2018 C L C 820
[Balochistan]
Before Mrs. Syeda Tahira Safdar, and Zaheer -ud-Din Kakar, JJ
ISLAM HUSSAIN---- Petitioner
Versus
ELECTION COMMISSION OF PAKISTAN through Secretary and 2 others ----
Respondents
C.P. No.113 of 2018, decided on 26th February, 2018. Elections Act (XXXIII of 2017) ---
----S. 2 (xxxix) ---Senate elections ---Seat for 'technocrat' ---Eligibility ---Educational qualification
and experience of candidate---Candidate for seat of technocrat at the first instance had to
establish th at he held a degree acquired by him on conclusion of at least sixteen (16) years of
education, which degree was duly recognized by the Higher Education Commission; Secondly the candidate had to show his experience consisting of minimum period of twenty yea rs with a
record of achievement either of national and international level ---Such period of twenty years
had to be counted from the degree acquired on conclusion of at least sixteen years of education---Requirement of minimum 20 years of practical experien ce/knowledge gained must be on basis of
the academic education, i.e. the experience must have nexus with the degree obtained by the candidate.
Ahsan Rafiq Rana, Abdul Sattar and Hadi Shakil for Petitioner.
Haroon Kasi, Law Officer Election Commission of Pakistan for Respondent No.1.
Date of hearing: 22nd February, 2018.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioner Islam Hussain son of Islam
Saleem aggrieved of the order dated 12th February, 2018 passed by the Provincial Election
Commissioner, Ba lochistan Quetta, in exercise of his powers as Returning Officer for the Senate
Election, 2018 from Balochistan Province. The nomination papers submitted by him (petitioner) were rejected for the reasons that having no experience in the field of law, the f ield of his
professional studies/ qualification. It was with the observation that the requirement of 16 years of education was also not fulfilled. An appeal was preferred before the Tribunal, constituted under Section 113 of the Elections Act, 2017, though entertained, but declined vide order dated 16th
February, 2018 for the reasons that the appellant (petitioner) failed to point out any irregularity in the impugned order. The petitioner now before this Court to question both the orders in exercise
of its constitutional jurisdiction for want of any remedy, as the order passed by the Tribunal was
final within the mandate of Section 113 (2) The Elections Act, 2017 (The Act, 2017).
2. The petitioner questioned the impugned orders while contending that the Returning
Officer and also the Tribunal misread the provisions of Section 2 clause (xxxix) the Elections
Act, 2017. That the degrees obtained by him (petitioner) on completion of his education were disbelieved for want of verification of the Higher Education C ommission, it was neither legal,
nor just, as the Returning Officer and the Tribunal could have verified the same, but avoided. That the fact was ignored that he (petitioner) had already applied the Higher Education Commission on prescribed form for verifi cation and for equivalence certificate, and the time of
forty five (45) days consumed in the process was beyond his (petitioner's) control, thus no adverse order was justified. That there was miscalculation of the period spent in education. That the condit ion of experience in the relevant field was wrongly determined, and it was overlooked
that he (petitioner) obtained the Master's degree in field of Admiralty, which deals with Finance in Shipping Sector. That the fact that since obtaining his basic qualifi cation i.e. graduation in
1995, he joined as Director Projects/Finance in the Security Packers, dealing with the shipping Sector, thus the requirement of twenty (20) years of experience was fulfilled. That the papers placed before the Returning Officer and the Tribunal were not considered, nor the law was
appreciated in its true sense. The petition was with the prayers to set aside the impugned orders, and to accept his nomination papers, and allow him to contest the Senate Election, with direction to the C ommission to include his name in the list of eligible candidates for reserved seats of
Technocrats from the Province of Balochistan.
3. The learned counsel for the petitioner was heard at length. Most of his submissions were
in repetition to the stance alr eady taken in the petition, but with reference to the papers annexed
and filed thereafter. The learned Law Officer appearing for respondent No.1 Election Commission of Pakistan was with the statement that he did not intend to either file the reply or to make any submission, rather would rely on the judgment passed by the Tribunal on 16th
February, 2018.
4. The petitioner applied the Commission to contest the election held for the Senate for the
seats reserved for Technocrats from the Province of Balochistan . He claimed to have requisite
education, and the required experience to contest the election. As is request was declined by the forums available under the law and decisions whereof were final as mandated by Section 113, Elections Act, 2017, thus the petit ioner had to establish serious violation of law and deprivation
of him from the fundamental right guaranteed by the Constitution which necessitated exercise of the extra ordinary jurisdiction under Article 199 of the Constitution.
