PLJ 2019 Lahore 132
PLJ 2019 Lahore 132
[Multan Bench Multan]
Present: Muzamil Akhtar Shabir, J.
BAQIR HAMEED and another--Petitioners
versus
GOVERNMENT OF PUNJAB through Secretary and 4 others--Respondents
W.P. No. 12396 of 2017, heard on 20.6.2018.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional Petition--Recruitment of educators--Clearance of NTS and interview--Petitioners were selected--Withdrawal of appointment letters--Non-issuance of show-cause notice--Recruitment policy 2016-17--Equivalence of Master Degress--Principle of locus poenitenciae--Question of whether LLB degree would be treated equal to Graduation or Master--Determination--In advertisement for appointment, LL.B is one of academic qualifications required for purpose of appointment, which is mentioned alongwith qualification of Master Degree and degrees equivalent to Master and Bachelor are also included in prescribed qualification--Higher Education Commission vide its letter dated July 27th 2017, has declared Bachelor of laws equal to Master Degree for purposes of academic qualification--In Policy and advertisement issued thereunder, LL.B Degree was specifically mentioned as a requisite academic qualification--Said Degree is higher than a Bachelor Degree. Bachelor Degree of 4 years has been treated as equal to Master Degree in Policy by calculating its marks as Graduation plus Master Degrees on basis of years of education--Higher Education Commission recognizes LL.B Degree equal to Master Degree also on basis of years of education--LL.M Degree being a higher Degree than LL.B is treated equal to Degree of M.Phil. There is nothing in Policy or advertisement providing that LL.B Degree would be treated as less than Master Degree--It is not case of respondents/department that petitioners had obtained appointment on basis of fraud and mis-representation, rather case is that petitioners were not entitled to marks of LL.B Degree which had been erroneously provided to them--Their appointments cannot be said to have been made in violation of rules or policy and consequently principle of locus poenitentiae would not permit competent authority to undo same and remove incumbents from service. [P. 137, 138, 139 & 140] A, B, D & E
PLD 2010 SC 1089 & 2008 SCMR 598, ref.
Higher Education Commission Ordinance, 2002--
----S. 10(o)--Equivalence and recognition of Degrees--It abundant clear that Commission may determine equivalence and recognition of degrees, diplomas and certificates awarded not only by institutions within country but as well as institutions functioning abroad.
[P. 138] C
2007 SCMR 951, ref.
General Clauses Act, 1956 (VI of 1956)--
----S. 20--Powers of Authority--Withdrawal of vested right--Said power cannot be exercised when a vested right is created in favour of other party--Even otherwise, order of competent authority for awarding marks out of 15 to LL.B Degree holders on basis of percentage obtained in said examination by them, was not an illegal order rather it could only be treated an order based on interpretation of policy--Once having interpreted Policy in favour of petitioners and issuing them appointment letters, respondents/authority would be estopped and could not be allowed to later-on interpret said Policy differently especially in a manner that cannot co-exist with earlier interpretation just to deprive petitioners of vested rights already accrued in their favour--Besides authorities cannot be allowed to approbate and re-approbate by adopting contrary pleas in same breath in same matter to review their previous orders--Order passed by respondent whereby appointment letters of petitioners have been withdrawn, is declared to have been passed on basis of wrong interpretation of Policy, without lawful jurisdiction and of no legal effect and same is set-side--Petitioners shall be re-instated into service on position--Petition was allowed. [Pp. 140 & 141] F, G & H
1997 SCMR 15 & 2016 SCMR 460, ref.
Raja Naveed Azam, Advocate for Petitioners.
Mr. Muhammad Aurangzeb Khan, AAG with M. Akram Shahid, DEO (M-EE), Muzaffargarh for Respondents.
Date of hearing: 20.6.2018.
Judgment
Through this Constitutional petition, the petitioners have called in question the order dated 23.08.2017, passed by District Education Officer (M-EE) Muzaffargarh, whereby the appointment letters issued to the petitioners for the post of ESE (Science/Math) have been withdrawn.
2. Brief facts of the case are that the respondents advertised for recruitment of educators in District Muzaffargarh. The petitioners having academic qualification B.A, LL.B. applied for appointment to the posts of ESE (Science/Math). They cleared NTS test as well as the interview and were selected and appointed on 02.08.2017, where-after they joined their place of posting in respective schools, all of a sudden, the District Education Officer (M-EE) Muzaffargarh/Respondent No. 4 withdrew the appointment letters of the petitioners vide order dated 23.8.2017. The said order is under challenge through this Constitutional petition.
