P L D 2017 Lahore 584 (PLP)

ATIR MAHMOOD, J.

Brief facts of the case are that the petitioner is a practicing lawyer. He wanted to get admission in Master in Law Program of Punjab University (hereinafter called "the university"). When he contacted the university, he was advised to first get Equivalence Certificate from the Equivalence Department of the university which act of the university has been challenged in this writ petition.

2. Learned counsel for the petitioner inter alia contends that the petitioner is a qualified person whose degrees are recognized by the Higher Education Commission as well as by Punjab Bar Council; that one university cannot be allowed to issue equivalence certificate with respect to the degree issued by its counterpart rather some other department (Higher Education Commission in this case) can only declare equivalence or otherwise of degrees issued by two or more universities; that the act of the respondent university is against the provisions of Legal Education Rules 2015 as well as Higher Education Commission Ordinance, 2002; that the functioning of Equivalence Department of the university is illegal and unlawful, therefore, this writ petition be allowed and the function of Equivalence Department of the University to issue Equivalence Certificates be declared illegal, void and unconstitutional.

3. On the other hand, learned counsel for the respondent university has vehemently opposed this writ petition while asserting that the respondent university under Section 28(2)(h) of the University of the Punjab Act, 1973 has all powers to recognize or otherwise the examination of other examining bodies as equivalent to the corresponding examinations of the university.

4. Arguments heard. Record perused.

5. The moot point in this case is as to whether the University of the Punjab can or cannot issue equivalence certificate to a degree issued by some other university of Pakistan. The whole reliance of learned counsel for the respondent is on Section 28 (2)(h) of the University of the Punjab Act, 1973 which is reproduced below: "

28. Powers and duties of the Academic Council-- (2) ...the Academic Council shall have the powers to:- (h) to recognize the examinations of other Universities or examining bodies as equivalent to the corresponding examinations of the University." The above provision of law undoubtedly empowers the respondent university to declare a degree of some other university as equivalent or otherwise to that issued by the respondent university. In case, degrees issued by other universities are not declared to be equal by the respondent university to those issued by it, the same treatment may be given by other universities to the degrees of the respondent university as well which will create frustration and chaos resulting in uneasiness and discomfort to the students of different universities as well as closing doors of education by one university to the students of other universities. Therefore, there must be some institution having status upper than that of the (sic) by different universities. Luckily, we have such institution in shape of Higher Education Commission who undeniably has not only such powers but is also exercising the same to recognize and issue equivalence certificate or otherwise. In my view, such powers can be best exercised by the Higher Education Commission having status upper than that of the educational institutions, i.e. universities and if each and every university is allowed to do so, this will not be beneficial to students of any of the universities and may curtail their right to higher education which is a basic and fundamental right of each and every citizen of the country and cannot be taken away under any provision of law.

6. Section 10(1)(o) of Higher Education Commission Ordinance, 2002 is very much relevant in this case which is reproduced below: "

10. Powers and functions of the Commission. (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;" (Emphasizes provided) Bare reading of above provision of law reveals that it is the domain of the Higher Education Commission to determine the equivalence and recognition of degrees issued by various institutions within and outside the country. But as noted above, Section 20(2)(h) of the University of the Punjab Act, 1973 gives such powers to the University of the Punjab as well. Here arises a question if there are provisions repugnant to each other in two statutes: one enacted through Provincial Legislation and the other through Federal Legislation, as to which legislation will prevail. The answer to this question is clearly and unambiguously given by the Constitution of Islamic Republic of Pakistan, 1973 in its Article 143 which reads as under: ` "

143. Inconsistency between Federal and Provincial law. - If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of repugnancy, be void." (Emphasis provided) In light of Article 143 of the Constitution, the Higher Education Commission Ordinance, 2002 being enacted through the Parliament (Federal Legislation) has precedence over the University of the Punjab Act, 1973 (Provincial Legislation) to the extent of repugnancy. In view of the aforesaid, I am of the considered opinion that the respondent university is neither competent nor required to issue equivalence certificate to a degree issued by other universities and if there is any need of recognition or equivalency of degrees of the universities, it can solely be done by the Higher Education Commission and not by any university including the Punjab University. Consequently, the equivalence department of Punjab University to practice a parallel system of equivalence leads to distortion within the equivalence scheme as provided by Higher Education Commission and amounts to usurpation of powers of the Higher Education Commission. This is even otherwise unconstitutional as the legislative field of Higher Education exclusively falls within the jurisdiction of the Federal Legislature which undisputedly prevails over Provincial Legislature. The judgment of this Court reported as Rais Munir Ahmed v. Returning Officer/Additional District and Sessions Judge, Sadiqabad and 4 others (2008 CLC 1111 Lahore) is referred in this regard.

7. For the aforementioned reasons, this writ petition is allowed and it is held that the act/function of the respondent university regarding issuance of equivalence certificates is illegal, void and of no legal effect. KMZ/W-5/L Petition allowe