5. The term Technocrat defined by Section 2 (xxxix) the Elections Act, 2017:
"Section 2 (xxxix) --- technocrat means a person who
(a) holds a degree requiring conclusion of at least sixteen years of education recognized by the Higher Education Commission; and
(b) has at least twen ty years of experience including a record of achievement at the
national or international level;"
The basic requirement to bring a candidate within the ambit of technocrat to contest the
election for the Senate would be holding of a degree which required at -least 16 years education
for its conclusion. It is with an addition that such degree must be rec ognized by the Higher
Education Commission. While the second requirement is to have at least twenty (20) years of
experience. It is with an addition of having record of achievement National or International level
of such experience. The field in which such experience is required not specified in the law.
6. For better understanding the verdict given and the principle already determined by the
Courts must be in sight. The Honorable Supreme Court while dealing with the question of
election of Members of the s eats reserved for Ulma, Technocrats and Professional was with the
decision in the case Ihsanul Haq Piracha v. Wasim Sajjad, reported in PLD 1986 SC page: 200, held that:
"It follows from the above discussion that where profession or professional has been defined, that definition fully governs the situation. Where it does not, and resort has to be had to its ordinary plain meaning then it should be borne in mind that it is "vague and neither static nor rigid" in what it conveys. Having found a place in the C onstitution itself
it is necessary that it should retain its flexibility and adaptability. The scheme of the Explanation under consideration appears to be to emphasize in Explanation (c)
professional qualification, its recognition and experience in a speci alized area of
knowledge, and practice in that particular specialization. In contra distinction to it there is
no mention of qualification in Explanation (b). It talks of professional competence and experience and expertise for administering or managing a unit. Expert has been defined in Black's Law Dictionary as "one who is knowledgeable in specialized field that knowledge being obtained from either education or personal experience . one who by
habits of life and business has particular skill in forming opinion on subject in dispute". Experience and expertise and absence of use of the word qualification in Explanation (b) emphasizes the practical side rather than the academic. We, therefore, agree with the finding that "a person without professional qualifi cation but who is otherwise
professionally competent which professional competence is nationally or internationally recognized, can become a "technocrat" if he fulfils the other conditions in the definition of technocrat."
While in case of Iqbal Zaffar Jh agra v. Khalilur Rehman, reported in 2000 SCMR page
250, the term technocrat was analyzed and it was held:
"--- 'Technocrat' as defined in the Explanation means a professionally competent person
whose professional competence has been recognised either nati onally or internationally
and he has at least fifteen years' of experience and expertise at a level which may not be the top position but should be above the ordinary level. Therefore, a person may not possess a professional qualification but he may still be covered by the above definition of the 'Technocrat' on the basis of his professional competence and expertise in any specialized field and he fulfils other conditions mentioned in the definition. As against this a "professional" as defined in the Explan ation (i) must possess a professional
qualification which is recognized either nationally or internationally (ii) is a man of distinction (iii) has practical experience in some specialized area of knowledge at a high level, (iv) and has been practicing in his specialization making it a main source of his
vocation or employment."
The term Technocrat as defined in previous law was some what different to that of
present law i.e. the Elections Act, 2017. As by now not only the academic qualification
consisting of specific period is mandatory in addition to the experience of a specified time with
record of achievement of national or international level.
7. Thus the petitioner at the first instance have to establish that he holds a degree acquired
by him on concl usion of at -least sixteen (16) years of education, that too, duly recognized by the
Higher Education Commission. While secondly have to show his experience consisting of
minimum period of twenty years with a record of achievement either of national and international level. In view of the absence of explanation about nature of the experience some
deliberation is required. Plain reading of clause (xxxix) of Section 2 the Elections Act, 2017 described that though two distinct conditions are contained in sub -clauses (a) and (b), but they
are in aid of each other, as they are with the term "and", thus required to be read co- jointly. Sub-
clause (a) states about the academic qualification, while sub -clause (b) contained the experience
i.e. the practical knowledge and skill gain through doing something for a period of time. Thus if both the requirements read co- jointly the only possible inference which could have been drawn
that the practical knowledge gained must be on basis of the academic education. Thus the exper ience must have nexus with the degree obtained by a candidate.