3. Learned counsel for the petitioners argued that the appointment letters of the petitioners have been withdrawn without issuing show-cause notices to the petitioners or providing them an opportunity of being heard. It is also claimed that the withdrawal order is mala fide and based on colourful exercise of jurisdiction. Furthermore, it is claimed that the Higher Education Commission (‘HEC’) recognizes the educational qualification of LL.B as equal to Master Degree therefore, the action of the respondents to deduct the marks awarded to the petitioners for qualification of Master Degree is without lawful authority and consequently the order dated 23.8.2017 of withdrawal of their appointments is liable to be struck down.
4. On the other hand, learned AAG has argued that the petitioners did not hold Master Degree and were not entitled to be granted marks for the same, hence claims that the marks for Master Degree were erroneously awarded and rightly deducted whereby the petitioners were not able to maintain their position in the merit list prepared for the said appointments and consequently their appointment letters have been rightly withdrawn.
5. Arguments heard. Record perused.
6. From the perusal of the Recruitment Policy 2016-2017 for School Specific Educators and SSE (Assistant Education Officers) “Policy” and the advertisement dated 19.10.2016 published in daily Nawa-i-Waqt issued by respondents for the purpose of appointment of educators, it is observed that the academic qualification prescribed for the appointments of teachers of ESE (Science/Math) BS-9 includes Master Degree, Bachelor Degree and LL.B, etc., at least in second division, which is reproduced below:
Nomenclature of post
Academic Qualification
(at least 2nd Division II
Professional Qualification (at least 2nd Division)
ESE (Sci-Math)
MA/MSC/B.Sc/BA/BA(Hon)/BSc(Hon)/BBA/MCS/ BCS/M.Sc. (IT)/MIT/LLB/M Com/B.Com/MBA/BS (Hon)/ADE/MBIT/ BBA/TI/BS(TS 4 years)/ Master degree/Bachelor degree/DVM/Animal Husbandry/Doctor of Pharmacy/ Graduation in Engineering/Technology/ Agriculture/ Nursing/ Commerce in any Subject(s)/ Discipline/ Trade/ Technology OR Master Degree/ Bachelor Degree/ Bachelor Honor Degree/ ADE and intermediate with at least two major subjects out of Physic, Chemistry, Biology, Mathematics, Statistics and Computer Science OR MSEd/BSEd with at least two subjects out of Chemistry, Zoology, Botany, Physics Math-A Course, Math-B Course & Math.
7. The Policy provides the following ranking criteria for appointment of Educators:
“RANKING CRITERIA FOR EDUCATORS.
Interview
05
Professional Qualification
05
Marks allocated for academic qualification
58
Matric 13 marks
Intermediate 15 marks
Graduation 15 marks
Master Degree 15 marks
Local Residence
12
Test
20
Total Merit Marks
100
Note:
(i) Merit marks to be calculated on the basis of percentage obtained in each examination.
(ii) ………………………….
(iii) The candidates of ESE of ESE (Sci-Math) having Master Degree in any subject are considered academic qualification. However, M.Ed/MA(Edu)/B.Ed degree shall be considered as professional qualification.
(iv) …………………………
(v) …………………………
(vi) …………………………
(vii) Merit marks for BA/BS(Hons 4-years), B.Sc (4-years) in Agriculture and B.Sc (4-years) in Engineering/Technology are calculated out of the qualification marks of Graduation plus Masters decree.
(viii) ………………………….
(ix) The candidates shall submit their certificates/result cards with application clearly indicating total marks, subject wise allocated marks and obtained marks issued by the concerned Controller of Board or recognized University. Further, a certificate issued by the concerned Controller of Board/University shall be attached with the application regarding conversion of CGPA into percentage marks, if applicable.”
8. From the perusal of ranking criteria, it is apparent that the candidates were to be awarded marks out of 58 allocated for the educational qualification, which were further sub-divided as Matric-13 marks, Intermediate-15 marks, Graduation-15 Marks and Master Degree-15 marks. The LL.B Degree has not been mentioned in the said ranking criteria although the said Degree is mentioned as one of the basic required academic qualifications for appointment to the said posts.
