2006 PLP 138 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

This Constitutional petition has been filed seeking a declaration about ineligibility of respondent No.2 Sultan Mehmood from contesting the election of Nazim from Union Council No.118, Tehsil Liaqatpur, on the ground of want of requisite educational qualification in terms of section 152(1)(e) of the Punjab Local Government Ordinance, 2001.

2. The grievance of the petitioner is that though the respondent No.2 is holding in Islamic and Arabic Studies, issued by Jamia Anwar-ul-Mustafa, (Regd.) Sukhar, Sindh Province, Pakistan but the said institution having not been notified by the University Grants Commission in terms of Letter No.8-83/UGC/A&C/2002/1142, dated the 22nd July, 2002 as recognized Institution, hence, the said Sanad could not be treated as equivalent to a Sanad issued by a University for the purposes of contesting election within the meaning of section 152(1)(e) of Punjab Local Government Ordinance, 2001. It is therefore, argued that Nomination Papers of respondent No.2 for the said election were wrongly accepted by the Returning Officer. In support of his said contention, Mr. Masud Ahmad Khan, Advocate appearing on behalf of the petitioner has placed reliance on the case reported as "Moulana Abdullah v. Returning Officer and others 2003 SCMR 195 and also relies on an unreported judgment of this Court passed in Writ Petition No.14075 of 2005 titled "Muhammad Younas and another v. D.R.O. and others".

3. On other hand, Sardar Iqbal Khakwani, Advocate appearing on behalf of respondents Nos.2 and 3 has vehemently opposed this petition on the ground that this writ petition has been filed without challenging the order of Returning Officer/ respondent No.1 through appeal as provided in Rule 14(4) of the Punjab Local Election Rules, 2005 and without availing said remedy the petitioners could not file this writ petition directly. It is further argued that as said sanad has been recognized equivalent to B.A. by Shah Abdul Latif Bhittai University, Khairpur through Certificate No.12 issued by the Deputy Registrar of the said University on 30-1-2003 and since the said University is a recognized University by Higher Education Commission of Pakistan, hence the Nomination Papers of respondent No.2 were validly accepted by the Returning Officer respondent No.1.

4. I have considered the arguments of learned counsel for the parties and perused the relevant record.

5. In the case of Moulana Abdullah, referred to above, a Notification issued by the Election Commission of Pakistan on 25th of July, 2002 has been reproduced, which reads as under:-- "Notification Islamabad, the 25th July, 2002 No. F.2(11)/2002-Cord. Whereas Article 8-A of the Conduct of General Elections Order, 2002 (Chief Executive's Order No.17 of 2002) provides that notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a Bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under University Grants Commission Act, 1974 (XXIII of 1974). And Whereas a reference was made by the Election Commissioner to the University Grants Commission vide Letter No.F.2(11)/2002-Cord, dated 18th July, 2002 (copy whereof is at Annexure-I) requesting therein that the list containing the names of degrees as equivalent to a Bachelor degree under the University Grants Commission Act, 1974 (XXIII of 1974) may be communicated to Election Commission. And Whereas the University Grants Commission has sent a reply to the aforesaid reference of Election Commission vide their Letter No.8-83/ UGC/A&C/ 2002/1142, dated the 22nd July, 2002 (copy whereof is at Amnexure-II) in which it has been stated that final Sanad of "Shahadat-ul-almiya-fil?uloom ul Arabia wal Islamia" awarded????? by??????? the??????? following Wafaq/Tanzeem-ul-Madaris and individual institutions has been recognized by the University Grants Commission as equivalent to M.A. Arabic/Islamic Studies; Name?? of Wafaq/Tanzeem/ Institution:

