2015 PLP (C (PLC(CS))

SHAHID JAMIL KHAN, J.

Petitioner has challenged merit list for appointment of Elementary School Educator ("ESE") contending that her M.A. degree was not treated as an Academic Degree.

2. The petitioner applied for appointment as ESE, pursuing an advertisement dated 5-10-2008. After due process, merit list was issued and she was placed at serial No.5 therein. Due to non-joining of the successful candidates at serial No.1, respondent No.7 being second on merit list was appointed on the post.

3. Learned counsel submits; that petitioner was awarded only 2.82 marks out of 5 against M.A. degree, whereas she was entitled to 5.63 out of 10 marks and be declared as number one in the merit list. Certificate issued by Allama Iqbal Open University dated 27-5-2011 and by Higher Education Commission ("HEC") dated 19-5-2009 are attached in support. To strengthen the arguments, learned counsel has relied on Mst. Sadia Sultan v. D.E.O. and others (2011 PLC (C.S.) 158).

4. Learned A.A.-G. submits, in reply, that HEC being competent to give equivalence to degrees etc. has denied the claim of petitioner in their comments. M.A. (Education) is not considered as an academic/ content degree for employment as Teacher/SST/ Lecturer. Controverting the assertion of petitioner, he has referred to Selection/Ranking Criteria under Recruitment Policy 2008-2009. He explains that maximum 05 marks are available against M.A. (Education) and 2.82 marks (on percentage of marks obtained) were awarded to the petitioner. He argues; after joining recruitment procedure, in existence of a unchallenged/valid policy, petitioner was estopped by her conduct to challenge the merit list, after been declared unsuccessful.

5. Heard both the parties, record perused.

6. Perusal of merit list shows that respondent No.7 was granted 52.27 marks as compared to the petitioner's 50.82 marks. The marks awarded were a sum total of different marks given under certain eligibilities/qualifications. Contention of the petitioner was examined on touchstone of the "Policy for Recruitment of Educators in Government Schools (2008-09)", which was admittedly not challenged by the petitioner at any stage. As per "Ranking Criteria for Merit Calculation", petitioner's M.A. (Education) degree was considered at par with B.Ed/BS.Ed and M.Ed. However, for Higher Academic Qualification additional 10 marks were allocated. Since M.A. (Education) was specifically allotted maximum 5 marks, therefore, respondents could not give any other treatment to this degree. Relevant portion from the Ranking Criteria is reproduced; "Marks for Local Residence (to be determined on Tehsil basis only) = 10 Marks for Teaching Experience = 5 Marks for Interview = 5 Marks for Professional Qualification = 5 PTC = 02, CT = 03, B. Ed / BS. Ed / M. Ed / M.A Education = 5 These will be calculated on the Percentage of Marks Obtained in PTC, CT and B. Ed / M. Ed / M.A Education. Marks for Higher Academic Qualification = 10 (M.A., M. SC.) (to be calculated on the basis of percentage of marks) Marks for Academic Qualification = 65 * 20 marks on the basis of `Percentage of Marks Obtained in Matric. * 20 marks on the basis of `Percentage of Marks Obtained in Intermediate. * 25 marks on the basis of `Percentage of Marks Obtained in Graduation (To be calculated through computerized software)"

7. Allocation of 05 marks for M.A. (Education) degree was a policy decision which cannot be called in question and replaced with 10 marks by this Court in constitutional jurisdiction. The apex Court in Syed Muhammad Arif and others v. University of Balochistan and others (PLD 2006 SC 564) held, "Supreme Court had no jurisdiction to take the role of policy maker in the garb of interpretation." In another case Mumtaz Ali Bohio and 24 others v. Federal Public Service Commission through Chairman at Islamabad and another (2002 SCMR 772) it is enshrined, "nor any candidate has vested right to be governed by any particular set of Rules". It was also held in this judgment that Public Service Commission could make any alternation in the recruitment policy before finalization of appointment.

8. It is not case of the petitioner that she was discriminated or the policy of allocating 05 marks (instead of 10 marks) was in conflict with any law or in violation of fundamental rights. The petitioner could not establish any mala fide. It is laid down by Hon'ble Supreme Court of Pakistan in Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others (PLD 2014 SC 1) and Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Had, Zakat and Ushr through Secretary and others (2011 SCMR 1621), that A policy can be judicially reviewed only if it is found; in conflict with any provision of law, in violation of any fundamental right, arbitrary or was made/employed to give benefit to a person or group of persons with mala fide intent. A policy can be held invalid if not approved by the authority under any law or if lacks legal sanction as is held in Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others (2010 PLC (C.S.) 924).

9. The judgment, Sadia Sultan Case (Supra), relied upon by learned counsel for the petitioner is also examined. Though there are some remarks regarding M.A. (Education) degree, but these are merely orbiter. Ratio of the case hinges on the facts that petitioner was removed, after appointment at the post, without issuance of show cause notice or conducting any inquiry. It was held that the principle of audi alterum partum was violated. The case in hand is distinguishable both on facts and law; present petitioner has challenged implementation of policy for appointed and not removal from the post for ineligibility. Even HEC has denied claim of the petitioner. I am in agreement with learned AAG that being part of the process for appointment,' under unchallenged policy, the petitioner is estopped by conduct to challenge it after being unsuccessful.

10. Law, rule, policy or terms of appointment, are not violated in this case. Appointment of respondent No.7 is found valid.

11. The petition is, therefore, dismissed. SA/R-24/L