2019 PLP 1662 (CLC)

AMIN-UD-DIN KHAN, J.

Through this I.C.A. filed under section 3 of the Law Reforms Ordinance, 1972 the appellant has challenged the judgment passed by the learned Single Judge whereby Writ Petition No.2166 of 2012 filed by respondent No.1 was partially allowed to the extent that degree of MDA granted by AIOU to the writ petitioner was declared equivalent to the degree of respondent University of the Punjab and relief of admission was not allowed vide judgment dated 4.3.2016.

2. Through the writ petition following prayer was made:- I. An appropriate writ may very kindly be issued. II. The decision of the respondent for not recognizing the MBA degree of AIOU as equivalent to his degree be declared as ultra vires. III. The Respondent No. 1 may very kindly be directed to grant the admission to the petitioner without any further test/interview etc. to mitigate the loss of three academic years inflicted to the petitioner. IV. The writ may very kindly be accepted with cost. V. Any other relief which this Hon'ble Court may deem expedient and proper be also granted accordingly."

3. Brief facts of the case are that the writ petitioner stated that in pursuance of an advertisement on the official website of the respondent No.1/appellant, he applied for the admission to the M.S/M.Phil (Management). The eligibility for the admission was 16 years education. The writ petitioner qualified the Graduate Assessment Test conducted by National Testing Service, Islamabad and was also declared successful in admission test conducted by the respondent No. 1 on 15.07.2009. The admission test result notification stipulated that as the writ petitioner got M.B.A. degree from AIOU, Islamabad, therefore, the interview on 25.07.2009 would be subject to production of Equivalence Certificate to be issued by the respondent. The writ petitioner applied to the respondent No. 1/appellant for the Equivalence Certificate after deposit of prescribed fee and writ petitioner was informed by respondent No. 1 vide letter C.No. D-263-EQ Cell dated 31.7.2009 that degree awarded by AIOU is not equivalent to that of the respondent No.l's degree due to lesser credit hours and resultantly the admission was refused. Letter issued to the writ petitioner is reproduced:- "Mr. Altaf Hussain C/o. Mateen Ahmed, House No.155-16-BI, Township, Lahore. Subject: EQUIVALENCE CERTIFICATE Reference your application dated 29.07.2008 on the subject. The two years degree of Master of Business Administration in Human Resource Management from Allama Iqbal Open University, Islamabad has not been declared as equivalent to M.B.A. degree of this University due to lesser credit hours. Deputy Registrar (Academic) For Registrar"

4. Learned counsel for the appellant argues that there are two separate independent jurisdictions, one jurisdiction of the University available under section 28(2)(h) of the University of the Punjab Act, 1973 (IX of 1973) whereas other "Powers and functions of the Commission" available under section 10(1)(o) of the Higher Education Commission Ordinance, 2002. States that each institution is vested with independent power and can be rightly exercised by it. Therefore, the learned Single Judge fell in error while considering that the powers through these two statutes are overlapping to each other, therefore, held that in accordance with Article 143 of the Constitution of Islamic Republic of Pakistan, 1973, the powers given through the Federal statute will prevail. Learned counsel for the appellant University has further referred the policy letter issued by the Higher Education Commission, appended with the appeal. We reproduce the relevant portion of Letter No.8-64/HEC/A&A/2016/3095 dated 22.4.2016 by Farrukh Raza, Assistant Director, Accreditation and Attestation (HEC) on the subject "Equivalence of Master of Science in Water Resources Engineering Degree awarded by University of Engineering and Technology, Lahore whereby while granting the equivalence certificate following rider has been noted:- "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 this Commission has no role in such issues." Relies upon "Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others" (PLD 2016 Supreme Court 637), "Sanchit Bonsal and another v. Joint Admission Board (JAB) and others" (2012 SCMR 1841), "University of Health Science, Lahore through Vice-Chancellor and others v. Arslan Ali and another" (2016 SCMR 134), "Shamas Textile Mills Ltd. and others v. The Province of Punjab and 2 others" (1999 SCMR 1477) and "Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others" (2013 SCMR 1687). Prays for acceptance of instant appeal while setting aside the impugned judgment dated 4.3.2016, the writ petition be dismissed.

5. On the other hand, learned counsel for the respondent No.1 argues that it is a public interest litigation, therefore, there was no need to file application before the University and get an adverse order before filing the writ petition. Supports the judgment passed by the learned Single Judge while accepting the writ petition. Learned counsel for respondent No. 1 has relied upon "Haji Nasir Mehmood v. Mian Imran Masood and others" (PLD 2010 Supreme Court 1089) "Rais Munir Ahmed v. Returning Officer/Additional District and Sessions Judge Sadiqabad and 4 others" (2008 CLC 1111).

6. Learned counsel for the Pakistan Bar Council also supports the judgment passed by the learned Single Judge.

7. We have heard learned counsel for the parties at length and gone through the record.

8. It is necessary to reproduce the provisions of both the statutes as under: University of the Punjab Act, 1973 (IX of 1973) 28(2)(h): Powers and duties of the Academic Council.

