2020 PLP (C (PLC(CS))

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

By means of this single order, I would like to dispose off two constitutional petitions bearing Writ Petition No.67946/2017 as well as Writ Petition No.56565/2019 as both of them are pertaining to one and the same subject matter.

2. Through Writ Petition No.67946/2017, Muhammad Asad Gulzar Alvi, Kamran Ahmad and Bashir Ahmad (petitioners) whereas by means of constitutional petition bearing Writ Petition No.56565/2019, Ms. Sundas Jabeen (petitioner) has assailed the vires of letters dated 26.08.2017 and letters dated 28.08.2017 with reference to withdrawal / cancellation of their appointment letters as Assistant Education Officers issued by the Chief Executive Officer, District Education Authority, Khushab.

3. At the very outset, while opening his arguments, learned counsel for the Petitioners submits that Muhammad Asad Gulzar Alvi (petitioner) is Bachelor of Science in Electrical (Power) Engineer, whereas Kamran Ahmad (petitioner) is Bachelor of Mechatronics Engineering while Bashir Ahmad (petitioner) is qualified in B.Sc. Building and Architectural Engineering and Ms. Sunda Jabeen (petitioner) holds B.Sc. Electrical Engineering Degree (four years Degree Program). Learned counsel submits that in pursuance of corrigendum issued by the Education Department, the petitioners being qualified persons applied for the post of Assistant Education Officers, who after adopting due process i.e. test as well as interview and necessary scrutiny of the documents, were appointed against the said posts by the Chief Executive Officer/District Education Authority, Khushab, vide separate letters dated 05.07.2017. It is argued that the petitioners procured their medical fitness certificates from the quarters concerned and joined their service. Learned counsel adds that after completing their training program at Quaid-e-Azam Academy of Educational Development at Government Higher Secondary School, Khushab, the petitioners were performing their duties diligently, however subsequently the respondent/authority after affording personal hearing to the petitioners withdrew/cancelled their appointment letters vide orders dated 26.08.2017 and 28.08.2017 under the pretext that they do not possess the requisite qualification/degrees for the said post. Adds that for redressal of their grievances, the petitioners preferred Writ Petition No.63185/2017, which was disposed off by a learned Single Bench of this Court vide order dated 28.08.2017 with direction to the respondent to decide the matter quite in accordance with law/rules, but of no avail. Leaned counsel while referring advertisement/corrigendum as well as recruitment policy (2016-17), submits that the requisite qualification for the post of Assistant Education Officer was "Master Degree in any subject". Adds that as per letter dated 29th March, 2017, (Annexure-M), issued by Higher Education Commission, the degrees possessed by the petitioners have been declared to be equivalent to Master Degree. Learned counsel submits that Usma Farooq who was also appointed along with the present petitioners as Assistant Education Officer by respondent No.1 having the similar qualification is still serving the department. Apart from this, Muhammad Munir, Habib-u-Rehman, Shahbaz Ali and Sajid Ali, having the same qualification are also performing their duties on the said post in different districts. In such backdrop, it is argued that it is a clear case of discrimination and as such the impugned orders having been passed without any legal justification are not sustainable in the eyes of law. In support of his contentions, learned counsel for the petitioners has placed his reliance upon the cases of "District Education Officer (MEE), Bahawalnagar and others v. Mst. Fouzia Nazir and 2 others" (2011 SCMR 1441), and "Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulifqar Ali" (2006 SCMR 678).

4. On the other hand, learned Law Officer has opposed the petition in hand. It is argued that though after adopting due process, the petitioners were appointed as Assistant Education Officers by the respondent/authority, however subsequently it transpired that they do not possess the requisite qualifications, therefore, their appointment letters were withdrawn/cancelled. It is submitted that earlier the petitioners filed Writ Petition No.63185/2017, which was disposed off by a learned Single Bench of this Court vide order dated 28.08.2017 and in compliance with the said order, after giving proper opportunity of hearing to the petitioners, their grievance/request has also been declined by the competent authority. Hence, no ground for interference is made out by this Court.

