 
November, 1983 till May, 1984 and about 20480 learners were 
made literate. 
(D) 
President’s Ten Points Programme for the Promotion of 
literacy: 
A nation wide literacy campaign was launched in Summer 1984 
and under this programme total 1,63,233 persons were made 
literate. 
(E) 
Iqra Pilot Project (IPP) 1987: 
Under this programme 60,095 adults were registered out of 
which 18,842 persons qualified the examination. Total cost 
incurred on the Project was Rs.21.677 million (Rs.1000 per 
literate).  
(F) 
Nai Roshni Schools Project (1987-89): 
The NRSP was launched in 1987 at a cost of Rs.3153.215 million 
and against 44000 Nai Roshni Schools Planned, only 13,688 
Schools could be established up to 30th April, 1988 having 
3,49,767 learners. The project was stopped w.e.f. 30.06.1989 
due to change in the Government. Apart from the above 
mentioned facts, some NGOs have played very positive role in 
the promotion of literacy rate. 
(G) 
10,000 Non-Formal Basic Education Centres & School: 
Const.P.50 & 69/11 
8 
Under this Plan the literacy level was targeted to rise from 35% 
to 70% by the Year 2003. It was estimated that under the 
project, 25 million illiterate persons would be made literate 
within a period of 4 to 5 years. The project was approved at a 
cost of Rs.12.6337 billion with FEC Rs.3.1 million. Under this 
Plan 7,117 Non-formal Basic Education Schools/Centres have 
already been established against the target of establishing 
10,000 such schools. It was to cover school age population of 5-
9 years and schools drop outs of age 10-14 years. It was 
envisaged under the programme that about 8,75,000 learner 
would complete primary level courses and 3,25,000 would 
acquire basic literacy skills in a period of 4 to 5 years. NGOs 
were also involved in this effort to improve literacy rate. 
13. 
 
The Ministry of Education, Government of Pakistan in order 
to raise literacy level in Pakistan launched a Nationwide Project for 
establishment of 10000 Non-formal Basic Education Schools (NFBE) in 
April 1996. The project was approved by Executive Committee of the 
National Economic Council (ECNEC) at a cost of Rs.1263 million for a 
period of 5 years. In July 1998, the project was revised and renamed 
as ‘Establishment of 82000 Basic Education community Schools’ and 
was approved by ECNEC at a cost of Rs.11214.896 million for a period 
of five years i.e. 1998 to 2003, which was later extended up to 2007-
08 or till the whole cost was utilized, whichever was earlier. In 2006 
the Federal Government decided to merge the schools and staff of this 
project into another project and renamed it as ‘Establishment and 
Operation of Basic Education Community Schools’ (the Project) in the 
Country (Punjab, Sindh, Balochistan, Khyber Pukhtoonkhwa, Gilgit-
Baltistan, FATA, AJK and Islamabad Capital Territory. PC-1 was 
approved with a total cost of Rs.7000 million for a period of four years. 
The Project was running all over Pakistan and its implementation was 
handed over to National Education Foundation by Ministry of Education 
vide notification No.F.1-1/2006-Acctts(BECS) dated 14th June, 2007. 
The Project was to achieve its targets by the year 2010, however, the 
life of the project was extended up to 30th June, 2012 by the Ministry 
of Education vide letter No.F.1-118/06-EFA dated 12th December, 
2009. The major objectives of the project are: 
 
Const.P.50 & 69/11 
9 
1. 
Establishment and operation of 20.000 Basic Education 
Community (BEC) Schools in the country. 
2. 
Establishment of 25000 Literacy and Skill Development 
Centres. 
3. 
Schools will be established on need basis while focusing on 
disadvantaged segments of society. 
4. 
Conversation of 400 efficient BECS into formal 5 room 
primary schools. 
 
