P L D 2018 Balochistan 59
Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ MUHAMMAD ABDUL QADIR--- Petitioner
Versus
PROVINCIAL ELECTION COMMISSIONER, BALOCHISTAN and 2 others ---
Respondents
C. P. No.125 of 2018, decided on 26th February, 2018.
(a) Elections Act (XXXIII of 2017) ---
----S. 2(xxxix) ---Senate elections ---Seat for 'technocrat' ---Eligibility ---Educational qualification
and experience of candidate---Person would fall within the ambit of 'technocrat' only when he
had req uired number of years of education in addition to the experience in the same discipline ---
Candidate contesting the election as 'technocrat' must possess both the qualifications contained in sub-Cls. (a) and (b) of S.2(xxxix) of Elections Act, 2017 i.e. the possession of a degree requiring
conclusion of at least 16 years of education recognized by the Higher Education Commission and twenty years' experience including a record of achievement at national or international level ---
Such experience must be related to the education and academic qualification obtained by the
person.
Ihsanul Haq Piracha v. Wasim Sajjad PLD 1986 SC 200 and Iqbal Zaffar Jhagra v.
Khalilur Rehman 2000 SCMR 250 ref.
(b) Elections Act (XXXIII of 2017) ---
----S. 2(xxxix) ---Senate Election s 2018---Seat for 'technocrat' ---Eligibility ---Educational
qualification and experience of candidate--- Nomination papers, rejection of ---In terms of S.
2(xxxix) of the Elections Act, 2017 the required number of years of experience must be related
to the ed ucation and academic qualification obtained by the candidate ---In the present case the
candidate contesting for seat of technocrat obtained a Bachelor's degree in law but was engaged in the business of supply of vehicles and construction, therefore, his ex perience had no nexus
with the discipline in which he obtained the degree ---Nomination papers of candidate in question
had been rightly rejected ---Constitutional petition was dismissed accordingly.
Muhammad Aamir Rana for Petitioner.
Haroon Kasi, Law Of ficer for Respondents Nos. 1 and 3.
Date hearing: 23rd February, 2018.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner Muhammad Abdul Qadir son of
Muhammad Ayub was aggrieved of the findings of the Provincial Election Commissioner given
while exercis ing the powers of Returning Officer for the Senate Election 2018 from Balochistan,
on 12th February 2018, whereby he rejected his (petitioner's) nomination papers. This order of rejection was appealed before the Tribunal constituted under Section 113 of the Elections Act,
2017 (The Act 2017) for the Balochistan Province, who vide order dated 17th February 2018
sustained the rejection and dismissed the appeal, while holding that the appellant (petitioner) not
covered by the term technocrat as defined under t he Act, 2017. The findings in appeal resulted in
filing of the instant petition.
2. The petitioner questioned both the orders while contending that his academic
qualification, and also his experience were not counted properly. That the material placed before the referred to forums was not considered in true sense. That the requirement as set out in clause (xxxix) of Section 2 the Elections Act 2017 neither required that the educational qualification of a person must have nexus to the field in which he had professional experience, thus the decision was with misinterpretation of law. That the fact was overlooked that the degree of Law obtained by him (petitioner), and the knowledge gained thereby was utilized when he act as businessman, and entered into contra cts and financial obligations with other parties. That the intent of the
Parliament that some seats be reserved in its upper house for eminent professionals who must have 20 years' experience, and also certain standard of educational qualification was misu nderstood. The prayer was to set aside the referred to orders, and on acceptance of his
nomination papers he be allowed to contest the Senate Elections, 2018 for the reserved seats of technocrat in Balochistan.
3. On notice the Law Officer of the Provincia l Election Commission appeared not only for
respondent No.1, but also for respondent No.3, the Election Commission of Pakistan, with the statement that he did not intend to file reply, rather would rely on the decision given by the Tribunal. Thus the parti es were heard on merit and also on law.
4. The learned counsel for the petitioner repeated the stance taken in the petition. During
course a numbers of documents were referred to show the experience gained by the petitioner when he (petitioner) started his career in 1994 on completion of his Bachelors. To clarify the
required period of education he referred to a degree issued in his favour on remaining successful in Bachelor of Arts in 1994, and the degree of LLB, Part -I, II and III, issued in his name in 1995,
1996 and 1997. It was contended that if counted he had seventeen years education at his credit, thus fulfil the first requirement. As far the second condition the learned counsel stated that he (petitioner) was in business since 1994. In support a cer tificate issued by his (petitioner's) father
Muhammad Ayub describing him (petitioner) the Chief Operating Officer of the United Automobiles for the period 1994 to 2004 was referred. Also a certificate issued by the Bank of Punjab describing the petitioner as sole proprietor of M/s United Autos Corporation New
Zarghoon Road, Quetta and maintaining a Current Deposit Account in the Bank since November 1996 to 2008.
