2021 PLP (C (PLC(CS))

WIQAR AHMAD, J.

This order is directed to dispose of W.P. No. 466-M of 2019 filed by the petitioner against respondents under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. Petitioner applied to the post of Certified Teacher (hereinafter referred to as "CT") in BPS-15 in response to the advertisement published in daily newspapers wherein the cut-off date for filing the applications had been mentioned as 20.12.2017. The petitioner had opted for appointments in five schools according to the policy, but could not be appointed. The petitioner has however claimed that he was not placed in his due position in the merit list as the additional marks for having M.ED degree had been denied to him.

3. Respondents were summoned, who submitted their para-wise comments, wherein they took the plea that the petitioner was low in merit and therefore could not be appointed. Respondents have also contended in their comments that the additional marks for M.ED degree could not be given to the petitioner for the reason that he had not obtained the said qualification by the cut-off date fixed for filing applications for appointment on the subject post. The said marks, according to the respondents have rightly been denied to the petitioner.

4. Learned counsel for petitioner submitted during the course of his arguments that the petitioner had qualified his Master Degree In Education (M.ED) before recruitment process and submitted its testimonial thereof at the time of interview but marks for the said qualification were not counted in his favour, which had brought his score down to 132.6. Had this score of the M.ED degree been counted in favour of the petitioner his marks could have touched 136.01 and then he would have acquired a better place in merit and may have been appointed on the post. The learned counsel placed reliance on the judgment of the Hon'ble Apex Court in the case of "Jehanzeb Malik v. Baluchistan Public Procurement Regulatory Authority" reported as "2018 SCMR 414".

5. The learned Adll: A.G. submitted in rebuttal that on the cut-off date the petitioner had not at all qualified the M.ED course and therefore marks for the same could not be awarded to him.

6. We have heard arguments of learned counsel for the petitioner and learned Adll: A.G. for the official respondents and perused the record.

7. Perusal of record reveals that the sole question for determination before this Court in the instant case is, "whether the marks for the qualification of MED degree had rightly been denied to the petitioner by the respondents in the final tally of his marks"?

8. The applications for appointment against the post of CT were invited through issuance of proclamation in the daily newspaper by the office of District Education Officer (Male) District Dir Lower, wherein the cut-off date was given as 20.12.2017. The petitioner had qualified his degree of M.ED on 04.10.2018 while the testimonial was issued to him on 15.02.2019. It seems that on the cut-off date he was a student of M.ED and after a year of the said date he completed his course and obtained the degree later. In such a situation, the claim of the petitioner that the marks of M.ED degree should have been counted towards his total marks, was neither reasonable nor justified in the circumstances of the case.

9. The learned counsel for petitioner placed reliance on the judgment of Hon'ble apex Court rendered in the case of "Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others" reported as "2018 SCMR 414". The relevant Paras of the said judgment are reproduced hereunder for ready reference;

7. There is no denial of the fact that the petitioner was at the top of the list on the basis of his performance in the test and interview. Further, he was selected on the basis of his MBA degree. The documents examined by us also indicate that the petitioner has completed his degree in January, 2014 with an cumulative Grade Point Average ("GPA") of 3.19. However, the degree was formally issued on 7th of March, 2015 for reasons beyond the control of the petitioner. The degree itself shows that the petitioner had successfully completed the requisite course work and examination in the academic year 2014. The transcript issued by the Institute of Business Administration, Karachi also verifies the fact that the petitioner had completed his degree in January, 2014. That being the case, Respondents Nos.1 and 2 were Justified in considering the petitioner as duly qualified on the basis of his MBA degree from IBA.

8. The fact that the degree was formally issued in year 2015 is not in the facts and circumstances of the present case of much significance. The degree itself shows that the petitioner had successfully completed the requisite course work and examination in the academic year 2014. This is further substantiated by the Transcript of Credit issued by the Institute of Business Administration, Karachi which shows that the petitioner had completed his degree in January, 2014 with an cumulative GPA of 3.19. The petitioner in the said case had applied for the post of Director (Monitoring and Evaluation) in Balochistan Public Procurement Regulatory Authority, in response to an advertisement inviting applications for the post till 28.08.2014. The petitioner in the said case had completed his degree of MBA in January 2014, but the degree could not be issued to him formally, before 7th of March 2015. It was clear from the facts of the said case that the petitioner was qualified for the subject post on the cut-off date of 28.08.2014. The non-issuance of degree or transcript was held to be an act on part of the educational authorities and beyond the control of the petitioner and that was the reason that the Hon'ble Apex Court held that when he was able to produce the degree before the appointing authorities at the time of interview, then it should have been considered. The said case was distinguishable from the facts of the instant case where the petitioner had not completed his course and had not even attempted his final examination on the cut-off date of 20.12.2017. It is apparent from record that on the said date he was still studying his M.ED course. Extending ratio of the judgment of Hon'ble apex Court in Jahanzaib Malak's case to the case in hand, would result into illogical outcomes and uncertain situations for the recruitment authorities. The underlying reason in the judgment of the Hon'ble apex Court, is also not available in the case in hand as the case of petitioner was not the one where issuance of degree or transcript had been delayed by the examining authorities, but in-fact he had not completed the course and was not qualified for the grant of the degree on the cut-off date. In quite a similar situation arising in the case of "Haneefullah v. Government of Khyber Pakhtunkhwa and others" ("W.P. No. 213-M/2019") this Court has held as follows; "Thus, the legal position is clear that if on the cut-off date for receiving the application, the petitioner does not qualify the essential condition, however, due to an official act or omission, he could not formally receive the certificate or degree of the essential qualification, then his candidature cannot be regretted on the said score. However, if by the cut-off date for receiving the application for a particular post, the candidate has not passed the essential qualification, then he is not eligible to apply for the said post." The judgment of Hon'ble Supreme Court of Pakistan rendered in the case of "Asif Hassan and others v. Sabir Hussain and others" reported as "2019 SCMR 1720", the Hon'ble Court held as follows; "However, in cases where the eligibility of a public servant is under attack on the ground that such public servant did not fulfill the substantive condition of eligibility to such office on the cut-off date prescribed in the process, then such violation of the substantive statutory requirement could not be overlooked merely on the ground that pending action in the Court such government servant has met the required condition of such office." Since the petitioner had not completed the course and was not qualified for the grant of degree of M.ED on the cut-off date given in the advertisement, marks for the said degree has rightly been denied to the petitioner which action of the respondents cannot be termed as unlawful or violative of the rights of the petitioner.

10. In light of what has been discussed above, the petition in hand was found meritless and same is accordingly dismissed. ZC/251/P Petition dismissed.