By the year 2010 the project has established schools all over the 
country as per details given below: 
 
Schools Under  
NGOs 
Direct 
Teachers 
Male 
Teachers 
Female 
enrolment 
Punjab  
6465 
3498 
2967 
209 
6256 
262744 
Sindh 
2195 
1072 
1003 
757 
1438 
78522 
NWFP+ 
FATA 
1764 
1166 
1305 
833 
459 
333 
61 
945 
1703 
221 
72441 
48572 
Balochistan  1389 
424 
860 
543 
846 
41109 
Gilgit-
Baltistan 
1576 
77 
1499 
409 
864 
55741 
AJ&K 
223 
 
223 
34 
189 
10214 
ICT 
323 
161 
162 
6 
317 
12129 
TOTAL 
15101 
7370 
6233 
2964 
12137 
581442 
  
The prescribed curriculum for the Basic Education Community Schools, 
which reads as follows:- 
“Students of 02 age groups are admitted in Basic 
Education Community Schools: 
(A) 
5-9 years 
(B) 
9-15 years 
 
Group A students complete 05 years Cycle of Primary 
Education whereas those belonging to Group B complete 
their Primary Level Education (Courses of classes 1 – 5) in 
40 months. 
2. 
Upon completion of Primary Education cycle, all such 
students 
appear 
in 
the 
Annual 
Primary 
Standard 
examination conducted by the Provincial/Area Government 
Education Department. Consequent upon passing of 
Primary Standard Examination these students can get 
admission in Formal Educational institutions. 
Const.P.50 & 69/11 
10 
3. 
In Basic Education Community Schools (BECS), the 
National Curriculum/Textbooks of formal schools are 
adopted for teaching purposes.”  
14. 
 
Through 18th Constitutional Amendment, by virtue of 
Article 270AA(8) and (9) of the Constitution, the Concurrent 
Legislative List was omitted in pursuance whereof some projects 
being run by the Federal Government in the Provinces, including 
the Basic Education Community Schools, were decided to be 
closed down by the 30th June, 2011. Being aggrieved of the said 
decision, the petitioners invoked the jurisdiction of this court 
under Article 184(3) of the Constitution. 
15. 
 
In Constitution Petition No.50/2011, the petitioner 
No.1 is father of three students who have been benefitted from 
Basic Education Community Schools Project, now renamed as 
‘Establishment and Operation of Basic Education Community 
Schools’, whereas the other petitioners are employees of the 
projects. Similarly, all the petitioners in Constitution Petition 
No.69/2011 are the employees of the projects. In these matters, 
we have been called upon to dispose of the petitions in terms of 
prayers in respect of the nature of informal system of education 
prevailing in the country, wherein, inter-alia, it has been prayed 
that the proposed action on part of respondents 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; the proposed act of winding up of the 
Commission may be held to be entirely unconstitutional and of 
no legal effect so as to allow the Commission to continue to 
perform the positive duty of providing basic human rights to the 
citizens of Pakistan. 
16. 
 
It is to be noted that the National Education Foundation 
Ordinance, (Ordinance XX), 2002, as per section 3(1), provides for 
establishment of a Foundation to be known as the National Education 
Foundation. Section 3(2) of the Ordinance provides that the 
Foundation shall be a body corporate having perpetual succession and 
Const.P.50 & 69/11 
11 
a common seal with power to acquire, hold and dispose of property, 
both movable and immovable, and shall by the said name sue and be 
sued. The terms beneficiaries and educationist have been defined in 
Section 2(b) and (h) as, “beneficiaries” means teachers, educationists 
and students; “educationist” means a person engaged in educational 
research, planning, management or promotion in the Federal Ministry 
of Education or an organization set up or established by the Federal 
Government or in any organization as may be recognized by the 
Committee for the purposes of this scheme, and shall include a person 
who has so retired. As per section 4(1) of the Ordinance the objectives 
of the Foundation are to promote quality and gender sensitive 
education in the territories of Federal Administered Areas. Section 4(2) 
ibid provides that the three major categories of objectives are the 
promotion of education; capacity building; and research and 
development. The functions of the Foundation are enumerated in 
section 5 ibid. 
17. 
 
It is the case of the petitioners that despite devolution of 
the subject of education to the provinces after 18th Constitutional 
Amendment, the Federal Government is not absolved of its duty to 
ensure 
improvement/development 
of 
the 
formal 
and 
informal 
education in the country. It is to be noted that before passing of 18th 
Constitutional Amendment there was Entry 38 in the Concurrent 
Legislative List, which provided for curriculum, syllabus, planning and 
standards of educations. Similarly, there was Entry 39, which 
conferred the jurisdiction upon the Federal and Provincial Legislation 
regarding the Islamic Education. As in the 18th Constitutional 
Amendment all the subjects noted in the Concurrent Legislative List 
have been devolved upon the Provinces, therefore, it is now left for the 
Federation to legislate only in respect of the items mentioned in Part-I 
and Part-II of the Federal Legislative List.  
18. 
 