5. Arguments advanced pro and contra have been heard and record available on file perused.

6. There is no second cavil to this proposition that Muhammad Asad Gulzar Alvi (petitioner) is Bachelor of Science in Electrical (Power) Engineer, whereas Kamran Ahmad (petitioner) is Bachelor of Mechatronics Engineering while Bashir Ahmad (petitioner) is qualified in B.Sc. Building and Architectural Engineering and Ms.Sunda Jabeen (petitioner) holds B.Sc. Electrical Engineering Degree (four years Degree Program). In pursuance of the corrigendum issued by the Education Department dated 8th September, 2016, the petitioners being qualified persons applied for the post of Assistant Education Officers, who after adopting due process i.e. test as well as interview and necessary scrutiny of the documents, were appointed against the said posts by the Chief Executive Officer/District Education Authority, Khushab, vide separate letters dated 05.07.2017. In pursuance of the same, after procuring their medical fitness certificates from the quarters concerned, the petitioners were not only joined into their service, rather after completing their academic training program at Quaid-e-Azam Academy of Educational Development at Government Higher Secondary School, Khushab, they were performing their duties, however subsequently the respondent/authority after affording personal hearing to the petitioners withdrew their appointment letters vide orders dated 26.08.2017 and 28 08.2017 just on the ground that they do not possess the requisite qualification/degrees for the said post. For redressal of their grievances, the petitioners preferred Writ Petition No.63185/2017 titled "Muhammad Asad Gulzar Alvi and another v. Government of the Punjab and others" which was disposed off by a learned Single Bench in terms of order dated 28.08.2017 with the following observations:- "

2. The petition is accordingly disposed of, in the terms that, provided the petitioners' cases are still pending, the petitioners may file their defence therein by taking the grounds available to them in facts and in law. Respondent No.1 in turn is directed to consider and decide all the grounds so taken, through a speaking order, strictly in accordance with the law/rules/policy and after affording an opportunity of hearing to the petitioners

". In compliance with the said order, the respondent/authority afforded an opportunity of hearing to the petitioners, however proceeded to withdraw/cancel the appointment letters of the petitioners vide impugned letters dated 26.08.2017 and 28.08.2017.

7. This Court has observed that in the advertisement dated 1st November, 2016 as well as in the corrigendum issued by the Education Department on 8th September, 2016, the requisite qualification for the post of Assistant Education Officer has been mentioned as: - "Master Degree holder of any Subject/Discipline can apply." Even as per the Recruitment Policy (2016-17) issued by Government of the Punjab, School Education Department, Lahore, dated 9th September, 2016, the requisite qualification reads as follows:- "Master Degree in any subject". So far as the educational qualification of the petitioners is concerned, undeniably they are holding degrees of Bachelor of Science in Electrical (Power) Engineer, Bachelor of Mechatronics Engineering, B.Sc. Building and Architectural Engineering and B.Sc. Electrical Engineering Degree (four years Degree Program) respectively. It is stance of the petitioners that vide Notification bearing No.8-1/HEC/A&A/ 2006/552, dated 29th March, 2007, besides certain other degrees, the Higher Education Commission, has given the equivalence of Master Degrees to the degrees held by the petitioners as well, which reads as follows:- "The Higher Education Commission recognizes all the Bachelor's degrees such as BE/B.SC.Engg/B.Sc. (Hons) Agri./B.Pharm/MBBS/BS(CS)/B.S. (IT)/BBA (Hons.) and LL.B or equivalent held after 4-years/8 semesters (16-18 weeks each) studies and upon qualifying minimum 124 to 135 credit hours with admission recruitment as Intermediate or equivalent involving 12-years schooling as equivalent to MA/MSc + 2-year MA./MSc.) in general stream for the purpose of employment in B-17 and for higher education". Undeniably, it is well within the domain of the Higher Education to render equivalence in favour of the educational degrees. The august Supreme Court of Pakistan while dealing with a similar issue in the case titled "Haji Nasir Mehmood v. Mian Imran Masood and others" (PLD 2010 Supreme Court 1089) has observed as follows:- "

S.10(1)

Powers and functions of Higher Education Commission

Scope

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". It is worth mentioning here that before recruitment of any candidate against any post, a lengthy process has to be adopted by the competent authority in this regard i.e. publication/issuance of advertisement, submission of applications by the candidates along with testimonials/attested copies of educational as well as professional qualification certificates, written test, scrutiny of the documents, etc. In the case in hand, it is not the stance of the respondent/authority that the petitioners have got themselves inducted in the department as Assistant Education Officers through any kind of concealment/mis-statement or on the basis of forged documents, whatsoever, rather it has been admitted by the Chief Executive Officer/District Education Authority (respondent No.1) present before the Court in person in categorical terms that process for recruitment was made quite in accordance with law, however it is his version that subsequently it transpired that the petitioners do not possess the requisite qualifications, hence they were ousted from their service, which itself does not seem plausible by any stretch of imagination. Even otherwise, it is settled principle of law that even if there was any defect in respect of appointments of the petitioners, even then, neither the petitioners could be held responsible for the same nor they could be penalized in this regard and the department could not be allowed to take benefit of its own oversight/lapse. Guidance in this regard is sought from the dictum of law laid down by the august Supreme Court of Pakistan in the case titled "Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others" (2015 SCMR 1418), wherein it has been held:-- "

Validity

Appellant had not procured her appointment letter through dubious means, and she could not be attributed any wrong on her part

Government department could not be allowed to take benefit of its own oversight, lapse or ignorance of law

