2010 Y L R 3144
[Quetta]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
MUNIR AKHTAR AWAN and others ---Petitioners
Versus
KHALID MANSOOR and others ---Respondents
Constitutional Petitions Nos. 143 of 2003 and 334 of 2008, decided on 4th August, 2010.
(a) Al-Khair University of Azad Jammu and Kashmir Act (XXVIII of 1994) ---
----Preamble ---Establishment of university --Recognition of degree by Pakistan ---Scope ---Degree
of Al -Khair University of Azad Jammu and Kashmir has been reco gnized by Higher Education
Commission of Pakistan as equivalent to degrees of other universities of Pakistan.
(b) Balochistan University Act (III of 1996) ---
----S.31---Affiliation of campus ---Object, purpose and scope ---Affiliation of campus with
Balochistan University does not mean that it has become part of the University of the cities
having jurisdiction in the area ---Purpose for affiliation is to have a check on the standard of
education of that campus.
(c) Legal Practitioners and Bar Councils Act (XXXV of 1973) ---
----S.26---Balochistan Bar Council Rules, R. 3 ---Balochistan University Act (III of 1996), Ss. 5,
27 & 31 ---Constitution of Pakistan (1973), Arts.25 & 199 --Constitutional petition ---
Discremination ---Enrolment as advocate ---No Object ion Certificate from Balochistan
University ---Impact --Petitioners obtained LLB. degrees from Al -Khair University of Azad
Jammu and Kashmir campus at Quetta but Balochistan Bar Council declined to enroll them on
the ground that the University was not recogn ized by Pakistan Bar Council ---Plea raised by
petitioners was that Balochistan University had issued `No Objection Certificate' to the
University for establishing its campus at Quetta ---Validity ---By not allowing petitioners to apply
to Bar Council, it amo unted to discrimination, because all of them were getting their legal
education from Al -Khair University of Quetta before the resolution passed by Pakistan Bar
Council ---Petitioners were under bona - fide impression that the University was duly affiliated b y
University of Balochistan -It was fault of Al -Khair University on the one hand, by not properly
applying to Balochistan University for affiliation and on the other hand Balochistan University
was at fault by simply issuing 'No Objection Certificate' for e stablishment of campus ---Though
No Objection Certificate was not equivalent to affiliation but still it had an impression on the raw
minded students that campus at Quetta was working legally and lawfully ---For mistaken act or
fault of both the Universities , petitioners who had already got admissions or obtained degrees
therefrom before the resolution of Pakistan Bar Council, could not be penalized ---High Court, in
exercise of Constitutional jurisdiction, directed the Bar Council to entertain applications of
petitioners for enrolment ---Petition was allowed accordingly.
Shahid Mehmood and others v. Pakistan Bar Council and others PLD 2002 Lah. 67
distinguished.
S.A.M. Qadri, Sabdar Jan, Shims ud -Din for Petitioners (in Constitutional Petition No. 143 of
2003).
Hadi Shakeel Ahmed, Ali Ahmed Kurd and Rauf Atta Standing Counsel for Respondents (in
Constitutional Petition No.143 of 2003).
Shamas -ud-Din for Petitioners (in Constitution Petition No. 334 of 2008).
Hadi Shakeel Ahmed Ali Ahmed Kurd and Rauf Atta Standing Counsel for Respondents (in
Constitution Petition No.334 of 2008).
Date of hearing: 29th April, 2010.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---Both the petitions are identical, therefore, we intend to
dispose of the same through a commo n judgment. Brief facts of the petitions are that the
petitioners got admission in Al -Khair University, Campus at Quetta. After obtaining their LL.B
Degrees, they applied to the Balochistan Bar Council for enrolment as an advocate under the
Legal Practitio ners and Bar Councils Act, 1973. Their applications were turned down for the
reasons that Al -Khair University has not been recognized by Pakistan Bar Council for the
purposes of enrolment as an advocate as per Rule -3 of Bar Council Rules. Feeling aggrieved
from said decision, the present petitions have been filed.
Learned counsel for petitioners submitted that Al -Khair University has been recognized by
Higher Education Commission (HEC) and in this behalf they have relied upon certificate from
the Commissi on. They further alleged that the University of Balochistan has also issued No
Objection Certificate for the purpose of establishment of Campus of Al -Khair University at
Quetta. According to them, since the University is recognized, therefore, the LLB Degr ees
obtained by them should have been considered by the Provincial Bar Council for enrolment as an
Advocate. Reliance has been placed on a case titled Shahid Mehmood and others v. Pakistan Ear
Council and others reported in PLD 2002 Lah. 67.