(2) Without prejudice to the generality of the foregoing powers and subject to the provisions of this Act and the Statutes, the Academic Council shall have the powers:- (a)

(b)

(c)

(d)

(e)

(f)

(g)

(h) to recognize the examinations of other Universities or examining bodies as equivalent to the corresponding examinations of the University;" Higher Education Commission Ordinance, 2002

10. Powers and functions of the HEC. (1) For the evaluation, improvement, and promotion of higher education, research and development, the Commission may

(o). determine the equivalence and recognition of degrees, diplomas and certificates awarded by Institutions within the country and abroad. While going through the arguments and the documents annexed with the appeal we went through the fact that in the Punjab University B.Sc. degree cannot be granted without studying and passing English as the English is a compulsory subject whereas we have gone through the Part-I and Part-II Mark Sheet certificate of the University of Peshawar of the year 1997-98. It shows that Chemistry, Botany and Zoology were studied by the students in both the years and compulsory subject of Islamic Studies without passing English they were granted the degree of B.Sc. but in the instant case if any student applies for admission in the M.Sc. degree course on the basis of B.Sc. from Peshawar University the University Academic Council will not recognize the examination of Peshawar University equivalent to the B.Sc. degree corresponding examination of the University. Hence, in the like manner every university has its own criteria for grant of Bachelor degree on the basis of 60 credit hours or 70 credit hours or less than 60 credit hours. For admission in the Master Program every University has its own criteria for grant of admission in the Master as Allama Iqbal Open University has 20 courses for MBA with 60 credit hours whereas Punjab University has 24 courses with 75 credit hours. This position was admitted by the learned counsel for Allama Iqbal Open University while saying that they have a mechanism of the entry test and interview but the marks of the entry test and interview are not included in the courses as well as credit hours. We are clear in our mind that the powers vested with the Punjab University under section 28(2)(h) of the University of the Punjab Act, 1973 are for the purposes of admission in University for further education and not for general issuance of equivalence certificate for which powers are available with the Higher Education Commission. In this view of the matter, the view taken by the learned Single Judge is not sustainable under the law. We hold that there is no repugnancy between the two statutes i.e. Higher Education Commission Ordinance, 2002 and the University of the Punjab Act, 1973 (IX of 1973), therefore, there is no question of application of Article 143 of the Constitution of Islamic Republic of Pakistan, 1973. We take benefit of judgment of august Supreme Court of Pakistan reported as "Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others" (PLD 2016 Supreme Court 637). Relevant paragraph is reproduced as under:- "Mere reference to Article 105 of the Constitution in section 11(8) does not take away the revisional powers of the Chancellor conferred on him under section 11-A of the Act. Section 11(8) provides that "the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution". This clearly manifests that the restriction is relatable to the function of the Chancellor whereas Section 11-A empowers the Chancellor to exercise his discretion, when he hears revision and or appeal. In other words, the Chancellor, who is Persona Designata under the Act, is conferred power but in a different capacity which cannot be termed identical to that of the office of the Governor. Looking from another angle, the Punjab Government has introduced the Punjab University Employees (Efficiency and Discipline) Statutes, 1975 (hereinafter referred to as Statutes of 1975. The Statute of 1975 is made applicable to the Universities Employees except holders of such posts as specified by the Chancellor and regulates the terms and conditions of the Employees of the Universities of Punjab. This Statute confers powers of appointments, promotions and actions against Employees of the Universities. Sections 12, 15, 17 and other provisions confer powers on the Chancellor for hearing Revisions and Appeals preferred by the Employees against the orders of the competent authorities. If Section 11(8) is interpreted in the manner as advanced by the learned ASC, it would mean that if an employee prefers a Revision or Appeal by invoking the provisions of the Act or Statutes of 1975, the Chancellor cannot pass an order unless he reverts back to the Chief Minister and or the Government for its advice. The case of University of Punjab v. Sardar Ali referred to hereinabove has focused this issue while interpreting section 11(8) of the Act and held that the Chancellor will apply his mind and decide the appeals or revisions independently and section 11(8) will not come in his way." Further reliance can be placed on a judgment from Indian Supreme Court reported as "Sanchit Bansal and another v. Joint Admission Board (JAB) and others" (2012 SCMR 1841). Para 19 of the judgment is reproduced:- "Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field and courts will not interfere in such processes. Courts will interfere only if they find all or any of the following: (i) violadon of any enactment, statutory Rules and Regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on, individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and nondiscriminatory, it cannot be described as arbitrary or capricious or Mala fide." Light can also be taken from another judgment of august Supreme Court of Pakistan reported as "University of Health Science, Lahore through Vice-Chancellor and others v. Arslan Ali and another" (2016 SCMR 134). We quote Paragraph No. 7 for ready reference:- "In the light of the above, it is a settled law that in matters of admission and examination in educational institutions; the University authorities concerned are the sole judges of the criteria laid down in the prospectus. The Courts in such matters desist from interfering due to the reason that it would create difficulties for the said institutions to run its affairs in an appropriate manner according to their rules and regulations. In this regard, this Court in the case of Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another (2005 SCMR 961) had held as under:- "

5. We have heard the learned counsel and have also gone through the relevant regulation. At the outset it may be noted that as far as the rules/regulations framed by the University Authorities for the purpose of conductive/regularizing examination etc., of University are concerned these are required to be interpreted by the University Authorities itself and Courts should avoid to interpret the same unless a case of grave injustice is not made out otherwise it would become difficult for University administration to run its internal affairs relating to examination, etc ." 7(sic) In the above perspective, we are inclined to set aside the impugned order by holding that the rules, regulations and criteria are to be interpreted by the University authorities itself and the Courts should avoid interpreting the same. Therefore, the High Court should have desisted from interpreting the rules and regulations set out by the University. Resultantly, this petition is converted into appeal and allowed." We are also fortified with the judgment of august Supreme Court of Pakistan reported as "Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others" (2013 SCMR 1687). Observation made in paragraph No. 20 thereof is relevant which is reproduced as under:- "Before dilating upon the arguments of the parties, it is considered appropriate to note that educational institutions are independent to follow policy for admission including affairs relating to changing conditions for endowment funds or fee, either under the policy given by the government or adopted by the college; and interference in the policy by the Court is possible only in exceptional circumstances."

9. For what has been discussed above, this appeal is allowed in the above terms and the judgment passed by the learned Single Judge dated 4.3.2016 is set aside. MH/U-4/L Intra court appeal allowed.