It is pertinent to mention here that the government after 
passing of 18th Constitutional Amendment, in order to regularize the 
functions of some of the subjects, which have been devolved upon the 
Federal Government created a new Division vide notification  No.       
4-10/2011-Min-I dated 29th July, 2011. For convenience relevant para 
from the notification is reproduced hereinbelow:- 
Const.P.50 & 69/11 
12 
“In terms of Rule 3(2) of the rules of the Business, 1973, 
the Prime Minister has been pleased to constitute with 
immediate effect, the following new Ministries with the 
Divisions as shown against these Ministries:- 
… … … … 
2. 
the distribution of functions among the new divisions 
shall be as under:- 
… … … … 
Professional and Technical Training Division 
 
1. 
National 
Vocational 
and 
Technical 
Education Commission (NAVTEC) 
2. 
Academy of Education Planning and 
Management (AEPAM), Islamabad 
3. 
Federal 
Board 
of 
Intermediate 
and 
Secondary Education (FBISE), Islamabad 
4. 
National Education Assessment Centre, 
Islamabad. 
5. 
National Training Bureau, Islamabad. 
6. 
Pakistan Manpower Institution. 
7. 
National Internship Programme (NIP). 
8. 
Akhtar Hameed Khan National Centre for 
Rural Development, Islamabad. 
9. 
National Talent Pool, Islamabad. 
10. 
Youth Centres and Hostels.  
11. 
All 
matters 
relating 
to 
National 
Commission for Human Development 
(NCHD) 
and 
National 
Education 
Foundation (NEF). 
3. 
Amendments in the Rules of Business, 1973, 
wherever necessary will be issued in due course.” 
 
19. 
 
At this juncture it is to be kept in mind that the National 
Education Foundation and National Commission of Human Resources 
have been established in terms of the National Education Fund 
Ordinance, (Ordinance No.XX) 2002 and the National Commission for 
Human Development Ordinance, (Ordinance No.XXIX) 2002. Later on, 
these Ordinances have been protected by the Parliament by means of 
17th Constitutional Amendment and since then these forums have 
continuously been discharging their functions.  
20. 
 
It is important to note that in the 18th Constitutional 
Amendment both these Ordinances along with other legal instruments, 
issued between the period starting from 12th October, 1999 to 31st 
December, 2003,  have been protected under Article 270AA of 
Const.P.50 & 69/11 
13 
Constitution. Thus, despite of 18th Constitutional Amendment both 
these laws, under the protection of Article 270AA, are fully operational 
and functional.  
21. 
 
Learned counsel for the petitioner in Constitution Petition 
No.50 of 2011 has submitted that official respondents/government 
authorities are not interpreting constitutional provisions properly, 
without realizing that in the garb of devolution of powers the control of 
Basic Education Community Schools in the country has been handed 
over to the provinces which are not ready and willing to accept the 
same, therefore, consequently it would be tantamount to denial of 
Fundamental Rights regarding education of about 550,000 students 
belonging to the poorest families of the country by closing down about 
15000 schools all over Pakistan as a result whereof 15000 teachers 
and 10000 staff members have been left without protection of Article 9 
of the Constitution. He has made reference to the impugned letter 
dated 10th May, 2011 issued by the Government of Pakistan, Planning 
Commission under the subject. Along with it a list of the projects, 
likely to be closed down, has been appended, which includes the 
project known as “Establishment and Operation of Basic Education 
Community Schools in the Country.” 
22. 
 
It 
is 
to 
be 
seen 
that 
vide 
letter 
No.F.1-18/06-
EFA/Government of Pakistan, Ministry of Education (P&P Wing) dated 
9th June, 2008, addressed to the Accountant General of Pakistan on 
the subject “Establishment and Operation of Basic Education 
Community Schools in the Country”, administrative approval of was 
granted by the Government of Pakistan, to execute the subject 
scheme at a capital costs of Rs.7000 million with nil FEC. The 
Execution period of the scheme was fixed to be 48 months and break 
up of the costs was also stated therein. Therefore, without prejudice to 
the case of either of the parties, the project of the Basic Education 
Community Schools suppose to continue functioning up to June, 2012.  
23. 
 
