2023 PLP (C (PLC(CS)N)

ROZI KHAN BARRECH, J.

Through this petition, the petitioners have prayed as under:- "In view of above, it is, therefore, respectfully prayed that this Hon'ble the Court may kindly be pleased to declare the letters dated 2nd October, 2018 and 24th October, 2018 issued by respondents Nos.1 and 3 to be illegal, passed in excess of authority and jurisdiction, consequently the same may be set aside and the Finance Department may kindly be directed to grant M.Phil Allowance to the petitioners with all back benefits and any other relief, in the interest of justice, equity and fairplay".

2. The background scenario of this case in nutshell is that the petitioners have been working as Agriculture Officers in Agriculture Department. In the year 1995, the Government of Balochistan, Finance Department decided to grant M. Phil Allowance to the jobholders who have succeeded to get M.Phil Degree vide letter No.FDR/III-42195/1059-115 dated 28th May, 1995 to appreciate the services of employees serving with higher qualification and encourage the remaining employees to enhance their qualification and capabilities. It is further averred in the petition that the current authority of Higher Commissions has clearly endorsed that the B.Sc (Hon) Agriculture Degree (4 years) course after F.Sc awarded by Pakistani Agriculture Universities is recognized as equivalent to M.Sc for purpose of Higher Education and employment meaning thereby that the M.Sc (Hon) Degree is equivalent to the M.Phil by giving reference to the University Grant Commission 16m meeting held on 12.01.1986. The then University Grant Commission has decided that the M.Sc (Hon) in Agriculture discipline is equivalent to the M.Phil for all the purpose of the employment and other benefits, the wording of the University Grant Commission is plain, clear and self-explanatory. The petitioners submitted application for M.Phil Allowance before the Finance Department, Government of Balochistan, which is half of the P.M Allowance as per policy of the Finance Department and awarded the M.Phil Allowance since April, 2018 but unfortunately after the lapse of six months the Finance Department issued a letter on the force of letter dated 02.10.2018 issued by the respondent No.1 wherein despite of all documentary proofs arbitrarily declared that the Agriculture M.Sc is not equated to M.Phil for the purpose of M.Phil Allowance, without reading or appreciating the strong and convincing arguments. Lastly, the petitioners contended in their petition being aggrieved from the letter dated 02.10.2018 and 24.10.2018 issued by the respondent Nos.1 and 3, the petitioners have left with no other efficacious and speedy remedy available to them filed the instant petition.

3. The respondents submitted their para wise comments, denied the claim of the petitioners.

4. We have heard the petitioners in person along with learned AAG and gone through the available record with their assistance It is not disputed by the respondents that on 28.05.1995, the Finance Department, Government of Balochistan, issued a notification for grant of allowance for higher qualification i.e. P.Hd and M.Phil. The petitioners also produced letter No.8-35/11EC/A&AJ2012/2795 dated 01.06.2012 of Higher Education Commission is reproduced herein below:- "The Committee decided to equate M.Sc. (Hons) Agriculture Degree awarded by Pakistani Universities after B.Sc (Hons) degree (4 years course after F.Sc) in Agriculture as equivalent to At Phil for the purpose of job and other benefits etc". According to the Government of Balochistan, Finance Department, vide letter No.Nil dated 24.10.2018 the subject allowance is only granted to purely M.Phil, M.S and LLM degree holders and no other categories of degree (not even based on equivalency) are granted the referred allowance. The respondents also produced letter of Higher Education Commission, Islamabad, vide letter No.F.P.2-148/1-IEC/2018-19/151 dated 02.10.2018 which is reproduced herein below:- "Kindly refer to your letter No.FD(R-1)111- 4212018/2376 dated 30.08.2018 on the subject matter. 1 am directed to inform that Finance Department (Regulation Wing) vide O.M. No.3(6)1mp/2016-Vol-11-4 dated 04.01.2017 (copy attached) has already clarified that M.Phil allowance @ Rs.2500/- P.M is only admissible to those who possess the degree of M. Phil duly recognized by the Higher Education Commission. Other degree or qualification. whether having an HEC equivalence or not, is not admissible for the M.Phil allowance". Sd/-Faisal Nadeem) Accounts Officer (Imp).

6. According to the above letters, it is clarified that M.Phil allowance (ii) Rs.2500/- P.M is only admissible to those who possess the degree of M.Phil duly recognized by the Higher Education Commission. Other degree or qualification, whether having an HEC equivalence or not, is not admissible for the M.Phil allowance.

7. The Government has right to fix standards for allowance, Whether this right can be taken away, as is being claimed by the petitioners, on the basis of equivalence granted by HEC. To answer this proposition and binding force of the equivalence granted by its, provision of Section 10 of the Higher Education Commission Ordinance, 2002 are examined, subsection (1) of which is reproduced:- "

10. Powers and Functions of the Commission. (1) For evaluation, improvement, and promotion of higher education, research and development, the commission may Power of HEC is to the extent of higher education, its evaluation, improvement, promotion, along with research and development. NEC is a regulator for maintenance and improvement of higher education under the Federation. The clauses (a) to (y) under this subsection are describing the functions, which cannot be interpreted in any way to enhance the powers given by the legislature in this subsection. In other words the equivalence certificate issued under clause (9) of this subsection cannot be taken as binding advice to a Government for recruitment against any post or allowances. The clause (o) is also reproduced; (o) determine the equivalence and recognition of degrees, diploma and certificates awarded by institutions within the country and abroad. Purpose of this equivalence, essentially is promotion or improvement of higher education and not recommendation for granting any allowance. Clause (q) assigns a function of providing guidelines for Individual Institutions (Educational Institutions not the Government) for financial matters. Specific use of the words "Individual Institutions exclude the Government.

8. The equivalence granted vide letter No.8-35/HEC / A&A/2012/2795 dated 01.06.2012 by Higher Education Commission might be a recommendation for Individual Education Institution under clause (q), but cannot he held as binding for financial matter of the Government. Even otherwise the letter of Higher Education Commission, Islamabad, vide letter No.F.P.2-148/HEC/2018-19/151 dated 02.10.2018 clarified that "M.Phil allowance @ Rs.2500/- P.M is only admissible to those who possess the degree of M. Phil duly recognized by the Higher Education Commission. Other degree or qualification, whether having an HEC equivalence or not, is not admissible for the M.Phil allowance".

9. It is also well established principle of law that judicial view of an administrative order/action in the absence of un-rebuttable material on record regarding mala fide, the Court should not intervene with the said order of Executive Authority which otherwise is free from any illegality or jurisdictional clause. Reliance is placed a case reported as Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151.

10. There is no material available on record that the policy in which the allowances admissible by the Government of Balochistan to M.Phil and LL.M has been framed by the government for some personal gain, therefore, general allegation of mala fide is not sufficient for judicial review of executive action. In view of the above, in the absence of any illegality, arbitrariness and established mala fide on the part of the Executive, this Court is not inclined to interfere in the matter. This constitution petition is dismissed. ZC/117/Bal. Petition dismissed.