9. Now, the questions arise for determination are that Whether the LL.B Degree would be treated as equal to Graduation or Degree and Whether LL.B Degree holders are entitled to receive marks allocated for academic qualification of Master Degree for the purpose of appointment to the post of ESE (Science/Math). In this regard, it is observed that during the recruitment process, the respondents treated the LL.B qualification as equivalent to Master Degree and awarded marks on the basis of percentage obtained in the LL.B examinations and issued appointment letters to the petitioners but after they joined their services, all of sudden on 23.08.2017, their appointment letters were withdrawn on the ground that LL.B Degree holder candidates had erroneously been awarded marks for LL.B Degree by treating them as holders of Master Degree. The said action of the respondents was called in question in Constitutional petition (W.P.No. 5598/2017) titled Muhammad Saleem and 13 others, and the same was referred by this Court vide order dated 15.08.2017 to the Secretary SED Lahore/ Respondent No. 1 as a representation to decide the matter in accordance with law and policy applicable thereto. Thereafter the Respondent No. 1 rejected the claim of the petitioners for treating LL.B as equal to Master Degree and held that candidates having LL.B Degree were not eligible to claim 15 additional marks for their Degree by treating the same as equivalent Master Degree (M.A.). Consequently the orders of appointment issued to the petitioners were claimed by the respondents to have been rightly recalled.
10. In advertisement for appointment, LL.B is one of the academic qualifications required for the purpose of appointment, which is mentioned alongwith qualification of Master Degree and degrees equivalent to Master and Bachelor are also included in the prescribed qualification. However, it has not been mentioned Whether the LL.B Degree would be treated equal to Graduation or Master Degree. The LL.B Degree is a Degree higher than the Graduation/ Bachelor Degree and is obtained after completing study course comprising of 3-years after Graduation. In the Note No. (vii) attached to the Ranking Criteria (supra) it is mentioned that Merit marks for BA/BS(Hons 4-years), B.S (4-years) in Agriculture and B.Sc. (4-years) in Engineering/Technology are calculated out of the qualification marks of Graduation plus Master Degree. From the perusal of the afore-referred Note, it is observed that even a Bachelor Degree having duration of four years is treated as equal to Master Degree and its marks are to be calculated out of the qualification marks of Graduation plus Master Degree based on years of education although the same by its nomenclature is not a Master Degree. Therefore, on the basis of same criteria and analogy, the LL.B Degree cannot be equated with a Bachelor Degree only and is to be treated more than the same.
11. The Higher Education Commission vide its letter dated July 27th 2017, has declared the Bachelor of laws equal to Master Degree for the purposes of academic qualification, which letter is reproduced below:
“7. With reference to your application dated July 27th 2017 on the subject, it is informed that University of Sargodha is a chartered university in public sector. The Higher Education Commission recognizes Bachelor of Laws “Transcript” held by you from University of Sargodha after ‘B.A/14-years schooling as equivalent to corresponding Bachelor of Laws (LL.B) degree. On the basis of year of schooling, holder of Bachelor of Laws degree may apply for the posts where required qualification is Master’s degree in general stream involving 16-year of schooling. It may also be noted that admission in a university for further education and determination of suitability in relation to job requirement rest with the concerned university and employing agency, respectively and thus Commission has no role in such issues. This letter is being issued on provisional basis subject to submission of original LL.B degree.” (emphasis supplied).
12. The Higher Education Commission is authorized to declare equivalence of degrees and a degree not recognized by Higher Education Commission if worthless like a piece of paper and cannot be equated to that of a ‘Degree’ because such Degree is subject to recognition which provides sanctity to the Degree. Reliance is placed on Haji Nasir Mehmood v. Mian Imran Masood & others (PLD 2010 Supreme Court 1089). In the said judgment, while discussing the powers of HEC in Section 10(o) of the Higher Education Commission Ordinance, 2002 it has also been observed that Higher Education Commission may determine equivalence and recognition of Degrees, Diplomas and Certificates awarded not only by Institutions within the country but as well as the institutions functioning abroad. The relevant portion of the judgment has been reproduced below:
“11. A bare reading of Section 10(o) would make it abundant clear that the Commission may determine the equivalence and recognition of degrees, diplomas and certificates awarded not only by the institutions within the country but as well as the institutions functioning abroad. We are not impressed by the contention of Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court that Higher Education Commission has nothing to do with such matters for the simple reason that Section 10(o) of the Higher Education Commission Ordinance, 2002 has been examined on various occasions and the contention as mentioned above was not considered at all and Commission was found competent to determine the equivalence and recognition of degrees and diplomas.”
