IBAD-UR-REHMAN LODHI, J. --- Through this single judgment we intend to decide W.Ps. Nos. 16844, 15724, 15918, 15569, 14929, 9878, 1229, 21755, 15813, 2130, 3519, 4208, 3002, 5468, 23465, 3415 of 2010, 23067 of 2009 and I.C.As. Nos. 249, 87, 248, 257, 258 of 2010 as common questions of law and facts are involved in all the matters.
2. In I.C.A. No. 87 of 2010, the findings by learned Single Judge of this Court in W.P. No. 22810 of 2009 on 29.01.2010 have been called in question which for convenience and ready reference is hereby reproduced below:--- "I am not convinced, if the diploma of the petitioner is from a recognized university qualifying for the job. No case for inference in the Constitutional jurisdiction is made out. Dismissed."
Whereas I.C.A. Nos. 248, 249, 257 and 258 of 2010 had been filed by the department, raising grievance with regard to a judgment passed by a learned Single Judge of this Court, sitting at Multan Bench, in W.P.No. 3587 of 2010 on 2106.2010 whereby a petition filed by a number of candidates was allowed, whoa Were deprived from being considered for appointment against the posts of Senior Elementary School Educators on the plea that the diploma, which petitioners got, was not recognized by the Higher Education Commission.
Whereas the writ petitions which were placed for final adjudication before this Court's Division Bench, for the reasons that the above-noted I.C.As. On the same subject were being heard by this Bench have been filed by the diploma holders who were awarded the diplomas by Skill Development Council and again with the same plea that their diplomas were not issued by an authorized body and that Higher Education Commission has given no sanction to such diploma, the writ petitioners were refused to be considered for appointment against the post of Senior Elementary School Educators.
3. The controversy started when in different Districts of Province, applications were invited from the candidates to be appointed inter alla as Senior Elementary School Educator in Physical Education or Art and Drawing. The required qualification for such posts was given as B.A. With a diploma in the required faculty. The writ petitioners considered themselves to be eligible candidates as per the requirements raised by the appointing authorities on the strength of the diploma awarded by the Skill Development Council applied for job, but when they were refused to be considered for the said job on the plea firstly that the Skill Development Council was having no jurisdiction to award any diploma and secondly that Higher Education Commission has not extended any recognition to such diploma and also the Skill Development Council as diploma awarding authority. Such refusal on the part of respondents resulted in filing of Constitutional petitions.
4. In 1980, it was felt expedient to constitute Training Boards to regulate and promote vocational training facilities in various fields and to provide for financing of training programmes thereto and keeping in view such requirements, in mind, Ordinance IX of 1980 i.e. National Training Ordinance, 1980 was promulgated. Section 3(i) of the said Ordinance provides the constitution of National Training Board, which was given the status of body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property. The composition of the. Board as was provided in Section 3 of the said Ordinance demonstrate that from almost every branch of Government, there was representation in that Board.
5. In 2002 some amendments were made in Ordinance IX of 1980 by virtue of Ordinance II of 2002 i.e. National Training (Amendment) Ordinance, 2002 and in said amending Ordinance for the first time the concept of Skill Development Council was introduced and in Section 2 of the original text clause (fb) was inserted providing the constitution of Skill Development Council constituted by the National Training Board under Section 4(2) of the Original Ordinance. The provisions of Section 4(i)
(xi) (d) (e), (Xlllb) and (Xlllc) are of much significance for the present purpose and joint reading of all the provisions noted above give us a clear picture to the effect that the subject of Technical Education and Vocational Training would be included in the functions of the Boards and Council and Institutions for said purposes can be established in collaboration with private sector to promote Technical and Vocational Skill and also to develop a system for certification of skilled workers, who have received vocational training through any source or acquired skill through experience informal system. From the above it is thus clear that the Skill Development Council under the supervision of National Training Board would be competent to impart skilled education and for that purpose as an ancillary and incidental matter to collaborate with private sector and to certify the skilled workers. The diplomas as such issued by the Skill Development Council to the students of different institutions recognized by the Council or the Board would be a valid certificate in recognition of the Skill Education and Training which the petitioners received from such institutions.
6. Now the question left as to what could have been the role of Higher Education Commission in recognition or otherwise of such diplomas and as to whether the refusal on the part of Higher Education Commission in recognizing the writ petitioners as a valid diploma holders, would be having some sanctity under the law or it is an action beyond the mandate of the Higher Education Commission.
7. The Higher Education Commission was constituted under Ordinance LIII of 2002 i.e. Higher Education Commission Ordinance, 2002. As the preamble is always considered the key to legislation, therefore, we have to go through the preamble of this Ordinance which provides that:-- - -"Whereas in the interest of improvement and promotion of higher education, research and development it is expedient to provide for the establishment of a Higher Education Commission and for matters connected therewith or incidental thereto"
A Commission constituted for said purpose. The things would have been clear even by going through the preamble but it makes it more clear when one goes to see the definition of Higher Education as provided in Section 2(g) of the said Ordinance which reads as under:- "Higher Education" means education at bachelor's and higher level degree courses including postgraduate certificates, diplomas and research and development activities."
