Since similar questions of law and facts are involved, hence through this single Judgment, I proposed to dispose of following three Writ Petitions:--
(i) W.P. No, 5114 of 2005.
(ii) W.P. No, 5101 of 2005.
(iii) W.P. No, 5115 of 2005.
The petitioners in all these writ petitions are unsuccessful candidates for the seat of Nazitn and Naib Nazim of their respective Union Councils. In Writ Petition No, 5114 of 2005, the matter relates to Union Council. No, 38-Fateh Khan Nutkani, Tehsil Taunsa Sharif, District Dera Ghazi Khan, Writ Petition No, 5101 of 2005 and Writ Petition No, 5115 of 2005 relate to Union Council No, 8-Multan and Union Council No, 39-Tibbi Qaisarani, Tehsil Taunsa Sharif District Dera Ghazi Khan, respectively.
2. The grievance of the petitioners in Writ Petition No, 5114 of 2005 is that as Respondents Nos, 3 and 4, in Writ Petition No, 5101 of 2005 Respondents Nos, 4 and 5 and in Writ Petition No, 5115 of 2005 Respondents Nos, 3 and 3-A, contested the election of Nazim and Naib Nazim of their respective Union Councils, they were disqualified from contesting that election on the ground that either of said respondents in each writ petition, was not holding requisite educational qualification within the meaning of. Section 152(e) of Punjab Local Government Ordinance, 2001, hence their election for said offices as elective officers is liable to be declared as without lawful authority and of no legal effect.
3. The cause for seeking said respondents' disqualification, as alleged in respective writ petition is that in terms of Section 152(e) of Punjab Local Government Ordinance, 2001, the candidates of both the offices of Nazim and Naib Nazim must have academic qualification of not less than Matriculation or Secondary School Certificate or equivalence from a recognized Institution. But, since either of the two contesting respondents in each Writ Petition, was not holding the said requisite educational qualification of Matriculation, Secondary School Certificate or equivalence from any recognized Institution, rather are laying foundation of their qualification on the basis of SANADs known as "Shahadat ul Sanvia" issued by private religious Institutions, without having passed three subjects of English, Urdu and Pakistan Studies at Secondary School level i,e, Board of Intermediate & Secondary Education of Pakistan, coupled with a Certificate of equivalence issued by Inter Board Committee of Chairman, hence, their Nomination Papers were liable to be rejected.
In support of these writ petitions, reliance has been placed on- judgments delivered by this Court in "Muhammad Younas Iqbal and another versus District Returning Officer, Gujranwala and nine others" (PLD 2005 Lahore 695) and judgment of the Apex Court dated 16.8.2005 passed in "Sanaullah Khan and another versus District Returning Officer, Mianwali and others" (PLD 2005 S.0 858) and also passed in C.P. No, 1673-L/2005 in Muhammad Nadim's case on 24,8.2005 and in the case of 'Abdul Khaliq and another versus Maulvi Noor Muhammad and others" (PLD 2005 S.C. 962).
4. Earlier, all these writ petitions Were allowed by this Court vide order dated 25.8.2005 and the election of contesting respondents was declared as without lawful authority and of no legal effect however, the above-mentioned contesting respondents filed I.C.As and the learned Division Bench of this Court was pleased to remand these cases for decision afresh after affording opportunity of hearing to them, as according to the said learned Division Bench, earlier order had been passed either in the absence of contesting respondents or without any notice to them. These writ petitions have now been heard in the presence of learned counsels representing the petitioners as well as the contesting respondents in each writ petition.
5. At the very outset, learned counsel appearing on behalf of the contesting respondents have raised a preliminary objection with regard to the maintainability of these writ petitions on the ground that as the petitioners have got an alternate remedy by way of approaching the Election Tribunals constituted under Rule 67 of the Punjab Local Government Election Rules, 2005 and since the election disputes including pre-election disqualification of candidates can be decided and determined by the respective Election Tribunals, hence these Constitutional Petitions were no more maintainable. Reliance has been placed on the case "Ch. Nazir Ahmed and others versus Chief Election Commissioner and 4 others" (PLD 2002 S.C. 184) and "Muhammad Shavez Khan versus District Returning Officer, Attack and another" (2002 CLC 342).
6. On the other hand, learned counsel for the petitioners by placing reliance on the case "Dilawar Jan versus Gul Rehman and 5 others" (PLD 2001 SC 149) and "Government of Puidab through Collector, Faisalabad and another versus Hudabia Textile Mills, Faisalabad through Chairman and 4 others" (2001 SCMR 209), have argued that where the action/order impugned in the writ petition, suffers from jurisdictional defect or violates any provision of law and if the error is so glaring and patent that same may not be acceptable, invocation of constitutional jurisdiction is justified and this Court has got the jurisdiction to interfere in such like matters.
7. Before deciding this objection, I would like to dilate upon the main controversy with regard to qualification/disqualification of contesting respondents.
8. The question whether a person holding mereby a SANAD from some religious Institution, without passing three subjects of English, Urdu and Pakistan Studies and obtaining equivalence Certificate from Inter Board Committee of Chairman, could become a candidate, firstly arose on account of criteria laid down by Inter Board Committee of Chairman for such purpose vide memo No, IBCC/ES/MISC/1219 dated 21 July, 2005 which reads as under :-- "Subject: EQUIVALENCE OF MATRICULATION OR SECONDARY SCHOOL CERTIFICATE FROM RECOGNIZED INSTITUTIONS:-- Kindly refer to your letter No, F3(4)/2005-Elec. dated 21.7.2005 on the above subject. Inter Board.
Committee of Chairman considers the following certificates of local and foreign educational qualifications equivalent to Secondary School Certificate issued by any Board of Intermediate and Secondary Education in Pakistan:--
(i) Grade-1 from any recognized/accredited school/College in USA.
