Law:

Section:

BASHARAT AHMAD SHAIKH, J.---Azad Government of the State of Jammu and Kashmir opened some new educational institutions and raised the tuition fees payable by the students and its functionaries also recruited new staff to teach in different institutions. In this Connection two notifications were issued. The notification issued on 21 st November, 1997 was for opening of new schools and colleges and for upgrading certain existing institutions. More than one thousand new posts were also created by the same notification. The other notification was issued on 23 rd December, 1997 to raise tuition fees payable by the students of schools and colleges in the State. Admission fee in respect of some of the courses was also raised. For example in case of primary classes the new tuition fee is rupees five. The highest fee now payable by a school student is rupees fifteen while in degree classes maximum tuition fee is rupees forty. A sum of rupees one hundred has been levied as the fee for post-graduate classes including B.Ed. These steps are commonly known as the 'Education Package'.   Two writ petitions were filed in the High Court to challenge the two notifications mentioned above. First in time was Writ Petition No.21 of 1998 which was filed by Haji Mir Muhammad Naseer and 7 others, all residents of village Mind Gran, Tehsil Muzaffarabad praying for a declaration that the two notifications mentioned above had been passed without lawful authority and were of no legal effect. The ground raised in the writ petition was that the notifications had been issued in utter disregard and violation of section 31 (4) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 because the fees under dispute amounted to tax which under the aforesaid provision of the Constitution Act could be imposed only by the Legislative Assembly and not through an executive action. Writ Petition No. 106 of 1998 was filed by Abdul Rashid Tarabi, Aftab Ejaz and Zafar Saeed. Abdul Rashid Tarabi is Amir Jamat-e-Islami Azad Jammu and Kashmir and also a member of Azad Jammu and Kashmir Legislative Assembly from a constituency in District Bagh. For detailed grounds incorporated in the writ…