Mr. 
Ali 
Zafar, 
learned 
ASC 
appearing 
in 
petition 
No.69/2011, in his arguments has raised following constitutional 
issues:- 
i. 
Whether there is a positive duty upon the State (which 
includes the Federal and the Provincial Governments as 
Const.P.50 & 69/11 
14 
well as the Parliament and the Provincial Assemblies) to 
fulfill this “minimum core obligations’ to the citizens of 
Pakistan and provide them the minimum standards of 
basic amenities of life like fulfillment of the requirements 
of minimum access to education and health and to at least 
give the opportunity of human development to its citizens. 
In this case the Commission, which is an instrument of the 
State involved in fulfilling the role of providing some of the 
‘minimum core obligations’ to the citizens of Pakistan is 
being wound up, Neither the Centre nor the Provinces are 
willing to continue with the Commission. It is submitted 
that since the ‘State’ is duty bound under the Constitution 
to provide these basic fundamental rights to its citizens, 
the ‘State’ is liable to be issues directions by this Hon’ble 
Court in exercise of its jurisdiction for enforcement of 
fundamental rights under Article 184 (3) to continue to 
provide such services to the people of Pakistan and on the 
same basis the action of the State in winding up the 
Commission, which is in negation of the fundamental rights 
of the citizens of Pakistan, is liable to be declared as void. 
ii. 
That the process of devolution as a result of the 18th 
Amendment does not mean that the Federal Government 
is absolved from is obligation to provide fundamental 
rights and to that extend the reasons for winding up the 
Commission is unlawful and;  
iii. 
That the Commission was incorporated under an Act of 
Parliament and is being wound up under an Executive 
Order. It is submitted that an Executive Order cannot 
overrule an Act of Parliament. 
He has also highlighted the importance of the education while making 
reference to the judgments in the cases of Jamia Karachi v. Registrar 
of Trade Union, Sindh (1981 PLC 403), Ghulam Mustaf v. Province of 
Sindh (2010 CLC 1383), Brown v. Board of Education  [873 US 483 
(1954)] and University of Delhi v. Ram Nath (AIR 1963 SC 1873). 
24. 
 
Learned 
Attorney 
General 
for 
Pakistan, 
however, 
contended that 18th Constitutional Amendment has abolished the 
Concurrent Legislative List as a result whereof the subject of education 
Const.P.50 & 69/11 
15 
has been transferred to the Provinces, therefore, in view of the 
decision of implementation committee, the Council of the Common 
Interest vide its decision dated 4th June, 2011 has decided that the 
Commission, meant to promote Human Development by providing 
support to the government organizations, etc., either be adopted by 
the Provinces or these projects be wound up after 30th June, 2011. 
Thus, the Basic Education Community Schools and the Commission 
now have become the subjects of the Provinces, after 30th June, 2011. 
He further submitted that the Federal Government has already 
released the salaries for the teachers of the schools as well as staff of 
the Commission up to 30th June, 2011 and now the Provinces are 
responsible to allow them to continue into the service.  
25. 
 
The representatives of governments of Balochistan, KPK 
and Sindh adopted the arguments of learned Attorney General, 
however, Mr. Jawwad Hassan, Addl. Advocate General, Punjab 
contended that the Government of Punjab had adopted a policy and 
decided to accommodate the students of Basic Education Community 
Schools in regular schooling set up.  
26. 
 
