2024 M L D 1892
[Balochistan]
Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ
BASIT ALI ---Petitioner
Versus
HIGHER EDUCATION COMMISSION (HEC) and others ---Respondents
C.P. No. 2081 of 2022, decided on 30th November, 2023.
(a) Constitution of Pakistan ---
----Arts.25, 27 & 199--- Educational Institution--- Policy decision ---Judicial review ---Scope ---
Change of evaluation/eligibility criteria for foreign scholarship of Law Graduates ---
Provincial autonomy--- Scope ---Doctrine of estoppel, applicability of ---Petitioner participated
in the test conducted by Higher Education Commission (HEC) and when he could not
achieve the desired result, he turned around and challenged the same on the grounds that the eligibility criteria was vague in nature and discriminatory ---Doctrine of estoppel by conduct
of the petitioner was fully applicable, therefore, after participating in the entry test conducted by HEC, he could not challenge the same on the ground of discrimination---Each Province is empowered to make its own decision regarding the subjects that fall within their respective
domain in accordance with its own circumstances ---Decision by one Province regarding any
matter cannot be cited as grounds for discrimination if another Province does not make the same decision ---Courts should generally refrain from interfering in policy decisions taken by
statutory bodies and authorities tasked with running the affairs of educational institutions and students, like the HEC as it needstechnical and professional expertise ---Courts are neither
equipped with such expertise nor possess the relevant experience to interfere in such matters -
--In the absence of un -rebuttable material on record regarding mala fide, the Court should not
conduct judicial review of an administrative order/action or intervene with the said order of executive authority which otherwise was free from any illegality or jurisdictional clause---Constitutional petition was dismissed accordingly.
Muzaffar Khan v. Government of Pakistan 2013 SCMR 304 and Federation of
Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 rel.
(b) Constitution of Pakistan ---
----Arts.175(2) & 199--- Constitutional jurisdiction of High Court ---Scope ---Overriding effect
of law over equity--- Courts should step in only when justiciable disputes or causes of action
between the parties involve a violation of the Constitution or the law, and not based on their whims, likes and dislikes, or personal feelings ---Good judge intelligently balances law and
equity to ensure that justice is tempered with mercy but never at the expense of overriding the letter of the law ---Compassion, which may be said to be a shade of, and have nexus to,
the rules of equity, cannot be given precedence and superseding effect over the clear mandate of law.
Syed Taqveem Shah for the Petitioner.
Naimatullah Achakzai and Kaleemullah Kaleem for Respondent (HEC).
Abdul Zahir Kakar, Deputy Attorney General and Munir Ahmed Sikandar, Additional
Advocate General for the State.
Date of hearing: 21st November, 2023.
JUDGMENT
ROZI KHAN BARRECH, J .---Through this petition, the petitioner has prayed as
under: -
"a) To direct the respondents Nos.1 and 02 not to issue merit list of selected
candidates till the pendency of this petition.
b) To further direct the respondents Nos. 01 and 02 to prepare the merit list on the basis of score/marks of the test conducted for the purpose of foreign scholarship and not on the basis of academic credentials as it amounts to discrimination with the law graduates of UOP Lahore.
c) to direct respondents Nos. 01 and 02 to submit the complete record of previous scholarships. If law graduates for LLM and the procedure on which the candidates were selected for the scholarship.
d) To direct the respondents Nos. 04, 05 and 06 to submit the record of LLB results of previous three years of both annual as well as semester system.
e) To further direct respondent No.03 to submit the record of the candidates who were sent to foreign countries on scholarship to study LLM and Phd.
f) To grant any other relief/reliefs, as deemed fit and proper in the circumstances of the in case in the interest of justice equity and fairplay."
2. The background scenario of this case, in a nutshell is that the Government of Pakistan
approved the Law Graduates Scholarships Programme for Balochistan to study abroad in September 2018 to award a total of 100 scholarships in batches over a period of five years, i.e., 2018, 2021 and 2022. The petitioner applied for the test for HEC Scholarship in 2021
and scored 72 marks out of 100, and after scoring good marks, the petitioner was not selected
for the foreign scholarship of LLM. The HEC again offered a foreign scholarship for LLM,
and the petitioner applied for the foreign scholarship of LLM on 01.12.2022, but he was also not selected for the said scholarship. It is further averted in the petition that the petitioner has done his LLB in the year 2020 from Quaid e Azam Law College Lahore, which is affiliated
with the University of Punjab. He has scored overall 1132/2100 marks in the annual
examination of LLB, but the eligibility criteria for foreign scholarship LLM and Ph.D.
mentioned in the advertisement are vague in nature, despite the fact that the petitioner appeared in the HEC's foreign scholarship examination 2021 and scored 72 marks out of 100 and in spite of scoring good marks the petitioner was not called just because of low grading marks criteria of the University of Punjab Lahore and due to low grading marks criteria of the University of Punjab Lahore the petitioner and all the other candidates who had graduated from University of Punjab Lahore are out of the race and cannot even think of getting selected for foreign scholarship LLM, which is discriminating in nature.
