Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 9.4.2003 passed by learned Division Bench of the Peshawar High Court, Peshawar, whereby writ petition preferred on behalf of Sarli Gul (petitioner) has been dismissed and the order of learned Election Tribunal dated 22.7.2002 has been kept intact whereby petitioner was found disqualified being non-matriculate to contest election for the post of Nazim.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "the election to the office of Nazim and Naib Nazim, Union Council Shah Pur, District Kohat, held in March 2001. Sarli Gul and Abdul Manan joint candidates for the post of Nazim and Naib Nazim respectively were declared successful securing 1814 votes whereas Fayaz Ahmed and Qadir Khan were runners-up with 1151 votes. There were two other pairs of candidates. Fayaz Ahad and Qadir Khan filed election petition before the Election Tribunal questioning the election of the returned candidates on the ground that Sarli Gul was disqualified from contesting election under Section 14(1)(a) of the N. W.F.P. Local Government Election Ordinance 2000 (hereinafter called the Ordinance 2000), that he did not poss'ess the qualification of matric. Sarli Gul appeared before the Election Tribunal and submitted reply. He refuted the election regarding his qualification and pieced reliance upon the Army Education Certificates (AE. C-1), which he stated was equivalent to matric. He pleaded that his certificate was accepted by the returning officer when he submitted the same with his nomination papers and that no abjection was raised by any of the candidates at the scrutiny of the nomination papers." The Tribunal after completion of formalities and recording of evidence pro and contra found Sarli Gul (petitioner) disqualified by means of order dated 22.7.2002 being non-matriculate i,e, below the prescribed qualification under Section 14(1)(a) of the N.W.F.P. Local Government Election Ordinance 2000 (hereinafter referred to as "the Ordinance 2000") for the office of Nazim. The petitioner being discontented challenged the order dated 22.7.2002 of the Election Tribunal by means of preferring a writ petition which has been dismissed vide judgment impugned, hence this petition.
3. Syed Iftikhar Hussain Gillani, learned Sr. ASC entered appearance on behalf of petitioner and contended strenuously that the legal and factual aspects of the controversy have not been appreciated in its true perspective by the learned High Court and the Election Tribunal resulting in grave miscarriage of justice. It is next contended that the law prescribing the qualification for a candidate to be elected as Nazim/Naib Nazim does not recognize the University Grants Commission or any other authority to grant equivalence certificate of the contesting candidate. It is stressed time and again that the certificate of educational qualification duly issued by the employer of the petitioner should have been accepted. It is further argued that the Army Education Certificate (A.E.C.) can be considered equivalent to matric on the basis whereof the petitioner was promoted to the rank of Naib Subedar in 1994. It is urged with vehemence that the election petition filed by the respondents before the Election Tribunal and not having been verified in the manner laid down in C.P.C., was not maintainable in view of the provisions as contained in Rule 78 of the N.W.F.P. Local Government Election Rules 2000 and should have been dismissed by the learned Election Tribunal which could not be done without any rhyme and reason. In order to substantiate this point, the following case law has been referred: "Raja Muhammad Afzal v. Ch. Muhammad Latif Hussain and others (1986 SCM R 1736), Engr. Iqbal Zafar Jhagra and others v. Khalilur-Rehman and 4 others (2000 SCM R 250) and Election Commission of Pakistan though its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396)"
4. Mr. Muhammad Munir Peracha, learned ASC on behalf of caveator and Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan, on Court's notice have supported the judgment impugned for the reasons enumerated therein with the further submission that the petitioner was not qualified to contest election for the office of Nazim and the question of equivalence has rightly been determined by the Board meant for the purpose.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in light of record of the case and relevant provisions of the Ordinance 2000 and rules made thereunder. After having gone through the entire record we are of the view that the question as to whether Sarli Gul (petitioner) is matriculate or otherwise, being a question of fact has rightly been determined by the learned Election Tribunal and determination whereof has been affirmed by the learned High Court could not be reversed without sufficient lawful justification which is lacking in this case. We have absolutely no hesitation in our mind in holding that the Inter Board Committee of Chairman, Government of Pakistan Ministry of Education, Islamabad is the only competent authority to determine the question of equivalent up to intermediate. In this regard we are fortified by the dictum as laid down in case titled Mobeen Sheikh v. Federation of Pakistan (1998 SCM R 2701). The Board has determined the question of equivalence of qualification of petitioner i,e, A.E.C.-1 certificate which was found equivalent to middle standard. In view of the categoric finding of the Board, the qualification possessed by the petitioner i,e, A.E.C-1 Certificate could not be equated to that of matric which is the requisite qualification for the office of Nazim. There is no doubt that the petitioner was promoted as Naib Subedar on the basis of A.E.C-1 Certificate which would have no substantial bearing on the merits of the case because his promotion cannot improve his qualifications which would remain equal to that of middle standard. The determination of the Board also finds support from "Red Book" (which prescribes standard of the various qualifications of Pakistan Army) according to which the qualification of petitioner is equivalent to anglo vernacular which is middle standard.
6. We have also examined the question of verification of the election petition in absence whereof according to Syed Iftikhar Hussain Gillani learned Sr. ASC for petitioner, the election petition should have been dismissed pursuant to the provisions as enumerated in Rule 78 of the N.W.F.P. Local Government Election Rules 2000. The said contention has been made in oblivion of the fact that word "may" has been used in Rule 7 which makes the provision/directory/discretionary instead of mandatory The authorities cited by Syed Iftikhar Hussain Gillani, learned ASC of behalf of petitioner are not applicable in this case because the provisions a contained in Rule 73(3) read with Rule 78 of N.W.F.P. Local Government Election Rules 2000, Section 55(3), Section 63 of the Representation of the Peoples Act, 1976, Section 36(3) and Section 44 of the Senate Election Act 1975 are not at par which remained subject to discussion in the case la cited by Syed Iftikhar Hussain Gillani, learned Sr. ASC.
7. In the light of what has been mentioned herein above, the conclusion as arrived at by the learned Election Tribunal findings whereof were affirmed by the High Court being well based does not warrant interference. The petition being devoid of merits is dismissed and leave refused.