Mr. Makhdoom Ali Khan, Sr. ASC (Amicus Curiae) has 
submitted that there appears to be a presumption that after the 18th 
Constitutional Amendment these institutions, which were initially 
within the domain of the Federation, have now been transferred to the 
Provinces. It has been presumed that there were some entries in the 
Concurrent Legislative List which no longer are their, therefore, this 
has become a residuary subject all together. The Concurrent 
Legislative List had three entries which could be said to be related to 
education. There was Entry 38 which provided for curriculum, syllabus, 
planning and standards of educations; next was Entry 39 which 
provided for Islamic Education; and Entry 47 which though was not a 
direct entry but it provided for incidental matters. With the abolition of 
the Current Legislative List, only these two Entries i.e. 38 and 39 have 
ceased to remain within the domain of the Federation; there is no 
other entry with respect to education which has been impacted by the 
18th Amendment at all. The Federal Legislative List, on the other hand, 
has a number of entries which can be said to relate to Education and 
those entries remain. The entry 38 is no longer there but with some 
changes it has found a place in Entry 12 of Part-II of the Federal 
Const.P.50 & 69/11 
16 
Legislative List. It provides for standards in institutions for higher 
education and research, scientific and technical institutions. So it is a 
composite entry and entire issue relating to standard has also not 
gone to Provinces. Entry 15 of Part-I provides that libraries, museum 
and similar Institutional controlled or financed by the Federation. Entry 
16 provides that Federal agencies and institutes for the purposes of 
research, professional or technical training, or the promotion of special 
studies; that entry still exists. There is another interesting entry, which 
is Entry No. 31, which ostensibly deals with corporations but it has 
very interesting exception at the end of it. It says cooperation, that is 
to say the incorporation regulation and winding of trading corporations 
including Banking Insurance and finance corporations but not including 
corporations owned and controlled by a Province and carrying on 
business only within that Province or cooperative societies and of 
corporations whether trading or not trading with objects not confined 
to a Province but not including Universities; so corporations generally 
are within the Federal domain; Provincial corporations are out; and 
with regard to Universities, there is a specific exclusion. Therefore, 
generally a corporate body, unless it falls within one of the exceptions 
over here, like Universities, would fall within the domain of Federation. 
Justification of the above would have to be found from another Entry 
16 whereby the Federation has the power to set up Federal agencies 
and institutes for the purposes of research, professional and technical 
training for the promotion of special studies. Both the Commission and 
the Foundation, under the respective statutes, have been created as a 
corporate body. They are juristic persons with the right to sue and be 
sued and they are creation of statues. Entry 32 that has been removed 
from the Federal Legislative List, is now in Part-II of Federal Legislative 
List in Entry 7 i.e. National Planning and National Economic 
Coordination including Planning and Coordination of Scientific and 
Technological research. So all the legislation, which has been made in 
the year 2002 and has continued till 2011, after the 18th Constitutional 
Amendment, could be validated.   
27. 
 
As it is evident from the above noted paras that 
importance of the formal or informal system of education has always 
been considered to educate the nation following the teachings of 
Islam, embodied in the divine book “The Quran” and Sunnah of Holy 
Const.P.50 & 69/11 
17 
Prophet Muhammad (Peach Be Upon Him). Allah Almighty in different 
verses of Holy Quran has emphasized for education amongst the 
mankind. Thus no further reference in this behalf is required to be 
made, in presence of Ordains of Allah Almighty and the sayings of Holy 
Prophet (Peace Be Upon Him), references of few of them have been 
made hereinabove. A careful study of the Holy Quran with reference to 
significance of acquiring knowledge by the mankind, one can well 
imagine the importance of the education.  
28. 
 
It may not be out of place to note that Allah Almighty in 
first revelation has ordained to the Holy Prophet (Peace Be Upon Him) 
as follows:- 
“Read in the name of your Lord, Who created, man from a 
clot. Read, for your Lord is most Generous, Who teaches 
by means of the pen, teaches man what he does not 
know. [96:1-5] 
The Intellectuals, may be Muslims or non-Muslims, have always 
considered, and rightly so, the Holy Quran as guide for them. 
Similarly, the Prophet (Peace Be Upon Him) has been admitted, even 
by the Non-Muslims, to be a great jurist. Not only this but in a good 
number of books, while discussing the Serah of Hazrat Muhammad 
(Peace Be Upon Him), he has been found to be the embodiment of 
knowledge and wisdom. Thus, it is an accepted norm that education 
plays an important role in the successful life of individuals and for 
development of the nation and the country. Therefore, if regular 
system of parting education to the children for want of infrastructure, 
is not possible then by adopting informal system of education the 
States had been fulfilling their duties. 
29. 
 