" While dealing with a similar issue, in the case of "Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and 2 others" (1997 SCMR 15), the august Supreme Court of Pakistan has observed as follows:- "

Subsequent withdrawal of admission and act of giving his seat to another candidate on the pretext that respondent was given admission due to mistake of computer was not warranted

Respondent could not be deprived of vested right which he had earned on basis of act of Authorities

Principle of locus poenitentiae was although available on basis of act of Authorities whereby any order which was made by mistake could be undone yet such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual

Respondent having been granted admission and Roll Number issued to him after acceptance of requisite dues, had created vested right in his favour which could not be undone subsequently

". In the case of "Mian Tariq Javed v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others (2008 SCMR 598), It has been held as follows:- "West Pakistan General Clauses Act (VI of 1956), S.20

Appointment in violation of rules

Validity

Such appointment would be against the policy of law

Despite such legal defect in initial appointment, principle of locus poenitentiae would not permit competent authority to undo same after a long time and remove incumbent from service." In the case titled "Federation of Pakistan through Secretary, Government of Pakistan Establishment Division, Islamabad and another v. Flt. Lt. Farrukh Rashid (R) and another" (2008 SCMR 544), it has been held: - "

Vested right was created in favour of the appellant and principle of locus poenitentiae was in favour of appellant

Appellant deserved reinstatement both on ground of legitimate expectation and constitutional right of equality

Appellant was reinstated in service in circumstances".

8. There is no cavil to the proposition that dispensation of justice being sacred duty not only requires the Judicial or quasi-judicial authority but also cast equal responsibility upon public functionaries to act fairly, justly, without any discrimination. Undeniably, Usma Farooq who was also appointed along with the present petitioners as Assistant Education Officer by respondent No.1 having the similar qualification is still serving the department. Apart from this, Muhammad Munir, Habib-ur-Rehman, Shahbaz Ali and Sajid Ali, having the same qualification are also performing their duties on the said post in different districts, but the petitioners have been deprived from their service, hence, the case of the petitioners is at par with said Assistant Education Officers. In such backdrop, the petitioners also deserve the same treatment. Guidance in this regard is sought from the dictum of law laid down by the august Supreme Court of Pakistan in the case titled 'Nizamuddin and another v. Civil Aviation Authority and 2 others' (1999 SCMR 467):- "

Art. 25

Equality of citizens

Government is not supposed to discriminate between the citizens and its functionaries cannot be allowed to exercise discretion at their whims, sweet-will or as they please rather they are bound to act fairly, evenly and justly". In case of "Government of Khyber Pakhtunkhwa and others v. Adnanullah and others" (2016 SCMR 1375), the august Supreme Court of Pakistan has held at Paragraph 31 as follows:- "The record further reveals that the Respondents were appointed on contract basis and were in employment/ service for several years and Projects on which they were appointed have also been taken on the regular Budget of the Government, therefore, their status as Project employees has ended once their services were transferred to the different attached Government Departments, in terms of Section 3 of the Act. The Government of Khyber Pakhtunkhwa was also obliged to treat the Respondents at par, as it cannot adopt a policy of cherry picking to regularize the employees of certain Projects while terminating the services of other similarly placed employees." Even otherwise, the extraordinary constitutional jurisdiction of this Court is always exercised with compassion and this Court cannot disregard the fact that cancellation of appointments of the petitioners is an act violative to right of livelihood. In this respect, reliance can be placed on case titled "Dr. Naveeda Tufail and 72 others v. Government of Punjab and others" (2003 SCMR 291), wherein the august Supreme Court of Pakistan has held as under:- "Employment for a common person is a source of livelihood and a right of livelihood is an undeniable right to a person. If work is sole source of livelihood of a person, then right to work is not less than a fundamental right which has to be given protection." Apart from above, this Court is of the consistent view that the act of the respondent/authority is also against the dictates of substantial justice. It is settled principle of law that technicality of law and rule shall not operate as an absolute bar in the way of the Court as preference in this regard would defeat the substantial justice. Guidance in this regard is sought from the dictum of law laid down by the august Supreme Court of Pakistan in the case of Mst. Shahista Bibi and another v. Superintendent, Central Jail Mach and 2 others (PLD 2015 Supreme Court 15), wherein it has been held as follows:- "

Hardship case

Substantial justice by court-- Technicality of law

For doing substantial justice in the true sense in a hardship case, technicality of law and rule shall not operate as an absolute bar in the way of the court because giving preference to the technicality of law would defeat substantial justice".

9. For the foregoing reasons and also seeking guidance from the dictum of law laid down by the august Supreme Court of Pakistan in the cases supra, this Court is persuaded to accept both the constitutional petitions bearing Writ Petition No.67946/2017 as well as Writ Petition No.56565/2019. As a consequence whereof, the same are allowed.

10. Petitions allowed. ZC/M-9/L Petitions allowed.