3. Notices were issued to the respondents, who submitted their separate para -wise
comments.
4. We have heard the learned counsel for the petitioner, learned counsel appeared on
behalf of HEC, the learned DAG, and AAG, and have also perused the available record with their able assistance.
5. After perusal of the para- wise comments of respondents Nos. 1 and 2, it revealed that
scholarships are awarded on merit, and candidates are shortlisted on the basis of their scores earned in the test conducted by HEC and academic credentials. The academic evaluation formula approved by HEC and the Project Steering Committee for determining the overall merit of a prospective applicant of LLM is as under:
Degree/Test Weightage %
Secondary School Certificate 15
Higher Secondary School Certificate 15
LL.B 20
Test 50
It further revealed from the para -wise comments of respondent Nos. 1 and 2 that the
petitioner applied in the LLM foreign scholarship category in 2021, and his overall score was 65.81 and accordingly at serial number 33 in the merit list of foreign LLM applicants. Since the petitioner was not on merit, therefore, he was not offered the scholarship.
6. Admittedly, the petitioner participated in the entry test for a foreign scholarship, but
he was not on merit; therefore, was not offered a scholarship. The fact remains that the
petitioner, according to his own version, is lower in merit. It is now a celebrated principle that one cannot blow hot and cold in one breath. The petitioner at one side, participated in the test conducted by HEC. When he could not achieve the desired result, he turned around
and challenged the same on the grounds that the eligibility criteria mentioned in the
advertisement were vague in nature and it is discrimination with all the candidates who
graduated from the University of Punjab Lahore. The doctrine of estoppel by conduct is fully applicable in the case of the petitioner, therefore, after participating in the entry test conducted by HEC, he cannot challenge the same on the grounds of discrimination.
7. As regards the question of discrimination, that the candidates with Local/Domicile of
Balochistan who studied under the University of Punjab Lahore, due to low grading marks criteria being annual exams, the petitioner and other candidates are out of race and could not get selected for a foreign scholarship of LLM and the candidates who had graduated from University of Balochistan and other law colleges of the country being semester system exam had high grading marks and they were selected for the foreign scholarship. It may be pointed out that each province is empowered and entitled to make its own decision regarding the
subjects that fall within their respective domain in accordance with its own circumstances. A
decision by one Province regarding any matter cannot be cited as grounds for discrimination
if another Province does not make the same decision. Reliance in this regard is placed in the
case titled as Muzaffar Khan v. Government of Pakistan (2013 SCMR 304).
8. Besides, the decision taken by the HEC is a policy one, and by now, it is settled law
in various jurisdictions that Courts should generally refrain from interfering in policy
decisions taken by statutory bodies and authorities tasked with running the affairs of
educational institutions and students, like the HEC. The rationale for the same is that matters of an academic nature necessitate the need for technical and professional expertise, which may only be attained as a result of specialization and the experience of working with and in educational institutions. Courts are neither equipped with such expertise nor possess the relevant experience to interfere in such matters.
The raison d'etre of courts is to settle disputes which come before them. It is not the
constitutional mandate of the courts to run and manage public or private institutions to micro -manage them, or to interfere in their policy and administrative internal matters. Courts
neither enjoy such jurisdiction nor possess the requisite technical expertise. Courts should step in only when justiciable disputes or causes of action between the parties involving a violation of the Constitution or the law, not based on their whims, likes and dislikes, or personal feelings. A good judge intelligently balances law arise, and equity to ensure that justice is tempered with mercy but never at the expense of overriding the letter of the law. Compassion, which may be said to be a shade of, and have nexus to, the rules of equity, cannot be given precedence and superseding effect over the clear mandate of law. Compassion and hardship, therefore, may be considered by courts for providing relief to an aggrieved person, but only when there is scope in the relevant law to do so, not in breach of the statute.
However, it does not mean that the Courts would not step in at the request of the
parties to ensure and ascertain whether or not minimum requirements of natural justice and principles of law have been complied with and whether a case of grave injustice has been made out. Also, in cases where a principle of law has to be interpreted, applied, or enforced regarding to or connected with education, the Courts would not hesitate to stop.
9. It is also a well- established principle of law that in judicial review of an
administrative order/action in the absence of unrebuttable 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 on a case reported as Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151.
10. There is no material available on record that HEC has fixed the policy of HEC for
Foreign Scholarship for Balochistan for some personal gain; therefore, the 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, or established
mala fide on the part of the respondents, this Court is not inclined to interfere in the matter.
Consequently, this constitution petition is dismissed.
SA/9/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,
let us know.