13. Even otherwise, LL.M Degree which is higher than LL.B Degree has been declared equal to M.Phil. Reliance is placed on Shahid Hussain Abbasi, Assistant Professor of Law v. Secretary to the Government of N.W.F.P Education Department & others (2007 SCMR 951). The relevant portion is reproduced below:
“6. It is admitted fact that after joining education department as officiating lecturer appellant obtained LL.M. which is equal to M.Phil, therefore, we are of the opinion that he had improved his education, as such was fully entitled for incentive of advance increment. The assertion of the Tribunal that when he was inducted in service, he was not LL.M seems to be against the above policy, in view of the para, which is reproduced hereinabove. The benefit of such incentive goes to the employee who has obtained degree during the service but he was not possessing at the time of his induction in the service. It is an admitted fact that degree was obtained by the appellant on 29th December, 1988 when he was already into the service.”
14. In the Policy and advertisement issued thereunder, the LL.B Degree was specifically mentioned as a requisite academic qualification. The said Degree is higher than a Bachelor Degree. The Bachelor Degree of 4 years has been treated as equal to Master Degree in the Policy by calculating its marks as Graduation plus Master Degrees on the basis of years of education. The Higher Education Commission recognizes the LL.B Degree equal to Master Degree also on the basis of years of education. The LL.M Degree being a higher Degree than LL.B is treated equal to Degree of M.Phil. There is nothing in the Policy or the advertisement providing that LL.B Degree would be treated as less than the Master Degree. The petitioners were provided the benefit of the LL.B. qualification at the time of their appointments by providing 15 additional marks, therefore, the LL.B Degree for all intents and purposes on the basis of years of education already recognized by the Policy for 4-years Bachelor Degree is to be treated as Master Degree for the purpose of appointment under the Policy. It is not the case of the respondents that LL.B Degree was not a required academic qualification under the Policy and could not be considered for appointment. Moreover, there is no prohibition in the Policy wherein the qualification of LL.B has been declared not entitled to 15 marks for the purpose of appointment as ESE (Science/Math). What is not prohibited is permitted unless same specifically violates any law or rules. Reliance may be placed on Additional Collector-II, Sales Tax, Lahore v. M/s Abdullah Sugar Mills Ltd. and others (2003 SCMR 1026). Therefore, once having awarded the marks for LL.B Degree as equivalent to Master Degree, the respondents could not thereafter be allowed to deduct the said marks and withdraw the order of appointment of the petitioners, more so, for the reason that the said orders had been acted upon and the petitioners had joined the services and accordingly decisive steps had been taken on both sides where-after vested rights had been created in favour of the petitioners which cannot be lightly taken away on the basis or reasons mentioned by the respondents. It is not the case of the respondents/department that the petitioners had obtained the appointment on the basis of fraud and mis-representation, rather the case is that the petitioners were not entitled to the marks of LL.B Degree which had been erroneously provided to them. Their appointments cannot be said to have been made in violation of the rules or policy and consequently principle of locus poenitentiae would not permit the competent authority to undo the same and remove the incumbents from the service. Reliance is placed on Mian Tariq Javaid vs. Province of Punjab etc. 2008 SCMR 598).
Although an authority that has passed an order has the authority to withdraw, vary or rescind the same under Section 20 of Punjab General Clauses Act, 1956 but the said power cannot be exercised when a vested right is created in the favour of the other party. Even otherwise, the order of the competent authority for awarding marks out of 15 to LL.B Degree holders on the basis of percentage obtained in the said examination by them, was not an illegal order rather it could only be treated an order based on interpretation of the policy. Once having interpreted the Policy in favour of petitioners and issuing them appointment letters, the respondents/authority would be estopped and could not be allowed to later-on interpret the said Policy differently especially in a manner that cannot co-exist with the earlier interpretation just to deprive the petitioners of vested rights already accrued in their favour. Reliance may be placed on Chairman Selection Board vs. Wasif Zameer (1997 SCMR 15) and Chairman Senate vs. Shaiq Ahmad Khan (2016 SCMR 460).
15. Besides authorities cannot be allowed to approbate and re-approbate by adopting contrary pleas in the same breath in the same
matter to review their previous orders. Reliance in this behalf is placed on Chairman Minimum Wage Board vs. Fayyaz Khan Khattock (1999 SCMR 1004). Consequently, the order passed by Respondent No. 4 dated 23.08.2017, whereby the appointment letters of the petitioners have been withdrawn, is declared to have been passed on the basis of wrong interpretation of the Policy, without lawful jurisdiction and of no legal effect and the same is set-side. The petitioners shall be re-instated into service on the position which was prevalent before passing the afore-referred order dated 23.08.2017.