Before us the claim of the petitioners has not been controverted by any side to the effect that the diploma courses for which the Skill Development Council has awarded the diplomas to the writ petitioners was/is a post rnatric education. Thus viewing from any angle the diploma awarded by Skill Development Council would not come within the ambit of any jurisdiction of the Higher Education Commission. The education or training imparted through different institutions under the supervision of National Training Board or Skill Development Council is independently to be dealt with by the said independent -bodies having statutory backing and the involvement of the. Higher Education Commission in such like matters would be an excessive act on the part of the Commission. The Commission is not permitted to exceed its jurisdiction by interfering into what we can call the affairs of "Lower Education".
8. Learned counsel for the petitioners have drawn our attention to the fact that on the basis of diploma issued by Skill Development Council, some persons by the Government of Punjab were employed as Senior Elementary School Educators and on going through the record we found that Miss Saima from, Miss Samina Yasmin, Miss Aasia Naz, Miss Rukhsana Parveen and Miss Roheena Nawab have been appointed as Senior Elementary School Educators in District Layyah which is evident from the record of W.P. No. 1229/2010.
Similar is the case in the matter of Miss Fayyza whose appointment letter is available in the file of I.C.A. No. 87/2010 who has been appointed as Senior Elementary School Educator in District Hafizabad.
9. In such view of the matter, the petitioners herein or private respondent in I.C.As. Are discriminated against which is clear violation of the provisions of Articles 4 & 25 of Constitution of the Islamic Republic of Pakistan, 1973 which provides that:- "To enjoy the protection of law and to be treated in accordance with law is an inalienable right of every citizen of Pakistan and that all citizens are equal before law and are entitled to equal protection of law and there shall be no discrimination amongst similar placed persons."
The action of the respondents in refusing the petitioners from being considered as to their suitability to be appointed to the posts for which they were duly qualified is violative to the Constitutional provisions.
10. The learned Addl. A.G. Representing the provincial authorities has placed on record a copy of Office Memorandum issued by Assistant Director, sitting in Ministry of Labour and Manpower on 02.06.2010, commenting upon competency or otherwise of Skill Development Council in awarding the certificates to the students of institutions imparting technical education. The statutory provisions empowering the National Training Board or Skill Development Council, as discussed above, would be in clear conflict of such direction contained in such Office Memorandum and by taking guidance from the esteemed view of the Hon'ble Supreme Court of Pakistan in case of Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others (2011 SCM R 408). We would prefer the statutory provisions to that of all the directions contained in the said Office Memorandum as the role of such directions or instructions is always to settlement and to never contradict with the statutory provisions. Such directions cannot abridge or run counter to statutory provisions and if there is any conflict between the directions of the statutory provisions, the latter would prevail as the departmental practice cannot amend or supersede the rules or statutory provisions. A statutory provision can only be amended by another piece of legislation and not through departmental instructions.
11. Learned DAG representing the Federation and Higher Education Commission has made a statement that on behalf of the Higher Education Commission, parawise comments were filed in W.P. No. 14929/2010 and the same be considered and treated as parawise comments in all the petitions pending decision. The comments so filed repeats the power of Commission in (sic) the degrees awarded by the Chartered University and degree awarded by institution and again it is the claim of the Commission that Skill Development Council is not recognized by the Higher Education Commission. We are afraid that the Commission itself is unaware of its mandate.
12. In view of above discussion, the Skill Development Council or as the case may be the National Training Board can in no way be the subject-matter of the Higher Education Commission, as, the Education or Training being imparted or recognized by the Council and the Board cannot be termed as Higher Education as contemplated in clause 2(g) of the Ordinance LIII of 2002:
13. The result of the above discussion is that the writ petitions filed by the diploma holder students are allowed.
The I.C.A. No. 87/2010 is also allowed by setting aside the order dated 29.01.2010 passed by the learned Single Judge of this Court in W.P. No. 22810/2009.
14. The I.C.A. Nos. 248, 249, 257 and 258 of 2010 filed by the department arising out of the judgment of learned Single Judge of this Court, sitting at Multan Bench, in W.P. No. 3587/2010, dated 23.06.2010 are dismissed by upholding the findings of the learned Single Judge.
The respondents are directed to entertain the applications of the petitioners for the posts of Senior Elementary School Educator and allow them to appear for test and interview for selection/recruitment to the said posts. Having in mind the miseries which the petitioners, educated persons have been facing while sitting idle in search of some employment, it is directed that special arrangements be made to conduct the test or interview within a period of one month of this judgment and to conclude the process positively within the given time after consideration all the candidates for the job applied. No order as to costs. .