Respondents Nos.1 to 4 have vehemently opposed the contention of learned counsel for
petitioners and have stated that Al -Khair University and its Campus at Quetta are not recognized,
therefore, any degree obtained from said institution is not legal, as such, petitione rs cannot be
enrolled as Advocates. They have relied upon resolution, dated 24 -3-2001 passed by Pakistan
Bar Council in its meeting wherein it has specifically been held that Al -Khair University has not
been recognized by Pakistan Bar Council.
We have he ard learned counsel for the parties and have perused the record. It is an admitted fact
that Al -Khair University has been established under the Act No.XXVIII of 1994 of Azad Jammu
and Kashmir Assembly. The degree of said University has been recognized by H igher Education
Commission of Pakistan as equivalent to degrees of other Universities of Pakistan. Certificates
issued by the Commission are a proof of the fact, therefore, undoubtedly a degree obtained from
Al-Khair University, Azad Jammu and Kashmir is e quivalent to any degree granted by any
recognized University in Pakistan.
As far as Campus of Al -Khair University in any City of Pakistan is concerned, it is true that Al -
Khair University has no territorial jurisdiction within Pakistan, therefore, in cas e the University
intends to establish its Campus in Pakistan, it shall first to apply to a University of the City
having territorial jurisdiction for affiliation of its campus.
The University of Balochistan has got powers to affiliate or disaffiliate the educational
institutions in accordance with section 5 of the Balochistan University Act, 1996, which is
reproduced herein below: --
(1) The University shall exercise the powers conferred on it by or under this Act, within
the territorial limits of the Province of Balochistan and in respect of the Educational
Institutions lawfully functional within the Province of Balochistan imparting education of
academic standards prescribed by the University:
Provided that government may in consultation with the Un iversity, by general or special
order, modify the extent and scope of the aforesaid powers of the University with regard
to territorial limits of Educational institutions.
(2) No educational institutions situated within the territorial limits of the Univ ersity shall,
save with the consent of the University and the sanction of government, be associated in
any way with or seek admission to the privileges of any other University.
(3) The University may admit to its privileges under prescribed conditions, a n
educational institution falling within the territorial limits of another University, whether
inside or outside Pakistan: Provided that the prior consent of such other University and
the sanction of Government is obtained."
Said powers have to be exerci sed keeping in view the Provisions of sub -clause (g) of section 4
and sub -clause (d) of subsection (1) of section 27 by a syndicate, the moment an educational
institution applies to it. The syndicate after receiving such application has to consider the req uest
in accordance with section 31 of the Act, which is reproduced herein below: --
"31(1) An educational institution applying for affiliation to the University shall make an
application to the University and shall satisfy it -
(a) that the educational i nstitution is under the management of the government or of a
regularly constituted governing body;
(b) that the financial resources of the educational institution are sufficient to enable it to
make due provision for its continued maintenance and efficie nt working;
(c) that the strength and qualifications of the teaching and other staff, and the terms and
conditions of their services are adequate to make due provision for the courses of
instruction, teaching or training to be undertaken by the education al institution;
(d) that the educational institution has framed proper rules regarding the efficiency and
discipline of its staff and other employees;
(e) that the building in which the educational institution is to be located is suitable, and
that pro vision will be made, in conformity with the Rules and the Regulations for the
residence of students, not residing with their parents or guardians, in the hostels,
established and maintained by the educational institution or in hostels or lodging
approved b y it, and the supervision and general welfare of students;
(f) that provision has been made for a Library and adequate library services;
(g) that where affiliation is sought in any branch of experimental sciences, due
arrangements have been made for imparting instruction in that branch of science in a
properly equipped laboratory, museum and other places of practical work;
(h) that due provision will, so far as circumstances may permit, be made for the residence
of principal and members of the teach ing staff in or near the college or the place provided
for the residence of students; and
(i) that the affiliation of the educational institution, having regard to the provision which
may have been made for students by another educational institution in its neighborhood,
will not be injurious to the interest of education or discipline.
(2) The application shall further contain an undertaking that after the educational
institution is affiliated any transference of and changes in the management and in the
teaching staff, same in the case of government Colleges, shall be forthwith reported to the
University, and that the teaching staff shall posses such qualifications as are, or may be
prescribed.
(3) The procedure to be followed in disposing of an applic ation for the affiliation of .an
educational institution shall be such as may be prescribed.