Not only in Pakistan, from 1951 onward under different 
programs the system of informal education had been introduced as it 
has been pointed hereinabove but in so many other countries like 
Greece, Britain and Ireland informal education system has been 
adopted. Besides, the system of free education has been invoked not 
only in the developed but also in developing countries. In view of such 
background, our State, by means of 18th Constitutional Amendment 
has incorporated Article 25A, which has been reproduced hereinabove, 
whereby Fundamental Right have been conferred upon all the children 
Const.P.50 & 69/11 
18 
of the age of 5 to 16 years to receive free and compulsory education. 
Wisdom behind incorporating the said Article could be nothing except 
teaching of Islam, the vision of the father of nation as well as the 
importance of education discussed hereinabove. Under Article 7 of the 
Constitution, the State includes the Federal and the Provincial 
Governments, therefore, while inserting Article 25A in the Constitution 
the Parliament, in view of the definition of the State had not absolved 
the Federal Government from conferring the Fundamental Rights upon 
the children. It has been emphasized before us on behalf of learned 
Attorney General that after 18th Constitutional Amendment as 
concurrent list has been abolished, therefore, except Provincial 
Governments, the Federal Government has no responsibility for 
enforcing the Fundamental Rights of the education to its subjects, 
particularly to the citizens who were receiving education in informal 
system of education. In this context, it is to be noted that in terms of 
Article 37(a) of the Constitution, the State shall form such policies on 
the basis of which it shall promote, with special care, the educational 
and economic interest of backward classes or areas. We are conscious 
of our jurisdiction regarding the Principles of Policy of the State but at 
the same time we are not oblivious of our duties to enforce 
Fundamental Rights with regard to free education to the children as 
now has been guaranteed under Article 25A of the Constitution. This 
Court has already seized with the matter with regard to imparting 
higher education, which is to be regularized by the Higher Education 
Commission and order has been passed in this regard in the case of 
Prof. G.A. Miana and others Vs. Federation of Pakistan (Constitution 
Petition No.33 and 34 of 20011). However, in the instant case we 
would confine ourselves to the extent of controversy, which has been 
brought before us. But we are also conscious of the principle 
pronounced in the case of Benazir Bhutto v. Federation of Pakistan 
(PLD 1988 SC 416), namely, the Directive Principles of State Policy 
have to conform to and to operate as subsidiary to the Fundamental 
Rights guaranteed in Chapter 1, otherwise the protective provisions of 
the Chapter will be a mere rope of sand; and the Law, in the 
achievement of this ideal, has to play a major role, i.e., it has to serve 
as a vehicle of social and economic justice, which this Court is required 
to interpret. Similarly, the Indian Supreme Court in the case of Mohini 
Jain v. State of Karnatka (AIR 1992 SC 1858) has held that the 
Const.P.50 & 69/11 
19 
Fundamental Rights and the Directive Principles, which are found in 
the governance of the country cannot be isolated from the 
Fundamental Rights guaranteed under Part III. These principles have 
to be read into the Fundamental Rights. Both are supplementary to 
each other. The State is under the Constitutional mandate to create 
conditions in which the Fundamental Rights guaranteed to the 
individuals under Part-III could be enjoyed by all. Without making 
‘right to education’ under Article 41 of the Constitution a reality the 
Fundamental Rights under Chapter-III shall remain beyond the reach 
of large majority, which is illiterate. The fundamental rights 
guaranteed under Part-III of the Constitution of India including the 
rights to freedom of speech and expression and other rights under 
Article 19 cannot be appreciated and fully enjoyed unless a citizen is 
educated and is conscious of his individualistic dignity. The "right to 
education", therefore, is concomitant to the Fundamental Rights 
enshrined under Part III of the Constitution. The State is under a 
constitutional mandate to provide educational institutions at all levels 
for the benefit of the citizens. The educational institutions must 
function to the best advantage of the citizens. Opportunity to acquire 
education cannot be confined to the richer section of the society. In 
the case of Unni Krishnan J.P. v. State of A.P. (AIR 1993 SC 2178), it 
has been held that the Fundamental Rights and Directive Principles are 
supplementary and complementary to each other and that the 
provisions in Part III should be interpreted having regard to the 
Preamble and the Directive Principles of the State policy. The initial 
hesitation to recognise the profound significance of Part IV has been 
given up long ago.  
30. 
 