(ii) 0 Levels in five subjects UK including subject of English from any recognized institution located outside Pakistan.
(iii) 0 Levels in seven subjects including the compulsory Subjects of English, Urdu, Pakistan Studies and Islamist.
(iv) Shahadat ul Sanvia from any recognized institution/Wafaq located in Pakistan subject to passing the subjects of English, Urdu and Pakistan Studies at SSC level, from any BIS 'of Pakistan."
9. In terms of above mentioned memo any sand i,e, Shahadat ul Sanvia issued by any recognized Institution/Wafaq located in Pakistan can only be considered as equivalent to Matriculation certificate unless the holder of such a SAND has passed the subjects of English, Urdu and Pakistan Studies at Secondary School level from any Board of Intermediate and Secondary Education in Pakistan and unless the Inter Board Committee grants equivalence Certificate, no educational certificate can be considered as Matriculation Certificate regardless of the claim of the private Institutions or Foreign Institutions or any Organization, which might be running that Institutions.
10.Following the above memo of Inter Board Committee of Chairman Of Board of Intermediate and Secondary Education, while deciding W.P. No, 14075/2005 titled "Muhammad Younas and another versus D.R.O., etc" the worthy Chief Justice of this Court held as under:-- "Where an equivalence certificate is granted for a limited purpose, that certificate can be utilized by the, person, possessing that certificate, for that purpose only and not for any other purpose.
Equivalence denotes and means hundred per cent parity and equality in every sense. A limited, partial or substantial parity with the official Matriculation Certificate, cannot be treated as making a person eligible under Section 152(1)(e). Rather,, the very concept that a certificate, which is not hundred per cent at par or equivalent to the Matriculation Certificate, should be treated as such, is a preposterous and unacceptable. Such a certificate therefore, would not make a candidate eligible under Section 152(1)(e), of the Punjab Local Government Ordinance, 2001 to contest election for an office of a Local Government.
The legislative provisions relating to qualification Or eligibility of a particular candidate for the office of Nazini and/or Naib Nazim have to be construed strictly. Relaxation of criteria is not envisage by the law, because relaxing the criteria, would defeat the very purpose of the scheme of devolution of power, which is being enforced through the Ordinance and compromise in this contest is not permissible and no concession can be given to any candidate on any other considerations. A candidate must be matriculate in terms of provisions of Section 152 (1)(e) of the Ordinance to be eligible to contest the election. Sans Matriculation Certificate or a certificate, which has been declared to be a part in all respects, with the Matriculation or Secondary School Certificate, a candidate is ineligible to contest the election and cannot be permitted to take part in the election process.
In the case in hand, the petitioner Muhammad Asghar had relied upon a Sanad of a private institution, claiming the same to be certificate of Matriculation. His nomination papers were rejected on the ground that the candidate had failed to produce equivalence certificate to be issued by the Inter Board Committee of Chairman. Even in these proceedings, petitioners were afforded an opportunity to obtain certificate of equivalence from the Inter Board Committee of Chairman Despite availing of opportunity, petitioners were unable to produce the requisite certificate. As Petitioner No, 2 was not in possession of Matriculation or Secondary School Certificate, he could not claim himself to be qualified to be elected to an office of local Government."
The said judgment is now reported in PLD 2005 Lahore 695.
11. Similar question also came under consideration before the Apex Court of Pakistan in the cases cited in para-3 above, and the Hon'ble Supreme Court of Pakistan after surveying the entire law on the subject, held that where a candidate was holding SANAD issued by Deem Madaris having not been approved/recognized by U.G.C./H.E.C. or he has not passed examination in additional subjects of English, Urdu and Pakistan Studies from any recognized Institution by the Government nor has obtained equivalence Certificate, was not qualified to contest the election of either Nazim or Naib Nazim. In view of the above mentioned law declared by the Hon'ble Supreme Court, there is no doubt left with regard to disqualification of contesting respondents in each writ petition, because either of two respondents in each petition, is carrying SANAD issued by different religious Institvtions, neither recognized by U.G.C./H.E.C. nor they qualified in said three additional subjects and also is not in possession of equivalence Certificate from Inter Board Committee of Chairman, therefore, disqualification of both the contesting respondents in each writ petition is not only patent and glaring but is also floating on the surface, requiring no factual inquiry by the Election Tribunal, therefore, the objection raised by the learned counsel for the contesting respondents about maintainability of these Constitutional Petitions, is repelled.
12.Respectfully following the law declared by the Apex Court as well as this court in the above referred judgments, I have no hesitation to hold that since either of the two contesting respondents in each of these writ petitions, contested the election of Nazim or Naib Nazim of their respective.
Union Councils on the basis of SANAD known as Shahadat-ul-Sanvia issued by institutions not recognized. by U.G.C./H.E.C.; without having passed additional subjects of English, Urdu and Pak Studies and further without obtaining an equivalence Certificate from Inter Board Committee of Chairman, thus they were disqualified from contesting the said election and A are also not entitled to hold the said elective offices. Resultantly, all these Constitutional Petitions (W.P.No, 5114/2005), W.P. No, 5101/2005 as well as W.P. No, 5115/2005) are accepted and the Nomination Papers of contesting respondents in, each petition, for the election of Nazim and Naib Nazim of their respective Union Councils are rejected, as such their election for the said offices is declared as without lawful authority and of no legal effect.
13. All these three matters are however, referred to the worthy Chief Elections Commissioner of Pakistan, who is also sitting Judge of the Hon'ble Supreme Court of Pakistan, in terms of Section 152(2) read with Section 161 of the Punjab Local Government Ordinance, 2001 for passing appropriate orders on all these references.