' SHUJAAT ALI KHAN, J.--- By virtue of instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed order dated 11-9-2012 passed by the District Education Officer (M-EE) Bahawalpur (respondent No.3).
2. Succinctly, on completion of recruitment process the petitioners were selected against the post of Elementary School Educators (ESE), vide Letters of Agreement dated 14-2-2012. Subsequently, respondent No.3 issued show-cause notice to the petitioners on the allegation that they did not possess requisite qualification for appointment against the said post to which they replied properly. However, vide impugned orders of even date contract of the petitioners was terminated; hence the instant petition.
3. Learned counsel for the petitioners, while opening his arguments, submits that after joining duties petitioners' case was covered under the principle of locus poenitentiae, thus, the impugned orders are not justified; that the degree of B.Com. Being equivalent to that of B.A. The observation of respondent No.3 that the petitioners did not possess requisite qualification for appointment against the said post is misconceived; that according to the comments submitted by the Higher Education Commission (HEC) the degree of B.Com. Has been held at par with that of BA, thus, impugned order cannot sustain for a moment; that after getting a degree of B.Com, petitioner No.1 also got degree of B.Ed. Which fact also lends support to the version of the petitioners that degree of B.Com is at par with that of B.A; that since no action has been taken against the persons who recruited the petitioners, the impugned orders amount to make the petitioners scapegoats for no fault on their part and that many persons have been appointed in the education department on the basis of equivalent qualification whereas the petitioners have been treated discriminately.
4. Learned A.A.-G, while controverting the contentions urged by learned counsel for the petitioners, submits that according to the prescribed qualification, mentioned in the advertisement pursuant whereto the petitioners applied for the said post, neither B.Com. Degree holders were allowed to apply nor there was any question of equivalence, thus, contract of the petitioners was rightly terminated; that the petitioners, being contract employees, have no vested right to complete their period of contract; that during pendency of this petition, HEC was impleaded as party to know the exact position and according to the report and parawise comments submitted on behalf of HEC it is clear that though in respect of duration of studies both the degrees of B.Com. And B.A. Are parallel but they cannot be used as substitute for each other; that according to agreement of contract respondent No.3 enjoys powers to terminate services of any appointee whose qualification is subsequently found below the mark and no illegality has been committed by respondent No.3 while passing the impugned orders.
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the report and parawise comments submitted on behalf of the respondents.
6. A perusal of advertisement shows that for the post of ESE following qualification was stipulated:-- - "BA/BSc/BS (Honors) (2nd div) and FSc with Physics, Chemistry, Biology/Math OR BS. Ed (2"" div) in Science Subjects as mentioned above."
Admittedly, the petitioners hold the degrees of B.Com. Now the questions which surfaces for determination by this Court is as to whether degree of B.Com can be equated with that of B.A? If so whether petitioners were eligible to apply against the post. To resolve the controversy a perusal of report and parawise comments, submitted by HEC are of paramount consideration, paragraph No.3 whereof is reproduced herein below:--- "The Bachelor of Arts and Bachelor of Commerce degrees are awarded after completion of 14- year of schooling with entry requirement of Intermediate/I2-year schooling. These degrees are equivalent in terms of duration of studies and year of schooling, but are awarded in distinct disciplines with different nomenclatures. Therefore, these degrees cannot substitute each other. It is upto the employer to determine the eligibility of petitioner as per their recruitment rules and this Commission has no role in such manner. "
' According to afore-quoted portion from the comments of HEC there is no ambiguity left to state that the degrees of B.A. And B.Com. Are at par in respect of duration of studies as both are issued on completion of 14 years of studies whereas the same cannot be used in place of each other. For example if a person is to be recruited against a post for commerce subjects, it is of common knowledge that a candidate having B.A. Degree would not be a fit person rather the one having a degree in commerce subjects would be most suitable person. Insofar as the case in hand is concerned, when the competent authority, which otherwise is considered to be the best judge to determine the eligibility of a person for appointment against a particular post, has decided to induct those persons who possess degrees in a specific field no exception can be taken by this A Court in exercise of its powers vested under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. Reliance in this regard is placed on the case reported as Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others (2014 SCMR 949) wherein the august Supreme Court of Pakistan has inter-alia observed as under:--- "Indeed, if we allow these petitions substantial hardship is likely to be caused to many of the respondents/appointees who will lose their appointment/jobs because of the illegalities in their respective appointments committed by EON, but the fact remains that such ill-gotten gains cannot be defended/protected under any cannon of law or even on humanitarian considerations, as, such gains availed by the illegal appointees were at the cost of other deserving candidates who had applied for these posts, being citizens of this country, with a legitimate expectation that they would be able to seek appointment on the basis of their eligibility-cum-merit criteria to be observed as per the applicable rules and regulations of the EOBI." (emphasis provided).