16. For what has been discussed above, this petition is allowed in the above terms.
(M.M.R.) Petition allowed
[Multan Bench Multan]
Present: Muzamil Akhtar Shabir, J.
BAQIR HAMEED and another--Petitioners
versus
GOVERNMENT OF PUNJAB through Secretary and 4 others--Respondents
W.P. No. 12396 of 2017, heard on 20.6.2018.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional Petition--Recruitment of educators--Clearance of NTS and interview--Petitioners were selected--Withdrawal of appointment letters--Non-issuance of show-cause notice--Recruitment policy 2016-17--Equivalence of Master Degress--Principle of locus poenitenciae--Question of whether LLB degree would be treated equal to Graduation or Master--Determination--In advertisement for appointment, LL.B is one of academic qualifications required for purpose of appointment, which is mentioned alongwith qualification of Master Degree and degrees equivalent to Master and Bachelor are also included in prescribed qualification--Higher Education Commission vide its letter dated July 27th 2017, has declared Bachelor of laws equal to Master Degree for purposes of academic qualification--In Policy and advertisement issued thereunder, LL.B Degree was specifically mentioned as a requisite academic qualification--Said Degree is higher than a Bachelor Degree. Bachelor Degree of 4 years has been treated as equal to Master Degree in Policy by calculating its marks as Graduation plus Master Degrees on basis of years of education--Higher Education Commission recognizes LL.B Degree equal to Master Degree also on basis of years of education--LL.M Degree being a higher Degree than LL.B is treated equal to Degree of M.Phil. There is nothing in Policy or advertisement providing that LL.B Degree would be treated as less than Master Degree--It is not case of respondents/department that petitioners had obtained appointment on basis of fraud and mis-representation, rather case is that petitioners were not entitled to marks of LL.B Degree which had been erroneously provided to them--Their appointments cannot be said to have been made in violation of rules or policy and consequently principle of locus poenitentiae would not permit competent authority to undo same and remove incumbents from service. [P. 137, 138, 139 & 140] A, B, D & E
PLD 2010 SC 1089 & 2008 SCMR 598, ref.
Higher Education Commission Ordinance, 2002--
----S. 10(o)--Equivalence and recognition of Degrees--It abundant clear that Commission may determine equivalence and recognition of degrees, diplomas and certificates awarded not only by institutions within country but as well as institutions functioning abroad.
[P. 138] C
2007 SCMR 951, ref.
General Clauses Act, 1956 (VI of 1956)--
----S. 20--Powers of Authority--Withdrawal of vested right--Said power cannot be exercised when a vested right is created in favour of other party--Even otherwise, order of competent authority for awarding marks out of 15 to LL.B Degree holders on basis of percentage obtained in said examination by them, was not an illegal order rather it could only be treated an order based on interpretation of policy--Once having interpreted Policy in favour of petitioners and issuing them appointment letters, respondents/authority would be estopped and could not be allowed to later-on interpret said Policy differently especially in a manner that cannot co-exist with earlier interpretation just to deprive petitioners of vested rights already accrued in their favour--Besides authorities cannot be allowed to approbate and re-approbate by adopting contrary pleas in same breath in same matter to review their previous orders--Order passed by respondent whereby appointment letters of petitioners have been withdrawn, is declared to have been passed on basis of wrong interpretation of Policy, without lawful jurisdiction and of no legal effect and same is set-side--Petitioners shall be re-instated into service on position--Petition was allowed. [Pp. 140 & 141] F, G & H
1997 SCMR 15 & 2016 SCMR 460, ref.
Raja Naveed Azam, Advocate for Petitioners.
Mr. Muhammad Aurangzeb Khan, AAG with M. Akram Shahid, DEO (M-EE), Muzaffargarh for Respondents.
Date of hearing: 20.6.2018.
Judgment
Through this Constitutional petition, the petitioners have called in question the order dated 23.08.2017, passed by District Education Officer (M-EE) Muzaffargarh, whereby the appointment letters issued to the petitioners for the post of ESE (Science/Math) have been withdrawn.
2. Brief facts of the case are that the respondents advertised for recruitment of educators in District Muzaffargarh. The petitioners having academic qualification B.A, LL.B. applied for appointment to the posts of ESE (Science/Math). They cleared NTS test as well as the interview and were selected and appointed on 02.08.2017, where-after they joined their place of posting in respective schools, all of a sudden, the District Education Officer (M-EE) Muzaffargarh/Respondent No. 4 withdrew the appointment letters of the petitioners vide order dated 23.8.2017. The said order is under challenge through this Constitutional petition.