5. The learned counsel pressed Article 25 of the Constitution while asserting that the
persons with less experience and educational qualification qualified in the other Provinces to
contest the election, but he was deprived of his right without any justifiable cause. To address the
reason for rejection of the nomination papers that having no nexus w ith his field of professional
education, it was contended that the term experience as used in the definition never meant to
require experience in the relevant field, rather the term experience have to be interpreted in its wider meaning consisting of any other field apart from the field in which he qualified in education. He further stated that the subject related to the business also included in the course of
LLB, thus he had the relevant knowledge, and his academic qualification have nexus with the
busine ss in which he was engaged. The learned counsel relied on:
Ihsanul Haq Piracha v. Wasim Sajjad PLD 1986 SC page 200
Dr. Syed Farooq Hassan v. Mumtaz Ahmed Khan 1988 CLC page 578
Dr. Aon Muhammad Khan v. Lt. -Gen. (Retd.) Saeed Qadir PLD 1987 SC page 490
6. In reply the Law Officer of the Commission only stated that he completely relied on the
decision given by the Tribunal.
7. In the case in hand the petitioner applied to contest election of the Senate on the seats
reserved for technocrat, while pressing to have required educational qualification and also the
experience. He described the work he performed as businessman since year 1997. The petitioner applied to contest the election as technocrat, thus to understand the term as used in the law and as
settled by now need deliberation. Section 2 clause (xxxix) The Elections Act 2017 defined the term technocrat as:
"Section 2(xxxix) -technocrat means a person who -
(a) holds a degree requiring conclusion of at least sixteen years of education recognize d
by the Higher Education Commission;
and
(b) has at least twenty years of experience including a record of achievement at the national or international level;"
The literal meaning of a Technocrat is an expert in science, engineering etc, who has a lot
of power in politics or in industry. While the term Expert as contained in Black's Law Dictionary is with the meaning a person who through education or experience has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact finder. In view of the term as contained in the dictionary it clarified that a technocrat would be a person having specified knowledge in education, including the experience developed by skill or knowledge in a particular subjec t. The experience is the practical knowledge which is always in
addition to the academic knowledge. Thus in view of the literal meaning, and also as defined in law a person would fall within the ambit of technocrat only when he has the education in additio n to the experience in same discipline.
8. Section 2 clause (xxxix) The Act 2017 consisted of two portions, containing two separate
requirements to bring a person within the ambit of Technocrat. The sub- clauses (a) and (b) are
not to be read in isolation, rather to be read co -jointly. In view the required academic education
recognized by the Higher Education Commission is in addition to the experience of at -least 20
years along with its recognition at national or international level and record of achievement of
the same are the mandate of law. In view it could safely be concluded that a candidate contesting the election as technocrat must possess both the qualifications contained in sub- clauses (a) and
(b) i.e. the possession of a degree required its conclus ion at least 16 years of education coupled
with recognition of Higher Education Commission and the twenty years' experience coupled with record of achievement at national or international level.
9. The Honorable Supreme Court while dealing with the issue i n 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 Constitution 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 specialized area of
knowledge, and practice in that particular specialization. In contr a 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 t he word qualification in Explanation (b)
emphasizes the practical side rather than the academic. We, therefore, agree with the finding that "a person without professional qualification but who is otherwise professionally competent, which professional compe tence is nationally or internationally
recognized, can become a "technocrat" if he fulfils the other conditions in the definition of technocrat.
The term technocrat further elaborated in the judument reported in 2000 SCMR page 250,
titled as lqbal Zaffar Jhagra v. Khalilur Rehman. It was held by their Lordships that:
" .`Technocrat' as defined in the Explanation means a professionally competent person whose professional competence has been recognised either nationally 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 filed and he fulfills other conditions mentioned in the definition. As against this a "professional" as defined in the Explanation (i) must possess a professional qualifi cation 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."
10. The law by now have been changed, thus to be read in view of the principles already
determined. While assessing the only logical conclusion which could be drawn that the
experience must be related to the education and the academic qualification obtained by a person who intended to contest the election as technocrat. In view of the settled principle and the conditions as contained in the law the case of the petitioner has to be assessed.