' Moreover, the question regarding appointment against different posts of Educators, on the basis of equivalent qualification, came under discussion before this Court in the case of Rao Muhammad Aftab v. Province of Punjab through Secretary Schools Education, Lahore. And 3 others (2014 PLC (C.S.) 39) wherein while responding to similar question it has inter alia been held as under:--- "Had the intention of the respondents/department been to also appoint candidates having qualification equivalent to FSc. (Physics, Chemistry, Biology/Mathematics) it would have stipulated this in the advertisement seeking applications. Non-mentioning of this fact in the advertisement means that they only require candidates having qualification as laid down in the advertisement.
' As the petitioner does not fulfill the criteria as laid down in the advertisement as such apparently there appears to be no illegality or irregularity on the part of the respondents while rejecting his application for the post of ESE (Science-Math). Resultantly, this petition has no force and the same stands dismissed in litnine."
' Further the said point was also adjudicated upon by this Court in the case of Abdul Latif and others v. Government of the Punjab and others (2003 PLC (C.S.) 975) wherein it has been observed as under:---
9. The petitioners admittedly do not possess Degree of M.A. Or M.Sc. Petitioner No.3, possesses B.A.
Degree while the remaining petitioners possesses B.Sc. Degree. Although they do possess the requisite professional Degree viz M.A.Ed. But requirement for the post applied by them was also C that of an Academic Degree of MA., MSc. Which they admittedly do not possess; hence they cannot be deemed to possess the requisite qualification for the post applied for by them i.e. S.S. Educators, basic qualification for which was MA. Or M. Sc. With Additional Qualification of a Professional Degree."
' After perusal of afore-quoted judgment of this Court, this Court is left with no option but to hold that the petitioners did not possess prescribed qualification at the relevant time, thus, the impugned orders are unexceptionable.
7. Even otherwise, if for the sake of arguments it is admitted for a moment that B.Com. Degree is equivalent to B.A., even then petitioners do not fulfill the eligibility criteria as there is no mention of equivalent C qualification in the advertisement pursuant whereto the petitioners applied against the post in question.
8. Insofar as applicability of principle of locus poenitentiae is concerned, suffice it to observe that in ordinary course when a concrete step has been taken towards implementation of an order, the same cannot be withdrawn subsequently but where the very edifice of the said order is unfounded the same cannot be let unnoticed on the ground of locus poenitentiae. Reliance in this regard can be placed on the case reported as Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others (2009 PLC (C.S.) I61) wherein the apex Court of the Country has laid law to the following effect:--- "*The contention on behalf of the petitioner that the order, dated 24-11-1997 had been acted upon, therefore, a vested right had been conferred on the petitioner to continue on the post, of Director (Administration) in Sindh Seed Corporation, in view of the principle of locus poenitentiae is misconceived as' this principle can be invoked only in respect of, an order which is legal and not in respect of an order which is contrary to and in contravention of any provision of law or the rules made thereunder or a settled provision of law. If any authority is required in support of above proposition the same is available from the judgments in the cases of (i) The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and (ii)
Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907. In both the above referred cases this Court had categorically stated that principle of locus poenitentiae would be applicable in respect of an order passed by an authority who was competent to pass an order in accordance with law and that the order so passed was not in violation or contravention of any law and/or rules made thereunder. In the case of Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries, and Livestock Department, Karachi and 3 others (supra) this Court categorically pronounced that the concept of locus poenitentiae is the power to recede till a decisive step is taken but it is not a principle of law that order once passed become irrevocable and a past and closed transaction. It was also laid down that if the order was illegal then perpetual right could not be gained on the basis of such an illegal order."
9. So far as plea of the petitioners that no action has been taken against the persons who issued appointment letter to the petitioners, I am of the hum* opinion that according to the letter of agreement it has been mentioned in clear cut words that the contract of the appointee shall be liable to termination if during the scrutiny he is found ineligible for the said post. A perusal of documents annexed with this petition shows that while coming to know the said deficiency, instead of straightaway terminating contract of the petitioners, the competent authority issued Show- Cause Notice to them but when they failed to provide any justification for their appointment, their contract was terminated. Thus, the question regarding initiation of departmental proceedings against the competent authority is immaterial.
10. Further, a contract employee instead of pressing his reinstatement in service can only claim damages to the extent of F unexpired period as held by the august Supreme Court of Pakistan in the case reported as Federation of Pakistan v. Muhammad Azam Chattha (2013 SCMR 120) in the following words:--- "In addition to it, it is cardinal principle of law that a contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service."
11. For what has been discussed above, instant writ petition is hereby dismissed with no order as to.