3. Learned counsel for the petitioners argued that the appointment letters of the petitioners have been withdrawn without issuing show-cause notices to the petitioners or providing them an opportunity of being heard. It is also claimed that the withdrawal order is mala fide and based on colourful exercise of jurisdiction. Furthermore, it is claimed that the Higher Education Commission (‘HEC’) recognizes the educational qualification of LL.B as equal to Master Degree therefore, the action of the respondents to deduct the marks awarded to the petitioners for qualification of Master Degree is without lawful authority and consequently the order dated 23.8.2017 of withdrawal of their appointments is liable to be struck down.
4. On the other hand, learned AAG has argued that the petitioners did not hold Master Degree and were not entitled to be granted marks for the same, hence claims that the marks for Master Degree were erroneously awarded and rightly deducted whereby the petitioners were not able to maintain their position in the merit list prepared for the said appointments and consequently their appointment letters have been rightly withdrawn.
5. Arguments heard. Record perused.
6. From the perusal of the Recruitment Policy 2016-2017 for School Specific Educators and SSE (Assistant Education Officers) “Policy” and the advertisement dated 19.10.2016 published in daily Nawa-i-Waqt issued by respondents for the purpose of appointment of educators, it is observed that the academic qualification prescribed for the appointments of teachers of ESE (Science/Math) BS-9 includes Master Degree, Bachelor Degree and LL.B, etc., at least in second division, which is reproduced below:
Nomenclature of post
Academic Qualification
(at least 2nd Division II
Professional Qualification (at least 2nd Division)
ESE (Sci-Math)
MA/MSC/B.Sc/BA/BA(Hon)/BSc(Hon)/BBA/MCS/ BCS/M.Sc. (IT)/MIT/LLB/M Com/B.Com/MBA/BS (Hon)/ADE/MBIT/ BBA/TI/BS(TS 4 years)/ Master degree/Bachelor degree/DVM/Animal Husbandry/Doctor of Pharmacy/ Graduation in Engineering/Technology/ Agriculture/ Nursing/ Commerce in any Subject(s)/ Discipline/ Trade/ Technology OR Master Degree/ Bachelor Degree/ Bachelor Honor Degree/ ADE and intermediate with at least two major subjects out of Physic, Chemistry, Biology, Mathematics, Statistics and Computer Science OR MSEd/BSEd with at least two subjects out of Chemistry, Zoology, Botany, Physics Math-A Course, Math-B Course & Math.
7. The Policy provides the following ranking criteria for appointment of Educators:
“RANKING CRITERIA FOR EDUCATORS.
Interview
05
Professional Qualification
05
Marks allocated for academic qualification
58
Matric 13 marks
Intermediate 15 marks
Graduation 15 marks
Master Degree 15 marks
Local Residence
12
Test
20
Total Merit Marks
100
Note:
(i) Merit marks to be calculated on the basis of percentage obtained in each examination.
(ii) ………………………….
(iii) The candidates of ESE of ESE (Sci-Math) having Master Degree in any subject are considered academic qualification. However, M.Ed/MA(Edu)/B.Ed degree shall be considered as professional qualification.
(iv) …………………………
(v) …………………………
(vi) …………………………
(vii) Merit marks for BA/BS(Hons 4-years), B.Sc (4-years) in Agriculture and B.Sc (4-years) in Engineering/Technology are calculated out of the qualification marks of Graduation plus Masters decree.
(viii) ………………………….
(ix) The candidates shall submit their certificates/result cards with application clearly indicating total marks, subject wise allocated marks and obtained marks issued by the concerned Controller of Board or recognized University. Further, a certificate issued by the concerned Controller of Board/University shall be attached with the application regarding conversion of CGPA into percentage marks, if applicable.”
8. From the perusal of ranking criteria, it is apparent that the candidates were to be awarded marks out of 58 allocated for the educational qualification, which were further sub-divided as Matric-13 marks, Intermediate-15 marks, Graduation-15 Marks and Master Degree-15 marks. The LL.B Degree has not been mentioned in the said ranking criteria although the said Degree is mentioned as one of the basic required academic qualifications for appointment to the said posts.