8. In the case in hand the petitioner claimed to have done his Bachelors from the
Pennsylvania. State University USA from 1991 to 1995, and completed his Law from the Tulane University USA in 2 002, thus if counted from his initial education it covered a period of sixteen
(16) years. His case revolved on this assertion. Contrary to it the ground F taken in his petition, he was with the assertion that he done his O level after attending school from 1978 to 1990, the
period was counted as eleven years, and Bachelors in 1995. He was with the assertion that the period consumed in Bachelors consisted of four years, but counted the same as five years, for the reason he obtained some minor degree (diplom a) in addition thereto. In view of his own assertion
if the period counted it consisted of fifteen years. The minor diploma as per the said certificate, available in the case file, was also for the year 1995. He admitted to have obtained the degree of law in 2002. If his assertions believed failed to cover the period and to meet with the
requirement.
9. Apart from the requirement of holding a degree, its recognition by the Higher Education
Commission was the second requirement. Still the burden was on the petitioner. The contents of the impugned orders spelt out the facts that the relevant papers pertaining to his educational qualification were not produced in original neither before the Returning Officer, nor before the Tribunal. The requisite recognition f rom the Higher Education Commission was also missing.
Though the original degrees of Bachelors and Masters were produced before this Court, which were returned after perusal, but were of less help for want of necessary verification. The learned counsel for the petitioner in order to meet the deficiency referred to the letters issued by the
Higher Education Commission of even date i.e. 13th February, 2018. The letters though described the Universities Pennsylvania State University, USA and Tulane University,
Louisiana, USA, as accredited Universities of USA, and also recognized it's on campus degrees. These letters unable to improve the case of the petitioner. As the referred to letters only affirmed
the status of the Universities without any recognition of his degrees. The letters were with notes
that:
"Please note that as per policy, equivalence/ recognition of degrees can only be determined on individual merit and upon submission of details on the prescribed equivalence pro forma available at HEC Website ht tp://des.hec.gov.pk/ along with all
supporting documents."
10. Another letter was also produced by the petitioner issued by the Acting Director
(Coordination) on behalf of the Government of Pakistan Inter Board Committee of Chairmen dated 20th February 2018. It was for verification of the status of IGCSE/GCE 'O' Level Certificate. It described the study duration of IGCSE/GCE 'O' Level as three (03) years after passing class VIII. And also that IGCSE/GCE 'O' Level is three (03) years scheme of studies and the students appear in Cambridge International Examination in 'O' Level II and III. It also
described the duration of study, but with no verification or equivalence. A note contained in the letter that "the equivalence certificate would be given on submissio n of original documents along
with prescribed equivalence form". Thus all the three letters issued by the authorities concerned were of no help to the petitioner, nor improve his case. In view the degrees on which the petitioner based his case were not ver ified as required, thus neither could be believed, nor the
relief could be allowed on basis thereof.
11. As far the second sub- clause was concerned, it pertained to experience for a period of
twenty years. This experience must be in the relevant field of education as earlier determined. Thus the period of twenty (20) years have to be counted from the degree acquired on conclusion of at -least sixteen years of education. Though the petitioner placed before the court a
verification, and an affidavit issued by some officer of the Security Packers and Al -Hamd
International Container Terminal (Pvt.) Limited to establish of having experience since 1995. If these letters in their present forms were believed, even then not beneficial. Firstly for the reason that the petitioner was not in possession of the required educational qualification in the year 1995, rather, according to his own assertion completed the period of 16 years of education when completed his Masters in 2002. Thus at the most his period of experience could be counted from the year 2002. The second part of the requirement that is the record of achievement was also missing in the instant case. The letters issued by the Security Packers and Al -Hamd International
could not be equated to the record of achie vement. The petitioner might have placed something
else which could describe the achievement either of national or international level in his favour, but nothing produced at any stage. In addition nothing placed before the Court from which it could be ascertained that the described experience was in same discipline in which he obtained his academic education. Thus the petitioner failed on both counts.
12. The Returning Officer (Provincial Election Commissioner) in short, while the Tribunal in
detail conside red all the relevant facts and the papers placed before them, and in correct
appreciation of the facts and the law arrived to a decision not suffered from any errors. Thus in
absence of any illegality or serious irregularity on part of the referred to forums there is no occasion to exercise the extra ordinary jurisdiction, by this Court, and to reverse the findings. The petition is dismissed for the reasons.
MWA/22/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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