Following the principles highlighted hereinabove showing 
status of Directive Principles of the State Policy and the Fundamental 
Rights and also in view of the dictum laid down by the superior Courts 
in the cases of Mian Muhammad Nawaz Sharif v. President of Pakistan 
(PLD 1993 SC 473), Shehla Zia v. WAPDA (PLD 1994 SC 693), Ahmad 
Abdullah v. Government of the Punjab (PLD 2003 Lahore 752), Imdad 
Hussain v. Province of Sindh (PLD 2007 Karachi 116) and Suo Motu 
Case No.13 of 2009 (PLD 2011 SC 619), it is concluded that under 
Article 9 read with Article 25A of the Constitution of Islamic Republic of 
Pakistan the Fundamental Rights are required to be enforced by the 
Const.P.50 & 69/11 
20 
State. Especially, in view of newly added Article 25A of the 
Constitution, it has been made mandatory upon the State to provide 
the education to the children of the age of 5 to 16 years.  
31. 
 
Having declared so, now next question for consideration 
would be as to whether or not after abolishing the Concurrent 
Legislative List, the Federation is empowered to make legislation 
relating to the matters directly, indirectly or ancillary to the subject of 
education, particularly by introducing informal education, as presently 
being imparted through Basic Education Community Schools in the 
country established under the Ordinances XX and XXIX of 2002. First 
of all it is to be noted that both these Ordinances were promulgated 
much prior to the introduction of 18th Constitutional Amendment. 
Initially, 17th Constitutional Amendment was introduced whereby 
Article 270AA was added in the Constitution which provided protection 
to the said Ordinances for the reason that these Ordinances were 
issued during the era when there was no constitutional dispensation 
and the country was being run under the Provisional Constitutional 
Order, 1999. As it has been noted hereinabove, the Basic Education 
Community Schools have been established from time to time and as 
per the details, reference of which has already been made, about 
581442 children, through out the country, are getting education and 
about 6233 schools are established by the government agencies 
whereas about 7370 schools are being run by the NGOs.  
32. 
 
The Parliament introduced 18th Constitutional Amendment 
in pursuance whereof the Concurrent Legislative List containing Entries 
No.38 and 39 relating to education was abolished but despite that both 
the Ordinances were protected as is evident from the above paras. We 
may mention here that according to section 5(8) of the Ordinance, XX 
of 2002 it is one of the functions of the National Education Foundation 
to ensure that equal opportunities for education are provided to boys 
and girls of whatever social, class, colour, race or creed to promote 
equality, development, human rights and peace for all, and under such 
provision the schools are functioning and imparting education to the 
children. Similarly, under the Ordinance XXIX of 2002, National 
Commission for Human Development was established, with the 
objective to promote human development by supporting government-
line departments, non-governmental organizations and elected official 
Const.P.50 & 69/11 
21 
at the district level in primary education, literacy, income generating 
activities and basic health care services, etc.  
33. 
 
 As it has been held in the judgments of this Court as well 
as judgment of the foreign countries, highlighted hereinabove, that the 
education is Fundamental Right of an individual, therefore, the 
Directive Principles of State Policy being subsidiary to the Fundamental 
Rights guaranteed under the Constitution are required to be protected 
under the law, which are holding the field. In presence of these two 
laws, and for the reasons that the Basic Education Community Schools 
are functioning under the control of government agencies and by the 
NGOs, detail of which has already been given hereinabove, despite of 
repealing of Concurrent Legislative List, the government of Pakistan 
through Prime Minister has created a Division known as Professional 
and Technical Training Division, which has been authorized to deal 
with all the matters relating to NCHD and NEF. The provision, which 
has brought protection to both the Ordinances, can only be repealed 
by the repealing Statute and merely by issuing any letter or the order, 
as in the instant case vide letter dated 10.5.2011, to close down the 
project of Establishment and Operation of Basic Education Community 
Schools, is contrary to law.  
34. 
 