9. Now, the questions arise for determination are that Whether the LL.B Degree would be treated as equal to Graduation or Degree and Whether LL.B Degree holders are entitled to receive marks allocated for academic qualification of Master Degree for the purpose of appointment to the post of ESE (Science/Math). In this regard, it is observed that during the recruitment process, the respondents treated the LL.B qualification as equivalent to Master Degree and awarded marks on the basis of percentage obtained in the LL.B examinations and issued appointment letters to the petitioners but after they joined their services, all of sudden on 23.08.2017, their appointment letters were withdrawn on the ground that LL.B Degree holder candidates had erroneously been awarded marks for LL.B Degree by treating them as holders of Master Degree. The said action of the respondents was called in question in Constitutional petition (W.P.No. 5598/2017) titled Muhammad Saleem and 13 others, and the same was referred by this Court vide order dated 15.08.2017 to the Secretary SED Lahore/ Respondent No. 1 as a representation to decide the matter in accordance with law and policy applicable thereto. Thereafter the Respondent No. 1 rejected the claim of the petitioners for treating LL.B as equal to Master Degree and held that candidates having LL.B Degree were not eligible to claim 15 additional marks for their Degree by treating the same as equivalent Master Degree (M.A.). Consequently the orders of appointment issued to the petitioners were claimed by the respondents to have been rightly recalled.
10. In advertisement for appointment, LL.B is one of the academic qualifications required for the purpose of appointment, which is mentioned alongwith qualification of Master Degree and degrees equivalent to Master and Bachelor are also included in the prescribed qualification. However, it has not been mentioned Whether the LL.B Degree would be treated equal to Graduation or Master Degree. The LL.B Degree is a Degree higher than the Graduation/ Bachelor Degree and is obtained after completing study course comprising of 3-years after Graduation. In the Note No. (vii) attached to the Ranking Criteria (supra) it is mentioned that Merit marks for BA/BS(Hons 4-years), B.S (4-years) in Agriculture and B.Sc. (4-years) in Engineering/Technology are calculated out of the qualification marks of Graduation plus Master Degree. From the perusal of the afore-referred Note, it is observed that even a Bachelor Degree having duration of four years is treated as equal to Master Degree and its marks are to be calculated out of the qualification marks of Graduation plus Master Degree based on years of education although the same by its nomenclature is not a Master Degree. Therefore, on the basis of same criteria and analogy, the LL.B Degree cannot be equated with a Bachelor Degree only and is to be treated more than the same.
11. The Higher Education Commission vide its letter dated July 27th 2017, has declared the Bachelor of laws equal to Master Degree for the purposes of academic qualification, which letter is reproduced below:
“7. With reference to your application dated July 27th 2017 on the subject, it is informed that University of Sargodha is a chartered university in public sector. The Higher Education Commission recognizes Bachelor of Laws “Transcript” held by you from University of Sargodha after ‘B.A/14-years schooling as equivalent to corresponding Bachelor of Laws (LL.B) degree. On the basis of year of schooling, holder of Bachelor of Laws degree may apply for the posts where required qualification is Master’s degree in general stream involving 16-year of schooling. It may also be noted that admission in a university for further education and determination of suitability in relation to job requirement rest with the concerned university and employing agency, respectively and thus Commission has no role in such issues. This letter is being issued on provisional basis subject to submission of original LL.B degree.” (emphasis supplied).
12. The Higher Education Commission is authorized to declare equivalence of degrees and a degree not recognized by Higher Education Commission if worthless like a piece of paper and cannot be equated to that of a ‘Degree’ because such Degree is subject to recognition which provides sanctity to the Degree. Reliance is placed on Haji Nasir Mehmood v. Mian Imran Masood & others (PLD 2010 Supreme Court 1089). In the said judgment, while discussing the powers of HEC in Section 10(o) of the Higher Education Commission Ordinance, 2002 it has also been observed that Higher Education Commission may determine equivalence and recognition of Degrees, Diplomas and Certificates awarded not only by Institutions within the country but as well as the institutions functioning abroad. The relevant portion of the judgment has been reproduced below:
“11. A bare reading of Section 10(o) would make it abundant clear that the Commission may determine the equivalence and recognition of degrees, diplomas and certificates awarded not only by the institutions within the country but as well as the institutions functioning abroad. We are not impressed by the contention of Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court that Higher Education Commission has nothing to do with such matters for the simple reason that Section 10(o) of the Higher Education Commission Ordinance, 2002 has been examined on various occasions and the contention as mentioned above was not considered at all and Commission was found competent to determine the equivalence and recognition of degrees and diplomas.”