(4) The Syndicate may, on the recommendation of the Affiliation Committee, grant
or refuse affiliation to an educational institution:
Provided that affiliation shall not be refused, unless the educational institution has been
given an opportunity of making a representation against the proposed decision.
If the Campus is affiliated, it does not mean that it becomes part of the University of the Cities
having ju risdiction in the area. The purpose for affiliation is to have a check on the standard of
education of said Campus.
The contention of petitioners that Campus of Al -Khair University at Quetta is recognized as
NOC has been obtained from Balochistan Univers ity, has no force at all because it has no
equivalence to affiliation. Since Al -Khair University has not properly applied for such purpose to
the Balochistan University in accordance with the provision of the Balochistan University Act,
nor through said NO C it has been affiliated, therefore, the Campus at Quetta, has got no legal
sanctity.
It is an admitted fact that Campuses of Al -Khair University at different Cities of Pakistan were
delivering LLB Degrees to students on the basis of which numerous degree holders have been
enrolled as an advocate. Pakistan Bar Council in its meeting held on 24 -3-2001 for the first time
took note of the fact that Al -Khair University is not recognized, therefore, imposed a ban upon
enrolment of candidates as an Advocat e, who obtained LLB Degrees from such University.
Before such resolution, all the Campuses of Al -Khair University at different Cities were
considered as recognized, therefore, numerous students all over Pakistan got admissions in such
Campuses. They have spent thousands of rupees to bear educational expenses and also spent
their precious time for getting law education. Their admissions were based on bona fide
intention, therefore, keeping in view such fact, the Pakistan Bar Council once again re -
considere d such aspect of the matter and passed another resolution on 30 -6-2001 at Quetta,
which is reproduced herein below: --
"After full length deliberations the Council, sticking to its earlier Resolution passed in its
130th meeting held on 24 -3-2001, on the r ecommendations of the Legal Education
Committee, decided that any person who had obtained LLB Degree from the Al -
Khair University Piror to the aforementioned resolution of the Pakistan Bar Council, may
be given opportunity to appear in an examination, comp rising of two papers i.e. C.P.C.
and Cr.P.C. to be conducted by the Pakistan Bar Council. Such law graduates should be
allowed any two chances to pass these papers.
The legal Education Committee was authorized to conduct such an examination. If any
such person qualifies the examination to be conducted by the Pakistan Bar Council
through its Legal Education Committee, would only be eligible to seek enrolment as an
Advocate with concerned Provincial Bar Council.
The modalities of the examination and other related details would be decided by the
Legal Education Committee"
In above resolution only those students were allowed to apply for enrolment as an advocate, who
have obtained their LLB Degree prior to above stated resolution, but they have not conside red
the fact that the students, who were already studying in said University/ Campuses before
passing of both of resolutions of Bar Council were also on same footings.
By not allowing them to apply to the Bar Council, amounts to discrimination, because o f the fact
that all the petitioners who were getting their legal education from Al -Khair University at Quetta
before the resolution, were also under the bona fide impression that it has duly been affiliated by
the University of Balochistan. In our view, it is the fault of Al -Khair University on one hand, by
not properly applying to the Balochistan University for affiliation and on the other hand,
Balochistan University is at fault by simply issuing NOC for establishment of said Campus.
Though NOC is not equ ivalent to affiliation, but still it had an impression on the raw minded
students that the Campus at Quetta is working legally and lawfully, thus, for the mistaken act or
fault of both the Universities, the students already got admissions or obtained degre es therefrom,
before the resolution of Pakistan Bar Council will not be penalized.
As far as the judgment relied upon by petitioners is concerned, facts and circumstances of said
case are slightly different from the facts and circumstances of present pet itions, however, in said
judgment, the resolution of Pakistan Bar Council has been endorsed. Since the petitioners in both
the petitions had got admissions in Quetta Campus of Al -Khair University before the year of
2001 and obtained degrees therefrom, ther efore, keeping in view the resolution of Pakistan Bar
Council they are also entitled to apply to the Bar Council concern for enrolment as an advocate.
While considering their case the Bar Council shall take not of the resolution of Pakistan Bar
Council as regards procedure for enrolment.
Since resolution of Pakistan Bar Council has been publicized, therefore, any person who got
admission in Al -Khair University after 2001 and obtained LLB degree therefrom, shall not be
considered for the purpose of enrolme nt as an advocate.
Thus, in view of above, we are inclined to accept the petitions and direct the respondents Nos. 1
to 3 to entertain applications of the petitioners for enrolment as Advocates of lower Courts
accordingly.
M.H./88/Q Petition all owed.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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