(1) Wafaq-ul-Madaris Al-Arabia, Markazi Office Gordon Town Sher Shah Road, Multan. (2) Tanzeem-ul-Madaris Ahle Sunnat, Jamia Nazamia Razvia, Indron Lohari Gate, Lahore. (3) Wafaq-ul-Madaris, Al-Salfia Hajiabad Post Code-38600, Faisalabad. (4) Wafaq-ul-Madaris Shia, Jamia-al-Muntazar, H-Block Model Town, Lahore. (5) Rabita-ul-Maddaris-Al-Islamia, Mansoora Road, Lahore. (6) Jamia Islamia Minhaj-ul-Quran, 368 Model Town, Lahore. (7) Jamia Taleemat-e-Islarnia, Sargodha Road, Faisalabad. (8) Jamia Ashrafia, Ferozepur Road, Lahore. (9) Darul Uloom Mohannnadia Ghousia Bhera, District, Sargodha. (10) Darul Uloom, Korangi, Karachi. And Whereas, in the aforesaid? letter the University Grants Commission has inter alia stated; "It may further be noted that the? Sanad Shahadatul-fil-Uloom-ul-Arabia-Wal-Islamia granted by Wafaqul Madaris and approved individual Deeni Madaris is recognized as equivalent to M.A. Arabic/Islamic Studies for teaching purposes only. However, for purposes of employment other than teaching the holders would be required to qualify in additional two subjects other than Arabic and Islamic Studies at the B.A. level." And whereas, it is expedient and in the public interest to public the above information receiving from University Grants Commission. Now, therefore, in exercise of the powers conferred upon it under Article 4 of the Conduct of General Elections Order, 2002 read with Article 9-B of the Election Commission Order, 2002 and all other powers enabling it in that behalf, the Election Commission is pleased to public for general information the aforementioned letter dated 22nd July, 2002 received from the University Grants Commission regarding degrees recognized as equivalent to the Bachelor's degree pursuant to Election Commission's???? letter F.2(11)/2002-Cord, dated 18th July, 2002." A perusal of the above Notification indicates that the name of institution which had awarded to the petitioner does not figure anywhere and this is sufficient to knock out respondent No.2.

6. However, there is yet another important aspect of the matter as well i.e. issuance of a Certificate by Shah Abdul Latif Bhittai, University Khairpur recognizing the said Sanad as equivalent to B.A. but this Certificate is also of no avail to said respondent No.2 because it has only been issued to get admission in M.A. (Previous) Arabic Islamic Culture.

7. While deciding Writ Petition No.14075 of 2005, the learned Chief Justice held as under: "Where an equivalence certificate is granted for a limited purpose, that certificate can be utilized by the person, possessing that certificate, for that purpose only and not for any other purpose. Equivalence denotes and means hundred per cent parity and equality in every sense. A limited, partial or substantial parity with the official Matriculation Certificate, cannot be treated as making a person eligible under section 152(1)(e). Rather, the very concept that a certificate, which is not hundred per cent at par or equivalent to the Matriculation Certificate, should be treated as such, is a proposition, which at the face of it is preposterous and unacceptable. Such a certificate, therefore, would not make a candidate eligible under section 152(1)(e) of the Punjab Local Government Ordinance, 2001 to contest election for an office of a Local Government. The legislative provisions relating to qualification or eligibility of a particular candidate for the office of Nazim and/or Naib Nazim have to be construed strictly. Relaxation of criteria is not envisaged by the law, because relaxing the criteria, would defeat the very purpose of the scheme of devolution of power, which is being enforced through the Ordinance and compromise in this context is not permissible and no concession can be given to any candidate on any other considerations. A candidate must be Matriculate in terms of provisions of section 152(1)(e) of the Ordinance to be eligible to contest the election. Sans Matriculation Certificate or a certificate, which has been declared to be at par in all respects, with the Matriculation or Secondary School Certificate, a candidate is ineligible to contest the election and cannot be permitted to take part in the election process." The above view adopted by the learned Chief Justice while dealing with the similar question regarding purposes of recognition qua equivalence is not only based proper interpretation of law on the subject but also authoritatively decides the point in issue after considering all the pros and cons of the matter and I have no reason to disagree with the abovementioned view of the learned Chief Justice.

8. Resultantly, this writ petition succeeds and the order of Returning Officer accepting Nomination Papers of respondent No.2 is declared as without lawful authority and is accordingly set aside. The Nomination Papers of respondent No.2 as well as his panelist respondent No.3 shall be considered as having been rejected. S.A.K./G-146/L?????????????????????????????????????????????????????????????????????????????????? Petition accepted.