13. Even otherwise, LL.M Degree which is higher than LL.B Degree has been declared equal to M.Phil. Reliance is placed on Shahid Hussain Abbasi, Assistant Professor of Law v. Secretary to the Government of N.W.F.P Education Department & others (2007 SCMR 951). The relevant portion is reproduced below:
“6. It is admitted fact that after joining education department as officiating lecturer appellant obtained LL.M. which is equal to M.Phil, therefore, we are of the opinion that he had improved his education, as such was fully entitled for incentive of advance increment. The assertion of the Tribunal that when he was inducted in service, he was not LL.M seems to be against the above policy, in view of the para, which is reproduced hereinabove. The benefit of such incentive goes to the employee who has obtained degree during the service but he was not possessing at the time of his induction in the service. It is an admitted fact that degree was obtained by the appellant on 29th December, 1988 when he was already into the service.”
14. In the Policy and advertisement issued thereunder, the LL.B Degree was specifically mentioned as a requisite academic qualification. The said Degree is higher than a Bachelor Degree. The Bachelor Degree of 4 years has been treated as equal to Master Degree in the Policy by calculating its marks as Graduation plus Master Degrees on the basis of years of education. The Higher Education Commission recognizes the LL.B Degree equal to Master Degree also on the basis of years of education. The LL.M Degree being a higher Degree than LL.B is treated equal to Degree of M.Phil. There is nothing in the Policy or the advertisement providing that LL.B Degree would be treated as less than the Master Degree. The petitioners were provided the benefit of the LL.B. qualification at the time of their appointments by providing 15 additional marks, therefore, the LL.B Degree for all intents and purposes on the basis of years of education already recognized by the Policy for 4-years Bachelor Degree is to be treated as Master Degree for the purpose of appointment under the Policy. It is not the case of the respondents that LL.B Degree was not a required academic qualification under the Policy and could not be considered for appointment. Moreover, there is no prohibition in the Policy wherein the qualification of LL.B has been declared not entitled to 15 marks for the purpose of appointment as ESE (Science/Math). What is not prohibited is permitted unless same specifically violates any law or rules. Reliance may be placed on Additional Collector-II, Sales Tax, Lahore v. M/s Abdullah Sugar Mills Ltd. and others (2003 SCMR 1026). Therefore, once having awarded the marks for LL.B Degree as equivalent to Master Degree, the respondents could not thereafter be allowed to deduct the said marks and withdraw the order of appointment of the petitioners, more so, for the reason that the said orders had been acted upon and the petitioners had joined the services and accordingly decisive steps had been taken on both sides where-after vested rights had been created in favour of the petitioners which cannot be lightly taken away on the basis or reasons mentioned by the respondents. It is not the case of the respondents/department that the petitioners had obtained the appointment on the basis of fraud and mis-representation, rather the case is that the petitioners were not entitled to the marks of LL.B Degree which had been erroneously provided to them. Their appointments cannot be said to have been made in violation of the rules or policy and consequently principle of locus poenitentiae would not permit the competent authority to undo the same and remove the incumbents from the service. Reliance is placed on Mian Tariq Javaid vs. Province of Punjab etc. 2008 SCMR 598).
Although an authority that has passed an order has the authority to withdraw, vary or rescind the same under Section 20 of Punjab General Clauses Act, 1956 but the said power cannot be exercised when a vested right is created in the favour of the other party. Even otherwise, the order of the competent authority for awarding marks out of 15 to LL.B Degree holders on the basis of percentage obtained in the said examination by them, was not an illegal order rather it could only be treated an order based on interpretation of the policy. Once having interpreted the Policy in favour of petitioners and issuing them appointment letters, the respondents/authority would be estopped and could not be allowed to later-on interpret the said Policy differently especially in a manner that cannot co-exist with the earlier interpretation just to deprive the petitioners of vested rights already accrued in their favour. Reliance may be placed on Chairman Selection Board vs. Wasif Zameer (1997 SCMR 15) and Chairman Senate vs. Shaiq Ahmad Khan (2016 SCMR 460).
15. Besides authorities cannot be allowed to approbate and re-approbate by adopting contrary pleas in the same breath in the same
matter to review their previous orders. Reliance in this behalf is placed on Chairman Minimum Wage Board vs. Fayyaz Khan Khattock (1999 SCMR 1004). Consequently, the order passed by Respondent No. 4 dated 23.08.2017, whereby the appointment letters of the petitioners have been withdrawn, is declared to have been passed on the basis of wrong interpretation of the Policy, without lawful jurisdiction and of no legal effect and the same is set-side. The petitioners shall be re-instated into service on the position which was prevalent before passing the afore-referred order dated 23.08.2017.
16. For what has been discussed above, this petition is allowed in the above terms.
(M.M.R.) Petition allowed
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