Now we revert towards the question, which we have posed 
hereinabove, namely, competency of the Legislature to promulgate 
such laws. Mr. Makhdoom Ali Khan, learned Amicus Curiae has 
referred to Entry 12 of Part II of the Federal Legislative List, which 
empowers the Federal Government to legislate with regard to the 
standards in institutions for Higher Education and research, scientific 
and technical institutions. Similarly, Entry 15 of Part I is relating to 
libraries, museum and similar Institutional controlled or financed by 
the Federation. He has also made reference to Entry 16, according to 
which, with regard to the Federal agencies and institutes for the 
purposes of research, professional or technical training, or the 
promotion of special studies, the Federal Government is empowered to 
legislate. Undoubtedly, the education, may be informal, falls within 
this Entry as it deals with the professional and technical training and 
the promotion of special studies. The word “special studies” is capable 
as per its meanings to cover the informal education as well. We have 
explained hereinabove that informal education is nothing but a mode 
Const.P.50 & 69/11 
22 
of imparting education in the less developed areas where facilities to 
provide education by opening regular schools are not possible, 
therefore, by means of adopting informal system a special study is 
imparted to the children of the areas, who as a matter of right, under 
Article 25A of the Constitution as well as in terms of the Injunction of 
Islam, are entitled to get the education. As discussed above, although 
presently there is no necessity for the legislature to cover the system 
of informal education but if need be, such case can be covered under 
Entry 16 of Part I of the Concurrent Legislative List. At the cost of 
repetition, it is mentioned that Legislature was fully aware of the 
necessity of Ordinances XX and XXIX of 2002, therefore, instead of 
repealing the same, by means of 18th Constitutional Amendment, the 
same were protected for the reasons discussed hereinabove as well in 
discharge of their functions to provide a law which can promote 
Directive Principles of State Policy relating to education and economic 
interests of backward class or areas. 
35. 
 
Thus, we are of the considered opinion that under Article 
70 read with Entry 16 of Part I of the Federal Legislative List and the 
Constitutional Amendments, both the Ordinances are fully protected 
and shall remain operative unless repealed in accordance with the 
Constitution and so long both the Ordinances are holding the field, the 
Basic Education Community Schools providing informal education to 
the backward classes or the areas shall continue to function. It may 
also to be noted that the competent authority vide letter dated 9th 
June, 2008 has approved PC-I with a total cost of Rs.7000 million for a 
period of four years and due to slow releases of fund the project could 
have not be completed, thus it has been extended up to 30th June, 
2012, therefore, without prejudice to the discussion made hereinabove 
the project of Basic Education Community Schools cannot be closed 
down.  
36. 
 
Learned counsel for the petitioners have also raised 
arguments that the government is bound to allow functioning of the 
Community Schools on account of its commitments, for the reason 
that the Planning Commission in its report pertaining to Pakistan 
Millennium Development Goals Report, 2005 has appraised that 
without community participation in education, the literacy level could 
not be achieved. It was further stated that the major reason for 
Const.P.50 & 69/11 
23 
children either not attending schools or dropping out of primary 
schools are high cost of education, inadequacies in the quality and 
relevance of education particularly at primary level, parental attitude 
especially in the case of girls and distance from schools. Undoubtedly 
it is the duty of the State to provide sufficient resources for education 
and health by allocating considerable amount in annual budget. 
Although in past, the government had imposed a tax in the name of 
Iqra Surcharge on import of goods. Reference may be made to the 
case of Suhail Jute Mills v. Federation of Pakistan (PLD 1991 SC 329). 
On our query, Chairman FBR placed on record a statement, perusal 
whereof shows that Rs.65.796 billions was received under this Head. 
Thus, the State, i.e. both Federal and Provincial Governments in view 
of Quranic Injunction and sayings of Holy Prophet (Peace Be Upon 
Him) and in pursuance of constitutional provisions, is duty bound to 
provide social justice and education in the country.  
37. 
 
Thus, for the foregoing reasons, petitions No.50 and 69 of 
2011 are accepted holding that: 
(A) 
the proposed action on part of respondents No.1 to 4 
of closing down ‘Establishment and Operation of 
Basic Education Community Schools’ is without 
lawful authority and of no legal effect and is in 
violation of article 25-A of the Constitution of Islamic 
Republic of Pakistan, 1973; 
(B) 
the proposed act of winding up of the Commission is 
unconstitutional and of no legal effect and the 
Commission is allowed to continue to perform the 
positive duty of providing basic human rights to the 
citizens of Pakistan. 
Parties are left to bear their own costs.  
38. 
 
Before parting with the judgment, it is important to 
observe that vide order dated 21st October, 2011, respondent 
government was directed to pay the salaries of the teachers/staff but 
compliance report so far has not been received. The Secretary Finance 
is directed to comply with the direction in letter and spirit and submit 
Const.P.50 & 69/11 
24 
report not later than a period of seven days, to the Registrar for our 
perusal in chambers.  
Chief Justice 
 
Jude 
 
Judge 
Announced in Open Court on       at Islamabad 
 
Chief Justice 
Approved For Reporting