11. The petitioner stated to have a d ecree of Bachelor of Law after conclusion of seventeen
years, thus claimed to have no deficiency to the extent of the requirement as contained in sub-
clause (a) of clause (xxxix) of Section 2 the Election Act 2017. He referred the copies of the degree issu ed in his favour in 1997, when he successfully completed LLB Part -III. He further
referred to numbers of documents to show that after obtaining decree of Bachelor of Arts in 1995 he entered into his family business, and continued as such till established his own firm with the name Matracon Pakistan (Pvt) Limited, and also licensed by the Pakistan Engineering Council for carrying out construction. He pressed that his experience was to be counted from 1994 when he obtained the Bachelors degree recognized by t he Higher Education Commission.
12. The petitioner at the first instance pressed the degree obtained after completion of
education of Bachelor of Arts in 1994, from where his experience started, to be assessed on first instance. The requirement of law, a degree obtained on conclusion of at least 16 years of education, if considered, the papers annexed with the petition spelt out the facts that he (the petitioner) appeared in Secondary School Certificate Examination in 1988, while appeared in Intermediate Ex amination in 1990, and then he done his Bachelor of Arts in 1994. If counted
according to the calculation made by the petitioner himself the Bachelor Degree was obtained in 1994, thus covered a period of fourteen years. While the degree of Law obtained in 1997, it was in fact a postgraduate degree. In view the Bachelors of Arts done in 1994 unable to reach the
required period of 16 years, thus not benefited the petitioner. As far the degree of LLB was concerned, it was obtained in 1997, if period of experie nce counted therefrom it would be twenty
years in 2017, contrary to the case of the petitioner. For the reason it was rightly held by the Tribunal that accumulative years spent by the appellant in obtaining bachelor degree and LLB degree cannot be termed t o fulfills the requirement of clause (a). The appellant failed to produce
any decree requiring conclusion at least 16 years of education, that too, recognized by the Higher Education Commission.
13. The second hurdle would be the experience in the relevant field, to cover the learned
counsel for the petitioner pressed hard with reference to the papers annexed with the petition, and filed thereafter that the experience of the petitioner consisted of more than 20 years. The papers relied were either in the name of M/s United Auto Corporation or in the name M/s United Automobiles. According to his own assertion it was his family business, and he was participated therein, thus the experience gained had to be counted in his credit. Though the referred to papers described transaction of supply of vehicles to the Government Departments also, but most of the documents unable to disclose the name of the petitioner, nor able to describe the functions performed by him (petitioner) during all these years. While some of t he papers found to contain
signatures of the petitioner, if believed, his presence in the referred to business could be proved from 1999. If counted unable to meet with the requirement of 20 years.
14. As far the firm Matracon Pakistan (Pvt) Limited was co ncerned though the certificate of
incorporation also available in the case file with the date of its issuance as 25th August 2004, but
unable to contain the name of the petitioner to establish his connection with the Company. Further, reliance was placed o n the license issued by Pakistan Engineering Council, which
contained its date of issuance as 13th August, 2017. These documents were of less help to the case of the petitioner. It was for the reason that the required experience of 20 years if counted on
basis thereof, still found short. The petitioner failed to meet with the first condition of academic
qualification obtaining of a degree on conclusion of at least 16 years, also failed to establish the
experience obtained on basis of the referred to degree, thus the papers produced and pressed
were neither of any help, nor in absence of the required qualification was of any legal consequence.
15. The petitioner strongly objected the findings of the Returning Officer that the experience
claimed in the field o f business by the petitioner, had no nexus with the field of his professional
qualification, was concerned, it had already been determined in the preceding paras that while reading the sub -clauses co -jointly the only logical meaning would be the experience obtained in
the relevant field of the professional education he obtained. Admittedly the petitioner claimed his education qualification as of a law graduate: he in fact not pressed his Bachelor Degree in Arts which was with no specialization. Though the l earned counsel contended that the petitioner while
doing his business deals with clients and consultants, and with third party, and used his educational qualification when entered into contracts, but it remained mere an assertion in absence of necessary de tails with supporting documents. Admittedly the petitioner obtained a
degree in law in 1997, according to his own assertion he remained engaged in business of supply of vehicles, and now he was doing business of construction. If believed it would not improve his case, as it has no nexus with the discipline in which he obtained the degree. As far his dealings in legal and contractual matters on behalf of the Matracon Pakistan (Pvt) Limited was concerned,
also unable to meet the requirement of twenty years of experience, as the firm was registered on
25th August 2004.
16. In view the Returning Officer was correct in its findings; the experience as claimed prima
facie has no nexus with his contractual or professional education i.e. Law, while the Tribunal in detail deals with all the issues before it and arrived to a correct decision. No illegality or
irregularity pointed out in both the orders which resulted in deprivation of the petitioner from his some fundamental right, thus needed exercise of extraordinary jurisdiction by this Court and to reverse the findings of the referred to forums. For the reasons the petition is dismissed.
MWA/18/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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